Barstow v. State

• Decision Date: 02 December 1987
• Docket Number: No. 3-86-016-CV,3-86-016-CV
• Parties: Robert G. BARSTOW, Appellant, v. The STATE of Texas and County of Travis, Appellees.
• Court: Texas Court of Appeals

Page 495

742 S.W.2d 495

Robert G. BARSTOW, Appellant, v. The STATE of Texas and County of Travis, Appellees.

No. 3-86-016-CV.

Court of Appeals of Texas Austin.

Dec. 2, 1987.

Rehearing Denied Jan. 13, 1988.

Thomas B. Hudson, Jr., Graves, Dougherty, Hearon & Moody, Austin, for appellant.

James B. Ewbank, Davis, Cantilo, Welch & Ewbank, Austin, for appellees.

Before POWERS, BRADY and ABOUSSIE, JJ.

POWERS, Justice.

Robert G. Barstow appeals from a district-court judgment, rendered after a jury trial, that decrees the following relief in favor of appellees, the State of Texas and Travis County: (1) the establishment of a road easement in favor of the public across two lots owned by Barstow; and (2) a partition of one of the lots in which Barstow and the County held undivided fractional interests. We will affirm that part of the judgment partitioning one of the lots; we will reverse that part establishing a road easement, rendering judgment that appellees take nothing in that regard.

THE CONTROVERSIES

The lawsuit pertains to two adjoining lots in the Comanche Point Subdivision on the Lake Travis Reservoir in Travis County. One of the lots is known as Lot 24A, the other as Fisher Reserve No. 2. The latter lot shares a common boundary with another lot owned by the Lower Colorado River Authority ("LCRA"). The three lots, together with another privately owned lot, comprise "Windy Point" on Lake Travis.

The LCRA lot is a place of public resort and recreation on the lake. The public has access to the lot via an adjoining county road, as indicated on the attached drawing. The drawing also shows that the LCRA lot is largely divided into two parts by the waters of the lake, even when the waters are at the 670-foot level. When the waters rise above that level, the public use an elevated causeway erected by the County to connect the western and eastern parts of the LCRA lot. Occasionally, however, the waters rise sufficiently to inundate even the causeway itself. The public has been accustomed to traversing a way across Lot 24A and Fisher Reserve No. 2, as indicated on the drawing, whether the causeway is submerged or not. This pathway is between one-half and six-tenths of a mile in length.

Barstow holds record title to Lot 24A; he and the County hold record title as tenants in common in Fisher Reserve No. 2. Both lots were previously owned by one Bob Wentz, who acquired them in 1948. Title descended to Wentz' heirs when he died in 1957. In 1963, the Wentz heirs conveyed Lot 24A to Colonel and Mrs. John Kummer, who, in turn, conveyed the lot to Barstow in 1976. In 1981, some of the Wentz heirs conveyed to Barstow an undivided fractional interest in Fisher Reserve No. 2. Thereafter, in 1983 and 1984, the Wentz heirs conveyed to Travis County all their remaining interest in Fisher Reserve No. 2. Thus, the county became a tenant in common with Barstow.

In the cause on appeal, appellees sued Barstow to establish a public easement coextensive with the way used by the public across Lot 24A and Fisher Reserve No. 2. They contended for that easement on two theories alleged in their trial petition: (1) an easement by prescription and (2) an implied dedication of the way to the public. The County also sued for a partition of Fisher Reserve No. 2 according to the fractional undivided interests held by the County and Barstow in that lot. Following the jury's return of a verdict on special issues, the trial court rendered judgment establishing the public easement (but without specifying upon which of the two alleged theories the judgment rested) and ordering partition of Fisher Reserve No. 2 on the basis of Barstow owning a 45% fractional interest and the County a 55% fractional interest. On appeal, Barstow attacks both aspects of the trial-court judgment.

EASEMENT BY PRESCRIPTION

It is well-settled that the public may, through use of a roadway under a claim of right hostile and adverse to the owner's claim, acquire by prescription a public easement across the owner's land. The requisite period of use is ten years by analogy to Tex.Civ.Prac. & Rem.Code Ann. §§ 16.021, 16.026 (1986) and predecessor statutes. ¹ See Haas v. Choussard, 17 Tex. 588, 591 (1856); Wiegand v. Riojas, 547 S.W.2d 287, 289 (Tex.Civ.App.1977, no writ); Childress, Does Public User Give Rise to a Prescriptive Easement or Is It Merely Evidence of Dedication?, 6 Tex.L.Rev. 365 (1928).

The jury found in answer to special issues that the public had used the roadway under a claim of right, adverse and hostile to Barstow's claim, for a period of ten continuous years. The judgment may possibly rest on those findings. If so, Barstow contends the judgment is erroneous for the reasons next to be discussed.

Applicability of the Soldiers' and Sailors' Civil Relief Act. Barstow contends the judgment is erroneous for failing to give effect to the Soldiers and Sailors Civil Relief Act, 50 U.S.C.App. § 525 (1981) (hereinafter "SSCRA"). The SSCRA was enacted in 1940 for the direct and indirect benefit of those on active service in the military and naval forces of the United States, as was the case under an antecedent statute. Section 525 provides:

The period of military service shall not be included in computing any period ... for the bringing of any action ... in any court ... by ... any person in military service or by ... his heirs, executors, administrators, or assigns, whether such cause of action ... shall have accrued prior to or during the period of such service....

If applicable to the case, § 525 requires that Colonel Kummer's period of active service be deducted in computing the ten-year limitation period necessary for appellees to acquire title by prescription. Tex.Civ.Prac. & Rem.Code § 16.021, supra; Easterling v. Murphey, 11 S.W.2d 329 (Tex.Civ.App.1928, writ ref'd n.r.e.); Scruggs v. Troncalli, 307 S.W.2d 300 (Tex.Civ.App.1957, writ ref'd n.r.e.).

Barstow reasons that § 525 is applicable to the case because the undisputed evidence shows that in 1976 he received conveyance of Lot 24A from Colonel Kummer; that Colonel Kummer was on active service in the United States Air Force when he acquired the lot in April 1963; and, that he remained on active service until his retirement in April 1973. Appellees rejoin that § 525 is not applicable because the protection given therein is personal to the servicemember.

The intent in § 525 is plain and express that the period of military service shall not be included even when the action is brought by the "assigns" of one in military service. It is equally plain that § 525 was meant to apply to actions for real property as well as intangible claims. We therefore construe the word "assigns" to include those, such as Barstow, who take real property by grant from the servicemember. See Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364, 365 (1892); Neeley v. Intercity Management Corp., 623 S.W.2d 942, 951 (Tex.App.1981, no writ). We hold then that the provisions of § 525 are not barred from application here merely because Colonel Kummer did not personally bring his cause of action for recovery of possession.

Appellees next oppose any application of § 525 in the present case because, they contend, that statute does not extend the limitations period in favor of a "career serviceman," even though he is literally a "person in military service" to whom the statute nominally applies. Pannell v. Continental Can Co., 554 F.2d 216, 255 (5th Cir.1977). We disagree with this construction of § 525. Such an exception is not contained in the text of § 525 nor is it dictated by any other provision of the SSCRA we have found. If such an exception exists, it must be by reason of judicial construction.

In the Pannell decision, the period of the servicemember's active service was included in the limitations period because the evidence did not show that he was "handicapped by his military service from asserting any claim he had prior to the expiration of the prescribed period"; and, in consequence, "the prescriptive period was not tolled as to him." 554 F.2d at 225. The only relevant judicial decisions cited in Pannell deal with statutory periods allowed for the redemption of property sold to enforce the owner's liability for property taxes--the same circumstances present in Pannell.

We note, in that regard, that other sections of the SSCRA do provide that military service must materially prejudice the servicemember before the SSCRA protections may apply. For example, § 590 of the SSCRA permits a court to give relief from the enforced collection of taxes "unless in its opinion the ability of the applicant to comply with the terms of such obligation or liability or to pay such tax or assessment has not been materially affected by reason of his military service," as determined after notice and hearing; the burden of proof being implicitly placed on the opposing party. This is not the tenor and effect of § 525, the text of which is distinctly different: "The period of military service shall not be included ..." (emphasis added). Section 590 does demonstrate, however, that Congress could have expressly included a similar provision had it acted with that intention in promulgating § 525.

We believe, in addition, that the "career serviceman" exception created in Pannell, with respect to § 525, cannot be judicially administered in the naked way suggested in that opinion. The term "career serviceman" implies no definite or agreed standard commensurate with its importance if it is to be a legal determinant of whether a servicemember shall be excluded from the protection of § 525. The term "career serviceman" is obviously not a fact, but rather a conclusion drawn from facts considered in light of some applicable legal criteria. But what shall constitute the criteria for a "career" soldier, sailor, or airman for the purposes of applying § 525? What issues of fact and law determine that an individual is a "career serviceman" and when he acquired...