Bickler v. Bickler

• Decision Date: 19 May 1965
• Docket Number: No. 11298,11298
• Citation: 391 S.W.2d 106
• Parties: Ralph A. BICKLER, Appellant, v. Max BICKLER et ux., Appellees.
• Court: Texas Court of Appeals

Page 106

391 S.W.2d 106

Ralph A. BICKLER, Appellant, v. Max BICKLER et ux., Appellees.

No. 11298.

Court of Civil Appeals of Texas, Austin.

May 19, 1965.

Rehearing Denied June 9, 1965.

Sneed & Vine, Jerome Sneed, Jr., J. P. Darrouzet, Austin, for appellant.

Kuykendall & Kuykendall, F. L. Kuykendall, Austin, for appellees.

PHILLIPS, Justice.

This case involves a suit brought by Ralph Bickler against Max Bickler to establish an easement in a driveway on the property adjoining his and owned by Max Bickler and also to establish ownership of a 1-ft. 8-in. strip of land lying between his property and the adjoining property of his brother Max.

After trail to the court and after filing extensive findings of fact and conclusions of law, the court held that Ralph did not have an easement over the driveway and did not own the 1.8-foot strip in controversy. The court also ordered Ralph to remove a portion of a concrete walkway that extended onto Max's property.

We affirm the judgment of the trial court.

In 1908 appellee, Max Bickler, and his brother Harry acquired a tract of land in Austin located on West 16th Street.

In 1909 Max and Harry partitioned a portion of this property between themselves and in 1915 they executed a correction deed. In this latter deed, Harry's property was extended two feet to the east, and Max's east line was extended six feet to the east to take in the already existing driveway which is in controversy here and which was then lying on property that had not been partitioned and was still owned in common by Max and Harry.

16th Street runs east and west. The Bickler property lays to the south of 16th Street. After the abovementioned partition and correction thereof, Harry owned a lot abutting 16th Street on the north, immediately adjoining him and to the east lay Max's property and immediately adjoining Max's property to the east lay an undivided strip owned in common by Harry and Max.

In 1915 Harry and Max conveyed the north portion of this undivided strip (a metes and bounds description not being necessary here) to Sam Sparks. The north end of this portion conveyed to Sparks abutted 16th Street.

At a date not important to this opinion Mrs. Jacob Bickler, the mother of the litigants herein, purchased a 15-foot strip from Sam Sparks. This strip extended across the entire south portion of the Sparks' strip previously purchased from Max and Harry.

In 1916 and after the abovementioned conveyance to Sparks, Max and Harry and all of the other children of Martha and Jacob Bickler (including plaintiff-appellant Ralph) entered into an agreement with reference to a house for their mother (Jacob Bickler their father being dead at this time) to be placed on that portion of the property still owned in common by Harry and Max. This property lay immediately to the sough of the property Harry and Max had conveyed to Sparks and south of, and adjoining, the strip purchased from Sparks by Mother Bickler. This property was cut off from any access to 16th Street other than by the driveway in controversy that joined it through Max's property immediately to the west.

This agreemeent to build a house for Mother Bickler that the children entered into recited the amount that the house was to cost, the contribution due from each child and also that at Mother Bickler's death either plaintiff-appellant Ralph or his brother George (who both lived with Mother Bickler up until the time of her death) would have a right to purchase the house for a stipulated price within one year after her death. there were other provisions of this instrument not pertinent here. The house was built in 1915 and Ralph and George continued to live there with their Mother until her death on November 18, 1937 intestate.

On December 6, 1938 Max and his wife, Mary, executed the following instrument:

'Austin, Texas, December 6th, 1938

WE, Max H. Bickler and wife, Mary H. Bickler, hereby acknowledge the receipt of the sum of $500.00 this day paid to us by our brother, Ralph A. Bickler, such amount being our interest (as a loan on) in the property at 809 West 16 th Street, and as more fully described in the AGREEMENT entered into by the Bickler children, their husbands and wives, respectively, on the 10th day of June, 1916.

And we do hereby agree that Ralph A. Bickler may pay the interest amounting $287.50, to date, and no more, on said loan of $250.00 in such monthly payments, until fully paid up, as may be convenient to him.

EXECUTED IN DUPLICATE

/s/ Max h. Bickler

/s/ Mary H. Bickler'

There are handwritten notations following the abovementioned signatures on the body of the instrument showing payments from January 1939 through March 1946. There is no dispute over payments.

Ralph had not exercised the option to purchase his mother's property within the year after her death and the trial court so found.

Ralph received title to the property on which his mother's house was built in 1949 through deeds executed by Max and Harry.

As stated above, Mother Bickler had purchased a portion of the south part of the Sparks' property which lay between the property on which her house was located and 16th Street.

Through subsequent conveyances a Mrs. Marrs obtained title to the Sparks' property and in 1944 Mrs. Marrs conveyed an 8-foot strip along her east line and a 20-foot strip across her south line to plaintiff-appellant Ralph.

At present Ralph's property consists of the land upon which Mother Bickler's house was built. Immediately to the north of this is the strip Mother Bickler bought from Sparks (of which Ralph now owns all except the outstanding interests of two Bickler children). Immediately to the north of this is the property Ralph acquired from Mrs. Marrs in 1944 which includes the abovementioned 8-foot strip leading from Ralph's property onto 16th Street.

From 1915 until 1962 Ralph Bickler used a driveway, admittedly on Max's property, to arrive at his residence. He has also used a walkway that extends from 16th Street along the dividing line between Max's and Ralph's property. This walkway has been approximately three feet wide, covered by flagstones for many years and recently concreted by Ralph. This walkway extends onto Max's property for a distance of 1-ft. 8-in.

When Max put a chain link fence along his property line which cut off 1-ft. 8-in. of the abovementioned walkway and cut off access to the driveway entirely, Ralph filed this lawsuit.

In his first point of error, appellant Ralph complains of some twenty-one findings of fact made by the trial court. We do not deem it necessary to the decision of this case to discuss all twenty-one findings and will discuss only those which we consider controlling. Rule 296, Texas Rules of Civil Procedure; Boston Insurance Co. v. Rainwater, Tex.Civ.App., 197 S.W.2d 118.

In his second point of error, appellant complains of the error of the court in its conclusions of law and of its judgment in the following: (a) in concluding that plaintiff never had and is not now entitled to any kind of easement; the error of the take nothing judgment and that appellant be required to remove the concrete walkway.

Appellant's third point of error is that of the trial court in permitting appellees to file a trial amendment wherein they asked that if the court found that the concrete walkway encroached on the land of appellee that appellant be required to remove same in a workmanlike manner.

We overrule these points.

With respect to the driveway that is located on appellee Max's property that appellant Ralph has been using up until Max fenced it off in 1962, appellant claims an easement by estoppel en pais and an easement appurtenant by implication.

Appellant is precluded from asserting an easement by estoppel en pais for several reasons.

In the first place, there are no pleadings on the part of appellant that will support any theory of estoppel. The rule is well established that in order for estoppel to be relied upon it must be especially pleaded. 22 Tex.Jur.2d 689, Sec. 19. Also Rule 94, T.R.C.P. requires that estoppel shall be affirmatively pleaded. The pleader must allege with particularity the facts that are essential to establish estoppel, 22 Tex.Jur.2d 691, Sec. 20 . No intendments will be indulged in favor of the plea.

In the second place there is no evidence of the elements necessary to establish an estoppel in pais. These elements according to Harrison v. Boring, Sup.Ct., 44 Tex. 255, are (a) an agreement or representation which has been so acted upon by the one claiming the estoppel and (b) an expenditure of monies which would be lost if the right to enjoy the easement could be revoked. Also see Anderson v. Tall Timbers Corporation, 378 S.W.2d 16, Sup.Ct.

Ralph does not claim an express easement over the driveway. Nor is there evidence of any representation on the part of Max that would have led Ralph to believe that he had an easement thereon. In this regard, the overwhelming weight of the evidence in this case is to the effect that whatever use Ralph had made of both the driveway and the walkway over the years had been a permissive use enjoyed by both Max's and Ralph's families. From a reading of the record in this case it would be difficult to arrive at any other conclusion. The trial court so found.

On page 33 of his brief appellant states: '* * * and even though we do not have an affirmative expenditure by Ralph on the roadway, * * *' Appellant then argues that once Ralph had a garage on Max's property near the driveway that he subsequently removed at Max's request and had planted shrubs on his own property 'as if the driveway was a part thereof.' Such were not sufficient to represent an expenditure of monies which would be lost if the right to enjoy the easement could be revoked.

Nor do we believe, and so hold, that appellant had an easement appurtenant by implication.

Appellant contends that at the time the Bickler children entered into the agreement to build a house for...