Bickler v. Bickler

• Decision Date: 18 May 1966
• Docket Number: No. A--10911,A--10911
• Parties: Ralph A. BICKLER, Petitioner, v. Max BICKLER et ux., Respondents.
• Court: Texas Supreme Court

Page 354

403 S.W.2d 354

Ralph A. BICKLER, Petitioner, v. Max BICKLER et ux., Respondents.

No. A--10911.

Supreme Court of Texas.

May 18, 1966.

Rehearing Denied June 22, 1966.

Sneed & Vine, J. P. Darrouzet, Austin, for petitioner.

Kuykendall & Kuykendall, Austin, for respondents.

CALVERT, Chief Justice.

The primary purposes of this litigation between Ralph and Max Bickler, brothers are to establish the common boundary line of their adjoining residential lots and to adjudicate a claim by Ralph to a driveway easement on and over Max's property.

Suit was filed by Ralph. He sought a mandatory injunction requiring Max to remove a fence erected across the driveway which prevented Ralph's use thereof for ingress and agress to and from his residence to a public street. He also sought to establish that the common property line between their respective properties was the western edge of a concrete walkway. In addition, he asked damages for interference by Max with his use of the driveway easement and for injury done by Max to the walkway. Max was permitted to file a trial amendment during the course of the trial and thereby to seek a mandatory injunction requiring Ralph to remove the portion of the concrete walkway which encroached on Max's property.

Trial was to the court without a jury. The trial court rendered judgment directing that Ralph take nothing by his suit, and that he remove that portion of the concrete walk which extended onto Max's property. The Court of Civil Appeals affirmed. 391 S.W.2d 106. The case is severed into two causes. We affirm the judgments of the courts below in one, and in the other we reverse the judgment and remand the cause to the trial court with instructions. The questions will be dealt with separately.

The Driveway Easement

Ralph has two bases for contending that the evidence establishes his right to an easement for a driveway on and over Max's lot. The first is that his right thereto arises out of an estoppel in pais--an easement by estoppel. The second is that when Max conveyed to him the lot he now owns, the deed granted the easement by implication--an implied easement appurtenant. We agree that Ralph's right to the easement must be upheld on the latter ground; and there is, therefore, no need to consider his claim to an easement by estoppel. The facts which give rise to the implied easement appurtenant, follow.

In 1909 Max and Harry, another Bickler brother, owned a tract of land fronting North on West Sixteenth Street in the City of Austin. In that year Max and Harry executed a written partition agreement under the terms of which, as corrected by a subsequent writing in 1915, a lot out of the tract fronting 152 feet on Sixteenth Street and 276 feet in depth was set aside to Harry, and an adjoining lot on the East, fronting 104 feet on Sixteenth Street and 276 feet in depth, was set aside to Max. The remainder of the original tract lying East of Max's lot was continued in joint ownership.

In 1915 Max and Harry conveyed the most easterly part of the jointly owned remainder to Sam Sparks. The Sparks lot fronted 124 feet on Sixteenth Street and was 175 feet in depth. This conveyance left Max and Harry as joint owners of a strip between Max's lot and the Sparks lot 4 feet in width and a lot approximately 101 feet deep and from 124 to 135 feet in width lying South of the Sparks property and, except for the 4-foot strip, cut off from access to Sixteenth Street by that property. In 1915 the several children of Mrs. Martha Bickler, a widow, including Max, Harry and Relph, entered into an oral agreement for the erection of a house on this remaining lot for use by Mrs. Bickler. The agreement was incorporated in a formal writing in 1916, after the completion of the house. Mrs. Bickler lived in the house until her death in 1937. Ralph was living in the house with the mother when the written agreement was executed in 1916 and has continued to live therein at all times since, having purchased the house and lot from Max and Harry in 1949.

The undisputed evidence establishes conclusively that a well-defined driveway from Sixteenth Street South across Max's lot to the lot purchased by Ralph was in existence and use when the grant to Ralph was made, and that the same had been open and used continuously by the owners of the lot and those occupying the house and their guests and business invitees since at least as early as 1915. The use of the area as a driveway was continued by Ralph until Max erected a fence across it in 1963.

From this recitation of the undisputed facts, it is apparent that all of the use requirements of the driveway for the establishment of an implied easement appurtenant except that of necessity, existed when the grant to Ralph was made. See Drye v. Eagle Rock Ranch, Inc., Tex.Sup., 364 S.W.2d 196, 205--209 (1963); Howell v. Estes, 71 Tex. 690, 12 S.W. 62 (1888). In Drye we listed the use requirements as follows: '1. The use must be Apparent, in existence at the time of the grant. * * * 2. Its use must have been Continuous--so that the parties must have intended that its use pass by the grant. * * * 3. Its use must be Necessary to the use of the dominant estate. * * * ¹ 364 S.W.2d 207--208. We also recognized in Drye that a use is 'continuous' 'if no further act of man is necessary to its continuous exercise * * *.' 364 S.W.2d 208. The evidence in the record before us establishes that the use of the driveway was at all relevant times both apparent and continuous. The only question remaining is whether use of the driveway is necessary to use of the dominant estate.

It is admitted that use of the driveway was necessary to use of the lot until it was sold to Ralph in 1949. The Court of Civil Appeals held, however, that use of the driveway by Ralph was not necessary at the time of the conveyance to him in 1949, and is not now necessary because in 1944 Ralph acquired another easement which the Court concluded he had a right to use as a driveway between Sixteenth Street and his lot. We disagree with the conclusion, and hold that Ralph has no legal right to use the additional easement for ingress and egress to and from such lot.

The facts surrounding Ralph's acquisition of the additional easement follow. In 1921 Sam Sparks conveyed a part of his lot to N. A. Stedman. The part conveyed fronted 60 feet on Sixteenth Street, was 160 feet in depth, and adjoined the 4-foot strip easterly of Max's lot. In the same instrument Sparks dedicated an 8-foot strip over his remaining land, adjoining and for the full depth of the lot conveyed, in the following language:

'* * * for a passage way between the property conveyed to said Stedman and our property eastward thereof, such passage way to be used by ourselves, heirs and assigns and by said Stedman, his heirs and assigns in common; and the easement of said Stedman, his heirs and assigns in said passage way shall be perpetual, but the dedication of said passage way shall not have the effect of granting any rights to the general public therein.'

The deed was corrected in 1930, but the dedication of the passageway easement was not changed. The Stedman lot and easement were conveyed to S.M.N. Marrs in 1930.

In 1922 Sparks conveyed a strip 15 feet in depth and 60 feet in width, lying just South of the Stedman lot, to Mrs. Jacob (Martha) Bickler. Ralph inherited an interest in this lot at the death of his mother in 1937, and thereafter purchased the interests of some of the other children.

In 1944 Ralph purchased a 20-foot strip off of the South end of the Marrs lot, together 'with all the rights in respect to' the 8-foot passageway easement as had been conveyed by Sparks to Stedman. It is this easement which the Court of Civil Appeals has held Ralph has a right to use for ingress and egress to and from the lot purchased by him from Max and Harry. The conveyances described and the areas in controversy are shown on the attached sketch.

Our holding that Ralph has no legal right so to use the Sparks passageway easement rests on the rule of law stated in 2 Thompson on Real Property, 1961 Replacement Ed., 565--566, § 386, in this language:

'Rights of way granted or reserved are appurtenant to the dominant tenement, and can be used only for the purposes of that tenement. * * * One having a right of way appurtenant to specified land cannot lawfully use the way to reach another tract owned by him to which the way is not appurtenant. * * * The way is granted for the benefit of the particular land, and its use is limited to such land. Its use cannot be extended to other land, nor can they way be converted into a public way without the consent of the owner of the servient estate.'

For another statement of the rule, see note, Ann.Cas.1917A, 1250--1251, where we find this language:

'Where, in connection with a transfer of property, an easement is granted for the benefit of that property over lands of the grantor, the easement is presumed to be appurtenant to the granted premises, and in the absence of words creating a more extended right the grantee or his successor in interest is not entitled to use the easement for the benefit of other premises owned by himself or another.'

As further authority for the rule, see 3 Tiffany, Real Property 323--324, § 803; 25 Am.Jur.2d 482--484, § 77; Davenport v. Lameson, 21 Pick. (Mass.) 72 (1838); Stearns v. Mullen, 4 Gray (Mass.) 151 (1855); Ball v. Allen, 216 Mass. 469, 103 N.E. 928 (1914); Schmoele v. Betz, 212 Pa. 32, 61 A. 525, 108 Am.St.Rep. 845 (1905); Barbaresos v. Casaszar, 325 Mich. 1, 37 N.W.2d 689 (1949).

Inasmuch as the Sparks easement cannot legally be burdened with a use for the benefit of the lot purchased by Ralph from Max and Harry, use of the driveway easement over Max's lot is still necessary to the use of the dominant estate, and the trial court erred in failing to require Max to remove his fence insofar as the same prevents Ralph's use thereof. As stated in Drye, an easement...