Bland Lake Fishing and Hunting Club v. Fisher, 6166

• Decision Date: 20 March 1958
• Docket Number: No. 6166,6166
• Citation: 311 S.W.2d 710
• Parties: BLAND LAKE FISHING AND HUNTING CLUB, Appellant, v. Joe J. FISHER et al., Appellees.
• Court: Texas Court of Appeals

Page 710

311 S.W.2d 710

BLAND LAKE FISHING AND HUNTING CLUB, Appellant, v. Joe J. FISHER et al., Appellees.

No. 6166.

Court of Civil Appeals of Texas, Beaumont.

March 20, 1958.

Rehearing Denied April 9, 1958.

John Henry Minton, Hemphill, for appellant.

Reavely & Barber, Jasper, Tom Reavely, Austin, for appellees.

R. L. MURRAY, Chief Justice.

This is an appeal from a judgment in the district court of San Augustine County, in which judgment the appellants were denied the writ of injunction prayed for by them and the rights of the parties were determined by findings and holdings of a declaratory nature.

The appellants, who are surviving stockholders of Bland Lake Fishing and Hunting Club, a defunct corporation, have included in their brief a detailed statement of the nature and result of the suit, which statement the appellees say in their brief is substantially correct. We therefore take the following statement from appellants' brief:

'Appellants filed this suit first on behalf of the Bland Lake Fishing and Hunting Club, a corporation, against Joe J. Fisher and his mother, Mrs. Lula B. Fisher, a feme sole, asking for an injunction to enjoin said defendants from interfering in any manner with said club in the erection of camp houses, a club house, or any other building which the said club or any stockholder may consider that they need on a tract of 81.6 acres of the E. Quirk Grant in San Augustine County, Texas, on which tract there is located a lake of some 50 or 60 acres known as Bland Lake, and also to enjoin the defendants from interfering with said club or any of its stockholders in exercising their rights of ingress and egress on and over said lands with any vehicles and for any purpose and also from interfering with the club or any of its stockholders in any manner in the exercise of any other rights held by them as to said property under the terms of a conveyance from J. J. Bland and wife, Mattie Bland, (grandparents of Joe J. Fisher and parents of Mrs. Lula B. Fisher) to W. F. Hays, Trustee for said club, and dated September 22, 1926, and recorded in Vol. 64, page 269, Deed Records of San Augustine County, Texas, and also requiring said defendants to remove a wire fence which was obstructing the club and its stockholders in their exercise of their rights of ingrees and egress to said lake. This petition was filed March 17, 1955, and attached thereto were copies of the transfer from Bland and wife to W. F. Hays, Trustee, and of a transfer of said rights from Hays as trustee to the Bland Lake Fishing and Hunting Club, a corporation, dated December 21, 1926, and also duly recorded in Vol. 64, page 492, Deed Records of the same County.

'The defendants answered said petition on April 9, 1955, pleading that the rights so transferred were personal to a limited group and could not be transferred to a new and different party and that the club had no legal right to maintain the suit. They further plead that the first instrument created a license and personal rights only and claiming that the rights were nor assignable to the public at large nor to a corporation and that the instrument created no rights in the land. They further plead that the instrument gave the plaintiffs no right to erect such cabins, club houses and other buildings on the property and that by failing to do so, they had abandoned such rights, if they ever had any. They also claimed that the rights were barred by ten years limitation and that the right of way was restricted.

'An amended petition was filed on October 3, 1955, making parties plaintiff all of the surviving stockholders of said club, said amendment making the same allegations as in the original petition. On March 27, 1956, a motion was filed by defendants to strike the amendment, alleging that it constituted a new and different suit by new parties without any additional service of citation. New citation was issued on the new pleading as to each defendant. An amended answer was filed July 14, 1956, consisting of a general denial and adoption of the amended answer theretofore filed. On October 15, 1956, another amended answer was filed to the amended petition embodying substantially the same defense but alleging that the interest created by the transfer from Bland and wife was a profit a prendre and pleading that the right could not be divided and that the grant was solely to W. F. Hays and his assigns for the reason that the reference to 'club' was indefinite and did not define a precise limited number of persons. They further plead that the group only had the privilege, at most, to erect a house incidental to fishing and hunting. They further plead that the instrument was ambiguous as to the right to erect buildings on the property therefore too vague, indefinite and uncertain for enforcement and was wholly void. They also filed plead ten years limitation. They also filed in the same instrument a cross-action asking for declaratory judgment to limit the profit created by the instrument as the profit may show, or in the alternative to be limited to those intended by the original to be entitled to the profit or to their assigns and have the court to construe the instrument regarding construction of houses and to the facilities on the land incidental to the enjoyment of the profit and asking the court to restrict the right to the plaintiffs to the erection of one building and also as to the right-of-way to said lake. Plaintiffs' reply to said plea was a general denial.

'The case was tried before the regular judge of the 128th District on April 29, 1957, the regular judge of this district being a party to the suit and disqualified.

'On May 31, 1957, the court rendered judgment finding (a) that Mr. and Mrs. Bland executed the instrument dated September 22, 1926, and (b) that the defendant, Lula B. Fisher, is now the owner of the fee simple title to the 81.6 acres subject only to the rights and interest acquired by W. F. Hays, Trustee, in said instrument and (c) that the club has been composed of twenty members (until 1944), who were entitled to the beneficial rights of ownership of the grantee under said instrument, naming them, and by the terms of said instrument said twenty named persons acquired the profit a prendre, together with rights and use of the surface of said tract of the nature of an easement for the purpose of exercising the fishing and hunting privileges, (d) that said plaintiffs were not entitled under the instrument to enlarge the membership of said club so far as the rights and interest in the land is concerned, beyond the original owners and could not be made to include any one except the heirs, legal representatives or assigns of said original twenty owners, (e) that the successors in interest of the original twenty owners were found to be nineteen persons (including the defendant, Joe J. Fisher himself) as shown in the last paragraph of page 48 of the transcript, and (f) that by paragraph, 'fourth' of the instrument dated September 22, 1926, the grantee and the original owners of this right and privilege did not acquire the right to build individual houses on said tract of land, and that the refusal on the part of the fee owner, by and represented by defendants, to permit such construction was not wrongful but according to just ownership and rights and (g) with the nature and location of the structure had been fixed by the conduct of the parties and (h) that by paragraph 'sixth' the owners of the fishing and hunting profit were allowed such access as was reasonable and necessary to exercise their privilege and that by conduct in practice, a road on the West side of the lake had been used for such purpose and defined the location of this right.

'The judgment denied any injunctive relief for the plaintiffs and the court determined (a) that the ownership of the rights of the grantee under the conveyance of September 22, 1926, is vested only in the original twenty owners of the beneficial interest therein or their heirs or assigns, but the assignment must have been of a whole interest, for no interest could be subdivided and the ownership enlarged, and that certain other persons than the nineteen mentioned in the last paragraph on page 48 of the transcript were determined to own no interest in the Bland lake under said conveyance and (b) that the nineteen plaintiffs listed in the last paragraph on page 48 of the transcript are enjoined and restrained from construction of any structures upon the land except for a joint boathouse, shed and piers of the nature and at the location as such structures presently stand on the land and from erecting individual cabins for personal use and from crossing the land described in the instrument except by way of the roads now located on and across said lands on the West and South sides of the lake and (c) that the effect of the instrument and agreement of the parties and subsequent use and conduct of the parties to the instrument and their successors required the entry of said judgment. Notice of appeal was duly given and appeal bond filed in due time, and this case is filed before this court for review.'

By their seven points of error the appellants contend that the trial court erred in its judgment in holding that the rights acquired by W. F. Hays, Trustee, were restricted to twenty persons as members, and in holding that the plaintiffs were not entitled to enlarge the membership of said club and in holding that the ownership could not be made to include anyone except the heirs, legal representatives or assigns of the original twenty owners, in restricting the ownership and rights to the successors in interest of the original twenty owners, in construing paragraph four of the instrument of September 22, 1926, to mean that the grantee in said instrument did not acquire the right to build individual houses on the land, in holding that the rights of ingress and egress were restricted to a...