Capitol Rod & Gun Club v. Lower Colorado River Auth.

• Decision Date: 07 October 1981
• Docket Number: No. 13220,13220
• Citation: 622 S.W.2d 887
• Parties: CAPITOL ROD & GUN CLUB, et al., Appellants, v. LOWER COLORADO RIVER AUTHORITY, Appellees.
• Court: Texas Court of Appeals

Page 887

622 S.W.2d 887

CAPITOL ROD & GUN CLUB, et al., Appellants, v. LOWER COLORADO RIVER AUTHORITY, Appellees.

No. 13220.

Court of Appeals of Texas, Austin.

Oct. 7, 1981.

Rehearing Denied Oct. 28, 1981.

Laurin C. Currie, Rohde & Currie, Austin, for appellants.

Dennis Reese, Small, Craig & Werkenthin, Austin, for appellee.

ON MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court handed down on July 8, 1981, is withdrawn, and the following opinion replaces it.

Appellee Lower Colorado River Authority (LCRA) filed suit in the district court of Travis County seeking a judgment declaring the rights of LCRA and appellant Capitol Rod and Gun Club (CRGC) in and to a part of a 253.69-acre tract of land located between the 670-foot and 715-foot contour line above Lake Travis. LCRA derives its claim to the land from a deed to it by Travis Land and Cattle Company (TLCC), while CRGC derives its claim from an easement instrument from LCRA to TLCC, both instruments being dated December 14, 1939. The other appellants intervened in the suit in alignment with CRGC. ¹ LCRA claims ownership in fee simple subject to certain specific rights in appellants by virtue of the said easement. Appellants, to the contrary, claim entitlement to the exclusive use and occupancy to the property in question subject only to LCRA's right to inundate the land in connection with its operation of Mansfield Dam. The district court rendered summary judgment favorable to LCRA declaring the rights of the parties and granting injunctive relief. This Court will affirm the summary judgment.

The 670-foot and the 715-foot contour lines are lines 670 and 715 feet above mean sea level, respectively. At the time these lines were established, LCRA was in the process of constructing Mansfield Dam across the Colorado River west of Austin and downstream from the land in controversy. The waters backed up from that dam form what is now known as Lake Travis.

The construction of Mansfield Dam was a federally funded and constructed project. Initially, the federal government required only that LCRA obtain flowage or inundation rights in and to land that would be subject to flooding from the operation of Mansfield Dam. Pursuant to that policy, LCRA obtained an easement by instrument dated March 27, 1939, from TLCC to inundate approximately 176.92 acres of land situated below the 670-foot contour line. That easement was granted upon the following terms and conditions, among others:

"(TLCC) shall have the exclusive right to the use of the surplus of said land to the water's edge of any lake at all times, and shall at all times have access to said lake for the purpose of boating and fishing, and for other lawful purposes."

"(LCRA) shall have no right, and shall not at any time erect or construct any fence along the contour line and the water's edge, but the same shall remain open at all times."

Thereafter the Board of Directors of LCRA determined to increase the height of Mansfield Dam to provide a spillway of 715 feet. In response to the insistence of the federal government, LCRA adopted a policy on October 19, 1939, that all land acquired thereafter must be in fee simple and that no further purchase of easements would be approved. There were many tracts thereafter obtained by LCRA in fee simple, one of which was that obtained from TLCC.

On December 14, 1939, TLCC conveyed to LCRA by general warranty deed the 253.69- "It is agreed that (LCRA) shall at no time build any fences or other obstruction which will prevent (TLCC), its heirs and assigns from crossing said land to reach other land owned by (TLCC), or from reaching the waters edge of the lake, provided however that this provision shall in no manner restrict or limit the right of (LCRA) or its successors or assigns, to inundate all or any part of said land with water and to keep the same or any part thereof inundated with water in any manner that it sees fit."

acre tract lying between the 670-foot and 715-foot elevation contours. That deed read in part:

On the same date and as a part of the same transaction, LCRA gave TLCC an easement on the same tract, as follows:

"(The LCRA) hereby grants to said Travis Land & Cattle Company, and to its successors and assigns, a perpetual easement and right to use and occupy the land described hereinbelow for the purpose of placing and maintaining thereon boathouses, piers and docks, it being distinctly understood and agreed that such easement is subject to the right of the Authority to inundate and cover said land or any part thereof at any time it sees fit with water and to raise and lower the water placed thereon without any liability whatsoever to the Travis Land & Cattle Company, its assigns or its successors in title."

"There is also hereby granted to the Travis Land & Cattle Company, its successors and assigns, an easement of ingress and egress over and across the above described land in order to reach said docks, boathouses and piers and use the same for boating, fishing and pleasure purposes, and an easement across said land described hereinabove for the purpose of reaching the water's edge of the lake.... It is distinctly understood and agreed that the above easements and each of them are granted subject to the right of the Authority to maintain and operate the Marshall Ford Dam in any manner that it sees fit and to impound water thereby and raise and lower such water in any manner it sees fit and to overflow and inundate with water all or any parts of the land described above at such times and in such manner as the Authority may see fit without any claim against the Authority by reason of the same."

"To have and to hold the above easements, subject to the restrictions set out herein, unto the Travis Land & Cattle Company, its successors and assigns forever."

"The Travis Land & Cattle Company by the acceptance of this easement agrees that in the event a subdivision is laid out embracing all or a portion of the land and premises belonging to the Travis Land & Cattle Company and adjacent to the land hereinabove described, that said Travis Land & Cattle Company will leave open lots fifty feet (50 feet) in width fronting on the 715' contour line, at distance averaging not over 1,000 feet apart, and will provide a roadway to said lots so left open, where roadways are not otherwise available in order to afford access to the lake by the Lower Colorado River Authority and the public; this clause, however, not to apply to the portions of the land belonging to the Travis Land & Cattle Company not included in any subdivision."

In 1944, TLCC sold to R. E. Stevenson that portion of the land in which appellants claim an interest. In its deed to Stevenson, TLCC expressly excepted "all those easements and rights" below the 670-foot line that it had first conveyed to LCRA on March 27, 1939; expressly excepted from the conveyance "those premises" described in its December 14, 1939, deed to LCRA; and expressly included "those easements and rights" granted to it by LCRA in the December 14, 1939, easement.

On August 21, 1946, R. E. Stevenson wrote the general manager of LCRA and made the following request:

"In 1939 Travis Land & Cattle Company, of which I was the owner, conveyed approximately "I have set aside and designated in Lakehurst Subdivision 7 tracts of land as park sites-three of which have roads built to the water's edge. In addition, there are two public roads built to the water's edge."

253 acres of land to the Authority, retaining easement rights. I should now like to have the Authority convey me the land, retaining easement rights. This is important to me as I am trying to develop the land."

"As other parts of Lakehurst Subdivision are developed, there will be other parks designated and other roads built."

LCRA refused Stevenson's request for the LCRA to convey to him the land in exchange for an easement.

In 1956, Stevenson's son, Howard E. Stevenson, subdivided a part of the land in question into Big Bee Creek Subdivision No. 2. The subdivision plat depicted the 715-foot contour line running through the lots, and stated:

"Lots enclosed by solid lines conveyed by fee. Lots enclosed by jotted lines a perpetual easement, said easement recorded in Volume 641, page 625, Deed Records of Travis County, Texas."

In 1956, CRGC also acquired its property from Howard E. Stevenson. The property above the 715-foot contour line, about 71.34 acres, was conveyed by general warranty deed, and a title policy obtained on that portion. Stevenson gave a quitclaim to CRGC with respect to that property lying below the 715-foot line.

Capitol Rod and Gun Club and the intervenors built substantial structures on the involved land. Those buildings include large double-story houses, small houses, mobile homes, and sheds.

The rights of the parties to the land below the 670-foot line and above the 715-foot line are not in dispute.

The general warranty deed from TLCC dated December 14, 1939, formed the basis for the motion for summary judgment of LCRA. LCRA claimed further that appellants' use of the property was inconsistent, as a matter of law, with the rights vested in them by the easement dated March 27, 1939.

In response to the motion for summary judgment, appellants asserted many defenses: mutual mistake or legal fraud; implied reservation; implied easement; ambiguity of the easement; compliance with the easement; estoppel; laches or acquiescence; and limitation. In addition, appellants listed several objections to the form of appellee's motion for summary judgment and its summary judgment "proof."

The district court rendered final summary judgment declaring that the deed from TLCC to LCRA and the easement from LCRA to TLCC dated December 14, 1939, were clear and unambiguous. The deed conveyed to LCRA the fee simple title to the 253.69 acres subject only to the restriction that LCRA would at no time build any fence or obstruction that would prevent TLCC, its...