Carrithers v. Terramar Beach Community Imp. Ass'n, Inc., 18026
| Decision Date | 19 November 1981 |
| Docket Number | No. 18026,18026 |
| Citation | 630 S.W.2d 648 |
| Parties | C. Ed CARRITHERS and Robert G. Coulter, Appellants, v. TERRAMAR BEACH COMMUNITY IMPROVEMENT ASSOCIATION, INC., Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Fred A. Lange, Houston, for appellants.
Robert M. Moore, Houston, for appellee.
Before EVANS, C. J., and DOYLE and STILLEY, JJ.
The defendants appeal from a permanent injunction prohibiting them from constructing a marina on their land and in a submerged "turning basin" of the Terramar Beach Subdivision in Galveston County.
The trial court determined that the plaintiff owned a perpetual, irrevocable and exclusive easement over all the submerged land in the turning basin and found that the proposed marina would infringe on the plaintiff's easement rights.
The principal contention of the defendants is that they hold a valid permit which was granted by the United States Army Corps of Engineers to construct the proposed marina, and that this permit supercedes any easement rights previously held by the plaintiff. In support of this contention, the defendants argue that state and federal regulatory agencies have exclusive authority to control all navigable waters, and that the plaintiff's easement rights must therefore be considered subservient to their rights under the federally issued permit.
The parties stipulated that the area in dispute was a navigable body of water, submerged by artificial means in 1963 from dry land owned by the plaintiff's predecessor in title. The easement held by the plaintiff was created by written instrument in May 1975, and the defendants acquired their property rights subject to the plaintiff's easement. The trial court found the following facts, which are unchallenged.
1. Plaintiff is the owner of a perpetual, irrevocable and exclusive easement and right of way which includes the full, free and uninterrupted use of all of the turning basin of Terramar Beach Subdivision in Galveston County and the waters overlying said turning basin.
2. Defendants, owners of certain lands close to the turning basin, were granted a permit from the United States Army Corps of Engineers to construct a marina, bulkhead, docks, boat ramps, timber pilings, walkways and boat sheds, part of which would be located on their land, but most of which would be located in the turning basin where the plaintiff has its easement.
3. Defendants' proposed project would intrude into the plaintiff's exclusive easement to the land beneath the waters of the turning basin and would deprive plaintiff and its members of the rights held by them under such easement.
4. Although the surface waters of the turning basin are open for public use, the underlying land has never been dedicated to or appropriated for public use and the plaintiff has never abandoned its easement.
The trial court's injunctive order permanently prohibits the defendants from:
(1) Digging or removing earth, sand, marl or in any way displacing same, blocking, filling in, driving pilings of any size or length into, anchoring into or on, dumping, dredging, or placing any permanent or stationary objects or appurtenances in or on the land area where the Plaintiff's exclusive easement exists;
(2) Placing any objects on or over the surface waters of the "turning basin" where Plaintiff's easement exists which are in any way designed or meant to facilitate the temporary or permanent storage of boats, barges, boat ramps, docks or any facility which in any way blocks or impedes the full and complete usage of the surface waters of the "turning basin" where Plaintiff's easement exists;
(3) Obstructing or in any other manner impairing or interfering with the Plaintiff's exclusive easement.
The order further provides that it shall not...
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Carrithers v. Terramar Beach Community Imp. Ass'n, Inc.
...easement rights. Carrithers and Coulter were permanently enjoined from constructing the marina. The court of appeals affirmed. Tex.App., 630 S.W.2d 648. At issue is the validity of the easement. Finding the easement to be invalid, we reverse the judgments of the courts below, dissolve the i......