Cotter v. Moore, 2385

• Decision Date: 22 April 1982
• Docket Number: No. 2385,2385
• Citation: 634 S.W.2d 332
• Parties: Joan K. COTTER, et al., Appellants, v. Foy MOORE and Cleo Moore, Appellees. cv.
• Court: Texas Court of Appeals

Page 332

634 S.W.2d 332

Joan K. COTTER, et al., Appellants, v. Foy MOORE and Cleo Moore, Appellees.

No. 2385cv.

Court of Appeals of Texas, Corpus Christi.

April 22, 1982.

Thomas K. Robinson, Miller, Miller & Robinson, Gonzales, for appellants.

Roger M. Dreyer, Perkins, Dreyer & Rather, Gonzales, for appellees.

Before NYE, C. J., and BISSETT and YOUNG, JJ.

OPINION

BISSETT, Justice.

This is an appeal from a judgment which granted the plaintiffs a permanent injunction for ingress and egress over land owned by the defendants. Foy and Cleo Moore (hereinafter "the appellees") brought this action against Joan H. Cotter and others (hereinafter "the appellants") claiming an implied easement across land owned by the appellants. Following a jury trial, the trial court rendered judgment granting the appellees a permanent injunction which enjoined the appellants from interfering with the appellees' use of roadways and a natural rock crossing located upon the appellants' land. The appellants, in this appeal, raise nine points of error.

Prior to 1956, Minnie Moore, the widow of Dyer Moore, owned a 315 acre tract of land located in Gonzales and Wilson Counties. In 1957, after the death of Minnie, the Moore family partitioned the 315 acre tract into six parcels, hereinafter referred to as Tracts 1, 2, 3, 4, 5 and 6, respectively. Each parcel or tract abuts a county road on the north. The appellees acquired Tract 1 in the partition, and in 1961 and 1962, they purchased Tracts 3 and 4. From 1957 to 1978, they leased Tract 5 for cattle grazing purposes. In 1979, the appellants purchased Tract 5, which adjoins the appellees' Tract 4.

The Clear Fork Creek traverses Tracts 2 through 6 from the east to the west. This creek, according to the evidence adduced at trial, is quite wide and deep. There are no bridges or other crossings located on the appellees' Tracts 3 and 4 which would enable them to have access to the southern portion of their Tracts. On Tract 5, the appellants' Tract, there is a natural rock crossing which crosses the creek. On the north side of this crossing, there is a roadway which leads from the northern portion of the appellees' Tract 4 to the crossing itself; on the south side, there is also a roadway from the crossing which leads to the southern portion of Tract 4.

The following map, which is not drawn to scale, is incorporated herein for the purpose of showing the location of the six tracts of land involved in the partition, the creek, the involved roadways and the natural crossing.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Prior to and after the partition in 1957, the natural rock crossing and the road leading to and from it were used to cross the creek and gain access to the southern portion of the 315 acre tract. At the time of the partition and at the time the appellants acquired Tract 5, the roadways and crossing were well-defined, visible, and conspicuous, on the ground.

In 1980, the appellants erected a fence between Tracts 4 and 5 thereby preventing the appellees from using the natural rock crossing located on Tract 5. Thereafter, the appellees filed this suit claiming an implied easement across Tract 5 in order that they may travel from their land on the north side of the creek to their land on the south side of the creek.

The trial court submitted the following Special Issues and instructions to the jury:

"SPECIAL ISSUE NO. I

Do you find from a preponderance of the evidence That at the time plaintiffs acquired tracts 3 and 4 of the original Dyer Moore land, plaintiffs acquired an implied right of way easement over the land and rock crossing situated on the land designated as tract 5. Answer 'We do' or 'We do not.'

Answer 'We Do'

You are instructed that when there is a partition of land by joint owners, each takes his portion of the real estate subject to such continuous, apparent, permanent and necessary easements as exist at the time of the partition, or had theretofore existed at the time of their common ancestor or grantor. Such easement need only be such that its use is necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made."

"If you have answered Special Issue No. I 'We do,' and only in such event, then answer the following Special Issue; otherwise, do not answer the following Special Issue."

"SPECIAL ISSUE NO. 2

Do you find from a preponderance of the evidence that the road on tract 5 leading to and over the rock crossing and from the rock crossing to tract 4 was apparent and plainly visible at the time defendants acquired tract 5?

Answer: 'It was plainly visible'

or

'It was not plainly visible.'

Answer: 'It was plainly visible.'

"SPECIAL ISSUE NO. 3

Do you find from a preponderance of the evidence that plaintiffs could not get to their land south of Clear Fork Creek without going over other people's land?

Answer: 'We do' or 'We do not.'

Answer: 'We do not.'

The trial court, in its final judgment, expressly disregarded the jury's answer to Special Issue No. 3, and decreed that the appellees are the owners of an easement across the appellants' Tract 5. The appellants were forever enjoined from interfering with the appellees' use of the easement.

In their first two points of error, the appellants complain of the trial court's action in disregarding the jury's answer to Special Issue No. 3. We overrule these points. Special Issue No. 3 was immaterial to any issue in this case. The appellees never claimed that it was impossible to get to their land south of the creek without crossing other people's land. Obviously, the appellees could cross the creek by boat, ferry, building a bridge, or other means. If the jury had answered this Special Issue in the negative, such answer would have been clearly erroneous. Thus, the trial court correctly disregarded the jury's answer to this Special Issue as immaterial. Texas Paper Stock Co. v. Corpus Christi Food City, Inc., 609 S.W.2d 259, 261 (Tex.Civ.App.-Corpus Christi 1980, no writ); Ramirez v. National Standard Ins. Co., 563 S.W.2d 837, 838 (Tex.Civ.App.-Corpus Christi 1978, no writ).

In their third, fourth and fifth points of error, the appellants complain of Special Issue No. 1 and its accompanying instruction. The appellants contend that this issue should not have been submitted and that the trial court should have disregarded the jury's answer thereto for two reasons.

First, the appellants argue that the submission of Special Issue No. 1 was improper because it required the jury to make a finding of law. We disagree. A trial court may submit issues broadly with such...