Davis v. Johnston
| Decision Date | 28 June 2012 |
| Docket Number | NO. 03-10-00712-CV,03-10-00712-CV |
| Parties | Dennis Davis, Individually and d/b/a Aqua Tech Marine Industries; Debbie Desmond, Individually and d/b/a Aqua Tech Marine Industries; and Aqua Tech Marine Industries, Inc., Appellants v. Steven L. Johnston, Maria Estella Arguinde-Johnston, Stephen H. Gay and Carilynne Yaffe Gay, Appellees |
| Court | Texas Court of Appeals |
NO. D-1-GN-06-00403, HONORABLE RHONDA HURLEY, JUDGE PRESIDING
This appeal arises from a dispute concerning the existence and scope of easements that were alleged to burden two waterfront lots on Lake Travis. One of the lots is owned by appellant Dennis Davis and the other by appellant Debbie Desmond. Davis and Desmond are jointly engaged in a business known as Aqua Tech Marine Industries, which had conducted its operations on the lots since 2004. Following a bench trial, the district court rendered judgment declaring that the Davis and Desmond lots are burdened by easements appurtenant permitting two married couples who each own residential lots in the area—the Johnstons and Gays, appellees—to traverse the Davis and Desmond lots to access the lake waters, attach boats and floating docks to the lots, and linger upon and use the lots for various recreational activities. The judgment further declared that the two waterfront lots are burdened by a "negative implied restrictive covenant" prohibiting commercialuse, in effect outlawing Aqua Tech's operations there. The district court subsequently made findings of fact and conclusions of law that the positive easement burdening the Davis and Desmond lots existed by virtue of express grant, estoppel, implication, and prescription.
Davis, Desmond, and Aqua Tech appealed, challenging primarily the legal and factual sufficiency of the evidence supporting each easement theory on which the district court relied. While we affirm, under a prescription theory, the district court's declaration that a positive easement burdens the properties, we will reverse its declaration that a "negative implied restrictive covenant" bars the lots' commercial use and remand the cause to the district court for further proceedings made necessary by these holdings.
BACKGROUND
Some geography
All of the properties at issue are located on the Graveyard Point peninsula on Lake Travis, not far from the present-day City of Lakeway. The geographic relationship of these properties and others described herein is best understood by referring to Appendix A, a 2003 map prepared by Travis Central Appraisal District that was in evidence at trial.
At relevant times, the Gays and Johnstons have owned adjacent groups of lots bordering Oak Hurst Road, whose path is depicted as an inverted "U" traversing the lower left corner of Appendix A. These lots are each situated below or to the south of Oak Hurst and a short distance to the right or east of the apex of the street's inverted "U."1 Since 1999, the Gays have owned the three lots labeled in Appendix A with their names, one of .325 acres and the other two areeach roughly half that size. To the immediate lower right or southeast of the Gays' .325-acre lot is a lot labeled "Todd & Ann Kimbriel." Below or to the south of the "Kimbriel" lot are five lots of varying sizes and shapes, bordered to the right (east) by Oak Hurst, to the lower left (southwest) by Rabbit Run Circle, and to the bottom (south) by Max Drive. These five lots were all acquired by the Johnstons between 2001 and 2002. Subsequent to the date Appendix A was prepared, in 2006, the Johnstons purchased the "Kimbriel" lot as well.
The lots now owned by appellants Davis and Desmond are located along the eastern Lake Travis shoreline depicted in the lower center of Appendix A. In 2005, Davis would purchase the roughly 1-acre lot labeled "Annie Stewart Estate," which encompasses a portion of shoreline that bends to the west and then southeastward around a cove, then turns northward. In 2006, Desmond would acquire the .16-acre lot, labeled "Thelma Stewart," that is immediately adjacent to the Davis lot as the shoreline continues northward. With evident reference to the configuration of these properties' boundaries or the Lake Travis shoreline within them, the parties and witnesses have termed the Davis property "the Point" and Desmond's "the Notch," and we will do the same.
Some history
Some historical background concerning the ownership and development of these and other Graveyard Point properties is helpful in understanding and analyzing the issues on appeal. Most if not all of the land comprising the present-day Graveyard Point once was owned by the late Annie Stewart (the same person whose estate had owned the Point until Davis purchased it in 2005) and her late husband, A.K. The couple and other members of the Stewart family had farmed and ranched along the Colorado River for decades before the construction of the Marshall Ford damdownstream formed Lake Travis—and created the peninsula now known as Graveyard Point—in the early 1940s. In fact, an old Stewart family cabin predating Lake Travis still stands on what is now a residential lot situated at the north or top side of the intersection of Chipmonk and Hurst View. That lot and cabin, coincidentally, were acquired by appellant Desmond in 1998, and the record reflects that she and appellant Davis resided there through time of trial.
In connection with Lake Travis's formation, large portions of the Stewarts' acreage were burdened with overflow easements in favor of the Lower Colorado River Authority (LCRA) up to, originally, the elevation contour of 670 feet above mean sea level (m.s.l.), and later up to 715 feet m.s.l. Although these changes greatly limited the Stewarts' agricultural use of their land (at least if one assumes the lake remains anywhere close to the 681 feet m.s.l. elevation at which it is considered "full"), they also had the salutary effect of transforming the Stewarts' remaining acreage into "lakefront" property suitable for residential or recreational development.
The couple began subdividing and selling residential lots on Graveyard Point in 1943. As lots were being developed, the Stewarts retained ownership of adjacent strips of land over which private roads were cut to provide access. The first lots conveyed by the Stewarts in 1943 and through mid-1944 were generally of precisely one acre in size, rectangular in shape, with long sides oriented perpendicularly to the eastern shore of Graveyard Point, and located between the paths of present-day Chipmonk and Oak Hurst as those roads continue southward and below the area depicted in Appendix A. The eastern or lakeside boundaries of these lots, as well as this portion of Chipmonk, corresponded roughly to the 715 m.s.l. contour that marked the upper limits of the LCRA's overflow easement. In these early conveyances, the Stewarts typically granted the lot owners an easement appurtenant permitting use of the "roadway now open on the East of theland herein conveyed"—the road now known as Chipmonk. The Stewarts also typically granted an easement across the land they continued to own between the lot's eastern boundary and the 670 m.s.l. contour "for the purpose of ingress and egress from the tract of land herein conveyed to Lake Travis and to the property owned by the Lower Colorado River Authority."
In September 1944, the Stewarts conveyed title to four additional rectangular lots located between portions of present-day Chipmonk and Oak Hurst that are situated roughly north and northwest of the eventual site of appellees' lots, with long sides oriented roughly perpendicularly with the northern shore of Graveyard Point. Similar to the earlier conveyances, the Stewarts granted easements permitting lot owners use of "the roadway now open on the North" (the road now known as Chipmonk) and use of the Stewart-owned property lying to the north for "ingress and egress" to Lake Travis down to the 670 m.s.l. contour. During the decades ahead, disputes concerning the scope of these easements between successors to the Stewarts and the original grantees would spawn at least three appeals to this Court, including two we decided very recently. See Harbor Ventures, Inc. v. Dalton, No. 03-10-00690-CV, 2012 WL 1810205 () (mem. op.); Dee v. Crosswater Yacht Club, LP, No. 03-10-00796-CV, 2012 WL 1810213 () (mem. op.); Schlapper v. Forest, No. 03-06-00315-CV, 2010 WL 3370289 (Tex. App.—Austin Aug. 24, 2010, pet. denied) (mem. op.).
In early 1945, A.K. Stewart died, and Annie, on her own behalf and as executor of A.K.'s estate, continued developing the couple's Graveyard Point property. In April 1945, a surveyor named O.P. Schoolfield surveyed the subdivision of fourteen residential lots located farther to the peninsula's interior than those the Stewarts had previously conveyed. These included six lotsof roughly .325 acres each situated to the south of the road now known as Oak Hurst, near the apex of that road's inverted "U." Four of these six lots are in appellees' chains of title, and include the entirety of the property later acquired by the Gays and the northernmost two of the lots later acquired by the Johnstons.
The Schoolfield survey was certified in May 1945. On May 23, 1945, Annie conveyed two of the lots to predecessors in title of the Johnstons—the lot designated in Appendix A as the "Kimbriel" lot to Louis Dolan and Herbert Rehfield, and the lot immediately adjacent on the south to Fred and Margaret Sassman. A few days later, on May 29, Annie conveyed the lot on the opposite side of the Dolan lot—the lot that is now the larger, .325-acre owned by the Gays—to Aubrey and Estelle Frazer. During the following month, Annie conveyed the third lot to the west of the Frazer lot, which is not in appellees' chains of title, to Milas and Erna Dyer. Annie would not...
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