Eagle Rock Ranch, Inc. v. Drye, 10805

• Decision Date: 17 May 1961
• Docket Number: No. 10805,10805
• Citation: 347 S.W.2d 730
• Parties: EAGLE ROCK RANCH, INC., et al., Appellants, v. Robert W. DRYE et al., Appellees.
• Court: Texas Court of Appeals

Page 730

347 S.W.2d 730

EAGLE ROCK RANCH, INC., et al., Appellants, v. Robert W. DRYE et al., Appellees.

No. 10805.

Court of Civil Appeals of Texas, Austin.

May 17, 1961.

Rehearing Denied June 7, 1961.

Ernest Morgan, San Marcos, Sam W. Mintz, De Lange, Hudspeth & Pitman, Houston, for Eagle Rock Ranch, Inc.

John C. Foshee, Arthur P. Bagby, Austin, for C. B. Smith.

Alvis Vandygriff, Austin, W. T. Barber, San Marcos, O'Quinn, McDaniel & Randle, Howell Finch, Austin, for Robert W. Drye and others.

Patterson, McDaniel & Moore, Houston, Mark V. Fuchs, New Braufels, Elmer S. Browder, Houston, Terry L. Jacks, Edward M. Cape, San Marcos, for Conso Realty Co., Eagle Rock Corp. and Edward C. James.

ARCHER, Chief Justice. $This was a suit brought by appellees Robert W. Drye and eight other named persons, alleged to be a class suit, for declaratory judgment establishing alleged oral easements for pleasure and recreational purposes upon and across the Ranch property of appellants; also to modify and reform a portion of the recorded plat and restrictions on Eagle Rock Heights, Sec. 1 (being a subdivision by appellant Eagle Rock Ranch of a portion of its Ranch property), and to establish by the judgment a private park in said subdivision, which park is alleged to have been orally dedicated to appellees Drye and the other members of said class; for injunction to restrain interference with the alleged easement rights; and, alternatively, for damages against appellees Edward C. James, Conso Realty Company and Eagle Rock Corporation for alleged loss in values of properties of appellees Drye and said eight named persons arising out of breach of alleged contractual duties. Appellants filed a cross action against appellees Drye and said eight named persons to remove cloud cast on appellants' title to the Ranch property by their assertions and claims of easements, and for damages for conspiracy and slander of title; and appellants also filed a cross action against the appellees James, Conso Realty Company and Eagle Rock Corporation to recover damages for breach of covenants, guaranties and warranties, and, alternatively for rescission and damages. Appellees James, Conso Realty Company and Eagle Rock Corporation also filed a cross action against appellees Drye and said eight named persons, in which they sought damages for alleged conspiracy, slander, and for impeding sales of property.

The case was tried before a jury and upon a verdict on special issues, the trial court rendered judgment in favor of appellees Drye, the eight other named persons, and all other owners of lots in and adjacent to the four subdivisions at the Ranch, decreeing that they have easements for pleasure and recreational purposes across the Ranch property of appellants, decreeing further that a portion of said Eagle Rock Heights, Sec. 1, is impressed with easements in their favor, for use as a park, and permanently enjoining appellant Eagle Rock Ranch and appellant C. B. Smith, from interfering with the exercise of said easement rights. The judgment further provided that appellees Drye and the others take nothing as against appellees James, Eagle Rock Corporation and Conso Realty Company; that appellants take nothing by their cross action against appellees Drye and the other named appellees, in accordance with a verdict instructed against appellants on said cross action; that the cross action filed by appellees James, Eagle Rock Corporation and Conso Realty Company against appellees Drye and the other eight named persons be dismissed; and upon the jury's verdict on special issues, the trial court rendered judgment in favor of appellees James, Eagle Rock Corporation and Conso Realty Company and against appellants on their cross action for damages for breach of covenants and warranties; the court having theretofore instructed a verdict against appellants on their cross action against appellees James, Eagle Rock Corporation and Conso Realty Company for rescission and damages for fraudulent concealment. Only appellants, Eagle Rock Ranch, Inc. and C. B. Smith have appealed from said judgment.

The subject matter of some phases of this case has been before this court as James et al. v. Drye et al., Tex.Civ.App., 314 S.W.2d 417, affirmed 159 Tex. 321, 320 S.W.2d 319 and James et al. v. Eagle Rock Ranch et al., Tex.Civ.App., 304 S.W.2d 471 and reference is here made to the above cases.

The appeal by Eagle Rock Ranch, Inc. and by C. B. Smith is a common one, Smith adopting as his own the brief of Eagle Rock Ranch, Inc. and such appeal is based on 127 points.

Points Nos. 1 to 7 are directed to the error of the court in rendering judgment awarding recreational and pleasure easements and to all owners of lots individually and as a class because only 9 of the named appellees and only 2 of the 45 so-called 'unnamed plaintiffs' attempted to prove a cause of action to establish the alleged oral easement; that no proof that any of the 45 members belonged to the class relying upon representations that they would get easements in overruling the plea in abatement and special exceptions and in permitting the suit to be maintained as a class action, because there was no proof that the 43 persons were similarly situated and no showing of authority for the named appellees to represent the unnamed plaintiffs as members of the class and such unnamed plaintiffs should have been made parties, or their identities disclosed prior to the trial.

The judgment entered by the court was in favor of the plaintiffs naming ten, for themselves and on behalf of numerous unnamed plaintiffs, being a class, against Eagle Rock Ranch, Inc. and C. B. Smith, and that the lands are subject to and impressed with easements, conditions and uses for pleasure and recreational purposes, and that the rights are covenants running with the land (describing it as Tract One).

The court defined the term 'easements' as:

'C. The term 'pleasure and recreational purposes,' as used in this judgment, means outdoor recreational uses and purposes for which the said Tract One is at this time reasonably suited or adapted such as (but without being limited to) horseback riding, camping out, picnicking, hiking, swimming, boating, fishing, nature study, and other similar uses. In using Tract One for such purposes and uses, the persons entitled to such purposes and uses also have the right of access to Tract One and the right to travel over Tract One for the enjoyment of such purposes and uses. The said pleasure and recreational uses shall run for a period of twenty-five years from July 18, 1949, until July 18, 1974, and shall be renewable in the following manner: At any time within five years before June 1, 1974, a majority of the then lot owners in the subdivisions described in Paragraph D may be written declaration signed and acknowledged by said lot owners, extend such pleasure and recreational rights over and upon Tract One for a period of ten years additionally from and after June 1, 1974, and similarly for successive additional ten-year periods as often and as long as a majority of the then lot owners as described in Paragraph D may desire to so extend same.'

The judgment made other awards, which will be noted subsequently herein, as they become applicable.

The judgment provided that plaintiffs take nothing as against Edward C. James, Eagle Rock Corporation and Conso Realty Company and dismissed the cross action of the cross plaintiffs against the cross defendants.

Points Nos. 8 through 19 are directed to the assigned errors of the court in rendering judgment awarding to appellees and all other lot owners the alleged recreational easements over the Ranch property of appellants, because there was no evidence of erty authorized anyone else to grant or eser act, express or implied, on the part of any owner of the Ranch property that would establish such easements, nor was there any evidence that any owner of the Ranch property authorized anyone else a grant or establish such easements; because the oral agreements or representations, upon which appellees rely, were made by third persons and there was no evidence of authority of any such third persons to make such alleged oral representations in behalf of any owner of the Ranch property; because the appellees were charged with notice of all recorded instruments in the office of the County Clerk of Hays County affecting the title to the Ranch property; because the evidence conclusively showed that none of of the appellees has a written conveyance or grant to an interest in the Ranch property and the oral easements are in violation of the Statute of Frauds and of the parol evidence rule, being an attempt to vary the terms of written instruments, each complete on its face, and do not comply with the provisons of Article 1288, V.A.C.S., nor with the requirements of Article 1322 relating to conveyances of an interest in land by a corporation; because the alleged oral agreements relied on by appellees became merged in the contracts of purchase and in the deeds to each appellee and accepted by them, in which no reference is made to the easements sought to be established by the appellees; because there is no evidence that any owners of the Ranch property, or anyone authorized to act in their behalf, ever dedicated such property, or any part thereof, for any public purpose or for the use of appellees, or said lot owners, for any purpose; in rendering judgment awarding recreational easements to appellees and all other lot owners in and adjacent to the four subdivisions over the Ranch property, upon any theory of dedication, for the reason that there was not sufficient evidence of the alleged dedication to the alleged easements and because such dedication is contrary to the Statute of Frauds, Conveyances, Parol Evidenced Rule and the Rule of Merger in Documents; and finally in instructing a verdict against appellants on their cross actions against appellees for removal...