Fannin v. Somervell County

• Decision Date: 05 February 1970
• Docket Number: No. 4833,4833
• Citation: 450 S.W.2d 933
• Parties: Oliver W. FANNIN, Jr., et ux., Appellants, v. SOMERVELL COUNTY, Texas, et al., Appellees. . Waco
• Court: Texas Court of Appeals

Page 933

450 S.W.2d 933

Oliver W. FANNIN, Jr., et ux., Appellants, v. SOMERVELL COUNTY, Texas, et al., Appellees.

No. 4833.

Court of Civil Appeals of Texas Waco.

Feb. 5, 1970.

Oliver W. Fannin, Jr., Fannin & Fannin, Ft. Worth, for appellants.

Samuel W. Freas, County Atty., Glen Rose, for appellees.

OPINION

HALL, Justice.

By deed dated September 13, 1965, Earnest Winston Whitaker purported to convey a triangular-shaped one-acre tract of land to Somervell County, Texas, 'for a public park.'

Appellants brought this action on November 4, 1965, against the County, its County Judge and Commissionser, and Whitaker, alleging that the land in question was owned and occupied by appellants by virtue of their purchase of it and a deed to them from Mr. and Mrs. Doyle J. West dated October 17, 1964; and that the deed from Whitaker to the County constituted a cloud on the title to the tract . They sought to have the cloud removed and title quieted in them.

The defendants, appellees here, generally denied appellant's pleadings; and, by cross-action, alleged '* * * that the tract of land that is subject to this suit has been * * * used * * * by the public for the purpose of traveling from a well-defined and established county road over and across this * * * tract to an area in the Paluxy River commonly known as 'Blue Hole' * * *; that the public has traveled over and upon and across said tract of land for a period of time in excess of ten years from the said county road to the area known as 'Blue Hole' and that all of said use by the public has been open, apparent, notorious, and uninterrupted, and that no claim has been made. There has been a prescriptive easement established and well-defined and known generally.'

No exceptions to the pleadings were filed by any party. Trial was non-jury. Other than the findings and conclusions set forth in the judgment, none were made by the trial court nor requested by the parties.

In the judgment, the trial court made findings in support of the relief sought by appellants. The court also found that appellants' title to the acre 'is subject to a prescriptive right or easement heretofore acquired by the defendant Somervell County, Texas, for use by the public, under the ten-year statute of limitation, over and along a part of said land for the purposes of camping, fishing and swimming, * * *.' Judgment was rendered removing the cloud cast upon appellants' title by the Whitaker deed and quieting title to the acre in them, 'subject, however, to the prescriptive right or easement heretofore acquired by the defendant Somervell County, Texas, for use by the public for the purposes of camping, fishing and swimming, over and along' a specifically described portion of the tract, containing about 1/2 acre.

Appellants base this appeal on two principal propositions: (1) That the undisputed evidence shows that the sole use of the acre by the public was for pleasure and recreational purposes, and, 'as a matter of law, such use is not sufficient to establish a prescriptive right or easement;' and, (2) that there is no probative evidence of adverse use by the public, generally, or by Somervell County as an entity. We sustain these contentions.

There is no dispute in the controlling facts. The triangular-shaped acre of ground in controversy is located at the northernmost tip of 268 acres owned by appellants. It is bordered on the North-west by the Paluxy River, on the North-east by a tract that was owned by the defendant Whitaker (and which the record shows has been purchased by the State of Texas during the pendency of this suit), and on the South, which is the base of the triangle, by a public road known as the 'Glen Rose-Paluxy Road.' The north corner of the acre is situated on a bluff near an attractive and choice place in the river for swimming that is known as the 'blue hole.'

The Glen Rose-Paluxy Road veers southwesterly as it nears the western edge of the acre, and continues in that direction to a point between 1/4 and 1/2 miles upstream, at which point it turns toward a more westerly course and crosses the river at a low-water crossing.

During the period of time from 1920 until 1961, the portion of the acre which bounds the public road was not fenced, and the public used the acre as a way to the river, especially to the 'blue hole,' for the purposes of swimming and fishing. The public turned off the Glen Rose-Paluxy Road onto the acre near its southwest corner, and crossed it on foot and in buggies and wagons, and later in automobiles, to a parking area near the bluff. Foot trails then led down the bluff to the bed of the river. There was also some use of the acre by the public for camping and picnicking. Identical use by the public was made of the land (now owned by appellants) between the public road and the river from the acre to the point upstream where the road crosses the river. Indeed, Charlie Moss, one of appellees' witnesses, testified that during the time in question the public made the same use of unfenced, private property 'for 15 or 20 miles up and down this Paluxy nearly every place on it' that lay between public roads and the river, to get to the river and fish and camp. There is no evidence that any landowner ever recognized any of these ways, or trails, or roads, on their property by fencing the land on either side thereof; and the only evidence in the record in that regard as to the way across the acre in question is that the way was never fenced on either side by any owner of it.

'The hostile and adverse character of the user necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession,' and such adverse use must be for the full ten-year period. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950). It...