Forister v. Coleman, 11515

• Citation: 418 S.W.2d 550
• Decision Date: 21 June 1967
• Docket Number: No. 11515,11515
• Parties: Bryan W. FORISTER, Jr., et al., Appellants, v. W. R. COLEMAN et al., Appellees. . Austin
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 550

418 S.W.2d 550

Bryan W. FORISTER, Jr., et al., Appellants, v. W. R. COLEMAN et al., Appellees.

No. 11515.

Court of Civil Appeals of Texas.

Austin.

June 21, 1967.

Rehearing Denied Sept. 13, 1967.

Leonard L. Franklin, J. Malcolm Robinson, Austin, for appellants.

Holloway & Holloway, Sterling Holloway, James R. Sloan, Austin, for appellees.

HUGHES, Associate Justice.

Dr. Bryan W. Forister, Jr., Ivan M. Stout and John E. Shelton, Jr., appellants, and others brought this suit against W. R. Coleman and Sterling Holloway, appellees, alleging that they and others own and are entitled to certain rights and interests in and pertaining to Lots 1 and 2, Block 2, Emmett Shelton Subdivision, Wilkenson-Sparks Survey No. 4, Travis County, Texas. These rights and interests are claimed under and through Emmett Shelton, the common source of title of all parties to this suit.

The rights and interests of appellants in this property are based upon the deeds of Emmett Shelton as well as representations made by him prior to the execution of certain of the deeds upon or under which appellants claim.

The trial court disposed of the major contentions made by appellants by granting appellees' motion for summary judgment. Minor and subordinate matters were decided by the court without a jury.

We will state the case as reflected by the record in a manner most favorable to appellants insofar as the summary judgment against them is concerned.

The property in controversy is approximately 1 1/2 acres in size (160 feet wide by 420 feet long) located on Bee Creek in the City of Westlake Hills, a suburb to the west of Austin, Texas. Its border to the north is Bee Creek; to the west by the property of Arlyn Smith; to the east by the property of A. S. Hull; and, to the south by a public road, Westlake Drive.

It was originally a part of a 200 acre tract acquired by Emmett Shelton from the Minnie Stroter heirs in 1940.

In 1940, when Emmett Shelton began selling parts of the Stroter land previously acquired by him he made representations to purchasers as shown below:

'Our names are Lady Grace Snow Toole and Marion Toole; we are husband and wife, over 21 years of age and have never been convicted of a felony or a misdemeanor involving moral turpitude, and we each have personal knowledge of the following facts which are given in connection with the above law suit and in connection with the controversy over that tract of land lying between Westlake Drive and Bee Creek which is generally described as Lots 1 and 2, Block 2, Emmett Shelton Subdivision.

During the summer of 1940, we conducted a diligent search for property located in the Highland Lakes area not too far distant from Austin that would afford access to Lake Austin. We saw an ad advertising property located on Westlake Drive and which we think stated with park area access and boat dock frontage on Bee Creek of Lake Austin. A salesman, whose name we cannot remember but who worked for Henry Wendlandt or in association with Henry Wendlandt, was contacted and we were shown the property by him. We were not married at this time but were planning on being married and were married several months later, and we were both present and after being shown the upper lot or No. 9, Block 4, we were then driven into the park area which was Lots 1 and 2, Block 2, and shown this area and the stone wall erected along the shore of Bee Creek where boat dock spaces were provided for the lot owners.

The park had an oval drive around the inside of the two lots with parking and picnic area provided between the oval drive. We were told by this salesman that the purchasers of the lots being sold out of the Wilkenson-Sparks Survey would be entitled to the use of this park area to drive from the lots above and park their cars while boating and that they also could use the area for picnicing. It was purely on the strength of this feature that Lot No. 9, consisting of 2.18 acres, was purchased by us in Miss Snow's name. Since the deed itself to the above lot didn't specify that the park area and boat dockage space was part of the deal, we requested a letter from Mr. Emmett Shelton, and Mr. Shelton did comply with the request and provided a letter dated September 20, 1940, stating that the park area and boat docks would be provided for use then and for use in the future by the lot purchasers. At the time of the sale of this property to Dr. and Mrs. Bryan W. Forister, Jr., we stipulated to Mr. Emmett Shelton, Jr., the real estate agent, and instructed him that the boat dock space and share in the park area composed of Lots 1 and 2, Block 2, granted to us were to be transferred to the Foristers as part of the sale of our Lot No. 9, Block 4, consisting of 2.18 acres of land.'

We quote the following from the letter referred to by Mrs. Toole from Emmett Shelton dated September 20, 1940:

'You will also have your choice of a ten foot space on the park which we have set aside out of the Lots Nos. 1 and 2, in Block No. 2, of this subdivision, and you will be given a deed to this along with the other purchasers in our addition when the balance of said lots have been sold. However, you may choose your space on the creek at any time you wish and make use of the park from now on.'

We quote from the affidavit of Rufus G. King:

'During the month of September, 1938, I purchased some mountain property located in the Wilkenson-Sparks Survey in Travis County, Texas, from Mr. Emmett Shelton. At the time of the purchase, Mr. Shelton told me that for all those who purchased off-the-lake property from him he was conveying to each of such persons 10 feet of land bordering the water's edge of Bee Creek. These strips of land to cover only a one foot wide area of land bordering the water's edge of Bee Creek, together with the use of the land under the waters of Bee Creek that lie directly north of each space. In addition, he stated that the parties would have the complete use of his lands that lie behind these one foot strips as a park.

Attached hereto is a Xerox copy of a letter, the original of which is in my possession, Which I received from Emmett Shelton stating that he was building a rock wall along the 10 foot strips along the water's edge and refers to this area as a park.

Also attached to this affidavit is a Xerox copy of a letter dated January 17, 1940, which I received from Emmett Shelton, the original of which is in my possession acknowledging the receipt of the money asked for in the first letter for improving the dock site on the 'park reservation.' At the time I purchased my property from Mr. Shelton, it was by understanding, from statements made to me by Mr. Shelton, that the tract of land located directly back of the waterfront strip, and between the property of A. S. Hull and Arlyn Smith, and extending to the present Westlake Drive, was to be used exclusively as a park and picnic area by the owners of the above mentioned 10 foot strips of land along Bee Creek.'

We quote from the letter referred to by Mr. King from Emmett Shelton dated January 11, 1940:

'We are starting in this week to build a stone and cedar dock around the park on which you have a ten foot front along the water's edge. We have approximately 300 feet on this park which must be either fixed within the next two weeks or it will be impossible to have anything but a dirt landing later. We have sold only about five cites off of the lake front at this time and we have estimated that it will cost approximately $15.00 for each ten foot space to build a rock foundation and set large cedar posts into the same, which will stick above the water's edge. I am writing each of the parties who have an interest in this park to find out if they wish to fix their ten foot front along this uniform pattern, as we intend to dress the balance up this way and add the cost to the price of the cites which we later sell.'

We quote from the affidavit of Ivan M. Stout:

'The property upon which I live is just west and approximately 500 to 600 feet from the property in controversy and is shown on the official map of the City of Westlake Hills bearing my name and bounded on the northeast by Westlake Drive; and on the south by Shelton Road.

This property was purchased in 1955 from Dr. C. M. Cleveland and Mrs. C. M. Cleveland. * * *

(d) Upon returning to the point from which the boundary inspection was started, Dr. Cleveland told us for the first time that there was a piece of lake property that was part of the transaction, and that he must also show it to us.

(e) We all three went down the hill a few hundred feet toward Austin and entered the property on foot Dr. Cleveland explained that this tract of land had been set aside for the use of some 15 property owners who had bought land from Emmett Shelton, but who did not otherwise get access to the lake. He stated that the property was about 150 feet wide between the wire fences and, in effect, 'You can use this property to picnic on but you can't build anything up here' and further explained that access to the lake could be had across the entire property. He also explained that each of the 15 participants in the overall easement were to receive deeds to 10 foot wide tracts of lake frontage. It was stated that those deeds were to come from Mr. Shelton, but that he had 'been show' in executing these deeds. * * *

Concerning the use of the property (in suit) by the owners, and for the purposes intended; there was never a doubt. We entered the property when we wished, parked where we wanted to or could find a spot not in use. If some one who was not a property owner came in we explained that this is private property and asked them to leave. I have been over the entire tract except for the extreme northwest corner which was covered with boulders and brush. Most of this has now been pushed down toward Bee Creek. My sons made constant use of the property, taking friends there for boating and swimming. There was never a single...