Gulf View Courts v. Galveston County

• Decision Date: 24 April 1941
• Docket Number: No. 11159.,11159.
• Citation: 150 S.W.2d 872
• Parties: GULF VIEW COURTS, Inc., et al. v. GALVESTON COUNTY.
• Court: Texas Court of Appeals

Page 872

150 S.W.2d 872

GULF VIEW COURTS, Inc., et al. v. GALVESTON COUNTY.

No. 11159.

Court of Civil Appeals of Texas. Galveston.

April 24, 1941.

Rehearing Denied May 15, 1941.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by Galveston County, Texas, against the Gulf View Courts, Incorporated, and others, for a mandatory injunction requiring defendants to remove certain buildings from a right of way in which plaintiff claimed an easement for a seawall, and permanently enjoining defendants from erecting other structures on the land. From a judgment for plaintiff, defendants appeal.

Judgment affirmed.

Stewart, Burgess & Morris and Leon Berger, all of Galveston, and Geo. T. Burgess, of Dallas, for appellants.

Charles H. Theobald, Co. Atty., and Emmett F. Magee and Edward A. Jahn, Asst. Co. Attys., all of Galveston, for appellee.

MONTEITH, Chief Justice.

This is an appeal from a judgment of the district court of Galveston County granting an application of appellee, Galveston County, Texas, for a mandatory injunction requiring appellants, Gulf View Courts, Inc., et al., to remove certain buildings from a right of way in which appellee, Galveston County, claims an easement for a seawall and seawall purposes, and permanently enjoining and restraining appellants from constructing other structures on said land.

Appellants answered by general denial and special exceptions. They pled specially that the uses which they proposed to make of portions of said right of way were lawfully vested in them under said easement and that such uses in no way deprived appellee of the enjoyment of such rights as it had by virtue of an easement deed covering the land in question in that the structures which had been erected and which it proposed to erect would in no way endanger said seawall or its protective works.

In a trial before the court judgment was rendered in favor of appellee, requiring appellants to remove the buildings and structures complained of from said right of way and permanently enjoining them from erecting any other building or structure thereon.

At the request of appellant, Gulf View Courts, Inc., findings of fact and conclusions of law were filed by the court, to which they duly excepted.

By deed dated August 23, 1926, Galveston County purchased from M. Brock and Charles J. Stubbs a right of way for seawall and seawall boulevard purposes into, over, and upon a strip of land 250 feet wide and 335 feet long, along the south side of Lot 1 of Section 1 of Galveston Island in Galveston County, for the purpose of constructing what is known as the Westend Extension of the Galveston seawall from 53rd Street to 61st Street, a distance of approximately 2,800 feet.

As constructed, large boulders, known as rip-rap, extended approximately 27 feet in front of the wall to protect filling and foundation. The seawall proper consists of a seawall 16 feet wide at the base, resting on a foundation of piling. Immediately north of the seawall is a fill approximately 17 feet in height upon which is laid from north to south in the order named, a cement sidewalk, a brick boulevard for vehicular traffic, another cement sidewalk, and a wall of concrete sheet-piling along the north edge of the north sidewalk. To the north of this sidewalk is a dump or sand fill which extends approximately 100 feet to the north line of the right of way, sloping to the edge of the right of way, upon which grass has been planted or permitted to grow.

Appellant, Gulf View Courts, Inc., acquired and is now the owner of the fee simple title to the land involved, subject to the easement in favor of Galveston County. Appellants Pierre Vignon and Albert Heinroth are lessees of Gulf View Courts, Inc.

In April, 1940, appellant, Gulf View Courts, Inc., over the protest of the representatives of Galveston County, constructed a concrete or stucco building 16 feet square on said right of way approximately 25 feet north of the north edge of the north sidewalk. Said appellant alleged that they contemplated constructing additional buildings of a permanent nature on said right of way.

The trial court found, upon sufficient evidence, that it was the purpose and theory of the County Engineer and consulting Engineers in designing and constructing said seawall that this sand fill when grown over with grass would offer protection to the seawall, in that when waves from the Gulf of Mexico washed over the seawall and beyond the boulevard and sidewalks it would prevent the washing away of the sand fill, and that it was the purpose and intention of Galveston County in purchasing said right of way or easement that no building or structures of any kind or character could or would be permitted to be constructed thereon by the owners of the fee, but that the County should have the unimpaired and uninterfered with right to maintain said sand dump located on the north side of said right of way, and that this intention was well known to the original grantors. The court found that the structures erected thereon by appellants were not...