HIDALGO COUNTY WATER CONTROL & IMP. DIST. v. Hippchen, 15806.

• Decision Date: 30 June 1956
• Docket Number: No. 15806.,15806.
• Citation: 233 F.2d 712
• Parties: HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 16, Appellant, v. Leonard J. HIPPCHEN and wife, June H. Hippchen, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

233 F.2d 712 (1956)

HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 16, Appellant, v. Leonard J. HIPPCHEN and wife, June H. Hippchen, Appellees.

No. 15806.

United States Court of Appeals Fifth Circuit.

May 31, 1956.

Rehearing Denied June 30, 1956.

Sidney L. Farr, Edinburg, Tex., C. E. Blodget, Corwin C. Connell, Edinburg, Tex., Kelley, Looney, McLean & Littleton, Edinburg, Tex., of counsel, for appellant.

Robert F. Cherry, Edinburg, Tex., Rankin, Kilgore & Cherry, Edinburg, Tex., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

The sole question presented below by motions for summary judgment and here by appeal is whether or not appellant has an easement authorizing construction of an irrigation canal and barrow ditch across a portion of appellees' lot (described as follows: All of the N½ of Lot 18, Bk. 11, containing 8 acres more or less, of Texan Gardens, a subdivision in Hidalgo County, Texas), and was, therefore, entitled to occupy and construct the canal and ditch without paying compensation therefor.

The district judge, in an opinion carefully setting out the material facts as stipulated¹ and answering the question in the negative, denied defendant's and granted plaintiffs' motion except as to the issue of damages, which was set for later trial. That trial had, this appeal by defendant is from the judgment awarding plaintiffs compensatory damages.

Here, relying upon the instruments executed by Texan Development Company and set out in the stipulated facts, including particularly the deed to plaintiffs dated July 17, 1948, and that to defendant dated Nov. 16, 1951, defendant asserts that an easement for constructing the irrigation canal and structure was retained (a) in the dedicatory instrument of January 3, 1947, and (b) in the deed to plaintiffs of July 17, 1948, and that such reserved easement was duly conveyed to defendant on November 16, 1951.

Appellees, relying on the conclusion of the district judge that the dedication instrument cannot form the basis of a claim by defendant, points to the settled law:

That for the creation of an easement both a dominant and a servient estate are required;

That "it is elementary that the dominant and servient estates must be held by different owners, for no person can have an easement in his own property", 15B Texas Jur. "Easements", p. 254, and cases cited;

That, in short, "A person cannot have an easement in his own land since all the uses of an easement are fully comprehended in his general right of ownership. It follows that no easement exists so long as there is a unity of ownership of the property involved." 17 Am.Jur., "Easements" Sec. 3, page 926.

So pointing, it urges upon us that, whatever might be said as to what the dedicatory instrument relied on attempted or intended to reserve, it was, as matter of law, ineffective to create an easement for the reasons above stated, and that unless an easement was effectively excepted out of the conveyance to plaintiffs, the judgment was right and must be affirmed.

For the reasons hereafter briefly stated, we agree with appellees and with the district judge, that the language in the deed to plaintiffs was not effective to except from it the easement defendant asserts.

Of the four paragraphs following the language, "The above premises and lands are conveyed further subject to", only paragraphs two and four are relied upon by defendant to support its claim that plaintiffs took their title subject to easements reserved or excepted from their deed.

Paragraph two, which does not undertake to create any easement or make any reservation or exception, but merely refers to "existing easements or reservations of record or where evidenced by actual possession", is clearly ineffective to support defendant's claim. This is so because (1) it is not claimed that the canal or drainage ditch in controversy here was evidenced by actual possession, and (2) for the reasons already stated, that the attempted dedication was ineffective to create easements, the so-called existing easements or reservations of record do not in fact or in law exist.

When paragraph four is turned to, defendant is in no better position. As the district judge correctly pointed out, "The parties have stipulated that the ditch and canal built by defendant are not a part of, or connected with any gravity canal erected or to be erected by the Bureau of Reclamation. The rule is that reservations or exceptions in a deed shall be construed against the grantor and in favor of the grantee. 14 Tex.Jur. 962, Sec. 179. The same is true in case of language of doubtful meaning. 14 Tex.Jur. 916, Sec. 138."

In Shell Petroleum Corp. v. Ward, 5 Cir., 100 F.2d 778, 779, this court, applying the principle to a claimed exception from a conveyance, declared: "It is a principle of universal application that grants are liberally, exceptions strictly, construed against the grantor. (Citing cases.)"

If then paragraph four had been expressly drawn to reserve from the conveyance for the benefit of the grantor the easement claimed, we think it would have been ineffective because, under the above rule of construction, it must have been construed as...