Hollan v. State

• Decision Date: 22 November 1957
• Docket Number: No. 15816,15816
• Citation: 308 S.W.2d 122
• Parties: W. L. HOLLAN et ux., Appellants, v. The STATE of Texas et al., Appellees.
• Court: Texas Court of Appeals

Page 122

308 S.W.2d 122

W. L. HOLLAN et ux., Appellants, v. The STATE of Texas et al., Appellees.

No. 15816.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 22, 1957.

Rehearing Denied Jan. 10, 1958.

Hamble & Bobbitt and W. J. Mills, Musick, Musick & Heath and Robert H. Heath, Houston, for appellants.

J. Milton Richardson, Asst. Atty. Gen., Joe Resweber, County Atty., Harris County, Houston, for appellee, State.

Fountain, Cox, Gaines & Fox, Joyce Cox and Wm. Brantly Harris, Houston, for appellee, Seabrook Land Co.

BOYD, Justice.

This is a suit by appellees Seabrook Land Company and the State of Texas against appellants W. L. Hollan and wife, Daisy Hollan, in trespass to try title for the recovery of property known as 'Company's Reservation' and the bed of Clear Creek, and for an injunction requiring appellants to vacate piers and buildings maintained by them on the property in controversy. There was a jury, but at the conclusion of the evidence the court, upon motion by appellees, withdrew the case from the jury and rendered judgment for appellees.

The townsite of Seabrook was first subdivided in 1895 by Seabrook Town Lot & Improvement Company. The area between the lots and the blocks of the townsite and the waters of Clear Creek and Galveston Bay was designated as 'Reservation.' With the exception of some lots theretofore sold, the townsite was conveyed by the Improvement Company to Ben Campbell, who conveyed to Seabrook Land Company. Seabrook filed a second plat or resubdivision in February, 1903, and all subsequent sales of lots, including Lots 4, 5, 6, and 7, of Block 167, now owned by appellants, referred to this second plat for description. It was shown that the location of lots, blocks, and streets adjacent to the reservation area is the same on both plats.

The area designated as 'Reservation' in the first plat is in the second plat designated 'Company's Reservation.' It is stated in the resubdivision that Seabrook is 'reserving to its self or its successors, the fee to said street and alleys, and all rights therein except the use of same by public as herein set forth, and this dedication is made with these express reservations.

'The said Co. also reserves to its self and exclusive use and rights to that portion of the land marked on this plot as companys Reservation.' This Reservation is an unenclosed area.

Appellants occupy a pier and two buildings on the land in controversy and on the bank of Clear Creek, a navigable stream.

Appellants alleged that the 'Company's Reservation' was in fact a public passageway and street; that appellants and the public had an easement sixty feet wide along the north bank of Clear Creek and extending to the property of appellants; that this easement had been acquired by prescription, and alternatively, by implied dedication; that there is an easement of passage in favor of appellants and other lot owners by prescription, and alternatively, by implied dedication.

By their first six points of error appellants complain of the court's refusal to submit issues concerning the existence of the easements, and its failure to find that the easements exist. The seventh point is that the public is the owner of the riparian rights because the roadway acquired by prescription runs along and parallel to the bank of Clear Creek, and it was error to render judgment for appellees and to award a writ of possession covering the upland and the submerged lands. By another point it is contended that the State had vested in Harris County Houston Ship Channel Navigation District title to the soil below the tidal boundaries of Clear Creek.

Appellees contend that as a matter of law no easements existed and that the evidence was insufficient to carry that issue to the jury; that if such easements do exist, that fact would not affect the riparian rights of the fee owner of the upland and would not give a right to any member of the public or to appellants to take permanent and exclusive possession of any part of the shore line or bed of Clear Creek.

In our opinion, the evidence failed to raise an issue as to whether the public or appellants acquired an easement by prescription. To establish such easement, the user must be adverse and exclusive. 15-B Tex.Jur., p. 291, sec. 29; Sassman v. Collins, 53 Tex.Civ.App., 71, 15 S.W. 337, writ refused; City of Houston v. Roberson, Tex.Civ.App., 195 S.W.2d 674; City of Gilmer v. Moyer, Tex.Civ.App., 181 S.W.2d 1008; Gill v. Pringle, Tex.Civ.App., 224 S.W.2d 525; Boone v. City of Stephenville, Tex.Civ.App., 37 S.W.2d 842.

It was shown that Seabrook had executed 42 leases covering parts of the Reservation, and had recovered judgment against several of its lessees who had made some adverse claim. With the exception of appellants' occupancy of the structures, the use made of the area by them and by the public was in common with Seabrook and its tenants. No claim of right, inconsistent with the rights of Seabrook and its tenants, is shown to have been asserted. Such use as was shown of the unenclosed lands is not considered hostile and adverse to the owner. Millmen Union v. Missouri-Kansas-Texes R. Co., Tex.Civ.App., 253 S.W.2d 450; Sassman v. Collins, supra.

Nor do we think that there was any evidence of an implied dedication. No act of the owner was shown which evidenced an intent to dedicate. Moreover, a reservation is the exact opposite of a dedication. Shields v. Harris County, Tex.Civ.App., 248 S.W.2d 510; City of Brownsville v. West, Tex.Civ.App., 149 S.W.2d 1034; Swanson v. Gillan, 54 R.I. 382, 173 A. 122; Grand Crossing Land & Improvement Co. v. City of Mobridge, 39 S.D. 574, 165 N.W. 988.

But even if appellants and the public have easements over the area, or if those issues were raised, we do not think the court erred in rendering judgment for appellees. Where a plaintiff shows title to the land in himself, and the defendant shows title to an easement, the plaintiff may recover the title and possession subject to the defendant's right to enjoy the easement. Therefore, the existence of an easement of passage would not be a defense to appellees' suit. 15-B Tex.Jur., p. 253, sec. 4; Green v. City of San Antonio, Tex.Civ.App., 282 S.W.2d 769; Cocke v. Texas & N. O. R. Co., 46 Tex.Civ.App. 363, 106 S.W. 407, writ refused; Hays v. Texas & P. Ry. Co., 62 Tex. 397; Rio Grade & E. P. R. Co. v. Kinkel, Tex.Civ.App., 158 S.W. 214; 41-A Tex.Jur., p. 737, sec. 188; Cooper v. Smith, 9 Serg. & R., Pa., 26, 11 Am.Dec. 658.

The judgment expressly provided that nothing therein should be construed as preventing appellants from using any portion of the upland as a passageway not used exclusively by Seabrook and its tenants.

It seems to be settled that an easement of passage does not carry with it title to the servient estate. 41-A Tex.Jur., p. 737, sec. 188; Hays Texas & P. Ry. Co., 62 Tex. 397. It is equally clear that the riparian rights of the owner of the fee includes free access to the water and the right to have removed any structures used by others which impede or hamper those rights. 24 A.L.R., Annotation at page 1273. 'The riparian of littoral proprietor's right of access attaches equally to the whole and every part of his shore line, and no one has the rights to fetter or impair his enjoyment of his property by...