Howard v. Young

• Decision Date: 22 March 1948
• Docket Number: No. 5847.,5847.
• Citation: 210 S.W.2d 241
• Parties: HOWARD et al. v. YOUNG et al.
• Court: Texas Court of Appeals

Page 241

210 S.W.2d 241

HOWARD et al. v. YOUNG et al.

No. 5847.

Court of Civil Appeals of Texas. Amarillo.

March 22, 1948.

Rehearing Denied April 19, 1948.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action by Willie V. Howard and husband against C. N. Young and others to restrain the barricading of a driveway, to reform an easement contract, and to remove a cloud upon title. From the judgment, plaintiffs appealed to the Court of Civil Appeals of the Fifth District, and the cause was transferred to the Court of Civil Appeals at Amarillo by order of the Supreme Court.

Judgment rendered in accordance with opinion.

Saner, Jack & Sallinger, of Dallas, for appellants.

P. P. Ballowe, of Dallas, for appellees.

STOKES, Justice.

This suit was instituted by the appellants, Willie V. Howard, and her husband, George T. Howard, against the appellee, C. N. Young, for an injunction restraining the appellee from closing and barricading a ten foot driveway located between the properties of the respective parties and to reform an easement contract entered into by their predecessors in title in which appellants alleged a mutual mistake was made. Appellants also sought to remove the cloud cast upon their title to the driveway by the alleged mutual mistake in the easement contract and prayed that they be quieted in their title and use of the driveway.

The record shows that on and before December 1, 1932, two certain lots, described as lots 5 and 6 in block 15/646 in the city of Dallas, were owned by Mrs. Ethel Emma Owen. On that date Mrs. Owen sold and, by general warranty deed, conveyed to J. L. Allhands and R. E. Davis the north ninety feet of the two lots. Mrs. Owen owned a one-story building located immediately south of the portion of the lots conveyed to Allhands and Davis, near the rear of which was a large door that was used as a means of unloading and placing in the rear of the building goods, merchandise and articles used in the business. Prior to the purchase of the north portion of the lots by Allhands and Davis, a driveway had been maintained by Mrs. Owen running west from Peak Street and alongside the north wall of her building as a means of approach to the large door in the north side and near the rear or west end thereof by trucks, wagons and other vehicles. On the same day and simultaneously with the execution of the deed by Mrs. Owen to Allhands and Davis, the parties executed and acknowledged the easement contract involved in this suit in which it was stipulated that Allhands and Davis owned the north ninety feet of the two lots, describing the same by metes and bounds, and that Mrs. Owen owned the fifty-five and one-half feet lying immediately south thereof, and that the parties had mutually concluded and agreed with each other to lay out and leave open a strip of land at the rear end of the property owned by Allhands and Davis, where it joined the property of Mrs. Owen, ten feet in width and extending from Peak Street, which ran along the front of Mrs. Owen's property, one hundred nine feet and four inches back to the rear or west line of the respective properties, the ten foot strip to be used as a passageway and to be located on five feet of the property owned by each of the parties, that is, half of the ten foot passageway to be located on the property of Allhands and Davis and half of it to be located on the property of Mrs. Owen. This had reference to the driveway that was then being maintained and used by Mrs. Owen. It was provided in the contract that the passageway should at all times thereafter remain open for the mutual use and accommodation of the two described tracts of land and of the respective owners and occupiers of the same. Upon the portion of the lots sold to Allhands and Davis there were located three buildings which faced Ross Avenue on the north and extended back south to within about eighteen feet of Mrs. Owen's building. Peak Street runs at right angles to Ross Avenue and the building owned by Mrs. Owen faces Peak Street. There was a vacant space of about eighteen feet between the rear of the Allhands and Davis Buildings and Mrs. Owen's building but the easement contract contemplated the appropriation of only the south ten feet thereof.

By mesne conveyances appellant, Mrs. Howard, is now the owner of the building and portion of the lots retained by Mrs. Owen when she sold to Allhands and Davis, and appellee, Young, is the owner of the north ninety feet of the lots conveyed by Mrs. Owen to Allhands and Davis. The record shows that under a lease contract, appellants were occupying one of the buildings owned by appellee, facing Ross Avenue, at a rental of $35 a month and, shortly before this suit was filed, but some months before the lease contract would expire, appellee requested appellants to cancel the lease and vacate the building in order that he might lease it to other parties at a rental of $300 per month. Appellants took the matter under consideration but did not indicate their willingness to accede to the request and, after some three or four weeks, appellee erected a barricade across the entrance to the driveway, thus preventing appellants or their tenants from entering the same and depriving them of the privilege and convenience of using the large door near the rear of their building for the purpose of loading and unloading materials necessary to be placed in, and removed from, the building.

A temporary injunction was issued by the court but a temporary adjustment of some kind was made and the suit proceeded principally upon the issue of whether or not appellants were entitled to use the driveway. The case was submitted to the court without the intervention of a jury and resulted in a judgment denying appellants any relief, to which they duly excepted, gave notice of appeal, perfected an appeal to the Court of Civil Appeals of the Fifth District at Dallas, and the case was transferred to this Court by order of the Supreme Court.

The first contention presented by appellants is that the court erred in denying them a judgment reforming the easement contract entered into between Mrs. Owen and Allhands and Davis December 1, 1932, in which an alleged mutual mistake of the parties was made in describing the land set apart therein as an easement or driveway for the accommodation of all of the parties in approaching the rear portion of their respective properties. It is obvious from the record that a driveway or passageway of some kind is necessary for appellants' proper use and enjoyment of their building. The only other approach to its rear is through the front doors. The only rear opening is located in its north wall near the rear and it was to secure continued access to the rear door that Mrs. Owen desired the ten foot driveway. The easement contract shows clearly that at the time it was entered into, both Mrs. Owen and Allhands and Davis thought the ten foot strip would occupy five feet on the north portion of Mrs. Owen's property and five feet on the south end of the property of Allhands and Davis. In 1935 Davis had a survey made of the strip of land being used as a...