Inman v. Padrezas

• Decision Date: 30 August 1976
• Docket Number: No. 1079,1079
• Citation: 540 S.W.2d 789
• Parties: June Benjamin INMAN and Robert H. Stromstedt, Appellants, v. Michael PADREZAS and Joe Pasowicz, Appellees.
• Court: Texas Court of Appeals

Page 789

540 S.W.2d 789

June Benjamin INMAN and Robert H. Stromstedt, Appellants, v. Michael PADREZAS and Joe Pasowicz, Appellees.

No. 1079.

Court of Civil Appeals of Texas Corpus Christi.

Aug. 30, 1976.

Wm. DeWitt Alsup, Alsup & Alsup, Corpus Christi, for appellants.

Anthony Field Constant, Corpus Christi, for appellees.

OPINION

NYE, Chief Justice.

This is an appeal from a judgment granting a permanent injunction on behalf of appellees, Michael Padrezas and Joe Pasowicz, against appellants, June Benjamin Inman and Robert H. Stromstedt. Trial was before the court without the intervention of a jury. The trial court rendered judgment that the property in question was part of a public easement granted to the public and that defendants are therefore perpetually enjoined and restrained from obstructing or interfering in any manner the free passage and use by the public on said property. The trial court ordered appellant Inman to remove the fences or any obstruction then erected on the property. From this judgment the defendants have duly perfected their appeal to this Court.

The property in question is located in what is known as Tropic Isles Subdivision in Corpus Christi, Nueces County, Texas. The particular area of which we are concerned is Block 8, Lot 16 and 17 of said Subdivision. No other lots or blocks in the Subdivision are affected by this Opinion. A plat or diagram of the lots and area involved, not necessarily drawn to scale, is incorporated herein for the purpose of clarity and to show the location of the various lots owned by the parties herein involved. This plat will be referred to hereafter.

The plaintiffs are Michael Padrezas and Joe Pasowicz. Mr. Padrezas is the owner of Lot 19 and Mr. Pasowicz is the owner of Lot 15 located in Block 8 of the Tropic Isles Subdivision. The defendants are J. B. Inman, who owns Lot 17 and Mr. Stromstedt, who, although having no present property interest in Tropic Isles Subdivision, did at the time the subject controversy arose own Lot 16 of Block 8 of said Subdivision. The defendants' lots are (as the diagram illustrates) located at the end of and front on Biscayne Cove. Biscayne Cove is a waterway or canal. The end of the Cove forms a part of a circle with Lots 14, 15, 16, 17, 18 and 19 fronting on the circle. The waterway opens through a series of channels throughout the Subdivision into the Laguna Madre behind Padre Island. The plat of the Tropic Isles Subdivision was filed in the deed records of Nueces County in April, 1956. From the plat, it appears that the original owner of the Subdivision was Edwin Flato Company, Inc. which made the following dedication:

THE STATE OF TEXAS:

KNOW ALL MEN BY THESE PRESENTS

COUNTY OF NUECES:

that the Edwin Flato Co., Inc., a Texas Corporation is the owner and Eugenia Walsh, joined by her husband, is the lienholder of all lands embraced within the boundaries of 'Tropic Isles', and addition in Nueces County, Texas, as shown, on the annexed plat of same and we do hereby adopt the same as 'Tropic Isles', an addition in Nueces County, Texas.

The Tropic Isles Main Channel and the Coves which provide a means of access by water to each of the lots in the addition are hereby dedicated to the public forever. The Laguna Shores Road as shown hereon in the correct position as located on the ground and the drives and roads are all dedicated to the public for the use as such .

This map is made for the purpose of dedication and description.

This the 23rd day of April, 1956.'

In 1969, Jon Held Homes, Inc. purchased the property known as Tropic Isles Subdivision. On December 7, 1971, Inman purchased Lot 17 of Block 8 from Jon Held Homes, Inc. The other defendant Stromstedt, purchased Lot 16 on March 24, 1972. The defendants' lots as the plat shows are contiguous to each other. At the water's edge on each lot is located a concrete bulkhead several feet in width. The area in controversy comprises the bulkhead on Lot. 17.

The plaintiffs, Pasowicz and Padrezas, purchased their lots in April of 1972, and February of 1973, respectively. Pasowicz owns Lot 15 and Padrezas owns Lot 19. Lots 15 and 19 are opposite each other and separated by the water in Biscayne Cove. Each of the parties has a home on his respective lots. The depth of the water in the Cove is approximately four feet deep.

When Stromstedt first moved into the area, no fences had been erected by any of the property owners on Block 8 and the bulkheaded area around the end of the Cove was clear and free from any obstructions. That area was frequently used as a passageway or walkway for property owners visiting other landowners on either side of the Cove. In fact, the record shows that plaintiffs frequently used this area around the end of the Cove to visit each other.

In 1973, the owner of Lot 18 (a Mr. Hensley) erected a chain link fence along his property lines, separating his lot from Lot 19 and Lot 17. This fence, however, did not go all the way down to the water's edge, but stopped several feet before reaching the bulkhead. The owner, however, erected gates which crossed over the bulkhead thus preventing anyone from walking along the bulkhead around the Cove on Lot 18. In September or late August of 1973, defendant Inman also erected fences and gates across the bulkhead contiguous to his land. One gate being located across the bulkhead between Lots 17 and 18 and the other across the bulkhead between Lots 16 and 17. These fences prevented anyone from walking around the inside end of the Cove over the bulkhead. Later, defendant Stromstedt erected a fence or gate across the bulkhead at a point between Lots 15 and 16 also preventing passage around the inside edge of the Cove. Prior to selling his property (Lot 16), Stromstedt removed the fence between Lots 15 and 16 which blocked the bulkhead.

The only area on the bulkhead at the end of the Cove which remained blocked at the time of trial was that portion of the bulkhead between Lots 16 and 18. This is the area in dispute. It consists of a tract of land approximately four (4) to eight (8) feet wide beginning at the water's edge on Lot 17.

The gates as initially erected by Inman were not fixed but had a movable latch allowing them to swing back and forth. Because of the continuous traffic around the bulkhead on Lot 17, and with people leaving the gates open, Inman locked the gates by chaining them shut . The record shows that the chain was broken several times. Padrezas admitted to having cut the chain on one occasion. Criminal charges were filed against him for such act. In can, therefore, be seen the animosity existing between the plaintiffs and defendants.

In order to be certain about their right to block off that portion of the bulkhead, each defendant obtained a quit claim deed from Jon Held Homes on December 13, 1973, purportedly covering the disputed area, i.e., down to the water's edge and including the bulkhead.

The dispute continued, however, with increased bad feelings between the parties. The plaintiffs contended that the bulkheaded area was always included within the public dedication and defendants contending that the bulkheaded area was within their property lines which afforded them the right to erect a fence across the bulkhead.

On November 20, 1974, plaintiffs (owners of Lots 15 and 19) filed suit against the defendants (owners of Lots 16 and 17) alleging that the bulkheads were within the public dedication of Biscayne Cove and that such area does not form any part of their Lots 16 or 17 and, therefore, defendants have no right to block the bulkhead in any way . Plaintiffs contend that unless the acts and conduct of defendants are enjoined, they will suffer irreparable damage and injury as they have no adequate remedy at law. Plaintiffs further alleged that the defendants instituted criminal proceedings against Padrezas maliciously and without reasonable or probable cause resulting in Padrezas being damaged in the sum of $10,000.00.

The defendants answered specifically denying that the bulkheads in question form any part of any public dedication of record and that such bulkheads are the private real estate of defendants and not subject to public use. The parties agreed that Padrezas' action against defendants for malicious prosecution should be severed from the injunctive action and the trial court, therefore, severed the malicious prosecution action from this suit and proceeded without a jury to hear the action for an injunction. The trial court rendered judgment holding that the property in question was a part of a public easement granted to the public by the dedication of the Tropic Isles Subdivision; the court perpetually enjoined and restrained the defendants from obstructing or interfering in any manner the free passage and use by the public over the area in controversy; and ordered defendant Inman to immediately remove the fences and any other obstructions then erected on the said property. From such judgment, the appellants have duly perfected their appeal to this Court.

In the instant case, no specific findings of fact were requested and none were filed. Under such circumstances, it is presumed upon appeal that the trial judge found every issue of fact necessary to sustain the judgment when such fact issue is raised by the pleadings and it finds support in the evidence. Buchanan v. Byrd, 519 S.W.2d 841 (Tex.Sup.1975); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); Mobil Oil Company v. Dodd, 515 S.W.2d 351 (Tex.Civ.App.--Corpus Christi 1974, no writ); Giles v. Wiggins, 442 S.W.2d 839 (Tex.Civ.App.--Fort Worth 1969, writ ref'd n.r.e.).

The appellants bring forward on appeal nine points of error. In their points 1 and 2, they assert that the trial court erred in granting the injunction because there was no evidence or insufficient evidence that the dedicating grantor (Flato Company) had title to the realty involved (the bulkheaded area) in the alleged dedication.

As we unde...