James v. Drye

• Decision Date: 30 April 1958
• Docket Number: No. 10562,10562
• Citation: 314 S.W.2d 417
• Parties: Edward C. JAMES et al., Appellants, v. Robert W. DRYE et al., Appellees.
• Court: Texas Court of Appeals

Page 417

314 S.W.2d 417

Edward C. JAMES et al., Appellants, v. Robert W. DRYE et al., Appellees.

No. 10562.

Court of Civil Appeals of Texas, Austin.

April 30, 1958.

Rehearing Denied May 28, 1958.

Patterson, McDaniel & Moore, Houston, for appellants.

L. Alvis Vandygriff, Austin, W. T. Barber, San Marcos, Gibson R. Randle, Austin for appellees Robert W. Drye (and other plaintiffs below).

John C. Foshee, Arthur P. Bagby, Austin, for appellee C. B. Smith.

Ernest Morgan, San Marcos, DeLange, Hudspeth & Pitman, Houston, for appellee Eagle Rock Ranch.

HUGHES, Justice.

This is a venue appeal in which appellees who successfully defended venue in the Trial Court rely primarily, if not solely, upon the provisions of Subd. 14, Art. 1995, Vernon's Ann.Civ.St., relating to land suits the proper applicability of which usually depends, except for proof of the location of the land, wholly upon the allegations of the plaintiffs' petition. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774; Pringle v. Southern Bankers Life Ins. Co., Tex.Civ.App., Austin, 296 S.W.2d 347; Pickens v. Langford, Tex.Civ.App., San Antonio, 270 S.W.2d 285; McDonald Texas Civil Procedure, Vol. 1, Sec. 4.22.

We will, therefore, state the substance of plaintiffs' petition:

Robert W. Drye et ux., R. B. Leggett et ux., C. N. Brinkley et ux., William E. Harlan et ux., Joseph A. Howse et ux., R. C. West et ux., all of Harris County, J. W. Gossett et ux., John C. Landrum et ux., of Travis County, Charles F. Turbiville et ux. and Robert E. Cummings et ux. of Bexar County sued C. B. Smith, Eagle Rock Ranch, Edward C. James, Conso Realty Company and Eagle Rock Corporation.

C. B. Smith was alleged to reside in Travis County. Eagle Rock Ranch, a corporation, Conso Realty Company, a corporation, and Eagle Rock Corporation, a dissolved corporation, were alleged to reside in Hays County. Edward C. James was alleged to reside in Harris County.

Plaintiffs sued for themselves and as representatives of a class having similar rights and who, as a practical matter, were too numerous to name and make parties.

Eagle Rock Corporation was the owner of three platted ranch subdivision 1, 2, 3, known as Eagle Rock Ranchitos. Edward C. James was the owner of the ranch comprised of about 1,100 acres out of which these Ranchito Subdivisions were carved. 'Edward C. James formulated and carried out a general scheme and plan for the development of the ranch as a place where persons could own and build their country homes. Under this plan these persons were also to have the right to use and enjoy various receational facilities then or thereafter to be built by James and some of the James Defendants ¹ on the properties. These individual home owners were also to have and own rights through the length and breadth of the ranch for horseback riding, tennis, golf, hiking, picnicking, fishing, swimming, nature study and other outdoor sports and recreational activities.'

Eagle Rock Corporation in pursuance of such plan caused the Ranchitos to be laid out and subdivided in such manner that the purchaser of any lot in and adjacent to these subdivisions would acquire easments in the areas and facilities shown on plats depicting the Ranchitos as well as easements throughout the ranch proper and that plaintiffs and class plaintiffs relying on representations made by James and the Corporation defendants controlled by him regarding the nature and extent of such easements purchased lots in the Ranchito Subdivisions and erected valuable improvements thereon.

Use by plaintiffs of the privileges incident to the enjoyment of such easements was alleged and recognition of such use and enjoyment by James and the corporations controlled by him as well as by the grantee of the ranch and 108 Ranchito lots Eagle Rock Ranch, ² until on or about June 1, 1957, was also alleged.

C. B. Smith was alleged to have assumed personal liability, in a contract between him and the grantors, for the performance of the obligations, covenants and duties imposed upon the grantee, Eagle Rock Ranch, in the deeds of April 13, 1955, conveying the ranch and Ranchito lots to it.

We copy from plaintiffs' petition:

'11. Under and by virtue of the foregoing facts, Plaintiffs acquired easements appurtenant to the grants of their respective lots as to the areas and facilities shown on the said recorded plats and acquired easements appurtenant, easements by estoppel and licenses in writing and by estoppel throughout the ranch for outdoor recreational purposes, including swimming, fishing, tennis, golf, shuffle board, horseback riding, hiking, picnicking, nature study and other related outdoor sports and pursuits.

'12. Upon the sale of the ranch and of the various subdivision lots by the James Defendants to the Defendant Eagle Rock Ranch, it was the duty of the James Defendants to the Plaintiffs to do no act and make no representation which would be in violation of or contrary to Plaintiffs' contractual rights as hereinabove set forth. It was the further duty of the James Defendants to convey the ranch subject to all of such rights for the benefit of Plaintiffs and to notify the Smith Defendants of these rights and reservations.

'13. a. In the event Plaintiff's rights as heretofore alleged were not reserved and preserved for the benefit of Plaintiffs by James Defendants, then Plaintiffs alleged alternatively as follows: Prior to the time in 1955 when the Defendant Eagle Rock Ranch acquired the ranch and various subdivision lots, extensive negotiations for the sale were had. Plaintiffs do not know and have had no way of determining the facts as to what took place in these negotiations. These facts would be known only to Defendants.

'b. Nevertheless, the James Defendants in the sale of the ranch and lots to the Smith Defendants without disclosing, protecting and reserving the rights which these Plaintiffs own as hereinabove stated thereby became guilty of fraud against the Plaintiffs. * * *

'15. a. Pleading further in the alternative, Plaintiffs allege that the James Defendants did disclose and fully represent to the Smith Defendants that the Plaintiffs own and hold the easement rights and other rights herein set forth.'

The petition alleges that C. B. Smith and the Eagle Rock Ranch have filed for record an instrument purporting to be a resubdivision of some of the Ranchitos which was in fact applicable to a part of the ranch over which plaintiffs owned and claimed easements and was in derogation of those rights and that such attempted subdivisions cast a cloud on their title to such easements.

Plaintiffs also alleged that they were, as Ranchito owners, required to belong to the Eagle Rock Club and as members were entitled to (until at least 1974) numerous privileges such as use of the club house, tennis courts, swimming pool, etc., and that they enjoyed these privileges and pleasures until about June 1, 1957.

Plaintiffs allege that on or about June 1, 1957, C. B. Smith and Eagle Rock Ranch closed the club and have denied plaintiffs access to the recreational facilities referred to and have wired gates and otherwise have prevented plaintiffs from exercising their easements and privileges on and over the ranch proper. ³

Plaintiffs prayed for a declaratory judgment removing the cloud from their land titles by establishing their easements appurtenant, easements by estoppel and licenses in writing and by estoppel and other rights in and to the real property of defendants described hereinabove; for a declaratory judgment cancelling and setting aside the plat and restriction instrument of Eagle Rock Heights Section 1, and for other relief.

Edward C. James and Conso Realty Company filed pleas of privilege to be sued in Harris County.

Eagle Rock Ranch filed a cross action against all other parties in which it alleged it purchased the properties involved without notice of any of the easements or privileges claimed by plaintiffs. It sought removal of such claims as clouds on its title and to quiet its title and damages.

Edward C James and Conso Realty Company filed pleas of privilege to this cross action asserting their privilege to be sued in Harris County.

All pleas of privilege were overruled and Edward C. James and Conso Realty Company prosecute this appeal from such action.

Eagle Rock Ranch has filed a brief in which it prays that the order of the Trial Court be sustained but if not that the entire controversy including its cross action be transferred to Harris County.

C. B. Smith has filed a brief in which he prays that the order of the Trial Court be affirmed.

We believe that a fair and reasonable interpretation of plaintiffs' petition is that, primarily, it is a suit to establish easements in or on real property located in Hays County.

We cite and briefly quote from Magnolia Petroleum Co. v. Caswell, Tex.Com.App., 1 S.W.2d 597, 600, regarding the nature of an easement:

'An easement is a right or advantage which one has in the lands of another. * * *

'An easement has been defined as a liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil. It is a right which one person has to use the land of another for a specific purpose.'

This Court cited and relied upon such opinion in Posey v. Williamson, 134 S.W.2d 335, 336, where we held that a suit to enjoin interference with a claimed roadway across land should be tried in the county where the land lay since 'It is well settled that such an easement over the lands of another is an 'interest in land,' and 'a charge upon the estate or property of the servient tenement."

In Carleton v. Dierks, 195 S.W.2d 834, 835, this Court held, in an opinion by Chief Justice McClendon, that a suit to enjoin interference with a claimed roadway across defendant's land involved title to an easement 'which constitutes and interest in land' under subd. 14, Art. 1995, V.A.C.S., and that venue of such suit was in the...