Jones v. Fuller
| Decision Date | 16 June 1993 |
| Docket Number | No. 10-92-247-CV,10-92-247-CV |
| Citation | 856 S.W.2d 597 |
| Parties | Donna JONES, et al., Appellants, v. Cleathern FULLER, individually and as Trustee for the Fuller 1991 Children's Trust, Appellee. |
| Court | Texas Court of Appeals |
Michael J. Simmang, Max E. Roesch, Michael J. Simmang, P.C., Giddings, for appellants.
James R. Witt, Witt & Taylor, Centerville, Cactus Jack Cagle, Cagle and Associates, Houston, for appellee.
Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.
This is a suit for a declaratory judgment, injunctive relief, damages, and attorney's fees. Donna Douthitt Jones and her brother, Cameron Douthitt, appeal a take-nothing judgment rendered in favor of Cleathern Fuller, individually and as trustee for the Fuller 1991 Children's Trust. They argue that they had valid and recorded express easements appurtenant across Fuller's tract and that he had constructive, actual, and inquiry notice of their easements. Furthermore, they contend the easements had not expired due to completion of purposes or impossibility. They also argue that if they did not have an easement under the deeds then they have an easement by prescription. We reverse the take-nothing judgment and render judgment that Donna and Cameron have easements appurtenant across Fuller's tract. However, we sever and remand a portion of the cause for a trial on injunctive relief, damages and attorney's fees.
B.D. Douthitt had several children, only three of whom are involved in this case: Donna Douthitt Jones, Cameron B. Douthitt, and James (Stubby) Douthitt. During the years between 1970 and 1975, B.D. conveyed all of his rural real estate holdings in Leon County to his children by gift deeds. Donna was given the Saunders Riley Survey; Cameron was given the McGruder Survey; and James was given the Warrick Martin Survey. (See Appendix Map). Each gift deed recited: "The Grantor herein [B.D. Douthitt] is by deed of even date herewith conveying an undivided interest in and to certain lands and premises owned by him to his other children and which deeds will be filed for record in the office of the County Clerk of Leon County, Texas...." In each of the deeds, except one, B.D. also included the following:
Grantor [B.D. Douthitt] does hereby convey to the Grantee herein and to her [or his] heirs, executors, administrators and assigns the right, privilege and as an appurtenance to the lands and premises herein described to the free and uninterrupted use, liberty and privilege together with an easement and right of way for passage in, along, over and across any and all lands now owned and/or right of ways and easements now owned or to which Grantor might have a right of way and easement to reach the hereinabove described lands and premises in order that the Grantee herein and the Grantees in the other deeds mentioned herein may have a free, unobstructed and uninterrupted passageway and easement to and from a public road and across the lands owned and/or claimed by the Grantor herein to reach the lands herein and hereby conveyed from a public road or a means of ingress and egress to and from the hereinabove described lands and premises.
The land in controversy is part of the land deeded to James, who allowed Donna and Cameron to cross his land to reach their tracts. James' widow, Jessie, deeded a portion of the property in the northwest corner of the Warrick Martin Survey to B.D. Douthitt. This piece of land, called the "estate property," is approximately 4.69 acres in area. After severance of the estate property, the remainder of the Warrick Martin Survey was approximately 236.97 acres. This 236.97 acres is the land that Cleathern Fuller, the appellee, purchased from Jessie in 1991 and is the subject of this suit. Fuller purchased the land in the name of the Fuller 1991 Children's Trust.
Two roads exist on the Warrick Martin Survey owned by Fuller. One road, called the "red-line road" at trial, crosses a small portion of the survey and then runs along the north boundary of the estate property. The second, referred to as the "green-line road," crosses the middle of the Warrick Martin Survey. Also on the property is a short road that leads from the cattle guard at the entrance of the Warrick Martin Survey to the intersection of the green- and red-line roads. The roads are shown on the map in the Appendix.
At the time of the original conveyances, the green-line road, which was created in the mid to late 1970s, had been used by the Douthitt family and their tenants to reach their various surveys. This was also true of the road from the cattle guard to what is now the intersection of the green- and red-line roads. The red-line road was created only after the Warrick Martin Survey was conveyed to James and before its purchase by Fuller.
There is evidence that the purpose of the red-line and green-line roads was to provide a means of ingress and egress to the tracts owned by the Douthitt family. Jessie testified that, prior to James' death in 1980, no one was allowed to cross the Warrick Martin Survey except by using the red-line road. The only exception, she said, was when the red-line road became impassable for a short period of time. Only then were the Douthitt family members allowed to use the green-line road.
In December 1975, Cameron Douthitt conveyed a portion of the McGruder Survey to his sister, Delois McLain, and her husband. In 1984, the McLains granted Donna an easement across the McLain tract to access her property. (See Appendix). Donna testified that this easement was merely to designate the original green-line road as the only easement to be used across the McGruder Survey. The same type of agreement, i.e., to designate the road to be used on a pre-existing easement, was also entered into between Cameron and his siblings.
Donna testified that she also requested an easement from Jessie over the section of road from the cattle guard to the intersection of the green- and red-line roads. In return for Jessie's promise to grant the easement, Donna said she gave her an easement across the estate property on the red-line road. However, Donna said that Jessie never granted the promised designated easement. The estate property was eventually conveyed by Donna, the executor of B.D.'s estate, to Cameron, Donna, and Delois in March 1991.
In February 1991, Jessie sold the Warrick Martin Survey to Cleathern Fuller. Prior to the sale, Fuller made a physical inspection of the land and saw that each road was used frequently. Moreover, he was aware that the Douthitt family was using the cattle guard for ingress and egress to their property.
The earnest-money contract between Jessie and Fuller provided that easements to the property were to be determined by the title policy. The title policy specifically excepted to "those roads shown on survey plat prepared by Lusher Surveying Co., R.P.S. No. 2510." The Lusher survey plat clearly designated the green-line road as a "road used by others." Moreover, the warranty deed from Jessie to the Fuller 1991 Children's Trust conveyed the land subject to "any and all easements, covenants, rights-of-way ... pertaining to the above described property ... either shown of record in the office of the County Clerk of Leon County, Texas or apparent on the property...." In addition, the deed of trust from the Children's Trust contained this subject-to clause.
Fuller testified that he had not read the title policy or the warranty deed. Furthermore, he claimed that he did not discuss the title policy, warranty deed, or survey plat with his attorney. He did, however, review three easements in his favor with his attorney. Fuller also admitted that he purchased the property subject to the title policy exceptions to the roads shown on the Lusher plat and subject to the terms of the deed of trust.
Donna contacted Fuller after he purchased the property and asked him for a designated easement through the cattle guard to the intersection of the green- and red-line roads. In return, she and her siblings executed and forwarded to Fuller a designated easement over the estate property on the red-line road. However, Fuller and the Douthitt family could not agree on the terms of the easement over Fuller's property. On May 6, 1991, Fuller sent a letter to Donna explaining his position. In the letter, he refers to Donna's, Cameron's, and Delois' easement across his property.
Subsequently, Fuller locked the Douthitts out of the Warrick Martin Survey at least three different times. Each time, the Douthitts cut or removed the locks to gain access to their property. Fuller then blockaded the cattle guard in an attempt to permanently prevent access to the Douthitts. After Fuller blocked the cattle guard, he used another entrance and crossed the estate property to access his own property.
Donna and Cameron filed suit in July 1991 requesting that the court declare their recorded easements to be valid and to restrain Fuller from further "lock outs." They also sought damages and attorney's fees. The court, however, rendered a take-nothing judgment in favor of Fuller after a bench trial.
In their first point, Donna and Cameron argue that they have valid and recorded express easements appurtenant across Fuller's tract as a matter of law and that he had constructive, actual and inquiry notice of the easements as a matter of law. Thus, they contend the court erred in entering a take-nothing judgment against them as a matter of law. Fuller argues that B.D. Douthitt attempted to reserve easements to "strangers" to his deeds to James and that the attempted reservations are thus invalid.
As a general rule, several instruments comprising a single transaction are to be construed together. Terrell v. Graham, 576 S.W.2d 610, 611 (Tex.1979). Deeds executed at the same time between the same parties and in reference to the...
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