Kearney & Son v. Fancher, 16723
| Decision Date | 01 April 1966 |
| Docket Number | No. 16723,16723 |
| Citation | 401 S.W.2d 897 |
| Court | Texas Court of Appeals |
| Parties | KEARNEY & SON, Appellant, v. Ruby K. FANCHER et al., Appellees. . Fort Worth |
Storey, Armstrong & Steger and John K. DeLay, Jr., Dallas, for appellant.
Biggers, Baker, Lloyd & Carver and Monty C. Barber, Dallas, for appellees.
This case involves the construction of an express easement granted by deed, involving the use of a railroad switch track and grounds. When it was no longer physically possible to bring railway cars onto the property the appellant in June, 1962, constructed a fence along its property line beside that of the appellees' obstructing the latter's use of the strip involved.
Appellees filed this suit seeking to enjoin the appellant from fencing its (appellant's) property and in any way obstructing appellees' use of an 18 foot strip of land, being 9 feet on each side of the center line of the railroad switch track paralleling their property line. In the original petition and application for injunction the appellees alleged that the easement granted in the deed of April 25, 1935, was for the general purposes of access from Logan Street to appellees' concrete loading dock attached to their building, and parallel to the switch track. That by virtue of such express grant they were entitled to use the railroad switch track and grounds as a driveway for trucks coming from Logan Street. Alternatively they claimed an implied easement or one by estoppel.
By answer and cross-cation appellant denied that the easement granted in the deed of April 25, 1935, was a general-purpose easement of access. It asserted that the purpose of the easement granted by and reserved in the Keller (common source of title) deeds was limited to railroad use, which use had totally ceased and become impossible, thereby terminating the easement and appellees' right to use appellant's property. It prayed that title to its land be quieted.
Appellees and appellant filed motions for summary judgment each asserting that judgment should be rendered in their or its favor as a matter of law. On June 10, 1965, the court entered judgment granting appellees' motion, holding that appellees were entitled to an easement of access over and across the strip of appellant's property which was described by metes and bounds. In general the strip may be described as being 13.5 feet wide and approximately 120 feet long lying north of and parallel with the line between the property of appellant and appellees. (See Exhibit A, the plat from which the metes and bounds description of the strip was obtained.)
In order to more clearly illustrate the location and relationship of the railway tracks, streets, loading dock and the property covered by the various conveyances, references will be made to a survey marked Exhibit B which follows Exhibit A.
Exhibit 'B'
The appellant contends that the trial court erred in granting summary judgment for appellees, holding that (1) appellees are entitled to a permanent easement of access over and across its property; (2) that there is an existing, permanent easement in favor of appellees' property over and across appellant's property by virtue of (a) the grant in the deed dated April 25, 1935, to appellees' predecessor-in-title and (b) an agreement dated July 11, 1955, between appellant and appellees; and in failing to render summary judgment for appellant holding that the 'easement or right-of-way and privilege to use the railroad switch track and grounds' had terminated as a matter of law.
Prior to April 25, 1935, P. B. Keller owned the property now owned by appellant Kearney & Son and appellee Fancher. By warranty deed dated April 25, 1935, P. B. Keller ex ux. conveyed to W. B. Connell (appellee Fancher's predecessor-in-title) the land now owned by appellee Fancher and leased to appellee, Chemical Engineering Corporation. (Tract 'F'--Exhibits A and B.) This deed, after describing the property conveyed, states: 'Together with an easement or right-of-way and privilege to use the railroad switch track and grounds along the north and the northeast side of the property hereby conveyed; grantors reserving however the right to use said switch property and track to serve other property owned by grantors adjacent thereto, it being specially agreed and understood that the grantee herein, his heirs and assigns, shall be obligated to keep said switch property in repair adjacent to and along the property hereby conveyed, and that grantors, their heirs and their assigns, will keep that portion of said switch track and property in proper repair to service said property adjacent and adjoining property owned by said grantors.'
Thereafter, by warranty deed dated May 14, 1936, P. B. Keller et ux. conveyed to Dixie Motor Coach Corporation and Sunshine Bus Lines, Inc., the tract of land, adjoining appellee Fancher's property on the north, upon which the above mentioned railroad switch tract is situated. (Tract 'K 1'--Exhibit B.) This deed contains the following pertinent language: '* * * together with all rights and interest in switch track located on said above tract of land and right to use same as now established to connection of said switch track to its connection with Cotton Belt Railway.
'Grantors * * * have heretofore deeded to W. B. Connell the tract of land lying South of said Railroad switch with right to use said switch track, * * * which easement and privilege to use said track is hereby excepted from this conveyance.
'It is expressly understood that the switch track located on the track of land hereby conveyed, is included in this conveyance, subject to the rights heretofore conveyed to W. B. Connell, as hereinabove provided, but that the switch track located between the S.B. line of the above described tract of land, hereby conveyed tand the Cotton Belt Railway, is not conveyed hereby, but only the right to use thereof, * * *.'
By deed dated October 2, 1936, P. B. Keller et ux. conveyed to Dixie Motor Coach Corporation and Sunshine Bus Lines, Inc., a tract (Tract 'K 2'--Exhibit B) situated to the south of the land previously conveyed by the May 14, 1936, deed, which the switch track crossed in getting to its connection with the Cotton Belt Railway.
This deed stated: 'Grantors reserve an easement where the present switch track crosses the above property also the right to use and maintain said track for their other property and those to whom he has heretofore conveyed an interest in said track.'
By mesne conveyance, the two tracts (Tracts 'K 1' and 'K 2'--Exhibit B) owned by Dixie Motor Coach Corporation were acquired by Bowie Gasoline Company, which in turn conveyed by warranty deed dated January 11, 1955, to appellant, Kearney & Son, the property it presently owns. This deed to appellant stated: 'Together with all rights and interest in switch track located on the above tract of land and right to use same as now established to connection of said track to its connection with Cotton Belt Ry. * * * P. B. Keller and wife, conveyed to W. B. Connell, the tract of land lying South of the railroad switch above referred to, and * * * conveyed to Dixie Motor Coach Corp. and Sunshine Bus Lines Inc. a tract which is a part of the tract herein conveyed, and in said deed reserved and easement to use and maintain the said switch track and such easement and privileges granted to Connell and those retained by Keller and wife, are hereby excepted from this conveyance.'
At the time of the deeds from P. B. Keller in 1935 and 1936 the railroad switch track was in use and the owners of the respective tracts used such railroad switch track for the transportation of goods and merchandise to their respective properties. This use continued up to and subsequent to the time appellant acquired its property on January 11, 1955, for an January 15, 1955, Kearney & Son entered into a Standard Industrial Track Agreement with the St. Louis Southwestern Railroad Company, covering the track situated north of the property owned by appellee Fancher and thereafter received several shipments of goods by railroad freight cars brought onto appellant's property over such switch track.
A dispute arose between appellant and appellees, regarding the use of the subject easement by appellees, who were driving trucks over and across appellant's property situated to the north of the switch track. The controversy between the appellant and appellees was settled by their signing of an instrument or agreement dated July 11, 1955, the pertinent portions reading as follows: '(a) That Mrs. Ruby K. Fancher, her heirs and representatives, assigns and tenants, shall have and retain the easement or right-of-way and privilege to use the railroad switch track and grounds along the North and Northeast side paralleling the above described property with a width of eighteen (18) feet, being nine (9) feet on each side of the center line of the railroad switch track.
'(b) That any use of the switch track and grounds, in excess of said width of eighteen (18) feet, has been, is, and if used in the future will be premissive only, and shall not be the basis of any prescriptive right or rights.
'(c) That each party shall have and retain any and all such rights and privileges as each shall have and possess by virtue of the respective conveyance to each.
'(d) Kearney & Son a Corporation agrees to remove that portion of its fence and obstruction between said properties and along Logan Street for a width of nine (9) feet on each side of the center line of the spur track.
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