Lasater v. Maher, 13527

• Court: Texas Civil Court of Appeals
• Writing for the Court: POPE
• Citation: Lasater v. Maher, 330 S.W.2d 481 (Tex. Ct. App. 1959)
• Decision Date: 25 November 1959
• Docket Number: No. 13527,13527
• Parties: Garland M. LASATER, Appellant, v. John F. MAHER et ux., Appellees.

Page 481

330 S.W.2d 481

Garland M. LASATER, Appellant, v. John F. MAHER et ux., Appellees.

No. 13527.

Court of Civil Appeals of Texas, San Antonio.

Nov. 25, 1959.

Rehearing Denied Dec. 23, 1959.

Kampmann & Kampmann, San Antonio, for appellant.

Lloyd, Lloyd & Dean, Alice, Vinson, Elkins, Weems & Searls, Houston, for appellees.

POPE, Justice.

John F. Maher, and wife, Lois Lasater Maher, sued for and obtained a decree permanently enjoining Garland M. Lasater from using a road across their ranch. Lasater appealed upon the grounds that his land is otherwise inaccessible and that he is entitled to an easement by implication and also by necessity. Maher and wife plead res judicata and that there is no necessity for the roadway.

The Maher lands and the Garland Lasater lands were set over to them by a partition decree of the District Court of Brooks County in June, 1956. The partition decree adjudged that 9,345.69 acres of land were owned in equal one-thirds by John F. and Lois Lasater Maher, by Garland M. Lasater, and by the Lois Lasater Maher Trust. The court then appointed commissioners and they made their report. That report was approved by the court. The sketch, which is not to scale, illustrates the lands which were allocated to the Mahers, the Trust, and to Lasater.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is seen that Garland M. Lasater owns two tracts, which are divided by a salt lake. No road crosses the lake from the Lasater lands on the north to his lands on the south. There is a paved County Road on the east side of the north Lasater tract, but to reach the south Lasater tract, called Section 331, he must rely upon a permissive use by private owners.

The trial court enjoined Lasater from using the road which runs east from Highway 281 across the Maher land to the Lasater Section 331. This road is known as the Gyp Mine Road, because it was built in 1927 to lead to a gypsum mine located on Section 331. While the mine ceased operations in 1942, the road is well-defined, and it continued to be used to the time of the 1956 partition decree.

In our opinion, the 1956 partition decree is res judicata with respect to the road. This is not a situation in which the partition decree was merely silent about a recognized road, as was the situation in Zapata County v. Llanos, Tex.Civ.App., 239 S.W.2d 699. Whether Lasater, as owner of Section 331, would have the use of the road was in issue, and was finally decided by the 1956 partition decree. The court in 1956, first decreed the interest of the owners, and then named commissioners to allocate the respective shares. They made their report, but it was silent with respect to the use of the Gyp Mine Road as access to Section 331. Garland M. Lasater then filed objections to the report because it did not provide access to Section 331. Lasater's objections stated that Section 331 was completely surrounded by lands of other persons, was not accessible except by the Gyp Mine Road, which had been used for many years, and that he was entitled to the road as an easement of necessity. Lasater specially prayed for a way of necessity. Maher and wife replied, and for many reasons protested Lasater's use of the Gyp Mine Road. The partition decree of June 29, 1956, recited that the court had considered the report, and 'heard the evidence in favor of and against the same.' The decree specifically ordered 'that the Motion of Garland M. Lasater, defendant and cross-plaintiff, for judgment filed herein on June 27, 1956, be and is in all things overruled.' That was the motion which injected the road issue into the partition proceedings. Lasater gave notice of appeal but never perfected it. Errors in partition decrees are corrected by appeal. Frazier v. Hanlon Gasoline Co., Tex.Civ.App., 29 S.W.2d 461; 68 C.J.S. Partition Sec. 120a.

Whether the reasons urged by Maher and wife that the easement should be denied Lasater are invalid and whether the court in 1956 erred in refusing to grant the easement are not the questions before us. Our only question is whether a court...