Lee v. Uvalde County
| Decision Date | 23 April 1981 |
| Docket Number | No. 1367,1367 |
| Citation | 616 S.W.2d 367 |
| Parties | Jack Edward LEE, et al., Appellants, v. UVALDE COUNTY, Texas, et al., Appellees. . |
| Court | Texas Court of Appeals |
T. Kellis Dibrell, Dibrell, Dotson, Dibrell & Dibrell, San Antonio, for appellants.
David R. White, Jr., Jack Ware, Dodson, Harpole & Nunley Uvalde, for appellees.
This case involves a suit for a permanent injunction filed by plaintiffs below, appellants herein, who are residents and landowners in Uvalde County, Texas, seeking to permanently enjoin Uvalde County, the county judge, members of the commissioners court and an adjoining landowner (Terry Moore) from entering upon the plaintiffs' property and from constructing and working on roadways over and across the plaintiffs' property. Plaintiffs also sought to enjoin the commissioners court from declaring as an official act that public roads exist over their property.
The case was tried to the court without a jury upon several theories. The defendants below alleged alternatively that defendant Terry Moore and his predecessors in title had established a prescriptive easement across plaintiffs' lands; that he has an easement of necessity over said lands; that he has an implied easement appurtenant across plaintiffs' lands; and that the roads in question had been impliedly dedicated to the public. Judgment was rendered in favor of the defendants denying the permanent injunction and dissolving the temporary injunction which had previously been entered. No requests for findings of fact or conclusions of law were made and none were filed. The court, however, in its judgment found "... that a public road exists over, along and across the following described property in Uvalde County, Texas:
As depicted shown and presented on Exhibit "A" attached hereto and incorporated herein by reference, said public road being shown in the color yellow, over, in and across the property of the Plaintiffs outlined on said Exhibit "A" in blue....
As depicted, shown and presented on Exhibit "A" attached hereto and incorporated herein by reference, said public road being shown in the color red, over, in and across the property of the Plaintiffs outlined on said Exhibit "A" in blue.
We reverse and remand.
Appellants have brought forward nine points of error alleging therein that (1, 2) the trial court erred in creating a public road across plaintiffs' lands as such judgment constitutes an appropriation or taking of property without due process of law or without proper compensation in violation of their constitutional rights; (3, 4, 5) the judgment was erroneously rendered for defendant Moore as there was no evidence or insufficient evidence to establish the elements of easements by prescription, necessity or implication; (6) the trial court erred in granting judgment for Uvalde County as the greater weight of the competent testimony definitely established that the four separate roads involved across the plaintiffs' lands were private roads owned by the plaintiffs and there was no competent evidence to show that any of the four separate roads had been dedicated for public use; (7) the trial court erred in admitting into evidence an ex parte affidavit executed by Carl Nuckles, et al.; (8, 9) the court erred in rendering judgment for defendants that public roads existed over plaintiffs' lands because the defendants' pleadings failed to adequately plead a description whereby a public road could be defined with any degree of certainty.
Appellees rely upon the rule of law that in the absence of findings of fact or conclusions of law, the trial court's judgment implies all necessary fact findings in support of the judgment; that in determining whether there is any evidence to support the judgment and the implied findings incident thereto, we must consider only that evidence most favorable to the judgment and disregard entirely that which is opposed to it or contradictory in nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950). It is further contended that, if the judgment can be sustained under any theory in the case, it should be affirmed by this court. The trial court's judgment, however, contains a specific finding of fact, or recital, stated above, and the court rendered judgment based solely thereon. The fact that findings of fact and conclusions of law are not filed separate from the judgment as provided by Rule 296 1 does not affect their validity. Davis v. Davis, 507 S.W.2d 841, 843 (Tex.Civ.App.-Houston (14th Dist.) 1974) rev'd on other grounds, 521 S.W.2d 603; Hemphill v. S & Q Clothiers, 579 S.W.2d 564, 567 (Tex.Civ.App.-Forth Worth 1979, no writ).
Where the findings of fact are recited in the judgment and the court's decree is based solely thereon, we may not indulge any assumptions or implications concerning findings or theories which may support the judgment. Cottle v. Knapper, 571 S.W.2d 59, 64 (Tex.Civ.App.-Tyler 1978, no writ); Stanford v. Lincoln Tank Co., 421 S.W.2d 412, 413 (Tex.Civ.App.-Fort Worth 1967, no writ).
It is quite apparent in the case at bar that the judgment of the court is based solely upon the finding that a public road exists over, along and across the plaintiffs' lands. Since there is no pleading or proof of express dedication of the roads in question to the public by the plaintiff landowners, the trial court's judgment can only be affirmed if the landowners can be said to have impliedly dedicated the roads to the public. In this connection, we shall address appellants' point of error number six complaining of rendition of judgment in favor of Uvalde County (and impliedly for Terry Moore as a member of the public) as there is insufficient evidence to support a judgment declaring the existence of public roads across their lands since that point is dispositive of this appeal. For the ease of discussion, reference will be made to a map of the property reproduced below.
In 1940 Margaret and Roy Owens (appellants) bought approximately 250 acres of land in Uvalde County indicated as Owens # 1 on the map. Later, in 1944, the couple purchased 2 additional tracts, shown as Owens # 2 and Owens # 3, from Mac Woodley. Subsequent thereto, Jack and Marilyn Lee acquired the tracts located north of Owens # 1 and the Crider property. These tracts were formerly owned by A. J. Owens. The Crider property was owned by Boley Owens. The Criders have owned their property since 1957.
This suit involves 5 roads across several distinct tracts of land. Road number 1, which was built by Boley Owens in 1924, commences at the Old Uvalde Road and runs in a north-south direction through the Crider property to the Crider home. At the intersection of this road and the Old Uvalde Road there is a cattle guard and there is testimony that a gate was located there until removed by the county prior to institution of this suit. Approximately at the half-way point of this road, where the Lee and Crider properties meet, there was or is a gate which Mr. Crider kept under lock and chain from time to time.
At the Crider home the road turns east (and is denominated as road # 2) until it reaches property owned by Ernest Kelley; it then turns north and runs through the Kelley property until it intersects road # 3 which plaintiffs admit is a public road dedicated by the Roy Owens. There is testimony that at this juncture a gate formerly stood until removed by the county. Another public road transects road # 3 at the intersection of Owens # 1, Owens # 2, and the Kelley tract. This road runs in a north-south direction, ending at the most northerly south eastern corner of the Kelley tract. This road terminates at a gate maintained by Mr. Braden, owner of the tract south of Owens # 2.
Road # 4 begins at the Braden gate and runs across a portion of Owens # 2 which the parties referred to both at argument and in their briefs as the "shoestring piece of land." When this road reaches the Kelley boundary it turns south becoming road # 5. On this road at the boundary between Owens # 2 and Owens # 3 is located a gate. This road continues along the eastern boundary of Owens # 3, and at approximately the center point of that tract, turns west,...
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