Long Island Owner's Ass'n, Inc. v. Davidson

• Decision Date: 12 March 1998
• Docket Number: No. 13-96-249-CV,13-96-249-CV
• Parties: LONG ISLAND OWNER'S ASSOCIATION, INC., Appellant, v. Mark DAVIDSON, John Adams, and Rebecca Adams, Appellees.
• Court: Texas Court of Appeals

Page 674

965 S.W.2d 674

LONG ISLAND OWNER'S ASSOCIATION, INC., Appellant, v. Mark DAVIDSON, John Adams, and Rebecca Adams, Appellees.

No. 13-96-249-CV.

Court of Appeals of Texas,

Corpus Christi.

March 12, 1998.

Rehearing Overruled April 23, 1998.

Paul Y. Cunningham, P.T. Moore, Jr., South Padre Island, for appellant.

Joseph M. Nixon, Houston, John Adams, Port Isabel, for appellee.

Before DORSEY, FEDERICO G. HINOJOSA, Jr. and YANEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A jury found that a swing bridge owned by appellant, Long Island Owners' Association ("LIOA"), over the Intracoastal Waterway connecting Long Island with Port Isabel is dedicated to the public, that appellees, John Adams and Rebecca Adams, received services from LIOA, and that appellee, Mark Davidson, did not receive any services from LIOA. The trial court rendered judgment based on the jury's findings. By three points of error, LIOA complains of no evidence to support submission of the dedication issue to the jury, irreconcilable conflicts in the jury findings, and a defective jury charge. By a fourth point of error, LIOA contends the trial court erred by refusing to grant a permanent injunction barring appellees from using the swing bridge. LIOA requests that we issue a writ of mandamus ordering the trial court to issue such a permanent injunction. We affirm in part and reverse and render in part.

I. BACKGROUND

The Port Isabel Swing Bridge is a marine barge mounted structure spanning the Intracoastal Waterway between Long Island and Port Isabel in Cameron County, Texas. The first swing bridge was constructed on land owned by the Port Isabel-San Benito Navigation District (the "Navigation District"). ¹ In 1952, the Navigation District granted an easement to Cameron County (the "County") for construction of the Queen Isabella Causeway connecting the mainland with Long Island and South Padre Island. The County operated the causeway until 1967, when it conveyed the easement to the Texas Highway Department (the "Highway Department"). After completion of a new causeway to replace the existing one, the Highway Department determined there was no public need for the old causeway, ceased maintenance and operation, and reconveyed the easement to the County in 1974. The County then closed the old causeway. Four months later, in March of 1975, the County reconveyed the easement to its original grantor, the Navigation District. On the same day, the Navigation District executed a lease of all the land once covered by the easement, including part of the old causeway and the improvements on the land, including the swing bridge, to John Freeland. Freeland as lessee, was empowered to "operate, repair, construct, reconstruct or remove any and all improvements" then located on the property and to add improvements without complaint from the lessor.

Freeland held the exclusive interest in all of the property on Long Island and planned to develop it. Over the years, he sold acreage to developers and granted the buyers easements over the swing bridge in exchange for periodic cash payments. He canceled the easements of buyers who defaulted on their payments.

In 1985, the condition of the swing bridge had deteriorated to such a point that replacement was essential. Freeland paid for the construction and placement of a new swing bridge. Because of difficulties in financing the operation and maintenance of the bridge, Freeland sold his interest in the leasehold and the bridge to LIOA in 1989.

LIOA was formed and incorporated to purchase, maintain, and operate the swing bridge. Its members include all of the island's property owners with the exception of the residents of Sun Harbor Condominiums ("Sun Harbor"). LIOA assesses contributory shares of all island property owners to offset the costs of maintaining and operating the bridge.

Sun Harbor, where appellees own condominium units, was originally granted an express easement by John Freeland in 1982 in exchange for monthly payments of $1,000. Before declaring bankruptcy, Sun Harbor's developers transferred the obligation for the payments on the easement to the Sun Harbor Homeowners' Association in 1987 or 1988. Despite being advised by the developers that access problems could result, the Homeowners' Association failed to make the payments and Freeland eventually canceled the easement. The residents of Sun Harbor were invited to join LIOA and initially agreed to do so, but Sun Harbor withdrew before the swing bridge was purchased in 1989. John Adams, who purchased two units in 1984, was president ² of the Sun Harbor Homeowners' Association at that time. No Sun Harbor resident contributed towards the expenses of maintaining and operating the bridge, despite negotiations between John Adams and Jim Paul, president of LIOA. In 1990, LIOA filed suit against all of Sun Harbor's residents. Davidson purchased his condominium in 1993 with notice of the lawsuit, but without investigating its nature. Except for the appellees, who continue to refuse to participate in the financial aspects of the bridge, all Sun Harbor residents have settled their disputes with LIOA.

II. OWNERSHIP OF THE SWING BRIDGE

The swing bridge has had only three owners. The easement right-of-way granted by the landowner (the Navigation District) to the County in 1952 indicates that the original swing bridge existed prior to the grant and was the property of the Navigation District. The Navigation District still owns fee simple title to the land to which the bridge is connected. The 1975 lease to John Freeland included the swing bridge as an improvement on the leasehold with the proviso that he could remove it and construct a replacement without complaint from the lessor. Because the swing bridge is a leasehold improvement constructed at the lessee's expense and is removable without substantially damaging the leased land, ownership of the improvement rests in the lessee. 51C C.J.S. Landlord & Tenant § 394(4) (1968). Freeland conveyed his interest in the bridge and the leasehold to LIOA in 1989. The leasehold includes the appurtenant approaches to the bridge and the roadways.

III. CHARACTER OF SWING BRIDGE AS PROPERTY

LIOA contends the swing bridge is personal property. LIOA argues that the bridge cannot be dedicated because by definition, dedication applies exclusively to real property. See 30 TEX. JUR .3d Dedication § 1 (1983). The swing bridge is mounted on a floating marine barge moored in the Intracoastal Waterway. It is registered with and inspected by the Coast Guard as a marine vessel. Therefore, LIOA contends, the bridge is personal property rather than a land structure or real property.

A marine vessel is defined by federal admiralty law as "all navigable structures intended for transportation." Cope v. Vallette, 119 U.S. 625, 627, 7 S.Ct. 336, 336-37, 30 L.Ed. 501 (1887). Structures as diverse as movable oil drilling rigs mounted on barges, Guilbeau v. Falcon Seaboard Drilling Co., 215 F.Supp. 909, 911 (E.D.La.1963), and car shuttle ferries, Dardar v. Louisiana, 322 F.Supp. 1115, 1120 (E.D.La.1971), have been held to be marine vessels as a matter of law. However, the classification of bridges, whether fixed or movable, as marine vessels depends upon the "nature, purpose, and character" of the structure at the time the case arises. Cookmeyer v. Louisiana Dep't of Highways, 309 F.Supp. 881, 883 (E.D.La.), aff'd, 433 F.2d 386 (5th Cir.1970); see also Adams v. Harris County, Tex., 452 F.2d 994, 995-96 (5th. Cir.1971) (draw bridge mounted on barges).

The character of a bridge very similar to that in the instant case was decided in Cookmeyer. The question was whether a swing bridge mounted on pontoon barges was an extension of land or a marine vessel. Cookmeyer, 309 F.Supp. at 881. Neither the barges nor the bridge were intended to ply the navigable waters of the United States carrying goods and passengers in commerce. Id. at 883. The barges upon which the bridge rested were permanently attached to the shore, resulting in their loss of character as marine vessels. Id. The primary purpose of the bridge was to connect the banks of the river and act as an avenue of passage for traffic crossing the river. Id. at 882. The court held the fact that the bridge was opened to allow the passage of aquatic traffic on the river was ancillary to its intended function and did not support characterization as personal property. Id. at 883.

We find the swing bridge in the instant case to be indistinguishable from the bridge in Cookmeyer. Because it functions as an extension of the land to join Long Island with the mainland, we hold it must be characterized as real property.

IV. DEDICATION

"Dedication" is defined as "[t]he appropriation of land, or an easement therein, by the owner, for the use of the public, and accepted for such use by or on behalf of the public." BLACK'S LAW DICT. 412 (6th ed.1990). Dedication may be accomplished by either an express grant or by implication. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978). Generally, an express dedication is accomplished by deed or a written document. Moody v. White, 593 S.W.2d 372, 378 (Tex.Civ.App.--Corpus Christi 1979, no writ). Implied dedication, on the other hand, requires showing unmistakable acts on the part of the landowner that clearly establish his intent to donate the land to public use. Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 235 (1958); Mitchell v. Rancho Viejo, Inc., 736 S.W.2d 757, 761 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.). In addition to showing the landowner's actions unequivocally demonstrate donative intent, implied dedication requires evidence that the landowner's actions induced the belief that the landowner intended to dedicate the property to public use, that there was an offer and acceptance of the dedication, and there is a public purpose served by the dedication. Las Vegas Pecan & Cattle Co. v. Zavala...