Machala v. Weems

• Decision Date: 10 October 2001
• Docket Number: No. 06-00-00133-CV,06-00-00133-CV
• Citation: 56 S.W.3d 748
• Parties: (Tex.App.-Texarkana 2001) LEROY G. MACHALA, ET AL., Appellants v. D. TED WEEMS, Appellee
• Court: Texas Court of Appeals

Page 748

56 S.W.3d 748 (Tex.App.-Texarkana 2001)

LEROY G. MACHALA, ET AL., Appellants v. D. TED WEEMS, Appellee

No. 06-00-00133-CV

Court of Appeals of Texas, Texarkana

Submitted April 2, 2001

Decided August 21, 2001

Rehearing Overruled Oct. 10, 2001

On Appeal from the 281st Judicial District Court Harris County, Texas Trial Court No. 1999-42854

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Justice Grant

Leroy G. Machala, Margaret A. Janik, Stanley Machala, Floyd F. Wolcik, Lucille Martin, Wilbur Krenek, and Floyd Stasney, Appellants, sued D. Ted Weems, Appellee, for declaratory, injunctive, and other relief regarding Weems's alleged interference with Appellants' alleged easement over certain Harris County property owned by Weems. Weems counterclaimed, seeking the trial court's declaration that Appellants have no right, title, or interest in any of the property belonging to him.

After a bench trial, the trial court rendered a take-nothing judgment against Appellants and further ordered that Appellants "have no easement right, title or interest in, to, or across Defendant's [Weems's] real property along the northern edge of defendant's property continuing to Cedar Bayou, as described in the attached Exhibit A . . . ."

Statement of Facts

On June 22, 1897, William H. Scott assigned Patent No. 544, Volume 46, a 640-acre tract of land located about 23 miles "N 67 E" of the City of Houston in eastern Harris County, to G. H. Pendarvis. The property is located near the present town of Crosby. (Appellants' brief asserts, and Weems does not dispute, that the tract is bordered on the east by Cedar Bayou, the eastern boundary line of Harris County.)

By quitclaim deeds in 1907 and filed for record in 1908, Joseph Skrabanek and Marie Baca, widow of J. F. Baca, deceased, and their children conveyed to Harris County adjoining 30-foot rights-of-way for the Carter Road (now Krenek Road) extension, to the direct east of the Pendarvis property line.

In 1914, Pendarvis conveyed, by general warranty deed, five parcels of approximately 20.5 acres each to, respectively, Charles Marek, I. P. Krenek, Charles Machala, F. J. Moravek, and Frank Wolcik. Appellants are the successors in title to the five individuals who purchased the 20.5-acre tracts from Pendarvis in 1914.

At trial, over Weems's objection, Appellants introduced Plaintiffs' Exhibit 6 through the testimony of Leroy Machala, a retired engineer and surveyor. Machala testified that he was given the original of Plaintiffs' Exhibit 6 by his grandparents, Charles and Mary Machala, at the time the land was conveyed to him in 1914. Exhibit 6, described as a "sketch," shows on its face to have been prepared by J. W. Gillespie, designated as a "surveyor," in 1914 and depicts what it refers to as a "subdivision of 129 1/2 Acres out of the N.W. Corner of the James Scott survey for J. Skrabanek, F.J. Moravek, I.P. Krenek, Frank Volcik, Charlie Machala and Charlie Marek." Exhibit 6, according to Machala's testimony, shows a diagram of the tracts conveyed to the named five individuals receiving the original Pendarvis conveyance, plus an adjoining 27-acre tract, shown as owned by J. Skrabanek, whose successor in interest is not a party to this litigation. The metes and bounds of the tracts shown on Exhibit 6 match those of the sides of the property lines (at least as to those sides not fronting on Cedar Bayou) set out in the five 1914 warranty deeds to Marek, Krenek, Machala, Moravek, and Wolcik. The exhibit shows what is referred to as a "county road" running in the remainder of the Pendarvis tract from the west line of the Scott survey below the Charles Marek tract (the southernmost tract of the five), all the way to Cedar Bayou. The 1914 general warranty deeds do not refer to this sketch, and the sketch was not entered into the Harris County deed records. Machala testified that the county road shown on Exhibit 6 has never, to his knowledge, been dedicated to Harris County.

Defendant's Exhibit 2 was a 1961 quitclaim deed of right-of-way by N. B. O'Grady of a 30-foot right-of-way to Harris County. This dedication does not follow the straight line of the "county road" depicted on Plaintiffs' Exhibit 6, but rather shows a jog in the road to the south. None of the witnesses could explain why the dedication established the county road to the south of the southern property line of the southernmost of Appellants' properties. Plaintiffs' Exhibit 7 depicts the position of the dedicated county road as it now stands.

In 1970, the current owners of the five 20.5-acre tracts granted to each other mutual 50-foot easements for ingress and egress that ran the entire length of the western boundaries of their tracts. These easements extend from the north line of the Scott survey to south of the "North Line of Krenek Road."

From 1959, when he bought his grandfather's parcel, until 1996, Machala and all of the other adjoining landowners had access to their properties through the county road, although the exact nature and extent of such use is not described. Appellants used their property to gather firewood and to hunt, and sold timber off the land from 1988 through 1991. The property of all Appellants was, at the time of trial, unimproved. Counsel for Appellants stated that the testimony from all other Appellants would be cumulative of Machala's testimony and called no other witnesses at trial.

Weems acquired his land by warranty deed from Billy E. Murff and wife in 1996. He acquired an 18.53-acre tract of land in the Scott survey, a portion of a 360.380-acre tract previously acquired by Murff. Weems constructed a house on his property. His title policy does not mention the county road referred to in Plaintiffs' Exhibit 6, and there are no deeds that convey that part of Krenek Road south of Weems's property. Before conveying this parcel to Weems, Murff had a gate on the property leading to the Appellants' lands, and keys were given to all the landowners of the five adjoining tracts. When he acquired the property, Weems replaced the gate, but did not provide Appellants with keys. Weems also constructed a fence across the northern boundary of his property.

Weems introduced two affidavits from individuals who had leased portions of the Pendarvis land at various times between the 1920's and 1950's. They swore that while they were occupying the property, the boundary line between what was then the Pendarvis tract, now belonging to Weems, and the southernmost boundary of the five tracts, belonging to Appellants, was fenced off. The affidavits did not refer to any roadway along the northern boundary of the Pendarvis tract, and neither affidavit referred to Carter Road or Krenek Road as being significant in describing the location of the Pendarvis tract. At about the time of the 1961 O'Grady road dedication, a ditch was constructed along the north side of the dedicated portion of Krenek Road. The ditch was built directly across the land that Appellants now claim as an easement. There is no access across this ditch except over an 18-foot culvert, and the culvert does not allow access by a motor vehicle.

Weems testified that he and his immediate neighbor, Mr. Norsworthy, who is not a party to this litigation, allow access across the culvert directly to the 1970 easement across Appellants' properties, through which Machala has access to his property. All of the Appellants have access to their properties in this manner.

In their petition, Appellants requested the trial court to issue a declaratory judgment that

[T]he roadway easement historically used by the Plaintiffs at the East end of the improved portion of Krenek Road has been:

(a)Expressly granted and/or reserved to the Plaintiffs;

(b)Expressly created by implication;

(c)Expressly created by necessity;

(d)Expressly created by estoppel; and/or

(e)Expressly created by prescription and/or adverse possession.

Machala testified that he wanted a 60-foot easement along the southern boundary of the Marek tract all the way to Cedar Bayou, that width being sought because that is the minimum width required by the county for a dedication of a right-of-way. He wanted that or nothing. At the conclusion of Machala's testimony, Machala conferred with his attorney, his attorney stated to the court:

MR. LANNIE: Judge, I suspect that all the testimony we would get from these witnesses would be cumulative. And I just spoke to Mr. Machala about it. It would be cumulative of the testimony we've already got in the record, and I think we have all of the documents entered in there that is needed to reflect these parties' rights based on the documents generated in 1914.

THE COURT: All right. Plaintiff rests?

MR. LANNIE: Huh?

THE COURT: Plaintiffs rest?

MR. LANNIE: Yes, Judge.

MS. JONES: Your Honor, the defendant rests.

Standard of Review

This case was tried to the trial court without a jury. No findings of fact or conclusions of law were requested or filed. The trial court's only specific finding was that Appellants have no easement right, title, or interest in, to, or across Weems's real property along the northern edge of that property, continuing to Cedar Bayou.

In this situation, the judgment must be upheld on any theory that finds support in the evidence. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The judgment must be affirmed if we find any actual basis in the evidence to do so. Sutherland v. Cobern, 843 S.W.2d 127, 131 (Tex. App. Texarkana 1992, writ denied).

The judgment is challenged on both legal and factual sufficiency grounds. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as a matter of law. The standard of review for legal sufficiency requires a determination by the appellate court of whether, considering only...