Maples v. Erck

• Decision Date: 04 March 1982
• Docket Number: No. 1833,1833
• Citation: 630 S.W.2d 488
• Parties: Lewis W. MAPLES, Appellants, v. Alice Ann ERCK, et vir, Appellees.
• Court: Texas Court of Appeals

Page 488

630 S.W.2d 488

Lewis W. MAPLES, Appellants, v. Alice Ann ERCK, et vir, Appellees.

No. 1833.

Court of Appeals of Texas, Corpus Christi.

March 4, 1982.

Rehearing Denied April 8, 1982.

Homer E. Dean, Jr., A Professional Corp., Alice, for appellants.

F. B. Lloyd, Jr., Lloyd, Elizey & Lloyd, Alice, Robert M. Kendrick, F. Edward Baker, J. Michael Mahaffey, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellees.

Before NYE, C. J. and UTTER and KENNEDY, JJ.

OPINION

NYE, Chief Justice.

This case involves the interpretation of a boundary-fence line agreement. Louis W. Maples, independent executor of the estate of Dan J. Sullivan, III, deceased, Jean Sullivan Seiser and Frank Horlock (the Sullivans) brought a declaratory judgment action in the 28th Judicial District Court, Kleberg County, Texas, against Alice Ann McGill Erck and Frederick Erck (the McGills), seeking an interpretation of a 1930 agreement between the parties. The Sullivans contend that they have an exclusive and permanent right to possession of 131.93 acres of land owned by the defendants McGill, but enclosed by the plaintiffs Sullivan under the agreement. The trial court, sitting without a jury, entered a take-nothing judgment, from which the plaintiffs Sullivan appeal.

In 1930, D. J. Sullivan, plaintiffs' predecessor in title, owned and ran cattle on a large ranch in Kleberg, Brooks and Kenedy Counties. At the same time, H. F. McGill and J. C. McGill, defendants' predecessors in title, owned and ran cattle on an adjoining large tract of land in Kenedy County known as the "Santa Rosa de Arriba Grant." The McGill Ranch was bounded on the north, west and south by the Sullivan Ranch. Part of the boundary line between the two ranches was the center line of Los Olmos Creek with its meanderings, while another part of the boundary line was located in an area of shifting sand hills. The boundary between the two ranches was very difficult to maintain.

On July 1, 1930, with apparent deference to the problems of maintaining functional fences and clear boundary lines in the areas of the high and low waters of the creek and the areas of shifting and blowing sand, Sullivan and the McGills entered into the agreement which became the focus of this lawsuit. As a result of the agreement between the parties, certain lands along the creek belonging to Sullivan came within the enclosure of the McGills, and certain lands belonging to the McGills came within the Sullivan enclosure. It is undisputed that from 1930 to the present, the Sullivans and the McGills and their respective predecessors in title have each enjoyed, without interruption or controversy, the use of the lands along Los Olmos Creek, some of which were located within certain enclosures but were owned by the other party. The Sullivans admit that the fee simple title to the 131.93 acre tract is in the defendants and concede that, in the light of the 1930 agreement, neither party has obtained any interest in lands of the other by prescription. However, the Sullivans insist that, by virtue of the 1930 agreement, they have acquired a permanent and exclusive right to possession of the lands that they have under fence that belong to the McGills.

The present dispute arose in 1978, when the Sullivan estate attempted to convey to (plaintiff) Horlock a parcel of land which included the land within the McGill tract. Upon discovery of the existence of the 1930 agreement recorded in the deed records of Kenedy County, the title company refused to insure title to the land within the McGill tract on behalf of the Sullivans, and Horlock refused to purchase it. However, Horlock purchased the remainder of the Sullivan property adjoining the disputed tract, and agreed to join in this litigation as the Sullivan's successor in title to determine the status of the tract.

The plaintiffs, by their three points of error, attack the trial court's interpretation of the 1930 agreement. Plaintiffs claim the agreement created an express easement, giving them an exclusive and permanent right to possession of the surface of the McGill tract.

Neither party has alleged that the contract is vague or ambiguous. Therefore, the construction of the contract is a question of law for the court. See East Montgomery County Municipal Utility District No. 1 v. Roman Forest Consolidated Municipal Utility District, 620 S.W.2d 110 (Tex.1981), and Pitts v. Ashcraft, 586 S.W.2d 685, 693 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd n. r. e.). In such a situation, we must give effect to the intention of the parties as expressed or as it is apparent in their writing. Ordinarily, the instrument alone will be deemed to express the intention of the parties for it is the objective, not subjective, intent that controls. Pitts v. Ashcraft, supra, at 693; City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). In the interpretation of contracts, whether they be ambiguous or simply contain language of doubtful meaning, the primary intention of the courts is to ascertain and give effect to the true intention of the parties. To achieve this object, the courts will examine and consider the entire writing, seeking as best they can to harmonize and to give effect to all the provisions of the contract so that none will be rendered meaningless. Universal CIT Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157-8 (1951).

The Sullivans rely on the seventh and eighth paragraphs of the agreement as the basis for their contentions. The seventh paragraph reads as follows:

"For the purpose of settling the boundary lines forever, between the parties hereto, irrespective of the location of fence, this agreement is made. It is, therefore, agreed between the parties hereto that the present fence, now used in separating the enclosures between the parties hereto, shall be used, as far as practical, as the same may now stand, and shall be changed in places where it will be advantageous in crossing said creek and in straightening out said line." (emphasis supplied)

The eighth paragraph states, in pertinent part:

"In this connection it is understood that said fence line on the Olmos...