North Clear Lake Development Corp. v. Blackstock

• Decision Date: 28 January 1970
• Docket Number: No. 321,321
• Citation: 450 S.W.2d 678
• Parties: NORTH CLEAR LAKE DEVELOPMENT CORPORATION et al., Appellants, v. H. W. BLACKSTOCK et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 678

450 S.W.2d 678

NORTH CLEAR LAKE DEVELOPMENT CORPORATION et al., Appellants, v. H. W. BLACKSTOCK et al., Appellees.

No. 321.

Court of Civil Appeals of Texas Houston (14th Dist.).

Jan. 28, 1970.

Rehearing Denied Feb. 25, 1970.

Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, for appellants.

Charles R. Vickery, Jr., Vickery & McConnell, Houston, for appellees.

TUNKS, Chief Justice.

This case involves a tract of property located in the Galveston Bay area of Harris County. The tract has been the subject of much litigation. Phases of the controversy are reported in Wallace Investments, Inc. v. Blackstock (Tex.Civ.App.), 384 S.W.2d 910, no writ hist., a plea of privilege case, and in Blackstock v. Tatum (Tex.Civ.App.), 396 S.W.2d 463, no writ hist., a suit for damages for alleged abuse of process. The most recent report of an appellate opinion relating to the controversy is that of the Waco Court of Civil Appeals in Tatum v. Blackstock, 418 S.W.2d 269, writ ref., n.r.e. That was an appeal from an adverse judgment in a suit wherein North Clear Lake Development Corporation, as successor in interest to Lester L. Tatum, sued H. W. Blackstock and others in trespass to try title to establish the corporation's ownership of the tract in question. Blackstock, et al, defendants and cross-plaintiffs in the trial court in that case, also appealed from the trial court's judgment denying them the relief sought in their cross-action. The Waco Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that North Clear Lake Development Corporation recover legal title to the tract in question . The Appellate Court, however, severed that portion of the case wherein Blackstock, et al sought to establish an easement over the tract in question and remanded the severed portion of the case to the trial court for determination of 'the issues as to existence, nature and extent of an easement' over the disputed property. On remand, in a non-jury trial, the trial court rendered judgment that Blackstock, et al, had an easement over the property, the nature of which easement will hereafter be discussed, and North Clear Lake Development Corporation has perfected this appeal from that judgment .

In 1949, Dr. Paul Harris began the development of a subdivision called El Lago Estates. The appellee, Blackstock, et al, are owners of residential lots in that subdivision. The names of the appellees and the number of the lot owned by each are as follows: Herbert Karl Beckmann, Lot #20; W. H. Blackstock, Lot #22; Edward H. Olling, Lot #24; Floyd E. King, Lot #25; and A. J. Phipps, Lot #26. As between the parties to this case, Dr. Paul Harris is the common source of title. None of the appellees acquired his lot by deed direct from Harris. Each is a successor in title to a purchaser who did acquire title by deed from Harris. The deeds from Harris to appellees' predecessors in title were dated during a period from October 5, 1950 to July 9, 1956. These deeds from Harris described the property conveyed by lot number in reference to the recorded plat of El Lago Estates. None of them made any specific reference to any estate in the tract in controversy here.

In the course of the development of his property Dr. Harris dug an artificial channel leading into a natural body of water called Taylor Lake. That channel lay generally to the west of the lots later sold by Harris to the appellees' predecessors in title. There is a narrow strip of land containing about 1.68 acres, lying between the appellees' lots and the artificial channel dug by Harris. That strip is the tract of land here in controversy over which the trial court adjudged that the appellees had an easement. In the Waco Court of Civil Appeals' opinion in Tatum v. Blackstock, above cited, at p. 472, there is reproduced a plat showing the relative locations of the appellees' lots, the strip in controversy and the other property of appellant. Reference is here made to that plat for clarification of those locations. In that opinion the tract of land in controversy was referred to as 'Area A' as shown on the reproduced map. The strip in controversy will herein be sometimes referred to as 'Area A.'

On October 20, 1960, Dr. Harris executed a deed to Lester L. Tatum conveying certain land lying to the west of appellees' lots. On June 29, 1962, Harris executed a 'correction deed' to Tatum clarifying or amending the description of the earlier deed so as to specifically include the strip of land between the appellees' lots and the artificial channel. The appellant, North Clear Lake Development Corporation, acquired title from Tatum.

Some of those who were original grantees of the lots in question from Harris testified as to the circumstances under which they purchased. Some of their testimony suggests that before and in connection with the sales to them Harris made statements indicating that it was his intention that they, the purchasers, were acquiring waterfront lots with access to the artificial channel. In addition to Harris' statements there were physical facts that might have been calculated to cause the purchasers to believe that they were acquiring waterfront property. For example, the lateral fences on some of the lots extended to the waterline of the artifical channel dug by Harris. This testimony, even if it were so specific as to show that Harris definitely stated that he was granting to the grantees either full title to or an easement over the disputed Area A, would not, of itself, sustain a judgment awarding appellees the easements they seek. Those prior and concurrent statements by the grantor as to the estates to be granted, and granted, by the deeds were merged into the deeds themselves. The descriptions in the deeds were clear and unambiguous. Appellees did not allege that in the execution of the deeds there had been any fraud, accident or mutual mistake and did not seek to reform the deeds because of such allegations. The use of testimony as to prior or concurrent statements to vary the unambiguous terms of the deeds themselves in description of the estates granted, would violate the Statute of Frauds, Art. 3995, V.A.T.S. (now Sec. 26.01, Texas Business & Commerce Code, V.T.C.A.) and the Statute of Conveyances, Art. 1288, Vernon's Ann.Civ.St. Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297; Davis v. George, 104 Tex. 106, 134 S.W. 326. The grant of an easement is a grant of realty to which the Statutes of Frauds and Conveyances are applicable. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477; Pokorny v. Yudin (Tex.Civ.App.), 188 S.W.2d 185, no writ hist. The contentions of the appellees to the effect that the deed from Harris to their predecessors in title should be construed as having specifically granted the legal title to or an easement over the disputed Area A has been resolved against them by the final judgment of the Waco Court of Civil Appeals in Tatum v. Blackstock, supra.

After Dr. Harris had executed the deed conveying to appellees' predecessors in title the lots now owned by appellees, and while Harris remained the owner of Area A, the residential lot owners made extensive use of Area A. When Harris dug the artificial channel he dumped some of the spoil upon Area A. The lot owners leveled off that spoil bank, sodded the area and planted shrubs upon it. They placed bulkheads at the edge of Area A which joined the water of the channel in order to prevent erosion. They dug boat slips and constructed boathouses for the storage of motor vessels. They built walkways and roadways leading to these boathouses and slips. They extended fresh water lines and electrical lines into and over the area. Area A became a drainage area for septic tanks. Installations were made to facilitate drainage from the residential lots across Area A into the waters of the channel. These improvements were erected with the full knowledge and consent of Dr. Harris at a time when he was the owner of Area A. In fact, there is evidence that he, Dr. Harris, himself, dug one of the boat slips, charging the lot owner his cost for having so dug it. It appeared that Dr. Harris in his development program reserved some sort of right in connection with the approval of improvements to be built upon the residential lots. In one instance the lot owner submitted to Dr. Harris his proposed plans for construction of a residence and a boat house and Harris specifically approved both of them. There is evidence that Harris affirmatively suggested to the lot owners that they level off the spoil bank area and landscape it. The trial court found, as a fact, upon supporting evidence, that improvements placed upon Area A by the lot owners were permanent in nature and were constructed at an expense of more than $12,000. In addition to the monies spent the lot owners spent many hours of physical labor in the construction of the improvements on Area A.

The trial court rendered judgment that each of the appellee lot owners recover an easement over that portion of Area A lying between his residential lot and the artificial channel. The trial court's judgment spelled out certain uses which the lot owners were, under their easements, entitled to make of Area A. Those uses generally were of the character of the uses which had been made of the area during that period of time when Harris was the owner of it. They included the right to install and maintain bulkheads, to dig and maintain boat slips, construct boat houses, lay water and electric lines, to landscape the area and to maintain drainage across it.

There are three theories upon which...