Posey v. Williamson
| Decision Date | 29 November 1939 |
| Docket Number | No. 8962.,8962. |
| Citation | 134 S.W.2d 335 |
| Parties | POSEY v. WILLIAMSON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Comal County; M. C. Jeffrey, Judge.
Suit by W. N. Posey against E. L. Williamson and others to enjoin the building of fence across roadway. From an order sustaining defendants' pleas of privilege to be sued in another county, plaintiff appeals.
Affirmed.
Fuchs & Fuchs, of New Braunfels, for appellant.
Tom G. Oliver, Jr., of San Marcos, for appellees.
This is an appeal from an order of the District Court of Comal County sustaining appellees' pleas of privilege to be sued in Hays County. Suit was by appellant to enjoin appellees from building a fence without a gate across a roadway claimed by appellant as an easement from his lands in Comal County over and across appellees' lands to a public road in Hays County. A temporary injunction was granted. The defendants filed pleas of privilege to be sued in Hays County, which were duly controverted, a hearing had thereon, and the pleas granted. None of the defendants lived in Comal County.
The first contention made by appellant is in effect that his lands were located in Comal County; that the easement claimed by him over other lands was an appurtenance to his land; that the destruction of it would cause damages to his own lands; and that his suit was to prevent damages to his lands in Comal County. Consequently, that he was entitled, under Sec. 14, Art. 1995, R.C.S., to maintain venue of his suit in Comal County. Stated otherwise, that the location of the dominant estate and not that of the servient estate determines venue in suits involving easements, citing, among other authorities, Lakeside Irrigation Co. v. Markham Irrigation Co., 116 Tex. 65, 285 S.W. 593; and Coughran v. Nunez, Tex.Com.App., 127 S.W.2d 885, 886.
If there had been no controversy that appellant had an easement over appellees' lands, or if such had already been established by law, then appellant's contention, under the authorities cited, might be correct. But no such situation is here presented. It is well settled that such an easement over the lands of another is an "interest in land," and "a charge upon the estate or property of the servient tenement." Miller v. Babb, Tex.Com.App., 263 S.W. 253, 254; Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014; 15 Tex.Jur., p. 771, § 3; 17 Am.Jur., p. 925, § 3. The essential qualities of an easement are set out in Magnolia Pet. Co. v. Caswell, Tex.Com.App., 1 S.W.2d 597, 600. If its existence be denied, or be not established as a matter of law, and suit be brought either to establish it, or to preserve it, then the inquiry is: What interest in what land is asserted? And where its existence is denied by the owner of the servient estate over which it is asserted, then the claimant must first prove that he has such easement before he can preserve it by injunction or recover damages for its obstruction or denial. 15 Tex.Jur., p. 809, § 37; 17 Am.Jur., §§ 152, 153, pp. 1036, 1037; 47 A.L.R. 557....
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