Rod v. Campion
| Citation | 464 S.W.2d 922 |
| Decision Date | 10 March 1971 |
| Docket Number | No. 11799,11799 |
| Parties | A. J. ROD, Appellant, v. Ralph CAMPION et ux., Appellees. |
| Court | Texas Court of Appeals |
Small, Herring, Craig, Werkenthin & Shannon, C. C. Small, Jr., Austin, for appellant.
Allen McMurrey, Bastrop, for appellees.
O'QUINN, Justice.
This lawsuit involves the title and use of a forty-foot strip of land in Bastrop County. The sole question is whether the strip of land has been abandoned by appellant who brought the suit.
A. J. Rod, owner of a tract containing approximately 800 acres of land in Bastrop County, sued Ralph Campion and wife to enjoin them from excluding him from a forty-foot strip adjoining his land and from interfering with his use of the strip of land.
The case was tried to a jury on limitation issues and abandonment. Based on jury finding favorable to the Campions, the trial court entered judgment that Rod take nothing and that the Campions have title to 22.5 acres of land free of any claim by Rod of any title or easement in the tract.
Rod appealed, bringing eleven points of error. Appellees admit error of the trial court under the first eight points with respect to limitations, and concede that '* * * the only question to be answered by this Court is did the jury have sufficient facts to answer Special Issue No. 4 in the affirmative, i.e., did the Appellant abandon the easement over and across the Appellees' lands?'
Appellant contends under his ninth point that the jury's finding of abandonment will not support the judgment because Rod owned the forty-foot strip in fee, not as an easement, and that such title may not be divested by abandonment. Under the last two points appellant contends that there is no evidence to support a finding of abandonment and the court erred in not instructing the jury that mere non-user will not constitute abandonment.
Under the disposition we make of the case, by which we sustain appellant's ninth point and reverse and render the trial court's judgment, we do not reach the last two points of error.
The common source of title to the two tracts of land to which the respective parties hold deeds is a judgment concerning a tract of approximately 1,200 acres entered by the district court of Bastrop County in July of 1917. The judgment awarded john Krueger title to a tract of 800 acres, more or less, and an adjoining strip of land forty feet wide traversing the balance of the 1,200 acres. Title to the balance of the 1,200 acres was awarded under the judgment to Emma Heck.
Appellant has succeeded to the title awarded to John Krueger through a series of conveyances, each of which expressly conveyed the forty-foot strip along with the 800 acre tract.
Emma Heck conveyed about 200 acres of her tract in 1917 to Tom Palla. This conveyance dealt specifically with the forty-foot strip in field notes giving this description:
'* * * Thence south with the east line of said 400 acre tract 1420 varas to the north-east corner of a tract of 800 acres sold to John Krueger; thence west with said Krueger north line 609 3/10 varas to the corner part on the east line of a lane from which a small Blackjack marked X north 79 1/2 east 10 2/10 varas; thence north with the east line of said lane 844 varas to a point in the center of a branch just above a bridge from which a sycamore 20 inches in diameter 22 varas distant; thence down said revine with its meandering to its junction with the Colorado River * * * 'Excepting therefrom the part of said lane leading from Krueger pasture beginning at its intersection with the M K & T Railroad and extending south to said ravine or branch at said bridge, said land being 40 ft. wide and now fenced with barb wire fence.'
The conveyance from Emma Heck to Palla excluded the greater part of the forty-foot strip in the first portion of the field notes by calling for the east line of the strip (the Heck tract lying west of the strip). The remaining part of the forty-foot strip, between the M K & T Railroad and the ravine where a bridge was located, was excluded from the Heck conveyance to Palla by the last paragraph of the field notes by specific exception. It is this portion of the strip that bisects the Campion tract of approximately 22 acres.
The record shows that Palla conveyed the 200 acres to Mize and Smith in 1925 and used the same description found in the Heck to Palla deed. Mize and Smith sold 66 acres to John Garcia, and Smith conveyed his interest in the balance of the tract to Mize in 1929. Mize sold the 200 acres, excepting by separate clause the 66 acres previously sold to Garcia, to C. M. Lee in 1942, using the identical description found in the Heck to Palla deed. Lee sold 112 acres of the 200 acres to Woodrow Duty, and in 1948 sold the residue of the 200 acres to Monroe Inge, again using the description first used in Heck to Palla, but expanding the exception clauses to exclude the 112 acres sold to Duty, the 66 acres sold to Garcia, and repeating exclusion of the forty-foot strip as described in the deed from Heck to Palla.
Monroe Inge employed the same description and exclusion clauses in conveying to C. K. Wood in 1954, who in May of 1966 conveyed to the appellees under the identical description that excluded the forty-foot strip in 1917 in the deed from Emma Heck to Tom Palla.
Campion testified that Wood, his grantor, mentioned 'a easement and all' and that the lawyer who examined the abstract 'said there was some mention of a easement.'
Rod brought suit in June of 1968, about 25 months after appellees obtained their deed from Wood. Campion testified that no other written document of any kind passed between him and Wood respecting the title to the 22.5 acres and that as far as he knew the deed represented his claim of title to the land.
Appellant Rod acquired title under a succession of deeds, beginning with Krueger, each of which described the principal...
To continue reading
Request your trial
-
Cristofani v. Board of Educ. of Prince George's County
..."commons," "ways," and "rents" belong to the term of "rights as to the use and profits of another's land." In Rod v. Campion, 464 S.W.2d 922, 925 (Tex.App.-Austin [3d Dist.] 1971), the Texas Court of Civil Appeals stated: [O]wnership of vested title in land, as in this case a fee simple tit......