Rosier v. Othen

• Decision Date: 13 May 1949
• Docket Number: No. 14005.,14005.
• Citation: 221 S.W.2d 594
• Parties: ROSIER et al. v. OTHEN.
• Court: Texas Court of Appeals

221 S.W.2d 594

ROSIER et al. v. OTHEN.

No. 14005.

Court of Civil Appeals of Texas. Dallas.

May 13, 1949.

Rehearing Denied June 3, 1949.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by Albert Othen against Estella Rosier and others for an injunction to restrain defendants from interfering with plaintiff's use of an easement as a way of necessity to and from his home and for other relief. From a judgment for plaintiff, defendants appeal.

Reversed and rendered.

Burt Barr and J. Lee Zumwalt, both of Dallas, Texas, for appellants.

Leo R. Tresp and Joe Tresp, both of Dallas, Texas, for appellee.

BOND, Chief Justice.

Plaintiff (appellee) instituted this suit for injunction to restrain defendants (appellants) from interfering with his use of an easement on and across the defendants' land as a way of necessity to and from his home; for mandatory order commanding defendants to remove a dike or levee constructed adjacent to and alongside the roadway, which prevents him and his family from using the roadway or easement; and for damages resulting from such interference and obstruction.

The cause was being submitted to a jury and, at the conclusion of the testimony adduced, all parties agreed that there was no controversial issue of fact to be submitted, and each filed motion for instructed verdict; whereupon, the court discharged the jury, sustained plaintiff's motion, overruled that of the defendants, and entered judgment in favor of plaintiff establishing the easement by way of necessity, permanently enjoining and restraining the defendants from further interference with plaintiff's use of the easement, and mandatorily enjoined, commanded and directed defendants "to take such action as is necessary to put said easement and roadway, as described, in as usable a condition as same was prior to the erection of the levee and dike." The court made no determination of damages, or order for the removal of the levee or dike.

Plaintiff alleged in his petition that he and his family have resided on a 53.5-acre tract of land owned by him, lying immediately east and adjacent to defendants' land, since 1913; that since said time he has openly, continuously and uninterruptedly claimed and used the roadway or easement as an outlet to the public highway mentioned in the record as "Belt Line Road," and that prior thereto his predecessors in title had so claimed and used said roadway or easement for more than 40 years. Plaintiff further alleged, in effect, that Thomas J. Tone is the common source of title (owner) of the entire Thomas J. Tone Survey, in whom rests the unity of title to the respective tracts of land here involved; and that plaintiff's land does not adjoin any other public or private road, or any other survey, and is entirely surrounded by lands out of said Thomas J. Tone Survey; hence the roadway and easement has constituted a way of necessity for plaintiff and his predecessors, in that it has been and is now the only means by which he can reach any public road from his farm and place of residence, and the way has been so established for more than 40 years.

The defendants in answer, by general and special denial, joined issue with plaintiff, claiming that the easement right in question has never been and is not now a way of necessity, either by implication or otherwise; that plaintiff's use, and that of those under whom he claims title, was merely permissive use, not in anyway adverse to defendants' right; and has never been a way of necessity as to deprive defendants of the full use of their land over which the easement is sought to be established; and, further, that the levee or dike erected by defendants was the exercise of ownership of their land, to protect it from erosion and deterioration.

A "way of necessity" does not arise merely because of necessity. There must be a privity of ownership between the dominant and the servient estates. A long continued use of a roadway or easement right does not, in itself, raise a presumptive "way of necessity" across a stranger's land. The use by permission in such cases, in absence of proof to the contrary, may be presumed. There is no evidence in this record that there has ever been any unity of ownership in respect to the two tracts of land at the time and since plaintiff and defendants acquired their lands as to establish the easement as a way of necessity. The plaintiff is not the defendants' grantor; and the defendants are not the grantors of plaintiff.

In considering appellants' assignments or points of error, it is well to note that the Thomas J. Tone Survey consists of 2,439 acres of land patented to Tone by the State of Texas; subsequently the acreage was acquired by W. M. C. Hill. In 1924, Bud Rosier, deceased, predecessor of defendants' title, acquired from W. M. C. Hill, by mesne conveyance dating back to 1896, the land over which the roadway is claimed to be located. In 1904, the plaintiff Albert Othen acquired 60 acres of his land from W. M. C. Hill, dating back to 1897. After the sale of the aforesaid tracts of land, W. M. C. Hill owned all the remainder of the Tone Survey abutting on the lands theretofore conveyed by him; and in 1899 Hill conveyed 1,350 acres to the American National Bank. In 1902 the American National Bank conveyed the 1,350 acres to J. B. Wilson and John H. Vencill; in 1906 Wilson and Vencill conveyed 100 acres of the 1,350 acres to a Mr. Lumas (this land adjoins the plaintiff's land), and in 1913 Wilson and Vencill conveyed to the plaintiff the 53½ acres which plaintiff now owns and which is involved in this suit.

The statement of facts discloses that two or more maps or plats were used in the interrogation of witnesses. Neither of the maps or plats is found in the record, — in the absence of which much of the testimony is vague, inclusive, and some of it unintelligible. To establish the relative position of the land over which the easement is sought to be established, its location, length, and width, is difficult; however, in the light of the judgment of the trial court we must presume that the location of the tracts of land involved and the course and distance of the roadway are correctly stated in the trial court's judgment. Briefly, we gather that plaintiff's land is wholly surrounded by lands of others; that defendants' land is in two tracts, — 16.3 acres in pasture, situated to the west and adjacent to plaintiff's 53.5 acres; and 100 acres in cultivation, lying north and adjacent to the 16.3 acres and west of plaintiff's 60-acre tract, its western boundary fronting on the Belt Line Road. On the north side of plaintiff's land a Mr. Lowe owns a part of the Tone Survey once belonging to W. M. C. Hill, and the American National Bank; to the east and south a Mr. Woolsey also owns a part of the Tone Survey, adjacent to plaintiff's land, — this land once owned by Hill and the Bank. The Lowe and Woolsey lands each have outlets to public roads, — the Lowe land to the north has an outlet to Fishcreek Road about a mile north from plaintiff's land; and the Woolsey land to the south has an outlet about a mile to the Duncanville Road. The roadway or easement here involved, over defendants' land, goes into the defendants' 16.3-acre tract through a gate; thence traverses the 16.3 acres near to its north line, extending into a lane at the south line of the defendants' 100-acre tract; thence in a western direction, where it opens through a gate into the Belt Line Road.

There is no evidence of any express grant, and we think there is no implied grant, as a "way of necessity," as that term is usually applied between dominant and servient owners, over defendants' land; and there is no positive evidence that the use of the roadway by the public or adjacent landowners was ever adverse to the defendants; only inference, arising from circumstances of its long uninterrupted use and the topography of the adjoining lands: — To the north, east and south, across and on the Lowe and Woolsey lands, are large sizeable creeks and lakes; while to the west, the defendants' land is comparatively level and, but for being boggy during excessive rainfall, is admirably suitable for such a roadway; then, too, the evidence is that the roadway has been used continuously and uninterruptedly for so long a time as to justify inference of adverse claim of right for the purposes of ingress to and egress from plaintiff's farm; and has ripened into right of use by prescription. Then, on the other hand, the evidence discloses that the defendants and their predecessors in title have continuously maintained gates at the terminals of the roadway, one at plaintiff's home, leading into the 16.3-acre pasture, and the other at the west end, leading out to the Belt Line Road; and that they have maintained the lane for their stock, cattle and horses to pass from their barns to their 16.3-acre pasture, which, we think, raises strong inference that the roadway easement was merely permissive, dedicated to all occupiers of the lower lands as users, with knowledge, acquiescence and consent of the owners, as a private passway for ingress to and egress from plaintiff's land. Then, too, the roadway in question has been the only means of ingress and egress, not only for the plaintiff, but for the public and the defendants' tenants occupying a house on the 16.3 acres, continuously for more than 45 years.

The adverse claim of right, like any other fact necessary to be proved in any other suit, may be proved by circumstantial evidence sufficient to sustain such conclusion. Hall v. City of Austin, 20 Tex.Civ. App. 59, 48 S.W. 53; Texas & P. Ry. Co. v. Gaines, Tex.Civ.App., 27 S.W. 266; Stanglin v. Loving, Tex.Civ.App., 116 S.W.2d 798. Where claimant shows an open, visible, continuous and unmolested use of a roadway on and across the land of another for more than 45 years, and the facts of the situation are such as to impress the view that the way is the only...