Shepler v. Falk

• Decision Date: 15 December 1965
• Docket Number: No. 11350,11350
• Citation: 398 S.W.2d 151
• Parties: Jeff H. SHEPLER, Appellant, v. Arnold C. FALK, Appellee.
• Court: Texas Court of Appeals

Page 151

398 S.W.2d 151

Jeff H. SHEPLER, Appellant, v. Arnold C. FALK, Appellee.

No. 11350.

Court of Civil Appeals of Texas, Austin.

Dec. 15, 1965.

Rehearing Denied Jan. 12, 1966.

Small, Small & Craig, C. C. Small, Jr., Austin, for appellant.

Black & Stayton, John W. Stayton, Austin, for appellee.

ARCHER, Chief Justice.

Appellant and appellee own adjoining lots located near the shore of Lake Travis in Travis County, Texas. Appellee, as plaintiff below, sought a mandatory injunction requiring appellant to take down a fence appellant had constructed along the extension of their common lot line below the 715 foot elevation, asserting that such fence violated certain covenants, restrictions and reservations of the Lake Shore Ranch Subdivision of which the two properties are a part and also that such fence encroached on the area within the extension of appellee's lot lines below the 715 foot elevation line. Appellee's petition also complained of appellant's floating boat dock and its mooring cables. After a trial before the court without the intervention of a jury, a final judgment on the merits was rendered requiring appellant to remove all of that portion of appellant's fence that lies below the 715 foot elevation and enjoining appellant from maintaining his boat dock mooring cables and equipment so as to unreasonably interfere with appellee's ingress and egress by boat to the water in front of his property. No motion for new trial was filed and no findings of fact or conclusions of law were made by or requested of the trial court. This appeal is from such judgment and is directed only at that portion of the judgment requiring the removal of appellant's fence.

The appeal is founded on two points:

'First Point: The trial court erred in ordering the removal of that portion of appellant's fence which is below the water line of Lake Travis.

Second Point: The trial court erred in ordering the complete removal of that portion of appellant's fence that is located within the area encompassed by an extension of the sidelines of his lots.'

Appellant owns Lots 33 to 36, inclusive, of Lake Shore Ranch Subdivision No. 1, which he purchased in 1957. Appellee owns Lots 31 and 32, which he acquired in September of 1960. A plat of the subdivision is in the record as Plaintiff's Exhibit 1.

The lots themselves extend only to the contour line of the 715 foot elevation, as shown on the subdivision plat. The lot owners have no title or rights in the area between the contour line of the 715 foot elevation and the water line of Lake Travis except such rights and privileges as are established by Paragraph 12 of the Restriction applicable to the subdivision. This paragraph reads as follows:

'The area lying between the water line of Lake Travis as it may exist from time to time and the contour line of the 715 foot elevation, as shown on the plat of Lake Shore Ranch Subdivision No. 1, to which the undersigned now hold title, shall be and the same is hereby reserved for the exclusive use and benefit of the owners of lots in said Subdivision, their families and guests, for picnicing, fishing, bathing, boating and other amusement purposes, and no structures or fences shall be erected thereon which interfere with the full and free use of such area for such purposes by the owners of lots in said Subdivision, their families and guests in common with each other. Each owner of a lot fronting on said 715 foot contour line may, however, install and maintain boat docks, water pumps, and other facilities for his private use within the area encompassed by an extension of the sidelines of his lot to the water line so long as such installations do not unreasonably interfere with access to and along the water line by other owners.'

Both properties are extensively improved. Appellant has built a home, a green house and servant's quarters on his lots at a cost of about $40,000.00 and has installed an electric lift that goes down to his boat dock which floats on the waters of Lake Travis. Appellee has built a lake house and other improvements as well as a chair lift which goes down to his floating boat dock, at a cost of approximately $30,000.00.

At the time appellee bought his lots appellant was maintaining a fence along the extension of the common line between Lots 32 and 33 from the contour line of the 715 foot elevation to a steep bluff of about eight feet, the top of which was about at the 680 foot elevation.

As...