Stout v. Christian

• Decision Date: 09 January 1980
• Docket Number: No. 12999,12999
• Citation: 593 S.W.2d 146
• Parties: Lynn STOUT et al., Appellants, v. Marie CHRISTIAN et al., Appellees.
• Court: Texas Court of Appeals

Page 146

593 S.W.2d 146

Lynn STOUT et al., Appellants, v. Marie CHRISTIAN et al., Appellees.

No. 12999.

Court of Civil Appeals of Texas, Austin.

Jan. 9, 1980.

Maxwell Bryant Stout, Austin, for appellants.

David W. Hilgers, Hilgers, Watkins & Hays, Austin, for appellees.

O'QUINN, Justice.

Marie Christian, as owner of a tract of land in Travis County, and Jerry Grant and Ed Siegmund, lessees of the tract, brought this lawsuit for damages and to enjoin Lynn Stout, Forrest Grahmann, and Andrew Burchfield, owners of tracts adjoining the Christian property, in using a recognized easement across the Christian land, from cutting fences, leaving gates open, breaking locks, and committing other acts alleged to interfere with use by Christian and her lessees of their land.

The trial court, after hearing on temporary injunction, enjoined defendants as prayed for, and authorized plaintiffs "to place chains and locks securing the gates which provide access onto" the easement across the Christian tract by which defendants reach their lands from the public highway.

Defendants below have appealed and bring the single point of error that the " . . . trial court abused its discretion by permitting locked gates across the right of way in question in its temporary injunction." We will overrule the point of error and affirm the judgment of the trial court.

All land involved in this action originally was owned by Stark Washington. Upon his death, the Washington land was divided among heirs by a partition deed executed in 1945. Two of the tracts, which comprise the lands directly involved in this suit, were held under the partition deed by Althea T. Roberts, who later was succeeded in title by Appellee Christian, and by Myrtle M. Harwell, whose successors in title are Appellants Stout, Grahmann and Burchfield, owners of three separate portions of the Harwell land.

Under the original partition deed the owner of the tract now owned by Christian was required to give " . . . the right of ingress and egress across her property from the vicinity of Elm Branch to present or subsequent County Highway Or a thirty foot right of way along her west boundary as she may elect." (Emphasis added). Subsequently, in 1954, the then owner of the Christian tract elected to give a thirty-foot right of way along her west boundary to the owner of the lands now owned by appellants.

By the deed of easement of 1954 the owner of the tracts to be served by the easement gained the right to enter upon the lands of the grantor " . . . and to place, construct, operate, repair and maintain a road, including necessary lateral drainage ditches, but wholly within the limits of the right-of-way thirty feet in width adjoining and paralleling the westerly boundary . . . (of grantor's tract) and extending from the boundary fence line separating . . . (the two tracts) to the Public Road, presently designated Texas Highway No. 71."

The easement deed further provided: "In granting this Easement . . . it is understood that all costs of initial construction of roads, gates, etc. and subsequent repair and maintenance of same shall be borne entirely by Grantee; that Gates at the entrance and exit To . . . (grantor's tract) shall be of Livestock proof construction and Kept closed when not in actual use ; and that said right-of-way shall not be fenced off from the remainder of . . . (grantor's tract) by Grantee." (Emphasis added).

It is clear from the deed of easement that the parties recognized the Christian tract was suitable for raising livestock and that it likely would be devoted to such use. The lessors of the Christian tract used the land for raising cattle, requiring that gates at the entrance and exit to the Christian tract be " . . . of livestock proof construction and kept closed when not in actual use . . . " as provided in the deed of easement.

Trouble between the opposing parties began with the cutting of a gap in the Christian fence opening to the highway, but at a place in direct line with the designated easement. Christian and her lessees protested, but appellants insisted that the easement was not to be enclosed by gates at either the entrance or the exit. Thereafter gates were left open, and when locks were placed on the gates, the chains or locks were cut and the gates left open. One event succeeded another until the parties obviously could not agree on any arrangement satisfactory to both. This lawsuit followed.

The Supreme Court held in 1953 that "To warrant the issuance of the writ (of temporary injunction), the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation." Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). This Court in 1977 reasserted the rule stated in Transport In Hickman v. Board of Regents of the University of Texas System, 552 S.W.2d 616, 617 (Tex.Civ.App. Austin 1977, writ ref'd).

In the cause now on appeal, the partition deed of 1945 and the easement deed of 1954, taken together, clearly establish the probable right of Christian and her lessees to keep the gates closed at the entrance and the exits of the easement. The easement deed in 1954 explicitly provided that " . . . gates at the entrance and exit to . . . (the Christian tract) shall be of livestock proof construction and kept closed when not in actual use . . . " Appellees demonstrated probable injury caused by the open gates. The lessees were unable to buy cattle when the price was most favorable and let the stock run on the entire tract, but were compelled to keep the cattle penned and to feed the cattle while being kept in the smaller enclosure. Some of their cattle became sick, or died, under these circumstances. In effect appellees were denied use of the entire tract for cattle raising because the gates were left open, particularly the gate opening on the highway. With the probable right and probable injury shown, the trial court had broad discretion to determine the necessity of a temporary injunction. Hickman v. Board of Regents of the University of Texas System, supra.

By their single point of error, appellants contend that the trial court abused its discretion by permitting locked gates to be maintained across the easement. The trial court found that to assure that the gates at the entrance and the exists of the easement " . . . are closed when not in use, Plaintiffs shall be entitled to keep such gates under lock and key as long as keys are provided to Defendants; and that the entrances and exits of such right-of-way are now established."

In their position that it was error to permit locked gates, appellants place strong reliance on decisions by this Court in Carleton v. Dierks, 195 S.W.2d 834, 837 (Tex.Civ.App. Austin 1946, no writ), an appeal on temporary injunction, and in the same cause (203 S.W.2d 552, 556, writ ref'd n. r. e.), after grant of permanent injunction by the trial court. In both decisions this Court made it clear that decision turned on "The question whether the locking of the gates and furnishing plaintiffs with keys was an unreasonable interference with use of the roadway by plaintiffs (which) was clearly a fact issue for the trial judge (in the first appeal) to resolve," and for the jury to resolve in the second appeal. See 195 S.W.2d 837, col. 2, and 203 S.W.2d 556, col. 2.

It is true, as pointed out by appellants, that in both decisions this Court quoted from statements in Corpus Juris Secundum, one statement being that "Ordinarily locked gates across a way constitute an unreasonable burden which will not be permitted, even though the way owner is furnished with a key . . . " and the second statement being that "Under certain circumstances, however, locked gates may be permitted where the way owner is furnished a key . . . " 28 C.J.S. Easements § 98, pp. 781, Et seq., under the heading "Gates," footnote 17, p. 782.

In both decisions, this Court summarized the conflicting testimony introduced by the parties. In the first appeal this Court held " . . . that the trial judge (who resolved the fact question) did not abuse his discretion in granting the temporary injunction." In the second appeal, on permanent injunction, this Court held there was sufficient evidence to support the jury's finding that "the locked gates across the road in question constitutes an unreasonable interference with plaintiffs' use and enjoyment of said road, even though plaintiffs were furnished with keys."

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