Tall Timbers Corp. v. Anderson, 16394

• Decision Date: 12 July 1963
• Docket Number: No. 16394,16394
• Citation: 370 S.W.2d 214
• Parties: TALL TIMBERS CORPORATION et al., Appellants, v. T. D. ANDERSON et al., Appellees.
• Court: Texas Court of Appeals

Page 214

370 S.W.2d 214

TALL TIMBERS CORPORATION et al., Appellants, v. T. D. ANDERSON et al., Appellees.

No. 16394.

Court of Civil Appeals of Texas, Fort Worth.

July 12, 1963.

Rehearing Denied Sept. 13, 1963.

George A. Hill, Houston, for appellant, Tall Timbers Corp.

O. J. Cadwallader, Houston, for appellant, River Oaks Corp.

Baker, Botts, Shepherd & Coates, Homer L. Bruce, Robert J. Malinak, and Thomas M. Phillips, Houston, for appellees, T. D. Anderson and other individual appellees.

R. H. Burks, City Atty., and Homer T. Bouldin, Sr. Asst. City Atty., Houston, for appellee City of Houston.

LANGDON, Justice.

This is an appeal from a summary judgment. Originally it was a suit for declaratory judgment and a permanent injunction initiated by T. D. Anderson et al., individually and on behalf of the residents and owners of property in Tall Timbers Section of River Oaks Addition to the City of Houston, Harris County, Texas, against Tall Timbers Corporation, defendant in the trial court and appellant herein, decreeing that a 40 ft. easement in said subdivision is a private easement restricted to use for utility purposes and enjoining its use by appellant as a roadway.

River Oaks Corporation, the subdivider of Tall Timbers Section intervened, contending that the easement in dispute had been dedicated to the public as a roadway. The appellant filed a cross-action for declaratory relief and damages and impleaded the City of Houston as a defendant. Appellees then filed an application for a temporary restraining order asking that appellant be temporarily restrained and, after hearing, be temporarily enjoined from using the disputed easement as a roadway. The trial court granted the temporary restraining order requested by appellees, gave notice of hearing and after hearing granted to appellees and to the City of Houston a temporary injunction enjoining appellant from using the disputed easement as a roadway pending the trial of the suit on its merits. From such order the appellant perfected its appeal to the Court of Civil Appeals which reversed the trial court holding that under the undisputed facts in evidence the disputed easement had been dedicated to the public as a roadway, and that appellant, Tall Timbers Corporation, had a right to the use of such public roadway and, as an abutting property owner having purchased by reference to a plat upon which the disputed easement was shown, had an additional private easement in and right to the use of such roadway, but suspended that portion of its judgment dissolving the temporary injunction pending disposition of appellee's application for writ of error to the Supreme Court of Texas (Tex.Civ.App., 342 S.W.2d 452).

The application of appellees, T. D. Anderson et al. and of the City of Houston to the Supreme Court of Texas for a writ of error was granted. By a 5 to 4 decision the Supreme Court reversed the Court of Civil Appeals and held that the trial court did not abuse its discretion in issuing the temporary injunction, but expressly stated the such 'opinion is not to be construed as passing on the merits of the case in any respect.' (347 S.W.2d 592).

Thereafter the plaintiffs T. D. Anderson et al., the impleaded defendant, the City of Houston, the intervener, River Oaks Corporation and defendant, Tall Timbers Corporation, each moved for summary judgment. The trial court granted the motions for summary judgment of plaintiffs T. D. Anderson et al. and of the City of Houston and denied the motions for summary judgment of intervener River Oaks Corporation, and of defendant Tall Timbers Corporation. The appellants, Tall Timbers Corporation and River Oaks Corporation, each has perfected its appeal from such judgment.

We reverse and render in part and remand in part with instructions to the trial court.

In order that the questions involved on this appeal may be more clearly understood we believe it appropriate to briefly summarize the history and background of the property involved. Prior to 1939 the River Oaks Corporation had developed its River Oaks Addition on the western edge of Houston. It is a widely known and exclusive residential addition. In 1939 the River Oaks Corporation created the last extension of River Oaks Addition to the west which was designated as the Tall Timbers Section. It too is a highly regarded residential section. The plat of this area is contained on pages 456 and 457 of the previous Court of Civil Appeals opinion, 342 S.W.2d 452. It reflects the two (2) 40 ft. easements and the north and south reserved sections to which they extend. The north reserved tract was sold and a private residence constructed thereon. The north 40 ft. easement is presently being used as an access road to and from such private residence. In 1959 the south reserved tract was sold to the appellant, Tall Timbers Corporation, who proceeded to build some apartments thereon and expressed its desire to use the south 40 ft. easement as a roadway. The 50 residents of the Tall Timbers Section of the River Oaks Addition in protest of such use initiated this action. Subsequently they were joined by the City of Houston.

The original cause of action was filed on October 20, 1959. A temporary restraining order was entered on February 1, 1960. On December 8, 1960, the Houston Court of Civil Appeals handed down its opinion, 342 S.W.2d 452, and on June 14, 1961, the Supreme Court of Texas reversed the Court of Civil Appeals, 162 Tex. 450, 347 S.W.2d 592. Following the first appeal while this action was pending in the trial court, the City of Houston, one of the parties herein, on February 13, 1962, had presented and passed Ordinance No. 62-212, which was approved by the mayor on the same day. It provided in effect that it was closing to the public and abandoning as a thoroughfare the south 40 ft. easement and granting to the owners of lots abutting on either side the right to enclose, use and build upon said strip thus abandoned subject to the rights reserved in said 40 ft. easement for the installation and operation of utilities.

On April 2, 1962, the summary judgment was signed and entered by the trial court and this appeal from such judgment was perfected.

From the above summary one can readily understand the reasons for the positions taken by appellees and appellants as to the opening of the 40 ft. easement and its use as a street.

A study of the record in this case reflects that the material evidence contained therein is substantially identical to that which was before the Court of Civil Appeals on the prior appeal concerning the nature and purpose of the disputed easement. The additional evidence in the record on this appeal which will be referred to as it may become pertinent to a discussion of the various points serves to strengthen and support the previous holding of the Court of Civil Appeals.

The judgment of the trial court is inadequate in that it did not determine and spell out the rights of the parties in the disputed easement. It now becomes the duty of this Court to construe the subdivision plat and document in question and to define and declare such rights. Forbes v. Texas Department of Public Safety, Tex.Civ.App., 335 S.W.2d 439 (no writ history); Republic National Bank of Dallas v. Fredericks, Tex.Civ.App., 274 S.W.2d 431, p. 438, reversed on other grounds, 155 Tex. 79, 283 S.W.2d 39; Voyer v. Gomez, Tex.Civ.App., 258 S.W.2d 859, pp. 861, 862 (no writ history).

It is the further duty of this Court to determine all of the questions presented and if reversible error is found then to render such judgment as the trial court should have rendered. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, p. 400.

Because of the form of the judgment appealed from the appellant's formal points of error are primarily based on what the court failed to hold rather than what it did hold.

In essence the judgment of the trial court recited that there is no issue as to any material fact and that the motions of the plaintiffs and the City of Houston for summary judgment should be granted and the motions of the defendant Tall Timbers Corporation and of the intervener, River Oaks Corporation, should be denied. The judgment accordingly denied the motion of the defendant and intervener and permanently enjoined Tall Timbers Corporation, its officers, agents and servants from entering the disputed 40 ft. easement and from doing any work on it in connection with building a street, thoroughfare or passageway thereon. Tall Timbers Corporation both as defendant and cross-plaintiff was denied any recovery or relief sought against plaintiffs or the City of Houston as was the intervener, River Oaks Corporation. The Travelers Indemnity Co., surety upon the temporary injunction bond was discharged from all liability to Tall Timbers Corporation upon said bond. All costs were assessed against Tall Timbers Corporation. Other than formal recitations this is the extent of the judgment entered by the trial court.

The record reflects that no depositions were taken or filed by or on behalf of any of the parties to this cause. No oral testimony of witnesses appears. The testimony of witnesses is confined to the verified written matter appearing in the affidavits and sworn pleadings of the parties. It must be assumed that since all parties involved filed motions for summary judgment that each is convinced that the questions involved could properly be resolved as a matter of law on the basis of the affidavits and sworn pleadings. Each contends that the plat and reservations document are plain and unambiguous. We share the same belief. Thus their construction becomes a matter of law and no issue of fact is involved.

On the prior appeal, Tex.Civ.App., 342 S.W.2d 452, the plat involved herein was reproduced for reference on pages 456 and 457. The opinion likewise contains a thorough and detailed discussion of the evidence relating to the material facts involved on this appeal to all of which...