Tall Timbers Corp. v. Anderson

• Decision Date: 08 December 1960
• Docket Number: No. 13625,13625
• Parties: TALL TIMBERS CORPORATION, Appellant, v. T. D. ANDERSON et al., Appellees.
• Court: Texas Court of Appeals

Page 452

342 S.W.2d 452

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

No. 13625.

Court of Civil Appeals of Texas, Houston.

Dec. 8, 1960.

Rehearings Denied Jan. 5, 1961.

On Motion of Appellees Jan. 21, 1961.

George A. Hill, Houston, for appellant.

Baker, Botts, Andrews & Shepherd, Thos. M. Phillips, Homer L. Bruce, Jas. P. Lee, Houston, for appellees, T. D. Anderson and others.

R. H. Burks, City Atty., Homer T. Bouldin, din, Senior Asst. City Atty., Houston, for appellee, City of Houston.

WERLEIN, Justice.

This suit was brought by appellees, 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 against Tall Timbers Corporation, appellant, for a declaratory judgment and permanent injunction decreeing that a certain 40 foot easement in said subdivision is restricted to use for utility purposes and enjoining the use of such easement by appellant as a roadway.

River Oaks Corporation, the subdivider of Tall Timbers Section, intervened and appellant filed a cross-action for declaratory relief and damages, and impleaded the City of Houston as a defendant. The trial court after a hearing granted appellees and 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 appellant has perfected its appeal.

By its First, Second and Tenth Points appellant asserts in essence that the trial court abused its discretion in enjoining appellant from opening and constructing a roadway in the 40 foot easement lying between Lot 1, Block 88 and Lot 1, Block 91, of Tall Timbers Section, and from using such easement as a roadway connecting its property with Westlane Street in said subdivision; and further that the court erred in failing to hold that such easement had been dedicated to the public as a roadway, and that appellant as the owner of property abutting such easement is entitled to the use thereof as a public roadway and also as an easement appurtenant to its land.

The evidence shows that on January 10, 1939 intervenor, River Oaks Corporation, executed a document entitled 'Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks', and also authenticated a plat entitled 'Plat of Tall Timbers Section, River Oaks, an Addition west of the City of Houston', and that on January 11, 1939 both instruments were filed for record in Harris County, Texas. The plat is reproduced for reference.

It will be noted that on such plat there are two reserved tracts of about six acres each, adjoining Tall Timbers Section, one to the northwest and the other to the southwest west of the subdivision. They will be referred to respectively as the north reserved tract and the south reserved tract. It is stated on the plat and in said document that such tracts and Tract 2, Block 92 are not a part of the subdivision. From Inverness Drive to the north reserved tract there is a 40 foot easement, and from Westlane to the south reserved tract there is a 40 foot easement, which easements will be referred to respectively as the north 40 foot easement and the south 40 foot easement. It is the south 40 foot easement that is involved in this suit. It will be observed that said 40 foot easements do not cross any lot or block of the subdision in whole or in part, as to the 10 foot easements and 20 foot easements which are indicated by dotted lines on the plat.

After recording the subdivision plat and document containing the reservations, intervenor, the owner of the addition, and also of the two reserved tracts, began in the year 1939 to convey various lots by reverence to the plat. On March 9, 1959 it conveyed the south reserved tract to Mark Rice and Jacob W. Hershey, describing the same by metes and bounds, making specific reference to the recorded plat. One of the calls for course and distance in the deed reads as follows:

'Thence in a southerly direction along the west line of an easement 40 feet in width lying between Lot 1 in Block 91 and Lot 1 in Block 88 of Tall Timbers Section, a distance of 49.7 feet to the northwest corner of such Lot 1 in Block 88.'

The habendum clause in such deed recites:

'To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said Mark Rice of Dallas County, Texas, and said Jacob W. Hershey of Harris County, Texas, their heirs and assigns, forever; * * *'

On the same day said grantees conveyed the south reserved tract to appellant by deed containing precisely the same descriptive matters and character of habendum clause as contained in the deed from intervenor to Rice and Hershey.

Since filing for record said plat and reservations document, no conveyance has ever been made by intervenor to anyone including within its description any portion of the tracts of land lying within the confines of the two 40 foot easements. On or about February 15, 1941 intervenor entered into a written agreement with the late Malcolm S. McCorquodale, a Houston attorney, who then owned Lot 1 in Block 88 of Tall Timbers Section, giving McCorquodale the privilege of improving and using such 40 foot strip as a private drive for access to his property, with the provision that upon request of intervenor at any time McCorquodale would vacate the same and restore it to its original condition. In McCorquodale's letter transmitting the agreement to intervenor it is stated:

'If this easement is ever developed into a street or alley, the logical place for my driveway would be directly off this alley from the west to my garage which is on that side. My only purpose in using a portion of this easement for my driveway was that I did not want to build my driveway on some other part of my lot and then relocate it after the easement is available for a driveway.'

In February, 1945, W. Carloss Morris, Jr., a Houston attorney who contemplated buying the north reserved tract, proposed purchasing from intervenor the north 40 foot easement. Intervenor declained to sell the same, stating, '* * * It would be inappropriate and perhaps impossible for us to deed you the right of way in any form since it has been dedicated by recordation of the plat.' Thereafter, on or about March 5, 1945, Morris consummated the purchase of the north reserved tract, since which time he and certain of his neighbors either residing upon such tract or upon properties adjacent to the 40 foot easement have been using the same for ingress and egress to and from Inverness Drive for vehicular traffic.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1951 McCorquodale sold Lot 1 in Block 88 to J. C. Suttles, one of the appellees herein. On March 21, 1951 intervenor wrote Suttles in connection with such lot and the south 40 foot easement, stating, among other things:

'We have been contemplating the opening of this easement through to the 6 acre tract to the rear (southwest) which is owned by this Company. We have been permitting your predecessor in title the use of this easement and we would be willing for you to continue to use it until such time as we are ready to develop this 6 acre tract, which time is uncertain.

'We desire to draw your attention to this matter now so that you will not be inconvenienced or put to any extra expense in doing anything that would prevent us from the future use or opening up of this easement.'

Suttles replied to such letter, stating, with respect to the 40 foot easement, 'At the present time the driveway is partly on the easement and we would like to continue to use it.' On April 5, 1951, intervenor, by letter, accorded Suttles the same privilege to use the 40 foot easement as previously extended to McCorquodale. On March 9, 1959, when intervenor sold the south reserved tract to Rice and Hershey, it gave written notice to Suttles of the termination of the April 5, 1951 letter agreement. Suttles, however, has continued to use a portion of such easement as a driveway.

The evidence further shows that intervenor has never rendered the south 40 foot easement for taxes subsequent to 1939 and no public body has levied or assessed ad valorem taxes against the same; that shortly after the annexation of Tall Timbers Section by the City of Houston on December 30, 1949, the City constructed and has since continuously operated and maintained a water distribution system in the streets and dedicated easements in Tall Timbers Section, and that one of its main water lines is now and has been for over nine years operated and maintained by the City in the south 40 foot easement in controversy, and its right to do so has never been challenged by appellees, some of whom are supplied water through such line; that no person residing in Tall Timbers Section has challenged or sought to prevent the foregoing uses of said 40 foot easements; and that light, gas and telephone companies have constructed and maintained their facilities on and have used the designated 10 foot and 20 foot easements for utility purposes.

According to the affidavit of Hugh Potter, who on December 30, 1938, and at all times pertinent to the statements verified in his affidavit, was the president of River Oaks Corporation in charge of its business, intervenor had no definite plans at the time the plat was recorded for the ultimate use and disposition of the two reserved tracts, but it was apparent to it at such time that access on the part of the public and future owners of both reserved tracts to and from Inverness Drive and Westlane Street, for whatever purposes such tracts of land might subsequently be used, was a matter of paramount importance to intervenor; that in planning and platting Tall Timbers Section, if intervenor had not provided said 40 foot easements for...