Templeton v. Dreiss

• Decision Date: 21 January 1998
• Docket Number: No. 04-95-00772-CV,04-95-00772-CV
• Citation: 961 S.W.2d 645
• Parties: Dennis L. TEMPLETON and Karen C. Templeton, Appellants, v. Thomas Edward DREISS, as the Duly Appointed Attorney-in-Fact for his parents, William Franklin Dreiss and wife Ruth Dreiss, Appellees.
• Court: Texas Court of Appeals

Page 645

961 S.W.2d 645

Dennis L. TEMPLETON and Karen C. Templeton, Appellants, v. Thomas Edward DREISS, as the Duly Appointed Attorney-in-Fact

for his parents, William Franklin Dreiss and wife

Ruth Dreiss, Appellees.

No. 04-95-00772-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 21, 1998.

Edward G. Marion, The Law Offices of Edward G. Marion, Jr., Boerne, John Curney, Jr., Johnson, Curney, Price & Garcia, P.C., San Antonio, Wayne Crocker, Law Offices of Wayne Crocker, San Antonio, for Appellants.

Marvin G. Pipkin, P. Jeffery Nanney, Drought & Pipkin, L.L.P., San Antonio, Calhoun Bobbitt, Bobbitt & Halter, San Antonio, for Appellees.

Before LPEZ, STONE and ANTONIO G. CANTU, ¹ JJ.

OPINION

ANTONIO G. CANTU, Justice (Assigned).

This is an appeal by Dennis L. Templeton and Karen C. Templeton (Templetons), defendants below, from a judgment rendered by the trial court, without benefit of a jury, in favor of Thomas Edward Dreiss (Dreiss), as the duly appointed attorney-in-fact for his parents, William Franklin Dreiss and wife, Ruth Dreiss.

The suit arose out of a dispute between the Templetons and the Dreisses concerning the ownership of a twenty foot wide road strip located in Kendall County. Also incidental to the lawsuit, but later abandoned at trial, was the boundary between a tract of land owned by the Dreisses and one owned by the Templetons.

The genesis of this road is found in a deed dated July 24, 1918 by which G.F. Bierschwale conveyed to Edward Dreiss, Sr. a twenty foot wide strip of land in Kendall County lying parallel to a partition fence between the Clarence Voigt and G.F. Bierschwale properties, to be used as a road for entrance from the San Antonio--Fredericksburg Highway to an 82.8 acre tract.

Prior to this conveyance, Edward Dreiss, Sr. had purchased the 82.8 acre tract of land from Edward and Kathryn Wentworth by deed dated December 16, 1912. This purchase gave access to the Lower Government Road and frontage on the Guadalupe River. However, at that time there was no access to the San Antonio--Fredericksburg Highway.

In the 1920's Edward Dreiss, Sr. built a road that connected with the San Antonio--Fredericksburg Highway to the north and which went down the twenty foot strip to the river bottom fronting the Guadalupe River at the other end.

Edward Dreiss, Sr. died on June 7, 1931, and following the probate of his will, his sons, Paul Dreiss and Ed Dreiss, Jr., qualified as independent executors. Thereafter, by distribution deed dated April 1, 1933, the executors carved out 14.9 acres from the original 82.8 acre tract and conveyed it to Ed Dreiss, Jr.

In addition, the 1933 deed sought to convey an "undivided interest" in the road. ² Attached to the 1933 deed and referenced therein was a plat known as the "Linen Survey," which depicted the location of the 14.9 acre tract and the road. By distribution deed dated February 8, 1935, Paul Dreiss and Edward Dreiss, Jr., as executors of the estate of Ed Dreiss, Sr. and individually, along with the other heirs of the estate, ³ conveyed all their interest in the remaining acreage to Ernst A. Dreiss. ⁴

The 1935 deed specifically excepted the 14.9 acres conveyed to Ed Dreiss, Jr. in the 1933 deed. It further referenced and incorporated by volume and page number the recording information for the 1933 deed, but otherwise was silent as to the road.

Edward Dreiss, Jr. died in 1961 and title passed to his widow and two sons, William Franklin Dreiss and Edward Dreiss III. In 1966, William Franklin Dreiss purchased the 14.9 acres from his mother and brother. Thus William Franklin Dreiss and Ruth Dreiss claim ownership of the 14.9 acre tract and the road through mesne conveyances from Edward Dreiss, Jr.

By deed dated May 1, 1940, Ernst A. Dreiss conveyed the 67.9 acres including "his" interest in the twenty foot road strip to William Wasmann, one of the Templetons' predecessors in title. ⁵

Wasmann conveyed to Paul Snyder by deed dated February, 1943. Snyder conveyed to Pete and Henrietta Garcia by deed dated August, 1948 and the Garcias conveyed to Jack Busbee by deed dated March, 1952. Jack Busbee then conveyed to William Busbee by deed dated June, 1985 and William Busbee conveyed to the Templetons by deed dated January 18, 1994.

Prior to closing, the Templetons were informed by the title company that it would not issue a survey deletion, even for the payment of an additional premium. Further, the Templeton Deed specifically excluded any warranty with respect to the road and fence line overlappments and/or encroachments.

After the Templetons purchased the property, Dennis Templeton confronted William Franklin Dreiss and informed him that he had to move his fence lines, his road, and the gate to his home. He further informed Dreiss that he could no longer have access to the Guadalupe River and could no longer use the lower portion of the road.

The present entrance off the old San Antonio-Fredericksburg Highway also includes two tracts of land that are not in issue, being a 16.6 foot wide tract and a 13.4 foot wide tract belonging to the Templetons. These tracts were purchased by their predecessor in title, Wasmann in 1941.

The twenty-foot wide strip of land in issue that was purchased by Edward Dreiss, Sr. from George F. Bierschwale in 1918 is on the south side of and parallel to the two tracts purchased by Wasmann. ⁶ The Dreisses and their family have continuously used the 14.9 acre tract and the road since 1918.

William Franklin Dreiss, fearing that Templeton's threats would jeopardize his family's fundamental use and enjoyment of their property, filed his Original Petition and Application for Temporary Restraining Order on February 11, 1994. The Templetons counterclaimed seeking a declaratory judgment as to the rights of the parties in the road purchased by Ed Dreiss, Sr. in 1918 and as to boundary lines between the parties. Dreiss amended his petition to also seek declaratory judgment relief covering the same issues raised by the Templetons.

Following a four day non-jury trial, the trial court ordered the preparation of a metes and bounds description of the roadway to be attached to the final judgment as an appendix. Upon timely request, the trial court filed its Findings of Fact and Conclusions of Law.

The Templetons have challenged the Findings of Fact and Conclusions of Law in fourteen points of error and some sixty plus sub-points. Because not all of the subpoints are addressed in the Templetons' brief, we shall confine our discussion only to those which are presented by argument and supported by authorities. All others shall be considered waived. See Wise v. De Toca, 761 S.W.2d 467, 469 (Tex.App.--Houston [14th Dist.] 1988, no writ).

The trial court filed the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The real property which is the subject of this lawsuit is located in Kendall County, Texas.

2. The boundaries of that certain 14.9 acre tract (the "14.9 acre Tract") are established by that certain Deed dated April 1, 1933, from Paul Dreiss and Ed Dreiss, Jr., Executors of the Estate of Ed Dreiss, Deceased, to Ed Dreiss, Jr., recorded in Volume 53, Page 140 of the Deed Records of Kendall County, Texas (the "1933 Deed").

3. The southwesterly boundary of the 14.9 acre Tract is further confirmed by that one certain survey prepared on September 13, 1994, by Byron L. Simpson, Registered Professional Land Surveyor No. 151 (the "Simpson Survey"), which was admitted into evidence as Plaintiff's Exhibit No. 31 and attached to the Judgment as Exhibit "A."

4. The southwesterly boundary of the 14.9 acre Tract has been agreed to and acquiesced in between the owners of the respective tracts until disputed by Dennis Templeton and/or Karen Templeton ("Defendants").

5. That certain road (the "Road") in Kendall County, Texas, which was conveyed in the 1933 Deed and a metes and bounds description of which was attached to the Judgment as Exhibit "B," may, for ease of reference, be divided into three (3) sections as follows:

(a) That portion of the road described by metes and bounds in Deed dated July 24, 1918 (the "1918 Deed"), from G.F. Bierschwale to Ed Dreiss, Sr., recorded in Volume 2, Page 181 of the Miscellaneous Deed Records of Kendall County, Texas ("Section A").

(b) That 20' road beginning at the southwest end of Section A, being parallel to the southwest boundary line of the 14.9 acre Tract, as set forth in the Simpson Survey, and ending at the point at which the road turns in a southwesterly direction from the 14.9 acre Tract ("Section B").

(c) The continuation of the 20' road, beginning at the south end of Section B, turning southwest to the original Dreiss bridge location, which is still visible and apparent, and then continuing to the gate at the Old Lower Government Road at the corner of the Clarence Voigt fence line, being a visible and apparent roadway with a known and visible beginning point, mid-point, ending point, and width ("Section C").

6. That road described by metes and bounds and survey attached to the Judgment as Exhibit "B" is the same road described in the trial evidence.

7. It was the intention of the parties to the 1933 Deed that fee simple title in and to the Road would be vested, by virtue of such Deed, in Edward Dreiss, Jr.

8. It was the intention of the parties to the 1933 Deed that an easement for use of the Road would be reserved to and vested in Paul Dreiss and Edward Dreiss, Jr., as Executors of the Estate of Edward Dreiss, Sr., Deceased, and the successors-in-interest of said Estate.

9. William Franklin Dreiss and Ruth Dreiss and their predecessors in title have continuously used the Road.

10. Without the fee simple conveyance of the Road, the 14.9 acre Tract would not have had a fee simple access to public roadways.

11. The land remaining in the Estate of Ed Dreiss, Sr. after the 1933 Deed had direct access to a public road other than by and through the Road.

12. The 1933 Deed...