Texas City Dike & Marina, Inc. v. Sikes

• Decision Date: 31 August 1973
• Docket Number: No. 16021,16021
• Citation: Texas City Dike & Marina, Inc. v. Sikes, 500 S.W.2d 953 (Tex. Ct. App. 1973)
• Parties: TEXAS CITY DIKE & MARINA, INC., et al., Appellants, v. J. T. SIKES, d/b/a Lighted Pleasure Pier, Appellee. (1st Dist.)
• Court: Texas Civil Court of Appeals

Page 953

500 S.W.2d 953

TEXAS CITY DIKE & MARINA, INC., et al., Appellants, v. J. T. SIKES, d/b/a Lighted Pleasure Pier, Appellee.

No. 16021.

Court of Civil Appeals of Texas Houston (1st Dist.).

Aug. 31, 1973.

Rehearing Denied Oct. 25, 1973.

Second Rehearing Denied Nov. 15, 1973.

St. John Garwood, Jr., Edwin L. Kirkpatrick, Houston, Austin, Dabney, Northrop & Garwood, Houston, of counsel, for appellants.

Barrow, Bland, Rehmet & Lee, Gerald T. Drought, Thomas H. Lee, Houston, for appellee.

COLEMAN, Justice.

Texas City Dike Corporation and its parent company, Texas City Dike & Marina, Inc., appeal from a declaratory judgment rendered by the court after a non-jury jury trial. Appellants complain only of those portions of the judgment which awarded a 5,000 square foot parking easement for appellee's customers and invitees, and a fishing pier on submerged property adjacent thereto, to appellee. The judgment also granted an access easement to appellee to which use appellants offer no objection but maintain that such use should be limited to purposes of ingress and egress.

Appellants contend that the trial court erred in awarding appellee a parking easement for appellee's customers and invitees outside his sublease boundaries because the undisputed evidence conclusively showed as a matter of law that the requirements for an implied easement, or an easement by estoppel, had not been met, and no express easement had ever been granted, and that the trial court further erred in awarding the pier adjacent to the sublease to appellee, because the undisputed evidence also conclusively showed as a matter of law that his lessor, Texas City Dike Corporation, never held any right therein to lease to him.

It is noted at the outset that neither findings of fact nor conclusions of law appear in the record and in the absence thereof the judgment of the trial court must be upheld on any legal theory which findings support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968). Furthermore, this court in such case must presume that the trial court found all facts in favor of the judgment which have support in the evidence. Lyford Realty Co. v. Clark, 154 S.W.2d 277 (Tex.Civ.App.--San Antonio 1941, writ ref'd).

On August 23, 1962, Texas City Dike Corporation entered into a lease with a term commencing September 1 of that year the terminating February 29, 1968, wherein the lessee, Sikes, was granted an option to renew and extend the lease for an additional term of twenty years from March 1, 1968 upon giving sixty days' prior written notice of his intention to exercise the option. Sikes, d/b/a Lighted Pleasure Pier Company, was specifically granted the use and occupancy of 'the premises hereby let For the purpose of maintaining a fishing pier and concession stand . . .' Sikes further agreed 'prior to the first day of Marcy, 1963 To complete the erection, construction and establishment of a fishing pier or tee head together with a suitable adjacent building for use by way of a concession stand upon the premises here by leased and demised . . .' on penalty of the termination of the lease for failure to do so .

The rental consisted of a stipulated amount to be paid annually in addition to a percentage of Sikes' annual gross income. The lease agreement was actually a sublease under an original lease between the City of Texas City, lessor, and Clyde B. Ragsdale, lessee, dated July 3, 1957. On January 16, 1959, Ragsdale assigned his interest therein to the Texas City Dike Corporation of which Ragsdale was president and principal owner. Texas City Dike & Marina, Inc. purchased all of the stock of Texas City Dike Corporation after Ragsdale's death in 1963.

Formal negotiations between Ragsdale and Sikes leading up to Sikes' sublease commenced in 1962. After several months of preliminary negotiations Ragsdale and Sikes located the premises to be subleased with the use of a 100 tape and marked the center lines thereof with a steel pipe.

Sikes testified over objection that such testimony violated the Statute of Frauds, Statute of Conveyances and Parol Evidence Rule, that he and Ragsdale had discussed the question of customer parking prior to the execution of the sublease and that Ragsdale told him that he was authorized to use an indicated area for customer parking . A running objection was allowed by the court and no express ruling on the objection was announced. The parking area claimed by Sikes was situated directly in front of his building which was located within the subleased portion and on either side of the road which approached his place of business from the south. The testimony of several witnesses corroborated the fact that the described area was customarily used for parking by those driving to the end of the Texas City Dike. A witness, Mr. Boatright, testified that the parking area was very well defined and '. . . There is no grass or anything on it. You can clearly tell it's a parking area or what could be used for such.' It was across this area and portion of the road leading up to Sikes' place of business that the trial court granted the parking easement.

Subsequent to the execution of the sublease Ragsdale and Sikes met on numerous occasions at the leased premises but neither discussed the question of customer parking. Ragsdale did not voice any objection to the fact the Sikes customers were utilizing the area outside of the 100 100 foot subleased area for parking. Sikes testified that no one from either Texas City Dike Corporation or Texas City Dike & Marina, Inc. had ever indicated to him prior to the initiation of this lawsuit that customer parking outside his sublease was objectionable.

The Texas City Dike was originally construed for the purpose of protecting the ship channel leading into Texas City. It is about 5 miles in length. Texas City Dike & Marina, Inc. holds a long term lease from the City of Texas City on a tract consisting of about 26 acres at the tip of the dike. A paved road runs along the dike, but terminates at the 16 acre tract. The 16 acre tract is served by a clay and shell road. The Sikes sublease is several city blocks from the paved road.

After the sublease was executed, and as required by its terms, Mr. Sikes built his concession building and a connecting lighted fishing pier. This construction was financed by a $20,000.00 Small Business Administration loan. In 1969 the pier was destroyed by a storm, and it was rebuilt by Mr. Sikes, who obtained another loan in the amount of $15,000.00. A trailer house is located on the sublease for use as living quarters by employees. By reason of the location and size of the improvements not more than five cars can be parked on the Sikes property. Mr. Sikes has expended his funds in maintaining the road and parking area. He purchased and used machinery and shall for that purpose. Mr. Sikes also drilled a water well on the premises as required by the lease.

On November 16, 1962, the Army Corps of Engineers issued a permit to Texas City Dike Corporation allowing the construction of what is described as a wharf. A drawing attached shows a 20 by 40 'Entrance Building and Concession' and a pier having a total length of 900 feet. By an addenda to the sublease the parties agreed that such lease was contingent 'to the issuance of necessary permits for the construction of a fishing pier and concession building by the U.S. Army Corps of Engineers, Galveston District . . .'

The original sublease expired by its terms on March 1, 1968, unless the option to extend for an additional twenty years was exercised. Mr. Sikes gave notice of his intention to extend the term of his lease, and Texas City Dike & Marina, Inc. informed him that the sublease was terminated by reason of a breach of certain terms thereof, and refused to grant the extension of the lease or to accept further rental payments. This suit resulted.

There is evidence of representations by the lessor of the availability of a parking area, which were communicated to lessee and of long continued usage of a particular area for such purpose. The use of this area for parking was known to the...