Thew v. Lower Colorado River Authority

Citation259 S.W.2d 939
Decision Date24 June 1953
Docket NumberNo. 10152,10152
PartiesTHEW et ux. v. LOWER COLORADO RIVER AUTHORITY.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

James R. Meyers, Coleman Gay, Austin, for appellants.

Mac Umstattd, W. S. Gideon, Austin, for appellee.

HUGHES, Justice.

The Lower Colorado River Authority sued appellants Claud W. Thew and wife, Verna C. Thew, to quiet title to an easement of water flowage over 4.21 acres of land belonging to appellants.

The court sustained appellee's motion for summary judgment and rendered judgment establishing and quieting its title to the flowage easement.

Appellants have several points which raise two principal contentions, the first being that under the agreed facts appellee has not established the easement which it claims and, second, that genuine issues of fact were presented which prevented the rendition of a summary judgment. These asserted fact issues relate to the loss of the easement, if established, by abandonment and estoppel. We will, therefore, first discuss the validity and scope of the easement in suit.

The facts relevant to this easement were stipulated.

In 1905, remote grantors of appellants executed and delivered instruments in the following form:

'This indenture made and entered into by and between A. C. Lacy & Wife, Mary V. Lacy, parties of the first part and the Marble Falls Water and Power Company part of the second part, all of aforesaid County and State.

'Witnesseth: That for and in consideration of the sum of _____ Dollar Paid to the part of the first part by the party of the second part, the party of the first part hereby bargains contract-and agrees with the party of the second part its successors and assigns, that if said party of the second part, its successors or assigns, shall damage any lands owned by the parties of the first part their heirs and assigns, lying on and adjacent to the Colorado river above the town of Marble Falls, Burnet County, State of Texas, out of and part of the Martin Peske Survey, by constructing a dam on the shoals at Marble Falls or other improvements on its property at Marble Falls, Texas, at any future time, causing any of the said land of the party of the first part to become unfit for agrucultural purposes, by reason of back water caused by the construction of said dam or other improvements that the said party of the first part will and they hereby bind themselves to accept One Dollar per acre for all such land that may become submerged, soggy or otherwise damaged by reason of such back water, the title however to such land to remain in the parties of the first part their heirs, legal representatives or assigns and the said One Dollar per acre, when paid as aforesaid shall forever release the said party of the second part, its successors or assigns, from any and all damages occasioned by reason of such dam or other improvements aforementioned or the back water as above stated.

'Said dam not to exceed twelve feet in height above upper fall.

'The party of the second part, for and in consideration of the premises and acts and things to be done and performed by the parties of the first part as above set fourth, hereby binds itself, its successors and assigns that any time it may construct such dam or improvements above mentioned and such dam or improvements cause the back water of river to submerge or otherwise damage the lands of the party of the first part, that it, the said party of the second part, its successors or assigns, will pay to the parties of the first part one ___ per acre for such lands as are submerged or damaged by reason of said back water which one dollar per acre shall be in full and final settlement of any and all claims for damages to the lands of the party of the first part their heirs or assigns by reason of the back water as aforesaid.'

Lower Colorado River Authority has succeeded to all unexpended rights and benefits conferred by such instruments upon the Marble Falls Water and Power Company.

In 1925-6 a dam was built under a permit issued by the State Board of Water Engineers to G. L. Jones who at such time was the owner of such flowage rights over appellants' lands as were conferred by the 1905 agreements. This dam was built on top of the upper falls or natural dam of the Marble Falls. It was three feet in height and when full of water it did not cover the lands in suit. Water was impounded by this dam until July, 1951, when it was destroyed.

In 1951, Lower Colorado River Authority completed a dam about two miles downstream from the 1926 dam which is located on the shallow waters of the Colorado River about 5000 feet distant from the corporate limits of the City of Marble Falls, said shallow waters beginning at the upper fall on the river (this fall is adjacent to the city limits) and extending to and below the point where the 1951 dam is located.

This dam when full of water will inundate appellants' 4.21 acres.

This dam (1951) was built upon land which neither the Marble Falls Water and Power Company nor Lower Colorado River Authority owned or had any claim to in 1905 when the flowage agreements were made.

It was also stipulated that a dam located on the shoals of the Colorado River at Marble Falls 12 feet in height above the upper fall would result in more water being on the land of appellants than is on and will be on the land of appellants as the result of the new (1951) Marble Falls dam.

The high points of appellants' argument, as taken from their brief, are that (1) the 1905 instrument permitted the construction of only one dam (2) the 1905 instrument permitted the construction of a dam only on property then owned by Marble Falls Water and Power Company, and (3) the 1905 instrument permitted the construction of a dam only on the shoals at Marble Falls.

Our problem is to construe the 1905 instrument and our duty is to fairly construe it in accordance with established legal principles. The rule of construction applicable here are that the instrument must, consistent with its language, be most strongly construed against the grantor and most favorably to the grantee and construed so as to pass to grantee the greatest possible estate.

Our approach to the solution of this problem is to consider the situation of the parties to the 1905 instrument at the time of its execution.

It is evident that the grantee had in contemplation the construction of a dam on the shoals at Marble Falls and that the grantors owned some river land which might be damaged if the dam were built. The prudent and businesslike thing for the parties to do was to eliminate, in the beginning, anticipated trouble. This could best be accomplished, so it seemed, by execution of the 1905 agreement.

Appellants' basic misconception of the import of this agreement is, we believe, reflected by their specific arguments, noted above, which emphasize permission by grantors for the Water Company to erect a dam. Grantors had no authority to grant the Water Company permission to construct a dam. It seems apparent to us that this was not the essence of their agreement for it will not be presumed that a person will grant that which he does not have the right to grant.

What was it, then, that grantors had to sell which grantee needed to acquire in furtherance of its purpose to build a dam on the shoals at Marble Falls.

What grantee needed was assurance that it or its assigns could at any time in the future flood or damage grantors' land at a price it was willing to pay.

Grantors had the authority to give this assurance.

We should, therefore, distinguish language in the instrument which describe or recite the purposes or occasion for its execution from the language which conferred upon grantee rights and privileges which the grantors had the authority to convey. So read and construed the 1905 instrument conveys to the grantee, its successors and assigns, a perpetual right to...

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4 cases
  • Norwood v. Davis
    • United States
    • Texas Court of Appeals
    • 26 d3 Abril d3 1961
    ...E. See also Central Power & Light Co. v. Purvis, Tex.Civ.App., San Antonio, 67 S.W.2d 1086, writ fef., and Thew v. Lower Colorado River Authority, Tex.Civ.App., Austin, 259 S.W.2d 939, writ ref. N. R. It is my opinion, however, that the naked authority to modify the restrictive covenants, u......
  • Satterwhite v. West Cent. Texas Mun. Water Dist.
    • United States
    • Texas Court of Appeals
    • 27 d4 Agosto d4 1987
    ...the estate subject to such easement. Scheuer v. Britt, 217 Ala. 196, 115 So. 237. See also Thew v. Lower Colorado River Authority, 259 S.W.2d 939 (Tex.Civ.App.--Austin 1953, writ ref'd n.r.e.); Clifton v. Watuppa Reservoir Co., 243 Mass. 198, 137 N.E. 362 In Lone Star Gas Co. v. Hutton, 58 ......
  • City of San Antonio v. Ruble
    • United States
    • Texas Supreme Court
    • 4 d3 Fevereiro d3 1970
    ...to which the easements entitled the easement owners to raise the water level without a trespass upon the fee owners. Thew v. Lower Colorado River Authority, 259 S.W.2d 939 (Tex.Civ.App.1953, no writ); City of Anson v. Arnett, 250 S.W.2d 450 (Tex.Civ.App.1952, writ ref. n.r.e.); Kestler v. V......
  • Painter v. Alexandria Water Co., 5161
    • United States
    • Virginia Supreme Court
    • 16 d1 Janeiro d1 1961
    ...conditions as they existed at the time the grant was made.' 93 C.J.S., Waters, § 27-b, p. 644. See also, Thew v. Lower Colorado River Authority, Tex. Civ. App., 259 S.W.2d 939, 941; McIntire v. Marian Coal Co., 190 Ky. 342, 227 S.W. 298, 299; Griffeth v. Utah Power & Light Co., 9 Cir., 226 ......

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