Waggoner v. Morrow
| Decision Date | 27 June 1996 |
| Docket Number | No. 14-94-00530-CV,14-94-00530-CV |
| Citation | 932 S.W.2d 627 |
| Parties | Kelcie WAGGONER, Appellant v. Janet Duffey MORROW and James Morrow, Appellees (14th Dist.) |
| Court | Texas Court of Appeals |
David Waddell, Houston, Edward L. Bamblett, Houston, Robert T. Alexander, Houston, for appellant.
Jimmy Phillips, Jr., Angleton, Joe Silvas, Clute, for appellees.
Before LEE, HUDSON and EDELMAN, JJ.
In this declaratory judgment action, Kelcie Waggoner appeals a take-nothing judgment entered in favor of Janet Duffey Morrow and James Morrow (collectively, the "Morrows") on the grounds that the trial court erred (1) by failing to determine the Morrows had constructive notice of an easement that had been created by reservation, (2) by failing to find an easement by estoppel, necessity, prescription, or implication, (3) by failing to find that the existing roadway was on the Morrows' property, (4) by concluding that an April 7, 1992 correction deed is valid and not a cloud on title, and (5) by concluding that Morrow purchased the property free of an easement. We reverse and remand.
In 1977 Waggoner and her husband partitioned a parcel of property that had formerly been Lots 6, 7 and 8 of the J.N. Kincaid Subdivision in the Shubal Marsh Survey. The partition created thirteen numbered tracts of which the northernmost tract closest to the county road was numbered tract 13, and the southernmost tract was numbered tract 1 (collectively, the "Waggoner tracts"). The partition survey 1 also set forth the metes and bounds description of a 60-foot wide roadway easement for the existing road which provided access from tract 1 across each of the other tracts to the county road. 2 Although the partition survey specified the boundaries of the 60-foot easement, it did not show the location of the existing road within that easement. Nor was the partition survey ever recorded in the real property records of Brazoria County.
Three years later, in 1980, the Waggoners had gift deeds prepared for their children and grandchildren. The gift deeds were supposed to reflect the tracts and roadway easement as set forth in the partition survey. However, the survey was never recorded.
In December of 1980 and January of 1981, respectively, the Waggoners made two conveyances of undivided one-half interests in tract 2 by gift deeds 3 to their daughter, Gail Waggoner Goolsby Freeze ("Goolsby"), so that Goolsby then owned all of tract 2, a 5.32 acre parcel. In each of these recorded gift deeds, the property conveyed to Goolsby is described as follows:
An undivided one-half (1/2) interest in and to a 5.32 acre tract being Tract 2 of an unrecorded partition of Lots 6, 7 and 8 of the J.N. Kincaid Subdivision,[ 4] out of the Shubal Marsh Survey, Abstract 81-82, Brazoria County, Texas and being more particularly described by metes and bounds on Property Exhibit attached hereto and incorporated herein for all purposes.
The gift deeds further provide:
IT IS UNDERSTOOD AND AGREED that out of the property hereby conveyed, there is excepted and reserved unto GRANTORS, their heirs and assigns, the free and uninterrupted use, liberty and easement of passing in and along a certain passageway or road across and the free and uninterrupted use, liberty and easement for utility and drainage purposes along and across that portion of the 60 foot road easement described in Exhibit "A" attached hereton [sic], which crosses the above described 5.32 acre tract.
Exhibit "A" attached to the deed states:
... [a] 60 foot road easement out of Lots 6,7, and 8 of the J.N. Kinkaid[ 5] Subdivision ... Brazoria County, Texas, and by metes and bounds described as follows....
However, the metes and bounds description which follows on exhibit A of these gift deeds describes only the portion of the roadway easement that passes through tracts 6 through 13, and contains no metes and bounds description of a roadway easement through tracts 1 through 5.
In November of 1985, Goolsby sold the easternmost 1.10 acres of tract 2 to Janet M. Duffey who, upon marriage, later became Janet Duffey Morrow. In Morrow's deed from Goolsby, the property conveyed was described as follows:
Exhibit B to this deed contained the same metes and bounds description of the easement as that contained in Goolsby's deeds, and, thus, also did not specify the location of the easement in tracts 1-5. As a result, at the time Morrow purchased her property, the property records contained no metes and bounds description of a roadway easement on tract 2.
Separating Goolsby's portion of the tract from that of Morrow was the existing 12-15 foot wide dirt road which had gone across tract 2 before it was divided. This was the only road from the county road to Morrow's property. At the time she purchased the property, Morrow understood that her parcel extended to the center of this road, and that she could not block it.
In 1987, when the omission of the metes and bounds description of the roadway easement for tracts 1-5 was discovered, the attorney who prepared the original deeds sent a letter explaining the situation with correction warranty deeds to the owners of those tracts, including Goolsby and Morrow (the "correction deeds"). These correction deeds included a metes and bounds description of the 60-foot wide roadway easement in accordance with the original partition survey for the tracts. Based on advice she received from the local title company that this easement did not affect her property, Morrow signed the correction deed. However, her correction deed was never recorded because Goolsby refused to sign both her own correction deed from the Waggoners and her correction deed to Morrow. 6
Thereafter, Morrow put up a new fence which did not block the road, but was allegedly within the 60-foot easement. When Morrow declined Waggoner's request to move it, Waggoner filed this suit in February of 1992 against the Morrows and Goolsby seeking, among other things, declaratory judgment that the Morrows are subject to the 60-foot easement the Waggoners sought to reserve in the partition survey.
On April 7, 1992, after this lawsuit was filed, but before trial, Goolsby and Morrow entered into a second deed (the "1992 deed") in which Goolsby conveyed the same 1.10 acre tract of land, but with a 60-foot road easement which ran along the west boundary of that tract. This deed allegedly shifted the easement claimed by Waggoner to the west so that it fell on Goolsby's property and occupied little, if any, of Morrow's property.
On November 29, 1993, this case was tried to the court, and on February 16, 1994, the trial court entered a take-nothing judgment in favor of the Morrows and Goolsby. 7 The judge also made the following findings of fact and conclusions of law:
Findings of Fact
1. At the time the Defendant, JANET DUFFEY MORROW, purchased her land, there was not recorded in the Brazoria County, Texas deed records any specifically described easement upon the land of the Grantor, Gail Goolsby.
2. That Gail Goolsby sold only a portion of the land she owned and acquired under deed, and thereafter, never restricted the Grantor of her original deed from access across the remainder tract on the existing passageway.
3. That the existing traveled portion of the passageway was not on the tract of land which was sold to JANET DUFFEY MORROW.
4. That the existing traveled portion of the passageway at the time that JANET DUFFEY MORROW bought her land was and could be contained within a sixty (60) foot wide strip of land without using any of the land purchased by JANET DUFFEY MORROW.
5. JANET DUFFEY MORROW, and her husband, JAMES MORROW, were not parties to the judgment on May 30, 1989.
6. The Plaintiff failed to present sufficient proof to show by legal description that the existing traveled portion of the passageway was within the boundaries of the land purchased by JANET DUFFEY MORROW.
7. That the Plaintiff failed to show that the existing passage way was not contained within the described sixty (60) foot easement mentioned in the Correction Deed from Gail Goolsby to Janet Duffey Morrow on April 7th, 1992.
8. That at the time she purchased the land from Gail Goolsby, JANET DUFFEY MORROW did not have notice that the land she purchased was subject to any specific easement.
1. The Defendants, JANET DUFFEY MORROW and her husband, JAMES MORROW, were not bound by any judgment which set forth the metes and bounds of the sixty (60) foot easement reserved to Grantors when they gave the land to Gail Goolsby.
2. JANET DUFFEY MORROW purchased title to her land free of any easement mentioned in the deeds to Gail Goolsby.
3. That the Correction Deed of April 7th, 1992, is valid and is not a cloud on title.
In her eight points of error, Waggoner challenges some but not all of the trial court's findings of fact and conclusions of law. 8 We therefore begin with a recitation of the applicable standards of review.
Unchallenged findings of fact are binding on an appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). Challenged findings of fact have the same force and dignity as a jury's verdict upon questions....
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