Wall v. Lower Colorado River Authority, 12333
| Decision Date | 28 April 1976 |
| Docket Number | No. 12333,12333 |
| Parties | Fay WALL et al., Appellants, v. LOWER COLORADO RIVER AUTHORITY, Appellee. |
| Court | Texas Court of Appeals |
Coleman Gay, Gay & Latting, Austin, for appellants.
John D. Pieratt, Austin, for appellee.
Appellants, Fay Wall, LaVerne English, and their mother, Bessie K. English, filed a declaratory judgment suit against appellee, the Lower Colorado River Authority, to determine their rights in a tract of land out of the James O. Clark Survey. The land in question is located between the 715-foot contour line and Lake Travis.
The 715-foot contour line is a line 715 feet above mean sea level as established by the United States Geological Survey Bench Marks. At the time the 715-foot line was established, appellee was in the process of constructing a dam across the Colorado Rivers west of Austin and downstream from the land in controversy. The dam when completed, had a spillway elevation not exceeding 715 feet, and the land below the contour line was subject to submerging and overflow by flood water. The waters backed up from that dam form what is now known as Lake Travis.
Appellants pleaded that in April, 1970, A.J. English and his wife, Bessie K. English owned 98 acres out of the John Moat Survey located in Travis County. At that time the Lower Colorado River Authority owned and adjoining 195 acres out of the James O. Clark Survey No. 1.
Appellants averred further that in April, 1940, the Englishes agreed that they would grant to the Lower Colorado River Authority 'a perpetual easement and right to overflow 32.79 acres' of the 98 acres of land owned by them in the Moat Survey. The 32.79 acres of land were located below the 715-foot contour line. In consideration for that grant, the Lower Colorado River Authority agreed to convey to the Englishes in fee, the portion of the 195 acres owned by it in the Clark Survey above the 715-foot contour line, and an easement in that part of the land located below the contour line.
Pursuant to that agreement, the Englishes executed their deed conveying to the Lower Colorado River Authority 'a perpetual easement and right to inundate, submerge and overflow all of (their) certain tracts or parcels of land situated in John Moat Survey . . . which will at any time be inundated, submerged or overflowed, or in any manner affected by virtue of the construction, erection and maintenance of a dam in the Colorado River . . .' being a 32.79-acre portion of the said 98 acres located below the 715-contour line.
In consideration for that deed, the Lower Colorado River Authority conveyed to A.J. and Bessie K. English, all of that portion of the 195-acre tract out of the Clark Survey located above the 715-foot contour line, 83.96 acres, and an easement in, over and across that portion of that tract located below the 715-foot contour line. The easement was described as follows:
'. . . the grantees (the Englishes) are given the right of ingress and egress across the land retained by grantor (the Lower Colorado River Authority) in said Clark Survey to the waters' edge, and that grantor will not erect a fence separating its land in said Clark Survey from the land herein conveyed, and that grantees herein are given the right to maintain and control all outside fences in the said Clark Survey to the waters' edge, and that the use of such surface by grantees shall not be considered adverse to the rights of grantor, or start or support the operation of any of the statutes of limitation of this State; and grantees assume all risks and waive any and all damages in the use of the surface of said land.'
In the same conveyance it was recited that '. . . it id distinctly understood and agreed that the land which lies below said 715 foot contour line and between said line and the Colorado River and which is described in the above mentioned deed is not conveyed hereby, but that the full fee simple title to such property which lies below said 715 foot contour line is retained by the Lower Colorado River Authority . . .'
Appellants pleaded that A.J. English and the appellants made such use of the land below the 715-foot contour line as they desired to make, including grazing of livestock thereon, using the property for going to and from Lake Travis, placing trailer houses and minor structures thereon, and, in general, using the property for 'general lakefront purposes.'
Appellants prayed that the district court declare that they had the right to use the land below the 715-foot contour line as 'lakefront' property to the extent that it might be reasonably necessary or appropriate to the use and enjoyment of said land as lakefront property, including the right to build and maintain such buildings, structures, and facilities as were useful and appropriate for lakefront property,...
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