Westbrook v. Wright
| Decision Date | 01 March 1972 |
| Docket Number | No. 595,595 |
| Citation | 477 S.W.2d 663 |
| Parties | Mrs. Carrie W. WESTBROOK et al., Appellants, v. Merrill C. WRIGHT et ux., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Charles P. Merrill, Gaines & Merrill, Houston, for appellants.
J. P. Markham, Jr., Houston, for appellees.
Sewer easement case.
This action was brought by Merrill C. Wright and his wife who are appellees here. The defendants in the trial court, and appellants here, are Carrie W. Westbrook, individually and as representative of the estate of Mrs. H. C. Whitaker, and Fred Westbrook. The case was tried without a jury. The trial court rendered judgment for the plaintiffs establishing a sewer easement across defendants' property and permanently enjoining defendants' interference with such easement.
The property involved consists of a number of lots which are adjacent to each other. From north to south the lots are numbered 3, 4, 5 and 6. To the east and immediately adjacent to them running south to north are lots 7, 8, 9 and 10. The back of lot 6 is adjacent to the back of lot 7, the back of lot 5 is adjacent to the back of lot 8, etc. All of these lots were originally owned by H. C . Whitaker who was the father of the defendant Mrs. Carrie W. Westbrook. The sewer lines were laid about the year 1923 when Whitaker owned all of the lots. The sewer lines ran from the existing houses on lots 3, 4 and 5 to the back of lot 5 where they were gathered into one line. This line then ran through the lot adjacent to it on the east, lot 8, and on to Gregg Street on which lot 8 faces.
In 1942 the plaintiff Wright acquired title to lots 3, 4, 5 and 6 from Houston Title Guaranty Company. Lot 6 was subsequently sold. It was stipulated in open court by the plaintiffs and defendants that H. C. Whitaker was their common source of title. H. C. Whitaker died in 1953 and his widow followed him in death in 1958. Lots 7 and 8 were left to the Whitaker's children, among whom is the defendant Mrs. Carrie Westbrook.
In 1963 the sewer line across lot 8 was severed, at the request of the defendants, by a plumbing company. A new line was put in place of the old deteriorated line. The new line was put at such an elevation, however, that plaintiffs were unable to connect into it and as a result sewage accumulated at the back of lot 5. Plaintiffs, on their own initiative, had a box installed at the back of lot 8, which collected the sewage and compensated for the elevation of the new line by the insertion of a plastic line to and through the new line. This line was again disconnected by defendants and reconnected by plaintiffs in 1968.
Defendants' continued threats to again disconnect the sewage line caused plaintiffs to bring the instant suit for an injunction and adjudication of an easement across lot 8. The trial court granted a temporary injunction under which plaintiffs were empowered to construct their own temporary sewer drainage line across lot 8 within approximately three feet of defendants' existing line. In the court's final judgment a sewer flowage easement was established through lot 8 which extended two and one-half feet on each side of the center line of the old concrete pipe. The court's final judgment also made the temporary injunction into a permanent injunction.
Some of the points of error and many of the cases cited by the defendants are based upon the assumption that the trial court's judgment is based upon an adjudication of the existence of an easement by way of necessity or by way of prescription. Defendants complain of certain findings of the trial court and their lack of support. Error is also urged in the trial court's exclusion of evidence of a feasible alternate route for the sewer line, of the refusal to exclude evidence of the existence of the temporary sewer line placed on lot 8 under the temporary injunction and the costs that would be involved to place a sewer line to Lee Street, and because the judgment is uncertain as to the permanent easement granted.
The trial court's judgment does not specify the theory upon which the easement was established, however, Findings of fact and conclusions of law were made by the trial court at the request of the defendants. While defendants have construed such findings to support an easement by way of necessity such findings only support a judgment based on an implied easement appurtenant. It is upon this latter theory of implied easement appurtenant that the instant case is considered and our remarks will be limited to such theory of recovery. The findings of the trial court will be sustained if there is any evidence to support them. Gulf Freeway Lbr. Co. v. Houston Invest. Rlty. Trust, 452 S.W.2d 39 (Tex.Civ.App.--Houston (14th Dist.) 1970, no writ); Coastal Plains, Inc. v. City of Fort Worth, 443 S.W.2d 414 (Tex.Civ.App.--Fort Worth 1969, no writ). A statement of facts has also been brought forward.
There is a distinct difference in the proof required to establish an implied easement appurtenant and an easement by way of necessity. Fender v. Schaded, 420 S.W.2d 468 (Tex.Civ.App.--Tyler 1967, writ ref'd n.r.e.). The circumstances under which there may be a grant of an implied easement appurtenant are set out in Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 676 (1959), quoting from 28 C.J.S. Easements § 31, p. 687 (1941):
'Where the owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous, permanent, and apparent nature, and sells the one in favor of which such quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.'
There are four essential elements necessary for the establishment of an implied easement appurtenant. (1) There must have originally been unity of ownership of the dominant and servient estate; (2) the use must have been apparent at the time of the grant; (3) the use of the easement until the time of the grant must have been continuous; and (4) the easement must be reasonably necessary to a fair and enjoyable use of the dominant estate. Fender v. Schaded, supra; Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207--208 (Tex.Sup.1962); Bickler v. Bickler, 403 S.W.2d 354 (Tex .Sup.1966). Whether these requirements are met is to be determined at the time the grantor, the one imposing the quasi easement on one portion of his property for the benefit of another...
To continue reading
Request your trial
-
Seber v. Union Pac. R.R. Co.
...that the existence of such an easement depends only on the situation of the parties at the time of severance. See Westbrook v. Wright, 477 S.W.2d 663, 665–66 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ) (“Whether these requirements are met is to be determined at the time the grantor, t......
-
O'Leary v. Coleman , No. 13-07-272-CV (Tex. App. 5/8/2008)
...(Tex. 1966);Vinson v. Brown, 80 S.W.3d 221, 228-29 (Tex. App.-Austin 2002, no pet.); see also Koonce, 663 S.W.2d at 452; Westbrook v. Wright, 477 S.W.2d 663, 665-66 (Tex. Civ. App.-Houston [14th Dist.] 1972, no Furthermore, the requirements for the establishment of such an easement by impli......
-
Hamrick v. Ward
...the elements of easement by prior use and examining the record for evidence of necessity only at the time of severance); Westbrook v. Wright, 477 S.W.2d 663, 666 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ) (“Whether these requirements are met is to be determined at the time the granto......
-
Ortiz v. Spann, 13-83-106-CV
...Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.1966); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-208 (Tex.1962); Westbrook v. Wright, 477 S.W.2d 663, 665-66 (Tex.Civ.App.--Houston [14th Dist.] 1972, no writ). The requirements for the establishment of such an easement by implication m......