Anderson v. Tall Timbers Corp.

378 S.W.2d 16, 7 Tex. Sup. Ct. J. 295, 1964 Tex. LEXIS 667

• Court: Texas Supreme Court
• Decided: March 4, 1964
• Docket: A-9817
• Status: Published

Opinions

STEAKLEY, Justice.

This suit was instituted by T. D. Anderson and others, petitioners here, as residents and home owners in Tall Timbers-Subdivision of River Oaks Addition to the City of Houston. It was against Tali' Timbers Corporation, a Respondent here-River Oaks Corporation, an intervenor below in support of Tall Timbers Corporation, is also a Respondent here. The purpose of the suit was to enjoin the opening' as a public street of an area shown on the original subdivision plat as a forty foot easement. The background facts will be briefly stated.

River Oaks Corporation established Tall Timbers Subdivision of the River Oaks Addition in 1939. It authenticated and' placed of record a plat entitled “Plat of Tall Timbers Section, River Oaks Addition,, a Section West of the City of Houston” 7 it also executed and placed of record a document entitled “Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks.” The area in controversy was depicted on the plat as an enclosed strip entirely within the subdivision. It was bounded on all sides by solid lines and was marked “W Easement.” As shown on the plat the area is between Olympia Drive and Westlane on the east, and a southwest reserved tract of approximately six acres, expressly excluded from the subdivision, on the west; and between Lot 1 of Block 88 of the subdivision on the south, and Lot 1 of Block 91 of the sub-división on the north. It is undisputed that the area has never been used as a public street.

The excluded southwest reserved tract was sold by River Oaks Corporation to Tall Timbers Corporation in 1959. It is not subject to any of the restrictions of the adjoining subdivision. There is no claim that in connection with the sale it was represented to Tall Timbers Corporation that the easement area in question was originally dedicated to public use as a street. The reserved tract abuts on San Felipe Road, a main traffic artery in this section of Houston. Subsequent to the purchase, Tall Timbers Corporation constructed an 147-unit apartment project on the reserved tract and thereafter set about to open a public street over the forty foot easement area in controversy. Its purpose was to provide its tenants, and thus the general public, with a street between the apartments and the interior subdivision streets of Olympia Drive, Del Monte Drive, Westlane, Inverness Drive and Willowick Road. This suit resulted.

The controversy has been the subject of three prior appellate decisions. The original suit was filed on October 20, 1959. After hearing, the trial court granted a temporary injunction against the building of the street, pending a trial on the merits. The temporary injunction order was appealed by Respondents and the Houston Court of Civil Appeals ordered the temporary injunction dissolved. Tall Timbers Corporation v. Anderson et al., 342 S.W.2d 452. We reversed the judgment of the Court of Civil Appeals, holding that the trial judge did not abuse his discretion in granting the temporary injunction to preserve the status quo until the case could be tried on its merits. 162 Tex. 450, 347 S.W.2d 592. Neither the majority nor the dissenting opinion of this Court purported to write upon the merits of the case. The majority opinion expressly disclaimed that we were doing so; the dissenting opinion argued that we should do so.

The instant appeal is from the subsequent judgment of the trial court granting the motion of Anderson and others, Petitioners here, for summary judgment. The Fort Worth Court of Civil Appeals, to which the case had been assigned in the docket equalization process, concurred with the previous opinion of the Houston Court of Civil Appeals, reversed the judgment of the trial court, and, in effect, rendered judgment for Respondents. 370 S.W.2d 214.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. Our disagreement is with the initial and basic holding of the Court of Civil Appeals that “[t]he plat of Tall Timbers Section shows on its face a legal dedication of the south 40 ft. easement for a public way.” This is the essential position of Respondents. Our conclusion to the contrary is that the plat does not purport to dedicate the easement area to the public to be used as a street. The tract was designated only as an easement and the easements on the plat were not dedicated to public-use.

The plat is reproduced in the opinion of the Houston Court of Civil Appeals in 342 S.W.2d at pages 456 and 457. As relevant here, the plat has three types of designations on its face: open areas constituting the interior subdivision streets; ten foot areas designated for utilities; and two areas, one in controversy here, marked “4O' Easement.” Appearing on the face of the plat is the following recitation:

“We, Hugh Potter and O. J. Cad-wallader, President and Secretary, respectively of River Oaks Corporation, owner of the property subdivided on this plat of Tall Timbers Section of River Oaks Addition, do hereby make subdivision of said property for and in behalf of said River Oaks Corporation, according to the streets, lanes and tracts shown hereon, and designate said subdivision as Tall Timbers Section of River Oaks Addition in the A. C. Reynolds League in Harris County, Texas, and in behalf of River Oaks Corporation dedicate to the present and future owners of said property, and to the public, the use of the streets shown hereon.”¹

The only dedication expressed on the face of the plat was the use of the streets shown thereon; there was no dedication of any other area or tract shown on the plat, whether designated for utilities or as easements. The reference in the words of dedication to the streets shown on the plat obviously refer to the open areas identified as Olympia Drive, Del Monte Drive, In-verness Drive, Westlane and Willowick Road. The strip in question, in contrast to the open areas constituting the streets of the subdivision, was reserved as an easement. It is fully enclosed by solid lines and could not constitute an east-west means of egress and ingress between any lots or blocks of the subdivision; the west end of the strip abutted on a reserved tract which was expressly excluded from the subdivision.

We look also to the contemporaneously executed and recorded document entitled “Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks,” to further ascertain the legal effect of the reservation of the forty foot easement. Referring to the recorded plat, this document recited that “Said map has been duly authenticated by the President and Secretary of River Oaks with proper certificate showing dedication of the streets, drives, lanes and roads to the use of the present and future owners of the lots and to the public subject to Reservations, Restrictions, and Covenants herein contained. * * * ” It will be noted that River Oaks Corporation limited even its dedication of the streets, drives, lanes and roads shown on the plat. The reservations were as follows:

“RESERVATIONS

“That in so authenticating said map for record and in so dedicating the streets, drives, lanes and roads to the use of the present and future owners of said property and to the public, there shall be and are hereby reserved in RIVER OAKS, the following rights, title and easements, which reservations shall be referred to and made a part of, and construed as being adopted in, each and every contract, deed or other conveyance, executed or to be executed by or on behalf of RIVER OAKS, conveying said property or any part thereof :

“(1) The legal fee simple title in and to each and all of the several streets, drives, lanes and roads, as. shown on said map or plat, is hereby reserved in RIVER OAKS, subject to the limited dedications herein expressed.

“(2) RIVER OAKS reserves the exclusive right to operate a system or systems of transportation in, over, upon,, along and under said streets, drives, lanes and roads, and to erect and maintain therein and thereon wires and poles for the purpose of constructing and maintaining a system of electric light, power, telegraph and telephone line or lines and connections; and to construct, lay and maintain in, along and under any and all of said streets, drives, lanes and roads, and along easements provided therefor, all pipes, conduits and ditches necessary and proper for the construction and maintenance of a system of drainage and a system of sewerage, and for the supply of water, gas, light and power, telegraph and telephone service to said area and inhabitants thereof, and for all other purposes incident to the development and use of said property as a suburban home community; but no obligation rests upon RIVER OAKS to install any of the above described utilities, or any other utilities, it being contemplated that this section of RIVER OAKS is to be used for suburban homes, and the usual accessory uses, and the above described rights being reserved only for the purpose of facilitating the installation of such utilities, should it ever become the desire of the future owners of said property so to do.

.“(3) RIVER OAKS reserves the necessary easements and rights of way for the purpose of constructing, maintaining and repairing a system or systems of light, electric power, telegraph and telephone line or lines, gas, sewers, or any other utility across said lots and blocks in said Tall Timbers Section, as shown on aforesaid map to be hereafter recorded in the Harris County Map Records (to which map and record reference is here made) in addition to the reservations enumerated in the preceding paragraph, but no obligation rests ■upon RIVER OAKS to install any of the above described utilities or any other utilities, it being contemplated that this Section of River Oaks is to be used for suburban homes, and the usual accessory uses, and the above described rights being reserved only for the purpose of facilitating the installation of such utilities should it ever become the desire of the future owners of said property so to do.

“(4) RIVER OAKS reserves the right to make minor changes in and additions to the above easements for the purpose of enabling utilities to be installed more efficiently, should installation thereof ever be made.

“(5) Neither RIVER OAKS nor any utility company using the easements or other rights of way herein referred to shall be liable for any damages done by either of them, or their assigns, agents, employees or servants, to shrubbery, trees, flowers . or other property of any owner situated on the land covered by said easements or adjacent to said rights of way.’’

The Restrictions and Covenants are, in part, as follows:

“RESTRICTIONS

“For the purpose of creating and carrying out a uniform plan for the parceling and sale of said Tall Timbers Section, and the lots, blocks and other tracts of land therein contained, as a district set aside for suburban homes and the uses ordinarily accessory thereto, the following restrictions upon the use of said property are hereby established * *

* * ijt * * *

“(2) This property shall be used for single-family residence purposes only, and this shall be interpreted to exclude hospitals, duplex houses, apartment houses, multiple family houses of any kind. * * *

“(3) Only one single-family residence, and its usual accessories, shall be constructed or permitted on each lot or separate parcel of land. * * *

“(4) No residence, garage, outhouse or other permanent structure shall be erected nearer than fifty (SO) feet to the property line on Willowiclc Road, Inverness Drive, Del Monte Drive, or Westlane * *

Three dominant purposes are apparent in the subdivision plat and the related document of Reservations, Restrictions and Covenants: first, the dedication to the present and future owners of the lots in the subdivision, and to the public, was expressly limited to the use of the streets shown on the subdivision plat and there was no dedication of the easement areas shown on the plat; second, the subdivision was to constitute and be preserved as a district set aside for suburban homes, with the use of “the lots, blocks and other tracts of land therein contained” restricted to “the uses ordinarily accessory” to a suburban home subdivision; and, third, River Oaks Corporation reserved the exclusive right to con■struct and maintain facilities required for the furnishing of utilities to the residents ■of the subdivision if it should elect to do so. As to the latter, River Oaks Corporation went to great lengths to preserve these exclusive rights. The dedication of the streets, drives, lanes and roads was further limited by the reservation of fee simple title and of the exclusive right to operate a system of transportation and to erect and maintain utility wires and poles. Various strips were also expressly reserved for utility purposes. It was this dominant purpose of River Oaks Corporation which also found expression in the specific exclusion of any dedication to the public other than the use of the streets shown on the subdivision plat.

The conclusive fact is that the easement tract in controversy was shown only as an easement and the easement areas shown on the plat were not dedicated to the public for any use. The easement tract was not marked as a street nor was there any indication that it was intended to be a street. It was excluded from the only public dedication, expressed or implied, either on the plat or in the document of Reservations. Accordingly, there are no circumstances under which it can be said that the reservation of the forty foot easement area in controversy carried a dedication as a public street.

This Court in Oswald v. Grenet, IS Tex. 118, denied a dedication for a public use upon the holding that “there was no evidence of the ground having been used as a common, and nothing showing for what it was designed. * * * Had the lots been sold by deed referring to it as a common, or had it been long used as such without the assertion of a private right by the owner * * * it might have been regarded as a common.”

In the second appeal a verdict sustaining a dedication to the public was upheld by this Court. Oswald v. Grenet, 22 Tex. 94. Both Courts of Civil Appeals regarded this decision as controlling the case at bar. But it was found by this Court that the supporting evidence met the following test:

“A setting apart, or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time; it is enough, that there has been some clear, unequivocal act, or declaration of the proprietor, evidencing an.intention to set it apart for a public use, and that others have acted in reference to, and upon the faith of, such manifestation of intention.”

Also, the space on the map of the addition before the Court in Oswald was unmarked and undesignated, and the decision was rested upon the “peculiar situation and form” of the unmarked space which gave rise to the natural inference that the space was intended to remain open for public use, together with the finding by the Court “that the acts and declarations of the proprietor were such as to create this expectation, is indisputably established by the concurrent testimony of all the witnesses.”

Martinez v. City of Dallas, 102 Tex. 54, 109 S.W. 287, 102 Tex. 54, 113 S.W. 1167, was also cited by the Courts of Civil Appeals. This case involved a strip shown on the plat recorded in 1884 as opening on designated streets. The opinion also recited the fact that the strip had been open and used by pedestrians as a common way. The holding upon the authority of Oswald was that the recorded map clearly indicated that the strip was intended as a street or as an open way reserved for public use. Maisen v. Maxey, Tex.Civ.App., 233 S.W.2d 309, wr. ref., n. r. e., also citing Oswald, upheld as a park an area marked on the subdivision map as “Terraced Park Area.” There was both an express dedication of the public ways and easements shown on the map and direct evidence that the lots had been sold upon the representation that the area was to be a dedicated park.

Similarly, the decision in Manziel v. Railroad Commission, Tex.Civ.App., 197 S.W.2d 490, wr. ref., rested, in large part, upon the fact that the 20-foot strips in question “were connected with the street on one end and the-alley on the other, with no line of division between” ; it was held that the strips were intended as passageways between the central street and the alleys for the benefit of the lot purchasers.

In City of Brownsville v. West, Tex.Civ.App., 149 S.W.2d 1034, wr. dism., the Court held that the plat there involved did not show a clear and unequivocal present intention of dedication to the public of a parcel of land marked upon the plat as “Proposed Park.” The Court reasoned as follows:

“In the first place, there is a statement on the plat expressly dedicating all streets, roads and alleys shown on the plot, but no mention is made of the ‘Proposed Park.’ It would seem that the rule ‘expressio unius est exclusio alterius’ should be here applied. The fact that the streets, roads and alleys are expressly dedicated, would exclude the idea that the ‘Proposed Parks’ were also dedicated.”

To the same effect is the decision in Pudge v. Hogge, Tex.Civ.App., 323 S.W.2d 663, no wr. hist. The Court was influenced by the fact that “ * * * [t]he dedicatory words ex;pressly provide that the streets, alleys and easements shown on the plat shall be dedicated to the public use forever. But the lakesite is not mentioned. Omission of the lakesite from the words of dedication must be construed under the circumstances to mean that the lakesite was excluded from the dedication.”

In City of Atlanta v. Texas and Pacific Railway Co., 56 Tex.Civ.App. 226, 120 S.W. 923, wr. ref., the Court concluded against a dedication to public use upon the reasoning that “ * * * If the open lines at Common Street indicated an intent to dedicate a continuous street, the closed space at what would otherwise be the junction points of the other streets evidently evinced the absence of any such intention [to dedicate to public use] on the part of the railway company as to the latter streets. It also appears from the map that the railway company intended to reserve this strip inclosed between the lines on the east and west sides of its track for railway purposes. This is made evident by the words, ‘Reserved for railway purposes,’ written thereon.”

We observe, also, that the easement area here in controversy was a tract of land “therein contained,” i. e., in the subdivision, within the specific language of the document of Reservations, and its use, as well as the use of the lots, blocks, and other tracts of land in the subdivision, was expressly restricted to the uses ordinarily accessory thereto. It cannot be seriously contended that the conversion of the easement tract into a public street running between the apartments constructed on the excluded reserved tract, and the interior streets of the subdivision, would be a use ordinarily accessory to this section of River Oaks which had been set aside as a district for suburban homes. .

The most, then, that could be said is that the easement reservation is subject to a use not contrary to the express and implied limitations embodied in the subdivision plat and the document of Reservations; or, that the easement was subject to such use as River Oaks Corporation might have desired had it elected to furnish utility services. As an example of the first, the subdivision plat shows another forty foot easement area which is located between the interior subdivision streets and a northwest reserved tract. In the course of time River Oaks Corporation sold this reserved tract for use as a residence and subject to the Reservations, Restrictions and Covenants applicable to all of the lots and tracts in the subdivision; in effect, the northwest reserved tract was thereby brought into and made a part of the subdivision. This easement has been used by the owner of the residence as a private driveway between his home and the subdivision streets. In contrast to the southwest reserved tract, which abuts on and hence has access to San Felipe Road, the northwest tract is surrounded by the Buffalo River, by a railroad track and roadbed and by other lots of the subdivision. It is thus apparent that the use of the easement tract for purposes of egress and ingress between the residence and the subdivision streets, whether based on an express or implied grant or way of necessity, which matters are not before us, would in no event violate the express and implied limitations embodied in the plat and document of Reservations. For further example it can be supposed that River Oaks Corporation actually utilized the easement area in controversy for “pipes, conduits and ditches necessary and proper for the construction and maintenance of a system of drainage and a system of sewerage and for the supply of water, light and power, telegraph and telephone service.” Under such supposed facts it would seem clear that neither the residents of the subdivision, nor the subsequent purchaser of the reserved tract in question, nor the public, could have required River Oaks Corporation to vacate such use and convert the area into a public street.

There remains the question of whether Respondent, Tall Timbers Corporation, possesses any individual right in the easement tract in controversy which will support its use as a private right of way between the apartment tract and the interior subdivision streets for the use and benefit of the apartment tenants. Such a right is an interest in land which can only be conveyed by a grant. It is subject to the Statute of Frauds and the Statute of Conveyances and generally must be conveyed in writing. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 478, 44 S.W. 476. As exceptions to the rule there are implied easements appurtenant, easements by estoppel in pais, and easements by public dedication. Drye v. Eagle Rock Ranch, Inc., Tex., 364 S.W.2d 196.

There was no express grant here. The only reference in the deed to the easement tract is in the metes and bounds description of the land conveyed, viz., “ * * * Thence in a southerly direction along the west line of an easement 40 feet in width lying between Lot 1 in Block 91 and Lot 1 in Block 88 of Tall Timbers Section a distance of 49.7 feet to the northwest corner of such Lot 1 in Block 88, which corner is marked by an iron pipe, continuing therefrom * * This reference, as well as the reference in the deed to the subdivision plat, was patently for descriptive purposes only. City of Houston v. Cyrus W. Scott Mfg. Co., 45 S.W.2d 270, wr. ref.

Nor was there an implied grant of an easement appurtenant. We said in Eagle Rock that the engraftment of an easement by implication requires that the use be apparent and in existence at the time of the grant; that the use-have been continuous; and that the use be necessary to the use of the dominant estate. These conditions are not present here. With respect to estoppel in pais, there is no claim that the grantors represented to Tall Timbers Corporation in its purchase of the reserved tract that the easement area is or would be a street, or that Tall Timbers Corporation expended any monies in reliance thereon.

It follows that the cornerstone of the private rights asserted by Tall Timbers Corporation must be that the subdivision plat and document of Reservations dedicated the easement tract to public use and that Tall Timbers Corporation obtained private contract rights thereto in addition to the rights inuring to the public in general. Indeed, Tall Timbers Corporation in its brief states its position in such respect as follows: “When River Oaks Corporation filed the plat of Tall Timbers Section dedicating the South 4<y easement to public use, the public in general acquired a right to the use of such easement. But Respondent acquired an additional right to the use of such easement by reason of its contract of purchase. The two classes of easement, the one inuring to the public in general by the filing of the plat and dedication, and the other inuring to Respondent by reason of its contract of purchase, are separate and distinct rights which may coexist in contemporaneous and harmonious operation and one may he destroyed without necessary impairment of the other.” But the private right so asserted is precluded by our holding in the forepart of this opinion that the easement tract in controversy was not dedicated to public use.

Accordingly, we hold that the easement tract under review was not dedicated as a public street and that there is no individual right in the Respondent, Tall Timbers Corporation, to utilize the tract as a through way between its apartment tract and the interior streets of Tall Timbers Subdivision of River Oaks Addition. Petitioners are therefore entitled to the injunctive relief for which they sue.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.