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Kearney & Son v. Fancher

401 S.W.2d 897, 1966 Tex. App. LEXIS 2957
CourtCourt of Appeals of Texas
DecidedApril 1, 1966
Docket16723
StatusPublished
Cited by54 cases

This text of 401 S.W.2d 897 (Kearney & Son v. Fancher) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kearney & Son v. Fancher, 401 S.W.2d 897, 1966 Tex. App. LEXIS 2957 (Tex. Ct. App. 1966).

Opinion

LANGDON, Justice.

This case involves the construction of an express easement granted by deed, involving the use of a railroad switch track and grounds. When it was no longer physically possible to bring railway cars onto the property the appellant in June, 1962, constructed a fence along its property line beside that of the appellees’ obstructing the latter’s use of the strip involved.

Appellees filed this suit seeking to enjoin the appellant from fencing its (appellant’s) property and in any way obstructing ap-pellees’ use of an 18 foot strip of land, being 9 feet on each side of the center line of the railroad switch track paralleling their property line. In the original petition and application for injunction the appellees alleged that the easement granted in the deed of April 25,1935, was for the general purposes of access from Logan Street to appellees’ concrete loading .dock attached to their building, and parallel to the switch track. That by virtue of such express grant they were entitled to use the railroad switch track and grounds as a driveway for trucks coming from Logan Street. Alternatively they claimed an implied easement or one by estoppel.

*899 By answer and cross-action appellant denied that the easement granted in the deed of April 25, 1935, was a general-purpose easement of access. It asserted that the purpose of the easement granted by and reserved in the Keller (common source of title) deeds was limited to railroad use, which use had totally ceased and become impossible, thereby terminating the easement and appellees’ right to use appellant’s property. It prayed that title to its land be quieted.

Appellees and appellant filed motions for summary judgment each asserting that judgment should be rendered in their or its favor as a matter of law. On June 10, 1965, the court entered judgment granting appel-lees’ motion, holding that appellees were entitled to an easement of access over and across the strip of appellant’s property which was described by metes and bounds. In general the strip may be described as being 13.5 feet wide and approximately 120 feet long lying north of and parallel with the line between the property of appellant and appellees. (See Exhibit A, the plat from which the metes and bounds description of the strip was obtained.)

In order to more clearly illustrate the location and relationship of the railway tracks, streets, loading dock and the property covered by the various conveyances, references will be made to a survey marked Exhibit B which follows Exhibit A.

*900

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Bluebook (online)
401 S.W.2d 897, 1966 Tex. App. LEXIS 2957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kearney-son-v-fancher-texapp-1966.