Lower Colorado River Authority v. Naumann

638 S.W.2d 195
CourtCourt of Appeals of Texas
DecidedJuly 29, 1982
DocketNo. 01-81-0877-CV
StatusPublished
Cited by2 cases

This text of 638 S.W.2d 195 (Lower Colorado River Authority v. Naumann) 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
Lower Colorado River Authority v. Naumann, 638 S.W.2d 195 (Tex. Ct. App. 1982).

Opinion

STILLEY, Justice.

This action is an appeal from the declaratory judgment of the trial court construing a deed that purports to convey real estate in fee and easement rights to the Lower Colorado River Authority (LCRA). At trial, on September 21, 1981, only the deed was admitted in evidence and no witnesses were heard. Counsel for both parties agreed there was an absence of disputed material fact issues. The trial court ruled that the deed in question did not create an easement in favor of LCRA. Thereafter, on agreed motion, LCRA’s declaratory judgment action was severed from its condemnation action to allow appeal on the declaratory judgment. We affirm the judgment of the trial court.

Morris and Mary Naumann executed a general warranty deed to LCRA on September 17, 1965, in which the Naumanns conveyed eight acres of surface estate, and received $8,000 in payment. Within a few months the appellant entered upon this eight-acre tract and constructed an electric power station. Although this substation was used in conjunction with powerlines, the appellant made no attempt to exercise any easement rights under the deed, and made no tender of monies until March 2, 1981. By a check in the amount of $150, dated March 2,1981, the appellant reported its “present intention to exercise easement rights” under its deed. Pursuant to the appellees’ refusal of this tender, this suit was brought to have title to the property adjudged by the trial court.

The trial court made the following findings in its judgment:

1. That the Deed recorded at Volume 249, pages 546-550 of the Deed Records of Colorado County, recorded on September 21, 1965, was insufficient to effect a current transfer of easement rights in the Plaintiffs.
2. That said deed created a, future right to purchase the easement sought which could best be described as an option to purchase an easement.
3. That said option was not supported by consideration.
4. That the Plaintiff failed to attempt to exercise said option within a reasonable time of the date of its creation.

[197]*197The dispute centers around the second grant in the deed, which purports to convey either a perpetual easement over a one hundred foot wide strip of land, for electric transmission lines, or, an option to acquire such perpetual easement. The wording of the questioned portion of the deed is as follows:

That we, Morris Naumann, Jr. and wife, Mary Becica Naumann, for and in consideration of the sum of Eight Thousand Dollars ... have GRANTED, SOLD AND CONVEYED and by these presents do GRANT, SELL AND CONVEY to the Lower Colorado River Authority ... the following described property, interests and rights situated in Colorado County, Texas, to-wit:
(2) A perpetual easement to construct, maintain and operate electric transmission lines over the adjacent property of the Grantors herein, such easement rights to be reflected by a conveyeance on the regular form of easement of the Lower Colorado River Authority (a copy of which form is attached hereto, marked Exhibit “B” and included herein by reference); and such transmission lines will occupy a 100 foot strip of land lying along and to the East of the West boundary line of said 40.81 acre tract of land extending from the North line of such tract to the North line of said 8 acre tract of land herein conveyed, and the Grantors herein hereby agree and bind themselves their heirs and assigns that they will upon a request from the Authority execute an electric transmission line easement or easements at the location herein-above described situated adjacent to the 8 acre tract herein conveyed on the condition that Authority will pay to the Grantors upon execution and delivery of such easement the sum of Fifteen Dollars ($15.00) per pole or guy in pastureland and twenty-five dollars ($25.00) per pole or guy in cultivated land, the above right to obtain such an easement being a covenant running with the land.

LCRA argues that this instrument conveys a perpetual easement, along with the eight acre tract in fee, in consideration for the $8,000 payment. Appellees argue that only an option to purchase the easement was conveyed, in addition to the eight acre tract, that no election to exercise the option occurred within a reasonable period, and that there was no consideration for the option.

Appellant’s first two points allege error by the trial court in finding that no easement rights were created by the 1965 deed.

Appellant’s third point of error alleges the evidence to be insufficient to support the judgment. The trial court construed the deed to create an option in LCRA to purchase the easement in question, but that such option was not exercised within a reasonable time nor was it supported by consideration.

The appellant argues the application of the rule of construction that a deed must be construed most strongly against the grantor and in favor of the grantee, so as to confer the largest estate which a fair interpretation will permit. It is clear that this rule would apply where an estate of some form was actually conveyed by the writing, and not to a situation where it can be determined that the intent of the parties was to have option rights for a conveyance in the future.

“It is elementary that unless the deed be ambiguous, it is the duty of all courts to construe the deed within its four corners. In such construction the court seeks the intention of the parties as shown by the deed.” Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959). In addition:

[i]n construing deeds all parts of the deed must be given effect if possible to do so without violating any legal principles. Even though different parts of the deed may appear to be contradictory and inconsistent with each other the courts must construe the deed so as to give effect to all parts thereof and will harmonize all provisions therein and not strike down any part of a deed unless there is an irreconcilable conflict.

[198]*198Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672 (1956). Appellant argues that the only construction of the deed that gives effect to all the language in the deed is that it conveys an easement over the one hundred foot strip and also conveys eight acres in fee simple.

The scope of an express easement is determined by the same rules which are applicable to deeds and other instruments. Armstrong v. Skelly Oil Co., 81 S.W.2d 735 (Tex. Civ. App. 1935, writ ref’d). In case of an unambiguous writing, the courts will give effect to the intention of the parties as expressed by or as is apparent from the writing. Wall v. Lower Colorado Authority, 536 S.W.2d 688 (Tex. Civ. App. 1976, writ ref’d n.r.e.). In the usual case, the instrument alone will be deemed to express the intention of the parties for it is the objective, not the subjective, intent which controls. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515

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Bluebook (online)
638 S.W.2d 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lower-colorado-river-authority-v-naumann-texapp-1982.