Home/Court of Appeals of Texas/Tall Timbers Corporation v. Anderson

Tall Timbers Corporation v. Anderson

342 S.W.2d 452, 1961 Tex. App. LEXIS 1677
CourtCourt of Appeals of Texas
DecidedJanuary 21, 1961
Docket13625
StatusPublished
Cited by8 cases

This text of 342 S.W.2d 452 (Tall Timbers Corporation v. Anderson) 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
Tall Timbers Corporation v. Anderson, 342 S.W.2d 452, 1961 Tex. App. LEXIS 1677 (Tex. Ct. App. 1961).

Opinion

WERLEIN, Justice.

This suit was brought by appellees, T. D. Anderson et ah, individually and on behalf of the residents and owners of property in Tall Timbers Section of Rivet Oaks Addition to the City of Houston against Tall Timbers Corporation, appellant, for a declaratory judgment and permanent injunction decreeing that a certain 40 foot easement in said subdivision is restricted to use for utility purposes and enjoining the use of such easement by appellant as a roadway.

River Oaks Corporation, the subdivider of Tall Timbers Section, intervened and appellant filed a cross-action for declaratory relief and damages, and impleaded the City of Houston as a defendant. The trial court after a hearing granted appellees and the City of Houston a temporary injunction enjoining appellant from using the disputed easement as a roadway pending the trial of the suit on its merits. From such order appellant has perfected its appeal.

By its First, Second and Tenth Points appellant asserts in essence that the trial court abused its discretion in enjoining appellant from opening and constructing a roadway in the 40 foot easement lying between Lot 1, Block 88 and Lot 1, Block 91, of Tall Timbers Section, and from using such easement as a roadway connecting its property with Westlane Street in said subdivision; and further that the court erred in failing to hold that such easement had been dedicated to the public as a roadway, and that appellant as the owner of property abutting such easement is entitled to the use thereof as a public roadway and also as an easement appurtenant to its land.

The evidence shows that on January 10, 1939 intervenor, River Oaks Corporation, executed a document entitled “Reservations, Restrictions and Covenants in Tall Timbers Section of River Oaks”, and also authenticated a plat entitled “Plat of Tall Timbers Section, River Oaks, an Addition west of the City of Houston”, and that on January 11, 1939 both instruments were filed for record in Harris County, Texas. The plat is reproduced for reference.

*455 It will be noted that on such plat there are two reserved tracts of about six acres each, adjoining Tall Timbers Section, one to the northwest and the other to the southwest of the subdivision. They will be referred to respectively as the north reserved tract and the south reserved tract.. It is stated on the plat and in said document that such tracts and Tract 2, Block 92 are not a part of the subdivision. From Inverness Drive to the north reserved tract there is' a 40 foot easement, and from Westlane to the south reserved tract there is a 40 foot easement, which easements will be referred to respectively as the north 40 foot easement and the south 40 foot easement. It is the south 40 foot easement that is involved in this suit. It will be observed that said 40 foot easements do not cross any lot or block of the subdivision in whole or in part, as do the 10 foot easements and 20 foot easements which are indicated by dotted lines on the plat.

After recording the subdivision plat and document containing the reservations, in-tervenor, the owner of the addition, and also of the two reserved tracts, began in the year 1939 to convey various lots by reference to the plat. On March 9, 1959 it conveyed the south reserved tract to Mark Rice and Jacob W. Hershey, describing the same by metes and bounds, making specific reference to the recorded plat. One of the calls for course and distance in the deed reads as follows:

“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.”

The habendum clause in such deed recites :

“To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said Mark Rice of Dallas County, Texas, and said Jacob W. Hershey of Harris County, Texas, their heirs and assigns, forever; * * * ” . • -

On the same day said grantees conveyed the south reserved tract to appellant by deed containing precisely the same descriptive matters and character of habendum clause as contained in the deed from inter-venor to Rice and Hershey.

Since filing for record said plat and reservations document, no conveyance has ever been made by intervenor to anyone including within its description any portion of the tracts of land lying within the confines of the two 40 foot easements. On or about February 15, 1941 intervenor entered into a written agreement with the late Malcolm S. McCorquodale, a Houston attorney, who then owned Lot 1 in Block 88 of Tall Timbers Section, giving Mc-Corquodale the privilege of improving and using such 40 foot strip as a private drive for access to his property, with the provision that upon request of intervenor at any time McCorquodale would vacate the same and restore it to its original condition. In McCorquodale’s letter transmitting the agreement to intervenor it is stated:

“If this easement is ever developed into a street or alley, the logical place for my driveway would be directly off this alley from the west to my garage which is on that side.' My only purpose in using a portion of this easement for my driveway was that I did not want to build my driveway on some other part of my lot and then relocate it after the easement is available for a driveway.”

In February, 1945, W. Carloss Morris, Jr., a Houston attorney who contemplated buying the north reserved tract, proposed purchasing from intervenor the north 40 foot easement. Intervenor declined to sell the same, stating, “ * '* * It would be inappropriate and perhaps impossible for us to deed you the right of way in any form *458 since it has been dedicated by recordation of the plat.” Thereafter, on or about March 5, 1945, Morris consummated the purchase of the north reserved tract, since which time he and certain of his neighbors either residing upon such tract or upon properties adjacent to the 40 foot easement have been using the same for ingress and egress to and from Inverness Drive for vehicular traffic.

*456

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Related

Morris v. Reaves
580 S.W.2d 891 (Court of Appeals of Texas, 1979)
Young v. Gardner
435 S.W.2d 192 (Court of Appeals of Texas, 1968)
Anderson v. Tall Timbers Corp.
378 S.W.2d 16 (Texas Supreme Court, 1964)
Tall Timbers Corporation v. Anderson
370 S.W.2d 214 (Court of Appeals of Texas, 1963)
Anderson v. Tall Timbers Corporation
347 S.W.2d 592 (Texas Supreme Court, 1961)

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Bluebook (online)
342 S.W.2d 452, 1961 Tex. App. LEXIS 1677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tall-timbers-corporation-v-anderson-texapp-1961.