Tatum v. Blackstock

418 S.W.2d 269, 1967 Tex. App. LEXIS 2483
CourtCourt of Appeals of Texas
DecidedJuly 27, 1967
DocketNo. 4561
StatusPublished
Cited by1 cases

This text of 418 S.W.2d 269 (Tatum v. Blackstock) 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
Tatum v. Blackstock, 418 S.W.2d 269, 1967 Tex. App. LEXIS 2483 (Tex. Ct. App. 1967).

Opinions

WILSON, Justice.

OPINION

Two appeals from judgment in a non-jury trial of five consolidated suits are presented. One of these appeals is by North Clear Lake Development Corporation, (successor in interest to Tatum) in which reversal of an adverse trespass to try title judgment is sought. We reverse and render judgment in this case. The other appeal is by landowners who will be referred to as the “Blackstock group”, who ask reversal of judgment denying them damages and an injunction sought because of the alleged violation of claimed riparian rights. We affirm this portion of the judgment. Findings and conclusions were filed. We will consider the appeals separately.

The matter has been incredibly complicated by a record of over 2000 pages, over 200 exhibits, and several hundred pages of briefs presenting 180 points, cross points and counter points. We have attempted to cut through these (and the accompanying impediments of recriminatory material) to the controlling contentions.

The land over which the principal controversy exists is a tract of about .68 acres (which the members of the Blackstock group say is a part of their lots, and which Clear Lake contends is a strip on the back side of the Blackstock group’s lots), shown as a dark area, which we call area “A” on the appended map. The cross-hatched area northwest of it, variously referred to as “tidal flats,” “peninsula” or “island,” we designate area “B”. Before 1951 it was attached or contiguous to area A and the [272]*272other land subdivided as El Lago Estates . In 1951 Dr. Harris (the common source) dredged a channel 30 feet wide along the dotted line between areas A and B.

[273]*273FINDINGS AND CONCLUSIONS

We summarize the material findings of fact: The State of Coahuila and Texas delivered a grant of all the property involved in 1832, at which time area B was upland. It is upland (and not lake bottom) now. In 1949 Dr. Harris subdivided El Lago Estates, and the description of lots in each of the deeds from him, including those under which the Blackstock group claims, were “solely by reference” to a subdivision plat, and “none of these lots, by description as contained in the deeds, extended to Taylor Bayou or Taylor Lake.” As to area A between the lots of the Blackstock group and the channel dredged by Dr. Harris, “while not included within the descriptions as contained in any deed, the statements, conduct, acts and representations” of Dr. Harris to their predecessors in title “amount to an agreed boundary line extending the back line of said lots down to the edge of the man-made channel.”

Further findings were: A 1960 deed from Dr. Harris to North Clear Lake’s grantor conveying other land in the vicinity, specifically excluded area A. In 1962 Harris executed a correction deed “attempting to add” area A to the land described in the 1960 deed. The court concluded the correction deed “was without consideration and is void” as to area A.) Dr. Harris “represented to those who purchased from him the properties now owned by” members of the Blackstock group that the boundaries of their respective properties included the land in area A. These representations were made “at or before the sales of said properties, and as an inducement to bring about such sales.” Dr. Harris granted, for a valuable consideration, to all purchasers of lots 20, 21, 22, 24, 25 and 26, Section one, El Lago Estates, “the free and unrestricted right to use” area A at all times and for all purposes, and represented, as a part of the consideration, to purchasers (of all except lot 21) that they had “the unrestricted right of access to Taylor Lake and Taylor Bayou.” Harris and those under whom the Blackstock group claim, by a series of agreements made at or about the times Harris sold the lots, “fixed an agreed boundary (the dredged channel), which includes” area A within their properties, the boundary being the channel “as to the back line of lots 20,21, 22, 24, 25 and 26.”

The court concluded that no basis for injunctive relief or damages was shown; that North Clear Lake Development Corporation is estopped to claim area A; that each owner of the enumerated lots “has a perpetual easement” across that portion of area A adjacent to his property; and that all parties are held to the channel as an agreed boundary. Judgment was that North Clear Lake take nothing in its trespass to try title action, and the Blackstock group’s prayer for damages and application for injunction were denied.

THE TRESPASS TO TRY TITLE APPEAL

Appellant North Clear Lake Development Corporation, under the court’s findings, which are unassailed by appellees, established that a grant was made to all the land involved in this action, including area A, from the sovereign, the State of Coahuila and Texas. Dr. Harris was stipulated to be the common source of title. Although appellees appear to attack appellants’ “chain of title,” it was of course unnecessary for appellants to deraign title beyond the common source. Rule 798, Texas Rules of Civil Procedure; Burns v. Goff, 79 Tex. 236, 14 S.W. 1009.

The trial court’s findings are that deeds from the common source to appellees, the Blackstock group, did not include area A; and that in 1832 the entire peninsula or island, including area A, was upland, and included in the grant from the sovereign. These, and the other findings, however, do not establish a prima facie title in appellant, North Clear Lake Development Corporation. It had the burden of deraigning title from the common source. This it attempted to do by the 1962 correction deed to its [274]*274predecessor in title (the 1960 deed from Harris to that grantee having expressly excluded area A). The trial court determined that the correction deed was “without consideration, and is void.”

Appellants’ brief contains a 60th point asserting the court erred in making this conclusion, but the point is not briefed, and we are thereby given no basis for holding the conclusion was erroneous. Ap-pellee, on the other hand, gives us no basis for sustaining it. If the “correction” deed is void as to appellees, appellant has failed to deraign title from the common source, for this is its only claim to record title. Appellees do not rely on its invalidity in their brief. We find no basis in the record for concluding the correction deed is void. It was not void for want of consideration, if this is the ground of the conclusion. The consideration for a correction deed is the correction. It is a sufficient consideration. 26 C.J.S. Deeds § 31. Appellees imply it was held by the trial court to be void because the description “conflicts” with the original deed. The “conflict” is obviously the correction.

The correction deed, then, sufficiently meets the requirements of deraigning superior title to appellant from the common source and entitles appellant to judgment unless the rights of appellees or their predecessors in title intervened. The trial court determined that the deeds from Harris to the enumerated lots did not convey any part of area A because the description did not include it. This finding is sustained by the record.

Appellees say the take-nothing judgment rests on “estoppel, easement and agreed boundary.”

That defendant has an easement over the servient estate is not a ground for denying appellant recovery in trespass to try title. Hays v. Texas & P. Ry. Co., 62 Tex. 397; Hollan v. State, Tex.Civ.App., 308 S.W.2d 122, 125, writ ref. n. r. e., and cases cited.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

North Clear Lake Development Corp. v. Blackstock
450 S.W.2d 678 (Court of Appeals of Texas, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
418 S.W.2d 269, 1967 Tex. App. LEXIS 2483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatum-v-blackstock-texapp-1967.