Zapata County v. Llanos

239 S.W.2d 699, 1951 Tex. App. LEXIS 2038

• Court: Court of Appeals of Texas
• Decided: April 4, 1951
• Docket: 12182
• Status: Published

Opinions

W. O. MURRAY, Chief Justice.

This suit was originally instituted by Pedro Llanos and others, who are the heirs of Maria Hein de Llanos, against Zapata County, seeking to have an order theretofore entered by the Commissioners’ Court of that County on the 12th day of December, 1949, set aside, which order attempted to open a road across land owned by the plaintiffs and known as Shares 1 and 3 of the Hein Varal Pasture, containing 3029.12 acres of land and being a part of the Jose Vasquez Borrego Grant in Zapata County; and further seeking an injunction enjoining the county from doing anything further in connection with opening said road.

Thereafter Mrs. Luz A. Hein, owner of Share 4, and Mrs. Isabel S. Hein and her children as owners of Share 2,of the Varal Pasture, intervened in said ■ cause and sought to compel the opening of the road previously ordered by Zapata County. Trial was had to the court without the intervention of a jury and resulted in judgment that the order of the Commissioners' 'Court of Zapata County ordering the road opened across plaintiffs’ land was null and void and of no effect, and that interveners had no right to a road across plaintiffs’ land and that they take nothing by reason of their intervention, and further permanently enjoining the county and interven-ers from subjecting any of the land of the plaintiffs in the Varal Pasture to use as a roadway. From this judgment Zapata County and interveners have appealed.

This suit in its final analysis became a suit by interveners against appellees for a roadway across Share 1 and Share 3 of the Varal Pasture belonging to appellees, first, on the ground that they were entitled to such road by prescription and, second, that they were entitled to such road by reasons of a presumed easement growing out of an agreed judgment of partition of the Vara! Pasture in 1929 of its then joint owners.

The evidence shows that at one time the entire Varal Pasture was owned by Henry Hein, Sr., and that the appellants are his heirs. The evidence is not clear as to just when Henry Hein, Sr., died, but it is apparent that his demise took place some time prior to 1929. The record further shpws that on September 10, 1929, judgment was entered by agreement partitioning the Varal Pasture among its then joint owners, as follows: Share No. 1 was awarded to Maria Hein de Llanos, Share No. 2, to Isabel S. Hein and her children, Share No. 3, to W. W. Winslow, and Share No. 4, to John A. Pope, Sr., Bismark Pope and John A. Pope, Jr., Isabel S. Hein is the widow of . Conrad Hein, deceased. Mrs. Luz A. Hein, the widow of Henry Hein, Jr., deceased, purchased Share No. 4 from John A. Pope, Bismark Pope and John A. Pope, Jr.. Mrs. Maria Hein de Llanos purchased Share No. 3 from W. W. Win-slow. Share No. 1 consists of 1682.8 acres of land of the west side of the Varal Pasture. Share No. 2 consists of 673.12 acres of land located in the northeast corner of the Varal Pasture, and Share No. 3 consists of 336.6 acres of land lying just south of Share No. 2, and Share No. 4 consists of 336.6 acres of land lying just south of Share No. 3 and is located in the southeast corner of the Varal Pasture. The road which the Commissioners’ Court undertook to open enters the Varal Pasture from the north, about the middle of the north line, and traverses Share No. 1 in a southeasterly direction, then crosses a part of Share No. 3, and then goes diagonally across Share No. 4 and leaves -the Varal Pasture near its southeast corner. It appears that Share No. 1 was awarded to Maria Hein de Llanos as an heir of Henry Hein, Sr. and Share No. 2 was awarded to Conrad Hein also as an heir of Henry Hein, Sr. W. W. Winslow, John A. Pope, and John A. Pope, Jr., and Bismark Pope were lawyers and it seems that Winslow was awarded Share No. 3 as attorney’s fees, and that Share No. 4 was awarded to the Popes in payment of attorneys’ fees.

The evidence in this case shows that there has been in existence, for more than fifty years, an old, well-defined, recognized and obvious road, which came up from the south and crossed the Varal Pasture and went on north connecting with other roads that lead to Laredo. This road originally traversed open, unfenced, prairie land'. In about the year 1911 Henry Hein, Sr., the then owner of the Varal Pasture, fenced his land, but put gates where this road entered and left the Varal Pasture, so that people could still travel on the road. This road had been used continuously by people living to the south and by members of the Hein family, up until 1949 when appellees closed the road on the north. This lawsuit followed and appellants as owners of Shares Nos. 2 and 4 of the Varal Pasture are endeavoring to have this road opened on the north end so that they may use it to reach land which they own to the north and to reach the Laredo Highway.

The trial judge made and filed numerous findings of fact which may be regarded as sufficient to show that appellants do not have a prescriptive right to use this road to the north because it has always been a permissive road and its use has never been adverse or hostile to the owners of Share No. 4. He further finds in effect that no use has ever been -made of Shares Nos. 2 and 4 as to entitle the owners thereof to a way by necessity over the lands of appel-lees. He further finds that the owners of Share No. 4 have an outlet to the south which would preclude them from being entitled to a way by necessity to the north. However, he does not make such a finding as this as to the owners of Share No. 2. It is apparent that Share No. 2, as a result of the judgment appealed from, is left landlocked and its owners have no means of ingress or egress thereto.

Appellants did not except to or in any manner attack the findings of the trial judge, nor do they here present points or assignments of error in any manner attacking these findings and are therefore boufid by them. Hardcastle v. Sibley, Tex.Civ.App., 107 S.W.2d 432; Cameron County Water Improvement District No. 1 v. Cameron County Water Improvement District No. 15, Tex.Civ.App., 106 S.W.2d 362; Randolph Junior College v. Isaacks, Tex.Civ.App., 113 S.W.2d 628; Krummen v. Still, Tex.Civ.App., 146 S.W.2d 288; Brazell v. Gault, Tex.Civ.App., 160 S.W.2d 540; State v. Arnim, Tex.Civ.App., 173 S.W.2d 503; Murphy v. Boyt, Tex.Civ.App., 180 S.W.2d 199; Griffin v. Hidalgo County, Tex.Civ.App., 185 S.W.2d 232; Byrd v. Curtis, Tex.Civ.App., 194 S.W.2d 153; Patterson v. Wilson, Tex.Civ.App., 199 S.W.2d 558; Curry v. E. E. Stone Lumber Co., Tex.Civ.App., 218 S.W.2d 293.

We may assume without deciding that these findings of the trial court are sufficient to preclude the appellants from claiming a way to the north by prescription or by strict necessity, but they are not sufficient to preclude the appellants from claiming the right to use the roadway on the land of appellees under the doctrine that .where there is a partition-of land by joint, owners, each takes his portion of the real estate subject to such continuous, apparent, permanent and necessary easements . as - exist at the time of the partition or had theretofore existed at the time of their, common ancestor or grantor. 28 C.J. S., Easements, § 32, page 690. The necessity above referred to is not used in the strictest sense,.-.but -means only that such use is necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made. 28 C.J.S., Easements, § 33, page 692.

The rule is well stated in Miles v. Bodenheim, Tex.Civ.App., 193 S.W. 693, 696, as follows: “The general rule is that where during tlie unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership there arises by implication of law a grant of the right to continue such use. The application of the rule must depend upon the nature, arrangement and use of the estate, the relation of the parts to each other, and the existing degree of necessity for giving such construction to the grant as will give effect to what may be supposed to have been, considering the manner of the use, the reasonable intendment of the parties; the underlying principle in such cases being that included in the grant are all such privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the thing granted, substantially in the condition in which it is enjoyed by the grantor, unless the contrary is provided. The rule is also said to be based on the maxim that no man can derogate from his own grant — this being in effect a formulation of a principle of estoppel. A presumption frequently invoked in that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction, and after sale neither party without the consent of the other has a right to change, to the detriment of the other, that condition which openly and visibly existed. Of course this presumption may be rebutted by parol evidence of an agreement or understanding at or prior to the sale that the easement was not to pass, on the theory that a presumption raised by parol evidence may also be rebutted by that character of evidence. The rule itself, since it presupposes the existence of quasi easements, must be distinguished from the principle which underlies the creation of ways of necessity.” 9 R.C.L. pp. 755 et seq.; 14 Cyc. 1166.

See also: Leathers v. Craig, Tex.Civ.App., 228 S.W. 995; Neilon v. Texas Trust & Security Co., Tex.Civ.App., 147 S.W.2d 321; Barrick v. Gillette, Tex.Civ.App., 187 S.W.2d 683; Pokorny v. Yudin, Tex.Civ.App., 188 S.W.2d 185; Parker v. Bains, Tex.Civ.App., 194 So.W.2d 569; Chitwood v. Whitlow, 313 Ky. 182, 230 S.W.2d 641; Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501.

The case of Jones v. Bethel, 20 Ohio App. 442, 152 N.E. 734, 735, is perhaps more nearly in point here than any case we have read. There' it is said: “That case (Baker v. Rice, 56 Ohio St. 463, 47 N.E. 653) establishes -the rule that, where a private way is constructed from one part of a single tract of land to ’ another part thereof, and it is apparent and in continuous use and reasonably necessary to the enjoyment of that part of the land to1 which it had been constructed and adds to its value, if the owner of the single tract divides and conveys the same, giving to one of his children the part with the way to it and to another the part with the way over it, each takes his part to be held and used in reference to the way as it existed at the time of the division, one taking by an implied grant and the other taking subj ect to such way as an easement to the first part. It must be remembered that the situation which obtained when this land was divided and plaintiff’s tract aliened must determine the claim of an implied grant; in other words, the situation of the parties at the time this land was aparted constitutes the operative facts to support the claim of a grant by implication.”

Accordingly, the judgment of the trial court is affirmed, insofar as it decrees the order of the Commissioners’ Court of Zapata County, Texas, attempting to declare the existence of a public road over the lands of appellees, to' be void. In other respects the judgment of the trial court is reversed and judgment here rendered granting appellants a way of ingress and egress to their respective shares over the land of appellees lying in the Varal Pasture, such way to be the road as it existed at the time of the partition.

Affirmed in part and reversed and rendered in part.