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July 20, 1978




Dale W. Felton, Houston, for appellant.

Kronzer, Abraham & Watkins, Robert E. Ballard, Douglass F. Norman, Houston, for appellees.

Author: Coleman

This is an appeal from an order denying a temporary injunction. Findings of fact and conclusions of law have been filed. The appellant contends the trial court abused its discretion in failing to apply the law correctly to the undisputed facts. The judgment is affirmed.

On September 1, 1977, Robert Louis Plagge leased a portion of the property known as Quail Valley Stables from a partnership comprised of James McNaughton, Stanley W. Cameron and Thomas H. Overstreet, hereinafter called McNaughton partnership.

On October 31, 1977, the McNaughton partnership deeded a portion of the property to Quail Valley Car Care Center, Inc. The property conveyed contained 1.9 acres. A barn was located on this part of the property which formerly was used for indoor riding. An improved driveway or road led from the highway through the 1.9 acre tract alongside the front barn to the back barn. The appellees subsequently blocked the driveway or road when its contractor installed certain gasoline tanks in connection with the construction of a car care center.

While the property leased by Plagge had some 400 feet frontage on the highway, there was no other improved road or driveway leading into the interior of the property or to the back barn where horses were stabled. Plagge contends that he owns an implied easement over the road as it existed at the time he entered into his lease agreement and sought an injunction to prevent the car care center from blocking the roadway. There is evidence that Plagge has been damaged and will continue to be damaged by reason of the obstruction to the use of the roadway. There is also evidence that the issuance of an injunction would result in damage to appellee.

In a hearing on an application for a temporary injunction the question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Where the applicant properly proves a case showing probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). The trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts. Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935).

The rule of law which the appellant asserts grants him the right to use the road in question is stated in Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163 (1952), in these words:

"It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created not only in favor of the parcel granted ("implied grant') but also in favor of the one remaining in the ownership of the grantor ("implied reservation'). The basis of the doctrine is that the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration. . . .

"On the other hand, even in the case of an implied grant, courts do not lightly hold the grantor to convey more than stated in his deed; and he being less favored in law than his grantee, the weight of authority seems still more reluctant to imply a reservation in his favor at the expense of his grantee . . ."

The question of implied grants of easements was considered at length in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962), where the court said:

"If an owner used one part of his land for the benefit of another portion of his own land, the portion served had a "quasi-dominant tenement.' The portion which was used was subject to a "quasi-servient tenement.' The doctrine of implied easement appurtenant developed when the owner, under those circumstances, sold the portion of his land which had had the use of the other portion as for drainage, support, way, or water. If use of the "servient' tract was apparent, continuous, and necessary to the use of the ...

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