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Item 9A - Attorney Opinion 08-01-2019RICtIARD All. KILGORE ATTORNEY & COUNSELOR, PLLC 1201 north Carroll T� (817) 310.0987 office Southlake, Texas 76092 (817) 310-0999 fax August 1, 2019 TO: Leesa Stephens-Bollar RE: ATTORNEY OPINION LETTER uestion Presented Do the original grantors/ declarants of the roadway easement described in documents recorded in Volume 388-159 Page 40 and Volume 7738 Page 1580 of the Real Property Records of Tarrant County Texas have a right to restrict or block traffic on the roadway easement described therein if a lot in the platted subdivision is subdivided? II. Authorities To explore this question, I reviewed the documents of record and the law that governs the Question Presented being: (1) Declaration of Covenants and Restrictions recorded in Volume 388-159 Page 40 ("Declaration"); (2) Plat of Steward Addition Recorded in Volume 7738 Page 1580 of the Real Property Records of Tarrant County Texas ("Origina) Plat'); (3) Plat of Steward Addition recorded in Cabinet A, Slide 4814 of the Map and or Plat Records of Tarrant County, Texas; ("Revi sed Flat") 'and, (4) Texas case law. A. Review of the Declaration. Declaration of Covenants and Restrictions of the Steward Addition to the City of Southlake, Tarrant County Texas filed of record in Volume 7738 Page 1580 of the Real Property Records of Tarrant County, Texas on February 8, 1984, (the "Declaration"). 1. The Declaration consists of a total of 5 pages. There are 3 pages of language describes: the roadway; the lots affected by the declaration (which are described in particularity in the Plat); the purpose of the easement; and a maintenance agreement binding the grantors with a duty to maintain the roadway and share the expenses of maintenance. There is an additional page added for signatures and acknowledgements and a'final page that contains recording information. There are no other pages. The only duties and rights described in the document are: the perpetual duty to maintain the road, and; the right of the other parties to the agreement to legally enforce the duties to pay expenses of maintenance. Each of the, then Owners of the Lots platted on the Plat executed the document, binding themselves and future owners with the burden of maintenance and expenses as follows: Lot 1, Block 1 David Keith Steward and wife Laurie Steward; Lot 2, Block 1, Steven Austin Heitman and wife Denicia Kim Heitman; Lot 3, Block 1, David E. Steward and wife Wanda Fay Steward. 2. Noticeably absent are any restrictions on future subdivision of the platted lots or any restrictions on volume of traffic or types of vehicles that may use the road. 3. The language "private ingress and egress" is the only description of the permitted use.. CONCLUSION: The Declaration contains no restrictions or authority that would allow any of the original declarants to restrict traffic or block the roadway. Richard M. Kilgore Board Certified -Commercial & Residential Real Estate -Texas Board of Legal Specialization Page] of 4 COPY ATTACHED AS EXIIIRIT "A" B. Review of Original Plat. Plat of Steward Addition to the City of Southlake, Tarrant County Texas, Recorded in Volume 388-159 Page 40 of the Real Property Records of Tarrant County, Texas on April 6, 1983, (the "Original Plat") 1. Metes and Bounds Description of the Private Roadwa . The Metes and Bounds Description identifies the size and location of the Private Roadway Easement. The Private Roadway is 2. Metes and Bounds Descriptions of the Dominant and Servient Properties. Servient estate or servient property is a term used in property law to refer to real property which is subject to a use that benefits another property a Dominant estate, such as an easement, right of way or use for access to an adjoining property, to utility lines or an adjoining roadway. Example: Owner of Tract A allows owner of Tract B to drive across his property to access the state highway. Tract A would be the Servient estate and Tract B would be the Dominant estate. The servient estates on the Plat are the Tracts of Land over which the Private Roadway runs. 3. Dedication of the Roadway and all Easements for Public Use by all Declarants. The Plat contains language just above the signature lines for each set of Declarants dedicating all roads and easements on the property "to the use of the public" For Example: Above the signature lines for David E. Steward and Wanda Fay Steward the following language appears: "NOW THEREFORE, DAVID F. STEWARD AND WIFE WANDA FAY STEWARD desire to adopt a plan for subdividing said tract to be known as lots 2 and 3, Block 1, Steward Addition, and addition to the city of Southlake, Tarrant County, Teas, and do hereby dedicate to the use of the public all streets and easement ash shown thereon." CONCLUSION: The recorded plat contains language dedicating the use of the roads and easements to the public and the Plat contains no restrictions or authority that would allow any of the original declarants to restrict traffic or block the roadway. This language conflicts with the "private" use language in the Declaration filed the following year. COPY ATTACHED AS EXHIBIT "B" C. Review of Revised Plat. Plat of Steward Addition to the City of Southlake, Tarrant County Texas, Recorded in Cabinet A, Slide 4814 of the Plat Records of Tarrant County, Texas on January 22, 1999, (the "Revised Plat"). 1. Roadway Descriptio . Description of the Roadway as a platted roadway referencing the Declarations and the Original Plat. 2. Replat and Creation of Lots 3R1, 3R2 and 3R3 3. Dedication of all roadways and easements for Public use. On two attached pages Russel H. Oxner, F.L. Bailey and Gaylon Bailey dedicate the rights of way and easements on the revised plat to Public use. "THAT, we Russel H. Oxner, F.L. Bailey and Gaylon Bailey, being all of the owners do hereby adopt this plat designating the hereinabove describe property as Lots, 3R1, 3R2 & 3R3, Block 1, Steward Addition, an Addition to the City of Southlake, Tarrant County, Texas and we do hereby dedicate the rights of way, and easement Richard M. Kilgore Board Certified -Commercial & Residential Real Estate -Texas Board of Legal Specialization Page 2 of 4 shown hereon the public's use unless otherwise noted. The plat does no alter or remove existing deed restrictions or covenants, if any, on the property." CONCLUSION: The recorded Revised Plat does not affect the entire tract described in the Original Plat contains language dedicating the use of the rights of way and easements to the public and the Plat but it contains no restrictions or authority that would allow any of the original declarants to restrict traffic or block the roadway. COPY ATTACHED AS EXHIBIT "C" D. Texas Case Law Interpretation of Restrictive Covenants. Plain Language Rule Restrictive covenants are subject to the general rules of contract interpretation. The plain language rule applies and words will be given their common meaning) The words and phrases used in the covenant will be given their commonly accepted meaning.2 Meanings cannot be enlarged or expanded. The words used in the restriction, and the restriction as a whole, may not be enlarged, extended, stretched or changed by construction.3 All doubts must be resolved in favor of the free and unrestricted use. All doubts must be resolved in favor of the free and unrestricted use of the premises, and the restrictive clause must be construed strictly against the party seeking to enforce it.' Ingress Egress An easement granted for general purposes of ingress and egress includes not only the use required at the time of the grant, but also the right to use the easement for any purpose connected to the use of the property.5 Open Access to Road or Highway Cannot be Blocked. Courts have held that where an easement is granted to provide abutting landowners access to a roadway, and no gates existed prior to the grant of the easement, then the easement holders were entitled to free and unrestricted access.6 1 See Scoville v. Springpark Homeowner's Assn, 784 S.W.2d 498, 502 (Tex. App. -Dallas 1990, writ denied). The words used in the restrictive covenant must be given the meaning which they commonly held as of the date the covenant was written, and not as of some subsequent date. Davis v. Huey, 620 S.W.2d at 627. 2 Curb v. Benson, 564 S.W.2d 432, 433 (Tex. Civ. App. -- Austin 1978, writ refd n.r.e.). 3 Gilbert v. Shenandoah Valley Improvement Association, 592 SW.2d 28, 29 (Tex. Civ. App. -- Beaumont 1979, writ refd n.r.e.). ^ Brown v. Wehner, 610 S.W.2d 168, 170 (Tex. Civ. App. -- Houston [1st Dist.] 1980, writ refd n.r.e.). s See Shipp v. Stoker, 923 S.W.2d 100, 103 (Tex. App.— Texarkana 1996, writ denied) (finding dominant estate could be used for both residential and business purposes when general easement contained no restrictions on its use). 6 Ferrara v. Moore, 318 S.W.3d 487, 491(Tex. App.— Texarkana 2010, pet. denied); McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex. App.— Fort Worth 1994, no writ) (in absence of deed language specifying dominant estate had free and unrestricted access, nevertheless finding that "it is evident access to the roadway was to be unobstructed.") Hilburn v. Providian Holdings, Inc., No. 01 -06 -00961 -CV, 2008 Tex. App. LEXIS 8443, 2008 WL 4836840, at **1, 4 (Tex. App.— Houston [1 Dist.] Nov. 6, 2008, st no pet.) (mem. op.) (holding servient estate had no right to close or lock gate which existed prior to creation of nonexclusive access easement because it interfered with purpose of easement). Richard M. Kilgore Board Certified -Commercial & Residential Real Estate -Texas Board of Legal Specialization Page 3 of 4 Interference with Ingress Egress The Texas Supreme Court has held that when a use is established the grantor/ servient estate may not interfere with that use. "The owner of the servient estate simply may not interfere with the right of the owner of the dominant estate to use the servient estate for the purpose of the easement. ,7 Once Dedicated to the Public a Grantor has no future right to restrict use. Once conveyed to the public, the owner of the property reserves no rights that are incompatible with the full enjoyment of the public. Town of Palm Valley v. Johnson, 17 S.W.3d 281, 287 (Tex. App.— Corpus Christi 2000, pet. filed) III. Analysis Because the plain language of the does not clearly restrict subdividing of the lots, or restrict any type of use on the lots, the original Declarants have no right to limit or restrict any lots owner's access to their lot. Because the owner of a servient estate may not interfere with ingress or egress, the original declarant has no right to block access. Because the purpose of the roadway is to provide access to a city street, the original declarant cannot block that access. Because the language "private" in the Declaration does not clearly give the Declarants any authority to restrict use of the roadway easement, the Declarants later attempt to enlarge that language is barred by the common law. Because the language in the Original Plat conflicts with the language in the Declaration, all doubts must be resolved in favor of free and unrestricted use. Because the Original Plat dedicates use of the roadways and easements to the public, the Declarants had no right to restrict use via the Declarations filed the following year and the language "private roadway" has no legal effect. IV. Final Conclusion None of the Original Declarants have any legal right to restrict or block access to the roadway easement in the event any of the lots described in the Original or Revised Subdivision Plats are further subdivided. W Richard M. Kilgore Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196,207 (Tex. 1963). McDaniel v. Calvert, 875 S.W.2d 482 (Tex.App.-Fort Worth 1994) A servient estate cannot interfere with the right of the dominant estate to use an easement for the purpose for which it was granted or sought. Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex. 1966). Any use by others that interferes with the exercise of superior easement rights must yield. Pittman v. City ofAmarillo, 598 S.W.2d 941, 944 (Tex.Civ.App.--Amarillo 1980, writ ref n.r.e.). The evidence demonstrates erecting gates would greatly affect the use of Calverts' property. Therefore, the trial court did not err in ordering McDaniels to remove the gate. Gerstner v. Wilhelm, 584 S.W.2d 955 (Tex.Civ.App. 3 Dist. 1979). Defendant wrongfully installed gates across right-of-way easement. Logan v. Mullis, 686 S.W.2d 605, (Tex. 1985). Defendant wrongfully removed a culvert and piled dirt across easement. Richard M. Kilgore Board Certified -Commercial & Residential Real Estate -Texas Board of Legal Specialization Page 4 of 4 Exhibit "All EXHIBIT A DECLARATION OF COVENANTS AND RESTRICTIONS OF THE STEWARD ADDITION, AN ADDITION TO THE CITY OF SOUTH LAKE, TARRANT COUNTY, TEXAS p.,)p y p 2000 311965 02/08/84 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § This Declaration is made this, the -3Aday of , 1984, by and among David Keith Steward and wife, Laurie reward, Steven Austin Heitman and wife, Denicia Kim Heitman, and David E. Steward and wife, Wanda Fay Steward, all residents of Tarrant County, Texas, hereinafter referred to as "Dedicator" (whether one or more). W I T N E S S E T H: WHEREAS, David Keith Steward and wife Laurie Steward are the owner of Lot 1, Block 1, Steward Addition, addition to the City of South Lake, Tarrant County, Texas, according to Plat recorded in Volume 388-159, Page 40, of the Plat Records of Tarrant County, Texas; WHEREAS, Steven Austin Heitman and wife Denicia Kim Heitman are the owner of Lot 2, Block 1, Steward Addition, addition to the City of South Lake, Tarrant County, Texas, according to Plat recorded in Volume 388-159, Page 40, of the Plat Records of Tarrant County, Texas; WHEREAS, David E. Steward and wife Wanda Fay Steward are the owner of Lot 3, Block 1, Steward Addition, addition to the City of South Lake, Tarrant County, Texas, according to Plat recorded in Volume 388-159, Page 40, of the Plat Records of Tarrant County, Texas; WHEREAS, the Steward Addition, an addition to the City of South Lake, Tarrant County, Texas, was platted by instrument dated March 1, 1983, and filed in the Plat Records of Tarrant County, Texas, in Volume 388-159, Page 40; WHEREAS, the Plat of the Steward Addition dedicates a t wenty-five (25) foot road easement for the purposes of private ingress and egress across Lot 1, Lot 2, and Lot 3, Block I of the Steward Addition, South Lake, Tarrant County, Texas, for the purposes of private ingress and egress to Dove Road; WHEREAS, the owners of the Steward Addition are de- sirous of providing for the perpetual maintenance of the twenty- five foot road easement as described herein through this per- manent perpetual maintenance agreement. I. The herein -described covenants, restrictions, ease - menta, charges and liens are imposed upon Lots 1, 2. 3, Block 1 of the Steward Addition, South Lake, Tarrant County, Texas, ac- cording to Plat recorded in Volume 388-159, Page 40, of the Plat Records of Tarrant County, Texas. II. Each present and future owner of the lots described herein of the Steward Addition, South Lake, Tarrant County, Texas, shall have an equal, affirmative burden, charge and duty for the maintenance of the twenty-five (25) foot road easement as de- scribed herein and described on the recorded plat of the property in the same condition that it is in at the date and time of execu- tion of this Declaration of Covenants and Restrictions as a gravel oil -top road. In addition to the other rights of enforcement con- tained in these restrictions or available by statute, ordinance or common law, the Dedicator, their successors and assigns, and all parties claiming title to the herein -described lots located in the Steward addition, by, through or under Dedicator, shall be taken to hold, agree and covenant with the Dedicator and their successors and assigns, and with each of them, to conform to and observe all restrictions and covenants as to the use and main- tenance of the twenty-five (25) foot road easement, or the Dedi- cator or any owner of the lots described herein shall have the right to sue for and obtain an injunction, prohibitive or man- datory, to prevent the breach of or enforce the observance of the restrictions and covenants above set forth, in addition to the Page 2 ordinary legal remedies for damages; and the failure of the Dedicator, or any owners of the lots described herein, to enforce any other restrictions or covenants herein set forth at the time of viola- tion, shall in no event be deemed to be a waiver of the right to do so at any time thereafter. IV. It is specifically provided that the Dedicator, its successors and assigns, or any other lot owner in the herein - described subdivision shall have the right to recover their at- torneys' fees, court costs and expenses incurred in any suit to enforce or prevent the breach of any covenant or restriction contained herein. V. IN WITNESS WHEREOF, Dedicator, being the Declarant and Dedicator herein, has caused this instrument to be executed in their name and on their behalf. on this the 311" day of *,... CL__, 1984. yp. aU " bavid Keitntewar f C ac ar LLk aur a tewa I �te�venstiin HiFitma 1 _� enxc1a m e. ka V�I to ar sn a`- Ny_tew 4rd THE STATE OF TEXAS § COUNTY OF TARRANT 4 The foregoing instrument was acknowledged before me on the ,Z/'r day of 1984, by David Keith Steward. N0tar u c .or t o tate o exas My Commission Expires: c - 1 l�/• '' l Page 3 THE STATE OF TEXAS I COUNTY OF TARRANT i �; � „� '• •''Q ,Thefore Ding instrument was acknowledged before me on � the Y+°" *y of 1984, by Laurie Steward. 1 7! 7 . �'. 1 n ary + is for t etate of Texas �.� My Commission Expires: /c- My Cammission Expires:_�o-3/-�s� n TH%r��S W TEXAS $ Ij C00W '� TAR 7 1 a;y { y ti ,.•ti3 90foregoing instrument was acknowledged before me on o , 1984, by Denicia Kim Heitman. -, c• sIc or the State or Texas My Commission Expires. 1: THE STATE OF TEXAS ¢ POUN Y. .W T4,$itAAtT 4 ing instrument was acknowledged before me on „�,;, , 1984, by David E. Steward. 3 COUNTY OF TARRANT § otar ilio the State of 17ex—as My Commission Expires: /o s�-mss The foregoing instrument was acknowledged before me on the dryr , , 1984, by Wanda Fay Steward. !Etaau F... NataryMubilc tor t e`State of Texas My Commission Expires: le -_41, EU . A We 1583 y Page 4 W. THE"SME OFA .TEXAS 3 COUNTY OF TARRANT § otar ilio the State of 17ex—as My Commission Expires: /o s�-mss The foregoing instrument was acknowledged before me on the dryr , , 1984, by Wanda Fay Steward. !Etaau F... NataryMubilc tor t e`State of Texas My Commission Expires: le -_41, EU . A We 1583 y Page 4 svr�i lumt a t+ mvj UV310 AMOD ^� a:. r19T � •� � .:.. y�am`` y 10 9104 Put MMIDA 141111 M000319 ASA lrAt No rul W uatry gQWI li10, *Il N 9Y� OW N 0 allu sm munglul !141 pyl ! si as Jirjl C= na • J w^wi Jo ,k IHn&I c 77-V folaN Exhibit "B" EXHIBIT B x m m WE ;+ " x AI• .oY YY•N1.4 'M'aiXYON •� i �••� `�1 - . ti g s n, -1 is q. -I -.- .... __—__ _ -J e Z C • M p X4 � � o" ■ - W e e O 11 ` • • d 1. oo�„ra a •XX,.. s 6 V .." • r le I ti4•,j Tina► ror.,F, D%V I D V. STEMARD AND WIFE. VJk%mA FAT STm. w deli Te to adarir s plan for Subdividing said tract to be iamm as I.9ts2 and ), Otock I, Stouard Additla-ti, an addirim w the city of Svuthlake, Tarrret County, TSxas, and do hereby dedicate to the tine of the publie all xtr"c s and easernnts ae shorn thereon. V,, _IIFTVZSS TIMUOF, TULS PEDIC411011 is emcuted this the day of _s�iL --- -- --• . 1957. Exhibit "C" A EXHIBIT C PLAT D199 0 -3 2-?2� CAB /4SLIDE <i -v14 n 77IU7T' i�p;j5 Ikk NMI �• � :� A e'aar;� � Sx� € � �EaE � � iR9E� � 3��'� ,',.,.��in o � �i 1° w �� ��g'g�$r�� m'� � �3gg���F"� 1� � e gci � ✓" �9eo � e maE�Y P �� ���� �a �� � x.s�o kA idd}R 88 3'i9c r k sme K seg k es5 y�9 (—V - N.ma.la m> pFy OS BIP - N•S1.Y0.10 S y { w,A 3 L C =r{ _t7.vb,ia IR �''t Ir szz - x,aa io - a 50..[1 - 0 S . _ __ SS SOZ - S el ,Yb.IO al biUtt - N „11, 'OJ'E51-aue'p�l� dt-�.Am➢Oi-'1[i��ryr.1GN — M. r S„il lea ,e . u) _ / — r r iy�— _ a q P .o �— 11 I ryl+LpT ,or z yo.tlyo dl_ — W I m 'ddd110 HIMA 'ISI a _ Z k d % 'notluN"Y ^ A e J J '1' � r Aie N11 "l A a 0 a O"Y IYv SE95 °-. m7ER =''sigS yh V.* I .a� 3.3�gE�gy'a��;RtFgg z>rg� F17i __ mq sa Ess til°pgpl,'PS�3 pR$� 3t�h �'SiSi4ER '� spt:j` kali " t tirfsr S Ya •� - 6a ��' �R°L"�T ,.�6L L.v➢ iY�p�T g,� '' k� �I 5t• ,� la`.fY'A�' l; _3- R � 1 �199032�24 *�, STATE OF TEXAS COUNTY OF TARRANT WHEREAS, we Russell H. Oxner, F,L. Bailey and Gaylon Bailey, are all of the owners of tracts of land situated in Lot 3, Block 1, Steward Addition, an addition to the City of Southlake, Tarrant County, Texas, according to the plat recorded in volume 388-159, Page 40, Plat Records of Tarrant County, Texas, said tracts of land being conveyed to Russell li. Oxner, as recorded in Volume 7746, Page 639, Gaylon Bailey, as recorded in Volume 12234, Page 1888 and F.L. Bailey, as recorded in Volume 12245, Page 1044, Deed Records of Tarrant County, Texas, and more particularly described as follows: BEING all of Lot 3, Block 1, Steward Addition, an addition to the City of Southlake, Tarrant County, Texas, according to the plat recorded in Volume 388-159, Page 40, Plat Records of Tarrant County, Texas-, NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: THAT, we Russell H. Oxner, F.L. Bailey and Gaylon Bailey, being all of the owners do hereby adopi this pint designating the hereinabove described property as Lots 3lk1, 3R2 & 3R3, Block 1, `Seward ,Addition, an addition to the City of Southlake, Tarrant County, Texas, and we do hereby dedicate the rights of way, and easements shown hereon to the public's use unless otherwise noted. This plat does not alter or remove existing deed restrictions or covenants, if any, on the property. There are no lien holders on the tracts shown hereon. W: I Jr,WITNESS our hands this tho!� ay of 1 x'114 A f{ 1999. "..aiiIn. er F.L. Bailey 6Z 61y on Bailey STATE OF TEXAS COUNTY OF TARRANT BF FORE ME, the undersigned authority, on this day personally appeared Russell 1.1. Oxner, known to me to be the person whose name is subscribed to the above and foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration expressed and in the capacity therein stated. GIVEN, UNDER MY HAND AND SEAL OF OFFICE on this the ".. day 1999 (`7 _ Nofary Public Commission expires: III,-tl 7l li()/ I)f qqo32 l Zq AzbZ A - 4 'V STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, on this day personally appeared F.I_. Bailey, known to me to be the person whose name is subscribed to the above and foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the day Of 1Cwlu1.(-\. 11,999. —�9 D.E EKSTROM i MYCOMMISSIONEXPIRES NOVEMBER 4 2007 N6tary Public Commission expires: 4 /)(l v A0 STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, on this day personally appeared Gayton Bailey, known to me to be the person whose name is subscribed to the above and foregoing instrument, and acknowledged to me that he executed the same Cor the purposes and consideration expressed and in the capacity therein stated. GIVE UNDER MY HAND AND SEAL OF OFFICE on this theday Of t r i .cs ,fes 1999 C' Notary Public D.E. EKSTROM MY GOA9MISSIDN EXPIRES NOVEMBER 4. 2001 Commission expires: