Memo of InvestigationTO= Personal File
FROM= Philip C. Mani
DATE= March 15, 1994
SUBJECT= Ownership of Drainage Easement adjacent to
Company's 5.843 acres of land, more or less,
located in the City of Coppell, Clarinda
Squires Survey, ~bstract No. 1327, Dallas
County, Texas
MEMORANDUM OF INVESTIGATION
A. Deed Records Investigation
I completed a limited investigation and examination of the
Deed Records in Dallas County, Texas covering the above-referenced
lands, which I will refer to as the "Subject Lands" and other lands
(66.6453 total acres), from May 24, 1988 to December 30, 1988.
Specifically, I located and examined numerous documents some of
which are attached to this Memorandum in Exhibit "A", as well as
Plats obtained from the City of Coppell and from other documents
contained in the Deed Records, Dallas County, Texas.
In May, 1988, the Subject Lands were conveyed as a portion of
66.6453 acres of land in a Special Warranty Deed, dated May 24,
1988, from The Parks of Coppell Joint Venture II, Grantor, to ABQ
Development Corporation, Grantee, (Volume 88103, Page 2326). This
Deed expressly conveys all of Grantor's rights, titles and interest
in strips or gores of land between the boundary lines of the lands
and any adjacent public right-of-way or easements. The metes and
bounds of this Deed expressly cover and describe the drainage
easements located on the east and south of the Subject Lands. The
Deed also expressly conveys all adjacent easements including these
drainage easements even if the same had not been properly described
by metes and bounds.
This Deed was subject to certain Development Agreements, of
even date therewith, dealing with the laying and constructing of
Heartz Road, as well as drainage water accumulation areas and
linear drainage easements which burdened the 66.6453 acres and a
"Company Site" tract of land situated on the West side of Heartz
Road, which was then owned by The Parks of Coppell Joint Venture
II.
The Subject Lands were divided out of the 66.6453 acre tract
of land by Special Warranty Deed with Vendor's Lien, dated December
30, 1988, from ABQ Development Corporation, Grantor, to Parkway
Partners, Grantee (Volume 89001, Page 7173). This conveyance,
although not expressly describing the drainage easements lying
adjacent to the Subject Lands on the East and South, included "all
and singular, the rights, benefits, privileges, easements, tene-
ments, hereditaments and appurtenances thereon or in any wise
appertaining thereto and with all improvements located thereon and
any right, title and interest of Grantor in and to adjacent streets
and rights-of-way." Additionally, this Deed was subject to a
Mutual Development Agreement of even date therewith.
The Mutual Development Agreement (Volume 89001, Page 7204, and
an Amendment in Volume 89001, Page 7144) covers a "Mutual Drainage
Easement". Therein, Parkway Partners acknowledged and agreed the
necessity to cooperate in the development and maintenance of a
water drainage system and linear park system which expressly covers
the Drainage Easements affecting the Subject Lands. The Mutual
Development Agreement expressly provided that "as a material
inducement to (Grantor) to sell and convey the (Subject Lands) to
(Grantee, Grantee) agreed to enter into the Agreement in which:
(1) Grantee accepted the responsibility and obligation
for maintenance of the linear park system and the
drainage system to be constructed by Grantor on the
easement area, irrespective of whether or not the
City of Coppell accepts responsibility and obliga-
tion for maintaining such linear park system and
drainage system;
(2) Grantee expressly agreed to maintain at Grantee's
expense, such linear park system and drainage sys-
tem improvements in the easement area;
(3) Grantor agreed to construct the improvements to the
linear Dark system and drainage system at no cost
to Grantee, however, if Grantor breaches such obli-
gation Grantee may enforce such obligation by the
means provided for in the contractual Agreement;
(4) This Mutual Development Agreement expires on Decem-
ber 31, 2008 (whereas the prior Mutual Development
Agreement, Item No. 6, expires on June 30, 2000).
The First Amendment to the Mutual Drainage Easement (Item No.
6), dated effective December 30, 1988 (Volume 89001, Page 7144)
added a provision wherein ABQ Development Corporation "agreed to
cause both banks of the drainage channel in that portion of the
'Company Easement Area' (Drainage Easement adjacent to the Subject
Lands and other lands located adjacent to the Parkview Addition to
the City of Coppell, Texas), to be kept clean of trash and debris
and to be mowed on a regular basis so that the grass in such
portion of the Company Easement Area never exceeds the height of
six (6) inches."
These covenants expressly run with the land. They inure to
successors and assigns of both Grantor and Grantee. They are
unambiguous.
B. Doctrine of Strip and Gore
Under Texas law it is well settled that the intention of the
parties in a deed shall be derived from the four corners of the
instrument (or instruments) executed.
In a situation where conveyances of land omit narrow strips of
land by failing to describe, by metes and bounds, the narrow strips
of land therein, a presumption arises against the grantor's reten-
tion o~ gores or strips between tracts of land sold as a part of,
and i~ the process of disposing of, a larger tract. Doyle v.
Stanolind Oil & Gas Co. 123 F.2d 900 (C.A.5th Cir. 1941). In Texas,
and elsewhere, authorities consistently and strongly declare, that
where there has been a division of land into separate parcels by
partition or by deeds, or where there has been a conveyance of land
adjoining, or abutting on, a right-of-way or easement, every pre-
sumption will be indulged against the intention of grantor to leave
or retain an interest in the gores or strips between tracts so
partitioned and conveyed. In the absence of clear and convincing
evidence to the contrary, such as an express, unequivocal reserva-
tion of the easement or strip of land (not merely "less and except"
or "subject to" such easement), instruments effecting such division
of a tract of land will be construed as intending to divide and as
dividing land into adjoining parcels and not as intending to leave
such gores or strips between them. This is especially true where
the area contained in the strip or gore is small in comparison to
the larger tract conveyed and where Grantor retains no portion of
the lands conveyed or receives no benefit by the reservation of
such strips or gores.
Typically, the application of the doctrine of strip and gore
to a strip of land situated as a single strip lying across a larger
tract omitted in a subdivision of the larger tract, results in the
grantees of the adjacent subdivided tracts owning the fee to the
centerline of the strip. In our situation, however, several tracts
of land were subdivided long before the creation of these narrow
strips. Also, the strips are situated along the exterior of the
larger tract. Specifically, the strips were wholly contained
within the 66.6453 acre tract of land prior to its subdivision into
the Subject Lands and other lands. The strips (drainage easements)
were created by omission when the Subject Lands were divided or
sold to Parkway Partners. Here, Grantor, ABQ Development Corpora-
tion and Grantee, Parkway Partners, were the parties to a subdivi-
sion wherein the strips were created and are bound only by the
Subject Lands on the west and north. Grantor therefore, retained
no interest in the strips composing the drainage easement, other
than contractual obligations to develop.
After ABQ Development Corporation defaulted on its $4,000,000
promissory note, ABQ Bank of New Mexico foreclosed on the 66.6453
acres save and except the Subject Lands. The interest foreclosed
upon was later acquired by the RTC. Accordingly, Parkway Partners
is presumed to have been conveyed the fee underlying the drainage
easement strips not just to the centerlines, but to the marqins of
the lands oriqinall¥ described, by metes and bounds, as 66,6453
acres adjacent to the Subject Lands on the east and south.
There have been subsequent conveyances, but no further
subdivisions of the Subject Lands. Presently, the owner of the
Subject Lands claims that (1) it does not own these strips (claim-
ing that the RTC is the owner of the strips) and (2) is not under
the obligation to expend funds to develop and maintain the drainage
easements as they lie adjacent to the Subject Lands. This conclu-
sion is erroneous because of application of the doctrine of strip
and gore as well as the express covenants and obligations set out
in the Deeds and in the Mutual Development Agreements establishing
a contractual relationship between the present successors in
interest to the parties thereto regarding whose funds are to be
expended to develop and maintain the drainage easements. In the
event one of the successor parties to the Agreements refuses to
perform its obligations thereunder, the other party's recourse
would be a lawsuit for breach of contract under said Agreements (or
other remedies provided for in the Agreements).
EXH~B'rT "A"
1. Partial Copy of Zoning Classification Map, City of Coppell,
which includes and identifies the Subject Lands
2. vicinity Map from Volume 98191, Page 3005, Deed Records,
Dallas County, Texas, showing the 66.6453 acre source tract of
the Subject Lands.
3. Partial Copy of Drainage Easements Map identifying the point
of beginning for the 66.6453 acre tract, recorded in Volume
88103, Page 2427, Deed Records, Dallas County, Texas
4. Special Warranty Date (Volume 88103, Page 2326, Deed Records,
Dallas County, Texas)
5. Mutual Drainage Easement (Volume 88103, Page 2345, Deed
Records, Dallas County, Texas)
6. Development Agreement for Heartz Road and Drainage Easement
System (Volume 88103, Page 2391, Deed Records, Dallas County,
Texas)
7. Mutual Development Agreement (Volume 89001, Page 7204, Deed
Records, Dallas County, Texas)
8. First Amendment to Mutual Drainage Easement (Volume 89001,
Page 7144, Deed Records, Dallas County, Texas)
9. Special Warranty Deed with Vendor's Lien (Volume 89001, Page
7173, Deed Records, Dallas County, Texas)
EXHIBIT
STRIP & GORE DOCUMENTS/RESEARCH
A. Doyle v. Stanolind Oil & Gas 123 F.2d 900
B. Angelo v. Biscamp 441 S.W.2d 524
C. Joslin v. State 146 S.W.2d 208
D. Memorandum of Law
(Rights-of-Way - 2 separate Memoranda)
E. Haby v. Howard 757 S.W.2d 34
(partial copy)
F. Krenek v. Texstar North America, Inc. 787 S.W.2d 566
(partial copy)
G. Cantley v. Gulf Production Co. 143 S.W.2d 912
1
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Grantee' s Mai ling Address :.. ~.-,':';~.
.,.. ",' '. '.." 1o2 Mosclow¢:reok, t:uite 106
ABQ Development Corpo[ation '" ~oppelI, TexaS 7501~
P.O. BOX 25625
625 Silver Southwest, Suite 200
Albuquerq?e, New Mexico 87125
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THE STATE OF TEXAS
COUNTY OF DALLAS
THAT The parks,..,:of..CoPpeil.~Jotntil.Ve,ture.Ii~.(.Grantor.),
Texas joint venture;' acting'by and through ~its duly authorized
venturers, for and in.consideration.of the .sum of TEN AND
NO/108 DOLLARS ($10.00) ..'and other good and valuable
consideration paid to Grantor by.~ABO~:;Develop~ent Corporation
~(."G~a~tee,),, a New Mexico,,..,corporation, the~. receipt and
sufficiency of which ate. hereby, acknowledged and'confessed, has
GRANTED, SOLD AND CONVEYED,, and by these presents does. GRANT,
~$E~,'?'AND.~iCONV~Y' U~to~..Grp~m~thoee'~,certain,.:,~traots o~ land
situated in Dallas County, Texas,. ~.described~in .!Exhibit A
attached .hereto and incorporated herein by reference for all
purposes (the 'Land'). ' ....... ." : ',
TO HAVE. AND~.TO HOLD'.the Land,. together with all
singular the ,rights .and .'<appurtenances thereto in anl~i~.~.~'
belonging unt° Grantee and,~..Gra~tee's, successors and
forever, and .Grantor doee~hereby bind itself and Gran~,~rS~
successors and.assigns.to t~RANT~,~AND..~FOREVER.~,~DEFEND
singular the Land unt9 Grantee and Grantee's successors"
assigns, against every~pecson whomsoeveI lawfully claimi~ or
to claim the same. or 'a:ly part thereof~, by,~.throuqh or under
G~antor but, not~ otherwise, *but with '"full substitution and
subrogation of Grantee in and to all covenants of warranty by
others heretofore given or made'with respect to the rights,
titles and interests being conveyed, or any part thereof.
Notwithstanding* anything to the contrary contained herein,
this conveyanoe [~ ~ade bY Grantor and accepted by Grantee
subject to those encumbrances described in Exhibit B attached
hereto and incorporated*herein by reference for all purposes
-* ~=* .... ('th~-"-Permitted Encumbrances-) to the extent that the Permitted
Encumbrances are and remain in effect and affect all
portions of the Land"~~-'~ This conveyance is not intended
shall not be construed ~to extend or .spread any of the Permitted
Encumbrances to any portion of '~the Lan~ not presently covered
thereby. ..'~ ' '
Cu~'ent ad valorem ~axes against the Land have been
prorated between Grantor~ and Grantee as of the date hereof, and
Grantee h~reby expressly .assumes the payment of ad valorem
taxes levied or assessed against the Land for 1988 and
subsequent years. Grantee acknowledges that this conveyance is
made by Grantor and accepted by Grantee subject to the lien for
property taxes for: (i) as to Tract 1, the year 1988 and
subsequent years, and .subsequent assessments for prior years
due to change in land usage or ownership; 'and (ii) as to
Tract 2 and Tract 3,' taxes for the year 1986 and subsequent
years, and subsequent assessments for prior years due to change
in land usage or 'ownership. Notwithstanding the foregoing,
Grantor has agreed to pay any additional ad valorem taxes
(including any penalties or interest, thereo,) levied or
assessed against the Land afte the date hereof arising or
resulting from Grantor's .utilization during *time periods prior
to the date hereof of. open land act or agricultural use ad
valorem tax relief provisions or resulting from the withdrawal
of agricultural use er 'open' land ~ct'exemptions from portions
of the Land insofar . as:~.' any ·such 'withdrawal results in
additional ad valorem taxesLattributable to the period of time
prior to the date hereof (collectively, the 'Additional
Taxes'). The foregoing 'agreement of Grantor to pay the
Additional Taxes is ..a ..'non-recourse obligation, and Grantee
agrees to. look solely to the security provided for the payment
of the Additional Taxes as'~provided in that certain Development
Agreement of even date~ herewith between Grantor and Grantee.
W,~,th°u~:~"warragtY~':~eXP,£,lLIS~/tor~implied~',. ,this~conveyance also
...d. , an.y.':~: ad~,ace, n.~:.. ;p. ub,~--.~- ig~ts-of-w&y,, or~.~!'easements; and
ql~) public r~ghcs-ot~way:~ot~easements.adjaCent~to the boundary
,lines of-the Land~'*.. ! .......... :% , .......... ~..
GRANTOR:
THE PARKS OF COPPELL JOINT VENTURE II
'11
Joint Venturer
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NUHBE R 16&la0
TRACT 2 COI~*T:
TIIENCE in a couthwesterly and westerly ~rect/on ~oug the ~rtherly line of said
Parkway ~ulevsrd a~ said cu~e ~o cbs rfsh~ 'havl~ a rsdi~' of 1006.00 fee~, a
central a~le of 30 degrees 20 sinuOUs 13 seco~8, a tangent length of 272.73 feet
sad an arc length of ~32,66 feet to. an iron rod ~t the e~ of said curve to the
right; ** ·
THEN~ ~uth 88 degases 59 mlnuues 02 seconds ~esc, continuing alo~ the northerly
line of slid Pm~kvly Boulevard. a* distance si 647.81 [eet to the POI~ OF
BEGI~ING a~ containing 1,200,729 square fee~, or 27.5650 seres si l~nd.
~i~ I 66,61~3 Icrc. cr~ct~ of~lSd~si~u~ed in the Clsr/nd~ Squire~ Survey,
Abscrlc~ No. 1327, ~he S. ~ & H.G.R.R. Survey, ~trac~ No. 1130 a~ the Sibered
Henderson Survey, Abstrac~ No. 629 'La ~he County .of ~llas~ Texas, and ~i~ a
~rtion of ~hnC certain Crac~ of ~'u~'~lcribed in ~ed froB ~ Financial
~rp. ~o H. ~uglns.~klns~ Trus~ee;:.~ record~ in Volume 76188, Page 23S~ in the
~ed Records of ~llss ~un~y, T~xls, ~ ~i~ ~re ~r~iculsrly ~scribed
followsl .., ..... . .? .... ~
C~CING ac ~he southves~ corner.o~ a ~rser o['l~nd d~sd~ to Ru~h Perki~ as
recorded in Volume 6921[~ P~g~ I~9 o[. th~'iDe~ ~ecor~s o~' ~11~s ~unry~ Texas,
s~ld corner being on ~he north 'll~ of ~udy ~e Ro~d (~ viriable width
~fNa North O1 degrees 22 sinuses,.19 seconds ~es~, ~1o~ ~he west line of said
Perkins ~racC, a ~s~ance of 620.89 fee~' ~o the Poin~ of Beginning;
~ ~rCh 01 degrees 22 sinu~e~ i~: I ' ' '
. seconds ~est, · distance o~ 2084.13 ~eet to
au iron rod sr the ~ginnl~ of ~ curve ~o the left;
~EN~ ~n · northveecerly.dieec~tou..81o~ said curve to the left hsvi~ e radius
of 209.09 feet, · central a~le oE',:29 degrees 5~8 u~nutee 22 oeco~, 8 tangent
length sE 55.97 feet, aM sn arc length of 109.38 ~eet to en iron r~ at the end
of said cu~e to the left, ot~d ~int bing on the southerly ~ne of
~ulevsrd (es 88 foot t.O.~,)-so records4 .in Voluue 84040, Page 3023 of the ~ed
Records of ~ll~a ~unty, Texts; *' -'
THEN~ ~rth 58 degrees 38 sinutes 49 seconds Eist~ ~ong the northerly ~ne
said Parkway ~uleverd, a distance of a22.5~ feet to an iron r~ at the ~gtnning
of · curve to the ti&hr; - -
, ~ TH~CE in a northeasterly i~ easterly direction alonK the oouthe~y line 9f said
Par~vay ~ulevard_ and said curve, io the r/sbt hevi~ a radius 2156.00 leer, a
central I~le o~ 30 desreee 35 minutes 31 oecond., · tensest lensth oe 589.65
I~ aa a~c lenK:h ol 11~1.15 ~ee:'. to. in iron r~ a: t~ e~ o~ said curve, to the
ri~ht~ said ~tnt ~in~ the' northwest corner 'of the future unrecorded Packvi,v
~dttton~
Pill; 1, Of 7.' ' ':'"?~" ' TICOR TITLE~
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gXHIBIT "A"
TRACT 3 CON'T~
~iiF. NCE. South O0 al'agrees 56 minutes.;25 sec.nde Eaoc...a~.on~ the veac Ltn~ of said
future unrecorded Parkview Addition for · dieC&nc~ .of 646.78 feeC co en iron rod~
.et: che mac re, early sou~esc corner.of
T~ ~rCh 89 degrees 03 minutes 35 seconds EeoC. ~onf ~ eOu~h ~underv line
,q[ *a~d Future Plrkview ~ditlon for I dietonce of 2~.OO feeC
Ch!" ~finnLnf o~ a curve. Co the right having · central e~le .of 1~ degrees 29
mihuree 32 eecond.~ · radius of ~35.00 feec aim · rsnfen~ length of 55.31 fee~;
~ ~urheeo~erly. conCin~ins '~!on[ said south bounds~ 11~ of slid future
~urecorded Psrkviev ~dicion e~ alums sold curve ~or an err le~ch of 110.03 ~eec
~o an iron rod I~ a poinr of reverse curvature ~o
centre1 angle of 05 degrees 49 minute, ~2 seconds.
tangent length of 33.85 fee~;
~HENCE Southese~egly) continuing oLo~-~8fd south bounda~ line of 8~ld [u~uge
unrecorded Parkvlew ~dl~i~n a~ ~oM ,,id
~o an iron rod sC ~he e~ ~i ,aid eurve~
~CE ~uch O0 degrees 56 minutes :'25~:;.eco~l:'r~r for s disrsn~ of 22.59 reec ~o
an 1rom '~'8~ ~he ~oc 'southerly '~uc~ ~ruer of ~ld future mrecorded
· lrkviev ~diCion~ said iron r~ al,?: lYi~:'On
~becrl~r' 1327 ~ro, Slid "bstrle~ '629,":.1d ,bo~rle~ line ~oo bi~ she north line
o~ · ~ricc of ls~ deed~ rs J 6~ S ~upeny* hc.~ ~ record~ In Volume 70009.
Pore 0433 In the. ~ed Records of hlho ~n~p Texas.
,T~N~ ~uch 89 degrees 03 uinures.:35 Se~.
said notch ~X~ of said J & E ~,pe~y':cracC a diOt/n~ o~ 1148.91 fee~ ~o sn iron
r~ ac the norch~eoc corner si oa~d J'i g ~nnany trace:
T~NCE ~uch Ol degrees O~ minutes 16 see.nde
alon~ the veoC ll~ of eaid'J i'K ~epan~ trace
an iron r~ ac the eouChvff~ corner of °aid
THEN~ ~rCh 88 degrees 34 minutes 54'secure East along the south line of said J
& E ~mpan7 crate for a distance of .63.8.3~
corner of a crate of h~ deeded C0 John H.
PaSs 595 in the ~ed hcord8 of ~lao County. Texas;
~KN~ South OS degrees 51 uinu~eo 03 eec.nde
Burns Crate EoF a distance of 1~53.29 fee~ to an iron rod on the north R.O.g. line
of Sindy.~ke Road (a variable width R,O,~,)J
~EN~ South 88 degrees 28 e~nuCe8 22 seconds geeC alo~ said notch R.O.W. line sE
8a~d Sa~y ~ke ~ad a ~sCance of 677.68 feec co an Iron r~ aC the southeast
corner sE a trace o~ la~ deeded Co Bhirley hrpold aa recorded ~n Volume 77116.
~ase 627 .in the Deed ~eeordf o~ ~lle8 ~unCy.
' ' NIJHBER 164180
EXHIBIT "A"
TRACT 3 CON'T=
/HENCE North O! degrees 54 ulnutes. 52 seconds East leaving said nozth line of
Sandy ~ke Rood) ~long the e~st line of s~td ~rpold tract for a distance of
566.07 feec to an Iron rod at the northeast corner of said Her~old tracg;
THEN~ ~uth 89 degrees 51 mlnutei 1~' seconds ~eot,~ ~o~ the north line se enid
Harpold tract a~ the north line of said Petki~ tract, for n distance of 630.05
feet to the Point of ~ginn/ng a~ containing 2~903,071 eq~re feet, or 66.6653
ecte8 o~ land.
Page 7 of 7.
5
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:- . ,,k.'.. ';, TICOR TITLE I,r'"J~;I-J4,~-&NCE
THE STATE'OF TEXAS~: :'. §':~'"!':'?"' : -,,',;.;"~",
· .. , .'~:., ;. . . . .
COUNTY OF DALLAS ,. ,,,>, :!,~,.;.,.~:.,, .: . § ....
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' W ~:'T N E $ ~ E T L[ : A..-, $].Q~ DEEO.
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-..'?~'~?,. ,~,%:,,., ":' :, ~,
W~AS, o~' ~he"~a~e he~eo[, ~he~.a~o~'~Co~ell ~o~n~
conveyed ,.to '~Q'~:~¢~pmeat~..COrpo.~ation,~(,~,Compan~" ), a
Mexico corpora~i~n~ [~aL~,Cekkaih~:~l~nd.~'~d'~'i'e~ibed in a~tached ',
Exhibit A (the "Compan~.Si~e"); and
~HEREAS, Venture' owns ~hat cec~ain land desccibed in
e~tached Exhibi~ B-(~he 'To~n Cen~er Si~e")which is ad]acen~
~o a portion o~ ~he~Company, Si~e; and- . ,.
Compan~-..~Si~e"=-.described~in~;~a~ached~,~zhib.lt C ('k~e "Company
Easemen~,,..A~ea~.) ..... a~.linear~park.~ch~nnel=~.used [or .s~orm
..~t~inage;,~,and· . .. >'~ ..: :.~. , ..
,.., .. ,,.:.' .
~gRgAS~here~Ptesan~ly,~xis~s.~on,~.~ha~o~ion o[ ~he Town
Cen~er-~Si~e ...... described~in--,a~ached ...... Exhibi~ D (~he "Yen[ute
Easemen~.,-,Area~.) .... a,-~l&near.-,park~channeL..,.used [or s~orm wa~ec
drainage;--and.~, :, ~....
. .. . .: .....,?.,,.,~.,.~.,.,.~ . .~. · , · . '..
~ ~be lineac
WHEREAS,,~.~ he ~,e~i.'i~&,~g~con[.igU r a ~ ion ~ and-s i ze. o [
park~channel .loca~edvon,~.'th~".Town Center Site and,. ~he Company
Si~e,has~,been~designed~O~ha~he~.s~orm~,wa~e~ d~ainage systems
[ o ~.:~be ~Town~'.'~.Cen~er~ Si t e~eand.,~ha,~Co~tpa ny' Si~e are
~ter, dap~ndent; and ,..::
l,,,-indueemen~.~.~o,~Ven~u~e~to sell and
co~vey,~he,,.CompanF~S!te~o,Compan~and~o~Company~o purchase
aaa--accep~-.'~he~.Comp~nF~Sj.~e..-~[rom~,Ven~u~e.;.~.Ven~ure i~d Compan7
ag reed.~o,, enter~i n~o ~hi.se~.~9:I l~D~l~nlge~ll~men~ ]
~0~, T~g~FO~g,.~ [o[::"and in· conside~ation of ~he [)remi'ses
and of the ag~eementshcon~ained herein, Venture and ~o~apa'n7
agree,as ~ollo~s: ..~.:,;¢~:~ ...' '.
A'. .Company..hereb7 GRANTS AHD CONVEYS ~o Ver~ur~,'~=d
~ Ven~ure's successors and assigns, a non-exclusive ,easem,~n~ '
"' (the :"Compan~'.:gasemenh") in, under, over and across i'he
Compan7 Easemen~ '~rea. ' ~ ~
. .~':' _.,,..~, .'..'. ~.'.:.'"~'".~'"~. ~ ~ "~
~:'.: :- .. :
'> ' " "t~'" ' "/v ' :' ·
;'.c.;;,:,.~ ,. .. ~' :., '. ' 'r.'. ':.' ..' ;~ " ' , '
· ...:...:~-. .%. ,, ~..¢ ,;;,,,.. ~; ~.:: .' ~.~.,,.~ '~'
:i~¢~"~;' "'. ::': :~..'"' "'~.',f'~'<f~J.' '"pL".'"'¢,~.',:~:? '" '":':f" "'
'B. "Venture?hereby'GRANTS .AND CONVEYS' to Company, and
Company's~' successors ..,and. assi~./ns, a' 'non-exclusive .easement
(the #venture",!:Easement~)' in',' under~ .over and across the
A. SUb]ect'..,to "the'. relocation"."rights described
Subparagraph A'of'..'paragraph 6. hereof .~and to those matters
described, in~/~at~'ached . Exhibit E, Company hereby binds
itself and .Company's successors and:".assigns to WARRANT AND
FOREVER DEFEND"the ComDany. Easement' in, under, over and
across the Company Easement Area unto' Venture and Ventur~'s
successors and~ assigns against every party whomsoever
lawfully claiming- the same, or any part thereof, by,
through or under. Company, but not otherwise.
B. SubJect~bo 'the .zelocation'"rights described
subparagraph B of?~paragra~h'6 hereof and to those matters
described ~n att%ched.~:'i Exhibit F, Venture hereby binds
itself and ventur'e's' successors and assigns to WARRANT AND
FOREVER DEFEND ' the Venture.3.. Easement in, under, over and
across the vent~re~"Easement~Area unto.Company and Company's
successors and . assigns<:, against every party whomsoever
lawfully cla~m%ng'. , the '"' same, or any part thereof., by,
through or under Venture, but. not otherwise.
3. Use. '." '
..... "A. ' ~'' The ":~Com~ny Easement and the Company Easement
~re~ msy'"be USed.~:by..Vehture .andWor Venture's successors ~nd
assigns 'for:~ (i).~storm water drai~ge,"from ail or portions
of the Town ~Center'~Site~ and (ii) the'location, relocation,
construction, ... ted6'ns~ruction, alteration maintenance,
repair, inspection; operation and removal of anf
improvements 'required by the ~ty to: facilitate or improve
storm water~"d~ai~age 'from a~ll' 'or ~poztions of the Town
Center Site a~d~or~the 'Company Site.
-
B. ~ The aV~'~re Easement 8n~ 'the Venture Easement
...... Area-maY:be used~.by company sn~/or Company's successors and
· ' ~ssigns for~'"..'.('~).storm water ~rain~ge ~rom all o~ ~ortions
of the Com~y':"S~te~. ~nd (~i) the location, relocation,
constr~ct~on,' "'reconstruct ~on, alteration, maintenence,
-' repair, ]' "i nspe~t io'n,· operation ~nd remove ~ of any
"improvements. required by the City to facilitate or improve
storm water drainage f'rom all or ~ortions of the Company
Site and/or'the~ToWn Center Site,
4. '
.':. "A.":'~>'Company'. hereby reserves the right to: (i) g-ant
other easement · rights ih, under, over and across the
'~"" :.~ - 2' -
· : ..:. '~..~!;.; ~ .. ,., . . · .': ,
Compan7 .l~.asemenl:,.'A£ea' [o~:~an7 ~use'wh~cb.;,does no~ preven~ o¢
make mo~e~ e~pens'~V'~. ~he?'~se '~o~: ~h~cb,~ ~he Compan7 Easemen~
~s' gran~ed~ ana'.~(~) use ,,and make.",'~mp~ovemen~s ~o ~he
CompanT. Eas~mea~,'~';:Area .'.:-~o~..',an7 purpoS'e ~h~ch does no~
preven~ o¢ make,~:mo[e..;.'e~p&ns~ve "Lhe ~',use ~o~ which ~he
.-., B.' .Ven~ure..~hereb7 .reserves ~he~¢~gh~ ~o: (~) gran~
o~he¢ .easemen~:?;;'~'~'gh~s ~n. ~unde¢. &~e¢ and ac[oss
ven~u'¢e Easemen~.'A~ea ~o¢ an~.use ~h~ch,does no~ preven~ or
make more.expens~ve.~he use ~o¢ ~h~ch:.~he Venture Easemen~
~s g'¢an~ed~ and '(i~) use ' and make':"~mp~ovemen~s ~o ~he..
Venture Eas~men~.:,;A~ea ~o¢ an~ purpose ~h~ch does no~~'
preven~ o¢ make',.~'=mo~e e=pens~ve ~he ~ use Co¢ ~h~ch ~he
Venture Easement, ~'s .granted. .'~'
5. ~asemen~ ,~mp~vemen~s; :, =~.~he~V. en~ure ...... o~ Compan~
'C~ ~ ~0 :,~e .~ven~ure~EJ-eemen~:A~l~nd~¢:~[he companT.. EasemenY.
~Arel-' F'~"' ~o ,".'~,. ~ ac ~ Z ~ ~a ~e~6~mP~6~e~. ~0 rm'. ,' wa ~e¢~ ;, d¢a~n a_e~ E¢om ~he
T.oWp:~.Cen~e¢.,:',~S~e;~'&ndZo:¢~;{~.~be~CompanT..~t,~e. The . costs ~o
co~s~uc~.an~.;~easemen~mp~ovemen~=~aha~be pa~d by ~he
causing ..~he,~-cons~¢uc~'~on.,-.~he~eof (~he "Easemen~ Zmp¢ovemen~
appZ~cabZe.~.easemen~area,~ (~he',",Ven~ure' Easemen~ Area or ~he
Compan7, Easemen~ ~.Area),,..'.¢equ~¢e'd~b~,~he...C~7 . have no~ been
¢e~mburse~:-~he~.Easemen~.~Zmp¢ovemen~-.Cons~uc~o¢ Eo¢ ~he Basic
(60) da~s', a[~e~., ~e..,di~e'5[: ~he'comp~e~on o~ ~he app~cabZe
easemen~ .~mpr'ovand~:;:a.ZZ'~,'~mp¢ovemen~s ~o ~he,..app~cabZe easemen~
area. (~e Ven~ure.;'~Easemen~ Area o¢ '~he Compan7 Easemen~ Area)
required, b~ ~he ~,",:emenEs~' (~) [o~y-~ve (45) days
~he O~he~ Pa¢~7 has.~ce~ved cop~so[ Construction con~¢ac~s.
invoices, s~a~emen~s' and o~he¢ evidence reasonabZ7 ne~essa¢7 ~o
establish ~he amount, oE ~be BaSic Costs and ~he ~uZ~ pa~men~
s~e owned b~, ~he :'.O~be~, Pa¢~: has been p]a~ed. ~e ~he O~he[
appZ~cabZe~easemen~area (~he~ Venture EaSemen~ A~ea o¢ ~he
Comp'an~ ~seme,n~-A~'e'a ~ ~equ~.¢ea~.bY.~he,,,C~'~Y. have been compZe~ed
appZ~cabZe-.,.~eaaeme'h~{mprov~men~ .... ~he., O~he¢ Pa~7 sha~ no~
Cons~¢uc~O¢.,Eo¢..~he~Baa'~c..Cos~. .As used here~n. "Basic Costs"
moans ~he m~n~mum costs nece~sa¢7 ~o cons~¢uc~ ~he ~mp¢oveme~s
easemen~ ~mP~ovemen~s~.'; constructed sha~Z contain suE~c~en~
c3pac~ ~o a~]o~ .~he~,'deve~pmen~ oE bo~h ~he To~n 'Cen~e¢ S~e
and ~be Compan7 S~e~'~o ~e.maz~mum densities
,.. ', ~,, .,' ,.:
l.,.. 3 .
the zoning designationS"ap'p'licab'le' to' the'.T°'n'":'Center Site and
the Company Site..'on the;';date::.'of:'~.this' Mutual,~ Drainage' Easement,
Basic Costs shall: not~:, inCldde::,supervision,:.and/o~ove~head costs
o[ the Easement Improvement:?[Constructor;.nor,~ unless approved
the Other Part7 in .writing,.,shall~.Basic:.Costs include items
such as~ landscaping or~.othe~ improvemen~s'.no2 ~required by the
City. Basic. Costs '~.~shall'~,' be · established ..~by..~ the Easement
Improvement Construct°r..,.,obtaining ~a. separate (:bid or contract
covering .only thetcosts~:to{':construct ..the~ improvements required
by the' 'City o~ ~ the~:~:,Other 'Party's~.,slte~?.'=, The Easement
Improvement Constructo~':'. ghall .,~obtain ',:at {.least three (3)
competitive bids 'frbm..th'ree . (3) different~ contractors for the
construction of the improvements required by '.~.the City on the
Other Party's. site, .and ::'.the Easement ..Improvement Constructor
shall accept the lowes~'bid'~unless the Other Party approves the
acceptance of 'a higher,,["~bfd, in .writin~ ..... Both ..Venture..and
Companz,. agree to. delive~to--the:~.other~copi%s,<,(including all
engineering in~o~mation)~,'°'~-~any~pllts..,,filed-.with the City on
each. party~s..site ,.concurrently....with,,,any..,,such~,,filing. with the
an~ pa~..o[ the Compan~ Easement"Area and ~all or an~
o[ an~ ~hen , existing ''::easemen~ '.:improvements. An~ such
relocation .,;.is expressly (,?condi~ioned. '~'upon: (i)
subs~itu~ion:o~ a di[[eren~'area o~.~he CompanF Si~e as
Compan~ Easemen~ Area[~'b~.,~ompan~ .~hich ~ill provida ~he
s~me o~. grea~er 's~orm:~[~a~.drainage [rom.all or portions
o[ ~he To~n Cen~er'...,,:Si~e ~ and/or ~he . Company Si~e as
provided by ~he:Company.. Easement'A~ea.described in ae~ached
. Exhibit. C~ .(ii). t~e~reConstruc~ion:,., by'.Compan7 .o[ anF ~hen
: :existing .easeme~t;,~:~.xmp~ovements ~...'necessi~a~ed b7 such
~ ~elocatio'n;... and ..(iii)~.Compan7 :.no~ ; ~aking. ~n~. action
in~e~ere ~ith.. ~he.-exis~ing .Company: E~semen~ A~ea and
~hen.exis~ing~ easemen~;<improvemen~s, until ~he ne~ CompanF
Easemen~ :Area, and'.~recons~r~c~ed 'easemen~improvemen~s are
~ead~ ~o [unction.~'?f'~ll-~cos~s o~ an~ such' 'relocation shall
be pei~ b7 Comp~n~,~.,;:and' Venture shall': not have
- obligation,..to. ~eimbu~S~:;~Compan~, [or 'any..'portion o[ s~ch
relocation, costs ?under.. the provisions.' o[ paragraph 5
he~eo[. Upon ~he~':subs~i~u~ion o[ a di~[er'en~ area o~
Compan~ 'Sl~e as .~he ..Company. Easement Area .b~ Compan~ and
~he comple~ion..o[ ~he' reconstruction b~ Compan~ o~ an7 ~hen
existing easemen~,:~,improvemen~s' ~hat are..;:'~eloCa~ed,
portion o[,~he Compan['~Si~e,~or,'~hich Com~an~ substituted
di~eren~ a~ea:< o~ ~he'.Compan7 ~Si~e. as the. Company Easemen~
· A~ea shall be. deemed,:=released. ~rom' ~his ~u~ual Drainage
E~semen~,..and. Ven~ure'>.agrees.,.;~o ~execu~e and deliver -~
' Compan~ an instrument' ~eleasing':such area~ ~rom ~his ~u~ual
D~ainage Easemen~ i~ requested ~0 so b~ Compan7.
~. r~n~ure.'f~'ai't'%have ~h~'. rig'h[,~o":.reloca[e att or
oE any ~hen 'existing',,:eas'ement improvements. Any such
relocation ts -expressly. conditioned upon: (t) the
substitution o£ a diEEerent area oE the.Town Center Site as
the ?enture EasementVA:rea by. Venturo,*which wil! provide the
same ~r g£eater ,storm::water drainage erom.al! or portions
oE the Company,'.Sl~e':t~and/or the Town Center Site as
provided by the Yen:ute Easement'Area described tn attached
Exhibit D; (ii) the,':reconstruction by Venture oe any then
ezisting ease~en~./~ t'mprovements necessitated by such
relocation; and (tit) Venture .not taking any action
inter,ere with the existing Venture Easem&nt Area and any
then existing easement, improvements unit! the ne~ Venture
Easemen~ Area and:~Eecons:ructed easement improvements are
ready to :unc:~on;' All costs o: any such'.reloca:ion shall
be paid by venture/:,, and Company shall not have any
· obltga:~o,~ to reimburse,Venture :o~ any,pot:ion oe such
relocation, costs., under'. ~he .:~.p:ovisionsf' o~ paragraph 5
hereof. Upon the .substi~ution~:oe. a diEEe=ent area o~ the
Town Center Site,Fas~,the,,Ven~Uze Easement. Area by Venture
and the completion..o~',~the-recons~ruce~on by Ven~u£e oE any
then existing easement improvements that are relocated,
that portion o~ the/.Town Center Site eot which Ven:uce
substituted a'di~eeteht~.area.oe, the Town,~Center Site as the
Venture Easement Area'~,.shalt' be,deemed released erom this
Hutua! Drainage.Easem&nt, and Company agrees to execute and
deliver to Venture';an..'instrument releasing such area
:his Mutual Drainage/.Easemelnt it. requested to so by Ver,~ure.
7. '~ineet~EP&=kl~l~e~£o~emqnes,t .Ezcept~"~as~,-provided tn
paragraphs~~S~tand=6~.,h~reoe~*Vent'ure~end~Company~agree ehae each
pazty,~,~is,~,,~respo'~$ib~e,~taeor~the,.~c0q~$....¢~o£~constzuc~ing any
tmp=ovemen~s,..~o,~the~tOposed,~lineat~.~patk,~.,sYs:em located upon
~he.applicab~e.;pa=ey..s"~n'~siee,.tncl~dtng;'..~tehoue limitation,
all~,.d=ainage.,~syatem~.~tmpzovements..~All~.such.,;conseruceton shall
be ...... pez~ormed=,.:wt~houe~matertal:~devtaeton.~?Erom plans and
spec~ica'~tons..~hereEo=.~eo~.be...approved'"by'=~'~he'.C~ey. Venture
and Company hereby acknowledge ~ha~ ~he e~ts~tng configuration
and size oe ~he linear?park channel has been:.deslgned so ehae
~he drainage 'systems'.:,~o:~,~he Company. Site and the To~n Center
StYe are. tn~erdependen~.:,~: Consequently,. Venture and Company
each agree ~hae,.~i~hou~he prior ~r~en consent o~ ~he oehe~
pa=~y, no easemen~ shall, be granted, and no improvements ~o ~he
linear park .eye:em' on:~ ~he applicable pa=~y's st~e ~tll be
cons~:uc~ed tn any .mannec.~htch ~tll increase the amount of
~and area requt:ed ~o:'~d=a~nage o= 'drainage ea~emen~ on
o~het party's si:e~.ptovtded,., however, nothing herein
in,ended,o= shall be cona:rued~ Co. limit, inhibit ot res~r~
Ven:ure's right eo develop ~he To~n Center Stet eo tee maximum
permit:ed density under cu=ren:.zoning ordinances oc Co
'~ ~',:~" ~',~t?~' ~. ,"~ ' '
' ~.~ '.~ '~ ' "h.?.,?.:: '..'./:, c~"~,~t. . '. ~. ,.,. ~ ~
inhibit or. res~rict'Co~'~'ny's,/right :to develO'P the Company Site
to its' maximum .!'permitted,, density, under:~ ~current zoning
ordinances.
unde r... ,,tha,.,~..terms ,.~provi s ions, ~.,.:~ condi ~ ions,~., covenants and
ag~eements.~,,.contained~he~ein.. (the .~ applicable party, the
"Defaulting Party~),"4~he,~.~othe~.~party (the · ,Non-Defaulting
Party")..shall~.have~the~riqht..to= .... (i)-seek~injunctive relieff
require~.: the;.:.~ Defaulting~:~,Party ..~.to,~per~orm~.such . duties
obligations; ( Ii ) ' seek~compens at ~on ~ ' 'fo r':;",, damages - 8rising or
resulting from the failure of the Defaulting Party to perform
such duties .,or. obligations: (iii) cause, such duties
obligations to be performed in. which event all sums expended by
the Non-Defaulting .Party in. causing such duties or obligations
to be performed shall; become a demand obligatio~ owed by tho
Defaulting Party to..the; Non-Defaulting Party ~rom the dates
such sums are expended .by.the.(.Non-Defaulting..Party, shall bear
interest at the lesser~;.of.'.the]..highest, law~ul contractual rate
of interest or: eighteen ].':percent ,(18%)per annum from the date
expended by the Non-Def8u ~ting' .Party until repaid by the
Defaulting Party, a~d shall be subject to collection by suit
any court., of..compete,t jurisdiction~ or . (iv) exercise all
rights or-remedies otherwise available at law, in equity or by
statute. All rights.and remedies sh~11 ,be cumulative and not
exclusive , It: is expressly agreed that time is of the essence
tn the performance :::o~.....all terms, provisions, conditions,
covenants '..and agreements cogtained herein. ,: In any legal or
equitable .pro~eeding. forj'.the enforcement of any of the terms,
provisions, conditions "' covenants or
' ,:: ~:: . agreements co~ta ined
herein or for ~.damages[.,~for the breach- o~ any of the terms,
provisions, condi~ions,;l-', covenants or agreements contsined
herein, the ..los~ng.,~;pa~ky~,shall..,. p~*'.the.',..atto~neys' flees ~nd
Cou · t ~co s t s ~.o f.,:., the., p r eva'i'l ing .p a r ty. ~ .....
means~and,,includes~entuze, and all..subseque~t, parties who from
~an~ana-~}nc~uoes~c~~-end~ai-Z~Ubseque~,~a~ties who ~rom
condi~ion~;' :6ovenant'~a~d., ~g'reements~ contained in this Nutual
Drainage Easement a~.e~nan~s~unning~ithsthe,.land, and shall
bind .~and.,. inu~e~,to~.the~beneii~,oi~Ventu~e,: and ,Company. and their
~eapec~ive~ ...... hei~s,.~devisees,.,,.v,~,pe~sonal..,~, ~ep~esentatives,
or equitable',..title.,,to~al.l,,:or,,,portions..oi~..the To~n Cen~er
or the Company
covenant.or agreemen~!,~anta~ne~ he£ein-~is :held to. be illegal,
invalid or unenforce~ble,.-.:.the' '..:legality/:. validity and
enforceability of the 'r'emaining terms, provisions, conditions,
covenants and 'agreements;~contained-herein ·Shall not be affected
therebl',, and in .lteu.~'o[ each 'such illegal, invalid or
unenforce'able . term,.-.!~;.provision,.: condition, covenant or
agreement, there' shal'l'.f.i,tbe' added" to this;?Mutual Drainage
Easement a legal, (..vaI{d '~nd enforceable'?~erm, provision,
condition, covenant 'or agreement'as similar..ai~ possible to the/
term, provision, ~ ~onditi'o,, covenant or agreement declared .
illegal, invalid or unenforceable.. .. . .......
11. No Waiver.. 'No.~aiver of .any of the...'.(erms, provisions,
conditions, covenants'or, agreements contained herein shall be
effective unless in writing executed by the. party for whose
benefit the applicable, term, provision, condition, covenant or
agreement is intended ..'.~'.
· :~ta~No. :waiver of any..~term, provision,
condition, covenant or.:,agreement, contained'J, here{n under a
particular circumstance'shall:;be deemed a waiver of such term,
provision, condition, covenant or.. agreement under a different
12. Captions. The" captions' contained in this Mutual
Drainage Easement are flor convenience only and shall in -no way
enlarge or limit the scope .or meaning .of the various and
several paragraphs hereof.
13. Gender. Wit~in',thi~ Mutual Drainage Easement, words
of any gender shall be held and construed to include any other
gender, and words in .the singular number ~shall be held and
construed to include the plural and .vice versa, unless the
context otherwise r~quires. ,
14. Counterparts.(""~his Mutual I~r~inage ~asemen~ has been
executed in multiple counterparts, each of which shall be
deemed an original, and. all ~[ which shall constitute but one
and the same instrument.,....
15. Exhibits. Ail' exhibits attached hereto are
incorporated.._ herein .,by?:~re[erence [or all purposes ~herever cO
reference is made to the. same. ,
16. Governinq Law.,,.,This ~utual Drainage' Easemen~ shall be
governed by and construed in accordance with the laws of the
State of Texas, and Venture and Company both irrevocably agree
~hat venue [or any .,dispute involving this ~u~ual ~rainage 00'
Easement shall be in'any court o~ competent ~urisdiction in co
Dallas County, Texas.;,.:.,...~,[[?. -.
17. Complete Agreement. ~his ~u~ual Drainage Easement
;.. embodies the entire aqreement between Venture and Company wi~h
',7
respect to the subject matter,hereof ~and supersedes all prior
agreements, written or or&l,~!~:with respect to the subject matter
hereof. ¥: .... "
EXECUTED as of the - · ay of , 1988.
: '"! '?, .:":¢,VENTURE; ,..~_.....!.
.. ?i '.? · , , ,- ;..
' ' '?THE~PARKS~OF-~COPPELr'~JOINT' -" VENTURE II
'
. ,t'~ ~ ' INichael R.'Allen
Joint Venturer
~ . , ~ ,..
'
. .~..~ ~,,. -~ .~, ':'.,'
~oint ~ntur~r
.,~ , //~oh. ~.~
~Joint Ye
By: The S.tacy Suzanne Allen
Special Trust
Joint ~enturer
" ~ M~chael ~R.
' ' ' A~o~ney-~n-Fac~
.
-'"'B~J The Ch~is~ne Anne A~len
";' Specia~ T~us~,
.. Joint Venturer
. .. ., , -'
" uMi~hael R. ~l'len
Attorney-in-Fact
' :- : ,:'~'.'=~',~ By: The John Michael Allen
' '~;, + :o": ' Joint Venturer,
" A~ko~ ney-in-Facb
'- By: The David Crittenden Alien
'~":~.? .~ : Joint Venturer
:]¥ COMPANY ~
(:.< ASQ~PE~ELOP~ENT CORPORATION
,:;.. · ' Sta~Strickman
r'- Senior Vice President
· .t ,.'.! ',-',?.~{~!' ,:,, ,..' - ;,',' '~ ·
..... .,~.,..?~::.,., ,,., .:.' ,., ,., .- , ,. :.-. ~.:
). '/~ ~,(!~; .~ f, . ~ ..,-
:~;,,, .' ..'. _-. . ., ..
THE STATE OF TEXAS ' "":"i'''{ '" {''~j''''''~ § ~" ' ' : "?'''::i''
COUNTY OF DALLAS ......
This instrument' was 'acknowledged before' me
1988, by, Michael R;~ Allen;.~a joint uenturer."in.*The ~ar of
~aid joint, v~ntur~. .~: ~ ~.~j,~:.. -
My Co~ission Expires: " " ',
' :' Printed Name of Notary
THE STATE OF TEXAS :;].':]:S 't
COUNTY OF DALLAS ;': §
This instrument wa~ acknowledged bet~ore me on
said joint venbure.
GIV~ ~ HAND AND 'SEAL OF OFFICE, this the day
of , 1988.
0
.
~ :'~ bhe Sbabe of Texas
~rinted Name o~ Notary
o3
. : ~,,,,~ '~',.'.,~'~ :.~ .~...;~;.,., . ...,. ......
...... '"" l~? <": ~'?'-"~ ..... ';: ',' "¥' '," "'";' .".'!, 3"~. '
... ~ ~;.!...,'.:. ~'.~;,s · r'. ,,: ~'.
" ~ .-'; ' _1 ~ '- ,,.
'; ?.,i .-,
1988,.~y John B. Kidd,'. a,.join~.ven~urer in. The'~,~a ks o~Coppell
Join~ Venture II,. a ~Tezas join~ -venture, . on bebal~ o~ said~
joint venture. ~ ~.... :
GIVEN~DER ~ HAND" ~ND SEAL OF OFFICE, this the
~o~r~ ~ubl[ ~nd for
the State of Texas
My Co~ission Expires:
":"'" Printed Name of Notary
. ,,% ~' .
THE STATE O~ TE~S '""' """'
' / ' : ,<.:;3
COUN~ OF DALLAS
This instrument~was acknowled~ed~ before me on ,
1988, by Michael R..,.Allen, as Attgrney-in-Fact of ~e Stacy
Suzanne Allen Special T~ust, a joint, venturer, in The Parks of
Coppell Joint Venture ,II, a Texas joint'.venture, on behalf of
said joint .venture ....
GIV~~R ~ND AND SEAL OF OFFICE, this the day
of _ ' ~ _,,1988'
~' .... Notary Pubic in and for
' "'~' the State of Texas
My Co~ssion Expires:-'
~rinted Name of Notar~
.... ' .r,,'.,..':;'q':/~ ..... 11' -'.,~-',~ ..... ....
. .,. .,. ,~ . ,'?~/~;.~:.i~3%~:'~ ,. '. .~. , :.; .., :..:, ?..
.. , ',,~-,. c ....... :. .,.,- . ,.-: ,-..:~
:. ~ ~. '~( .... ~ ,:~ ' '. t,,', :~,,; ... ..,, ·
...~,~/ '~ .:'. ......... · ".
' ' ' ~ ~'~.","~, ' '~" '" .'~ ""' '
,,, .~, ~%~;~,, , .,, , ..,;.,.
THE STATE OF TE~S. '";.: : " ' ' ' ...... ,"
~:,,: ;::../:~ '- · L...'., .,,>;..~
1988, by M~chael R..Allen,,.as Attorney-in-Fact.of".~e
Anne Allen Special.,: T, rust;".. ~' joint venturer in "The Parks
Co,gel1 Joint Venture II, a~Texes joint venture,~;:on behelf
sai~ joint venture.' ,h...'~>,~::". .... ....
of _~, 1988.',,',';c.. ,, ~ .~,
~ ';'.'.'~'b''. · ',' ':~%.' :~" . . ,
~ .< <'~':: ... ~ , .... : . , .
~)~ S~l~ I . .:, Notary Publi~ in and f~ -
~~ . ":'. . the 8~ate o~ Texas
~y Co~tsston EzgtCes: ,,x :
~:.'~ e¢~n~ea Name o[
T~E STATE OF TE~S
COUN~ OF DALLAS ~
This instrument was 'acknowledged before me on
1988, by Michael R.',",Allen, ~:.as Attorney-in-Fact
Michael Allen Special Trust~,:S.,a', jpint venturer in' The Parks of
Coppell Joint Venture II,',.a .Texas joint venture, on behalf of
said joint venture.
of /~ ~ , ,1988. '.
,,---~ ~] ............... [;. '.: . :
, . ~l~l~f$ ~ . ~o a '
,': the State of Texas
.
Ny Co~tsston Expires: :,:
Printed Name of Notary
"': ¢~i~ , z:
-: ;:, ~',.~t ,. ,"
.t~]'.., '~ ..... ~ ; ,.. ' "' ~"
· % "~ ' ." :':.': "~ '~ ".i
...... ~:. '~g".i', ' ,~ :' : '
COUNTY OF DALLAS .':: ::,~..,./.,,..~,~ S . ;. . ".
This instrument wa~ ': ac'knowledged' before toe':on _ ,
1988, by Michael R. Allen; as A~torney-in-Fact o~ ~e D~vid
Cri~tenden,'Allen.Special Trust, a ~oint venturer in The PaEks
of Coppell Join~ Venture II, a Texas ]oint venture, on behale
of said joint venture., ' ..... ~..~
GIVEN~R_~ MAND ~AND SEA~ OF OFFICE, ~his ~he
day
o~ ~ ~ , 1988
',' Notary Publi~ in and for
-~...' . . the State of Texas
My
.... ~ Printed Name of Notary
THE STATE OF TE~S · '~
COUNTY OF DALLAS ...... ~-~ ." ',' ~
Th~r~$'rument ;as~knowledged ~efore .e on ~ ~ ,
~988,~ .'bY ,S/an -Stric~an,~. : Senior...Vice . President ~E ABQ
Dey~}opment~=~orporatio~,La,~ew,Mex~co corporation, on behalf o[
sala[co:po[a:lon, x ,,.
azv .;u o a Chi. the
Oi ~,..
Notary Pubic Yn and [or
. the Sta~e o[ Texas
My Co~ission Expires: .
.
Printed Name o~ Notary
4560S : ' , '.".;.
, , ,.{( ,' .. ..
~.. . . . '.~.~,':c'.~;:'?~ 13. ..
.... .: .;,. ;~:.:. ,'.. · ~ '.'";:~ ,. '..
,, ,... ., ,..;:,.,...,i~.,,,,~ :':, ,
..'~' t./i,,~..:~ , ; .,, :, , ' . ....
~:..~ .~.:'~ ';~-:.;'..,~.~'.':' ~ ,. ;l,, ,., ?;,.,: }~f!'.,'~(?.'. ~.:"'
Clarinda"Squlr=s Survey, Abstract
No. 1327, the S.A. I H.G.R.R. Survey. Abstract N~.. 1430 ~nd the Slbered Henderson
Survey, Abstract No. 629 in the Cowry of ~nllas. Texas ~nd,~in; a portion of that
certain tract of' land ns~descri~d, in,.deed fron rood Fi~nc'ial .Corp. to H. Dou;las
~kins. Trustee, as recorded in,Vol~ 76188~:~~,23S$ in. the De~d Records of Dallas
Cowry, Texas and ~in~ note particularly descried as follo~s;
C~CING at the southwest ¢o~er~?.0f a/.(tract o~ lnnd d*~a~d to nuth Perkins as
recorded in Vol= 69241, ps[e,~459Lof.,the..Deed. Records of Dallas County, T~xns,
said corner.~in~ on ,the north.~'ilne'~of.Sand ~ke Re .. '
Thence North *' ~49" ~, -, .... ~ _ ~. _ ad (I v~riabl~ width R
of 620.89 feet to the POINT OF BEGI~ING; ' , - ..... rg~zns elect. I distance
~C~ North 01'22'49" ~est, ~ .dtstince o( 2084.1~ ~eet to In iron rod Bt the
hSlflnini o; ~ curve to the la;t;
~CE'in i northvesterly directio~':,llonj slid curve to the le~t hviflj I rldius
of 209.09 (eet,. central., in[le.'o~29'58,22,,, i..tlnjent lefljth et 55.97 feet, ~nd
.. In .rc lensth o; 109.38 ~feet, to,,'ln~{irod r~ it the efld~oi Curve to the le;t. s~id
~C ~inj off the southerly line,OI~rkvl~ B~lev~rd (=n 08 ;eot R,O.ff.) Il recorded
tn Yol=e 84040, Psie 3023 o~ the.Detd Recordl o~ DII]II C~nty,
~cE North 58'~8'49" hst~,~llonl'!~the northerl~ line o~ Slid PIr~ly Boulewrd,
· disc,nce o; 422.54 feet to in .iron r~ ~t the ~inninj of I curve to tho rllht;
~CE tn i northeisterly:.~snd,~elst~rly direction:lions' ~the. Southerly line o;
P~rkv.y Boulevard ~nd siid cu~ve',to~.',the'risht..hsvin8 ~'r~dius et 2156.00 ;eat,
cefltrll 'shill, O; '.30'35'31-. i:/tl~le~t leflSth o~ 589.65 ;eat Ind I~ ~rc lenith
IZSI.IS Ieet to .n iron r~ ~t';'the end of slid curve to the riiht, s~id ~int bain8
the northwest co~er of Future Pirkvtev Addition, ~recorded;
~CE South 00'56~25- ~st, elon~ 'the west line of Future Parkview Addition for
' a distance of 646.75 feet to sn iro~ r~ at the ~ost westerly southwest corner
seid ~uture Parkvtew Additioni
~CE North 89'03~35.. ~st, alon~ the south boundar~ line 0f said Future Parkview
Addition for ~ distance of 230.00 feet to sn iron rod at tho bo~lnnin~ of ~ curve
:., ~o the rilht hsvin~ a central kn~le-.0f,-14*29'321 a radius oE 435.00 feet and a
length of 55.31 fee~;' , ·
~CE Southeasterly, coatinuing'~ alOn~ ssl~ south boundsr)' line o~ said Future
Psrkvtev Addition and alon~ said ';curVe for. an arc len[th of 1.~0.03 feet to an iron
rod at the ~lnt of rever~e curvature to the left, said curve ht'vin~ ~ central angle
o~ 05'49e42,~ ~ r~dius of 66~.00 feet ~nd ~ tangent length el~ ~.~ f0btl
· lon~~ said sottth boundar~ l~ne of said Future
'" - Parkvl~w Addition and alon~ said curve for an ar~ length of 67,,65 feet to an iron
~ rod at the end of, said curve;
:,:., ~CE Sout~ 00'S6'25', hat ~or' i disi'~nce.ot:22.59 t~t' to ~n.tron r~ it the most
':.'/.. southerly sr..uthvest corner :o~ said .Future Parkviev Addl,~en. said tron rod .also
. lying on the abstract line leparltin~ said lb~trict'1327 ~rom said Ibstrict 629,
abstract line ·leo being'~the~.'n~'~th line of a"i"tract of.i.~'and deeded to J & E
Company, l~c. aa recorded in ¥olUne~,i:79009, Pa*ge 043~ in the..Deed Records of Dallas
County~ Texas; ,.. ,.:.., ~:',,.,.
I~ENCE South g9'03'SS-
s·l:: abstract line and said north line of said
J I a CGmi~ny tract a distanc~, of'Jl4O.gl feet to an iron rod ·t 'the northwest corner
, of said J I E C~qpany tr·ctl ,
?' THENCE South 01'04'16' East lea~ing'~'~id" abStraCt,iliae and, along the west line of
said J ~ E Company tract for a,!dtst·nc· of 1'419.03 feet to,an iron rod at the
· southwest corner of said J S E Conpany.,~tract; , .. . .
, . .!!",':,~ . . ..:,:... . ~ . .
THENCE North 8~°34,$4,, East along' ~aid,'south'.'li~a of said j
"~ a distance of 638.39 feet to an iron, Od . .~. _= ........ ~ E C. ompany tract for
· r a. .,v -o~.flw~a~ col'flor o! · tract of land
'. deeded to John H. Sums, Jr. as recorded.in ¥oltme.2143, Page S95 in the Deed Records
of Dallas County, Texas;
THENC~ South O0*SI'03,* West along ~he'".west line of said Burns tract for · distance
of 1153.29 feet to an iron rod on the north R.O.W. line of Sandy.Lake Road (a variable
width R.O.#.); ..--~.
THENCE South 88°28,22,, #est along ": said ..' north R.O.#. line of'. said Sandy Lake Road
".i a distance of 677.68 feet to an iron rod aa the aoutheaa~ corner of a tract of land
deeded to Shirley Harpold ·s recorded in ¥olune 77116, Page 62? in the Deed Records
of Dallas County, 7sxas;
THENCE North '
01°I,,~t$2' East len.'ving Said north ll~ of Sandy Lake Road. along the
east line of sc,~ llarpold trac't fo~ · distance o $64.07 feet to an ~ron rod at
the northeast cc4~er of said Narpold tract;
THENCE South 89~S1t14- West. along 'the north line of said HariMId tract and the
north line of said Perkins tract, '~or a distance of 630.05 feet to the POINT OF
B£GINNXNG and containing 2,903,071 square feat, or 66.64.S.3 acres of land.
BEING a tract of land 'situ~iad 'in the S.A; t N.G.R.Ri~:Survey, Abstract N°. 1430
in the City of Copl~sll, Dallls County, Texas and being'part oi that certain tract
of land described in deed from?Goo~ Flnlnciil Corportatton to /4. Douglls
Trustee, as recorded in Volume .76188, page 2355 in the Deed Records of Dallas County,
Texas and being ,,ore particularly~described as.follows:
BEGINNING at a point of inte{~section of the !south line of Parkway Boulevard (an
88 foot right-of-way) w{th the.east line of'ii)eh{on Tap' Road (a variable width
right-of-way); .'-.
THENCR North 88*59'02" East,"4{~;04 feet aleng the sii. d south of Parkway Boulevard
to I point for terrier; ' ·
THENCE South 1'00'58" East,' $S0'.'99 feet leaving the slid south line of Parkway
Boulevard to a point for cornerl".
THENCE North 88'59'02" E~st, SSO~00 feet to a point for corner; .
THENCE North 1'00'$8" #est, 62S.46 feet to a point for corner on 'the said south
· ' line of Parkway Boulevard, 'said .POint also being in I curve to the laft running
in an easterly direction and hiving I central ingle of 13'$§'40- I rldius of 1094.00
feet and i chord bearing.of North:65e37,09. East;
THENCE along ~..;id curve,.,and.!,the baid south line of Parkwa B
£oet to the end of said curve; ,:.;~'i,. , Y oulevard, 266.25
THENCE North 58'38' 9- '""?' '
4 East, ~'1SS.60 feet continuing ales the
of Parkway Boulevard to a ~-'~"' ....... --' .-- g said south line
~,,,~.,z~r corner, silo point ilso being in.a curve to
the right running in s sogtharlyl, direction a,d~ hiving a central an * , ,,
':,.'.i-;' I radius of 209.09 feet andla chord.bearing of S~uth 16'22'00,, East; gib of 29 S8 22
~*';'~' THENCE along said curve,.~and ~leav/ng the a~id south line of Parkway Boulevard
i'**~' 109.38 feet to the end o~ said curves* ~
~ENCE South 1~22,49-, East,. 270/.02-fei to a'~lnt for corner on the north line
:r* .. O~ Sandy ~ke Road (~ variable width right-of-way);
'~ ' ' ~CE South 89'11,49- ~est, ~770.81 feet along the said north line of Sandy
?~= . Road to a ~lnt for comer; ·
:~:':,: : ~ENCE North 0'56'1g' ~est,'.~.'251~79 feet leaving the said north line of Sandy
~'~/ ~ENCE South'89'03,11,, ~est, 173.00 feet to ~ poin~ for corner;
~'" '' ~ENCE South O'56'19- East, 251.79 feet to n ~tnt for corner on the said north
:,,~ . · line of Sandy ~ke R~d;
;"~CE South 88'42'38- ~est, 379.66 feet alonR the said north line of Sandy Lake
:' Road to a ~lnt for corner;
. ,,,.',.= . .'...;~IENCE North 47'45~13- kest;'~ 73~02 fee~ continuin~' along tbs said north line
:~/;~"..~ of Sandy Lake Ro~d to a ~int for, come~ at the Intersection of the s~ld north line
)'.~'?:.: .':.. o~ Sandy ~ke Road ~irh_tbe said east-line o~ Denton Tap Road;.
distances; North 3'18'56" ~est, 139.20 feet to the ~innin~ of a curve to tbs right
;~{.,.having a central angle of 2*16~00.',and a radius of 5679.70 feet; Thence alon~ said
:. 'curve 227.98 feet 'to the end of'.,Sald curve; Thence North 1'O0~58- Hest~
~.!;.. 'feet to tbs ~ginnin~ of a curve to..the right having a central angle of 1'48'30,,
?.:':',~ and a radius 'of 5~79.70 feot; Thince' al0n~ said curve 179.26 feet to the POINT OP
~:;,::~:.':: B~OINHINO 'and c~ntalnln~ 74.430 acres (3,242,192 square feet), of land.
Company Easement Area
. ?'~': ; *.- .
, , ..,, ~T PORTION
* ~ ~.,
BEING ~ tract of l~nd *'sit~ted~.in~the Clarinda*Squires Survey, Abstract No. 1327
~nd the St~red Henderson Survey.'AbStr~ct No. ~29,tn the City of Cop~ll, Dallas
Co~y, Te~s ~nd ~tng e ~rtion~.of.' that .cert~ln;*tr~ct of lend
deed free G~d ,~i~ncl~l Corp. to ~.~ ~ouEl~s** Adktns,.'Trustee,'*"*ss recorded in Vol~e
76188, P~ge 2355 *in the Deed RecOrds ~of' D~ll~s *County, Texas ~nd ~in~ more
~rticul~rly described ~s ~ollows:,. *,~,,~-~ * , ' , .
C~e~Ci~ et the southwest, cor~e*~,*,o~ ;~***tre~t *0~ 'lend*~eeded to Ruth Perkins
as recorded tn Vol~e 69241, P~e .459.~of the* Deed*Records of Dallas County, Texas,
s~id ~int also being on the. north ~line of S~ndy L~ke Road (~ wrlable width
right-of-way); Then~ North l*22~49",.Nest, .i216~70 feet leaving the said north line
o~ S~ndy L~ke Road to the ~I~ aP BEGINNING;
~f~NCE. North 1'22~49'' Nest, 7.79* ~eet..to a ~int'~0r corner;*' :
~C~ North 88'01'14'~ ~st, 35.59.feet to · ~lnt for corner';*'
~ENCE North 23'36'27' ~st, 95.31 feet to · ~tnt for co.er;
~NCE* North ~3'26~51' ~s~, 18. 75~. feet~ to · ~int for co.er;
~fiNCB Horth 60'39~24' ~est, 28,49~*feet to e*~int for corner;
THENCE Horth 20*06e02' ~est, 47.53 ~eet to ~ ~int for corner;
~ENCE North 3'39~1~~ Nest, 68.27 ~eet, re · ~int for corner;
~ENCE North 2'05~21~ ~est, 127.20 feet to · ~lht for corner;
~ENCE North 0'09~27' Nest, ~31.01 feet. to ~ ~int for corner;
~NC~ ~orth 2'18~59' Nest, 127.83**feet' to · ~in~ for corner;
~NC~ Horth 1'03~09' Nest, 134.97*feet to ~ ~n~' for co.er;.
~C~ North 1'06~27' Nest~ 125.36'~:feet t0'a ~int for co. er;
~CE North 1'37~31~ Nest, 157~49~feet to ~ ~lnt'for corner;
~C~ North 7'13~29~ E~st, 44.96.*~eet taa point for corner;
~ENCE North 45'25~27' ~st, 39.77.feet to · ~int for co.er;
~ENCH North 57'21~20~~ ~st, 104.20.feet to · ~int for corner~
~,, ~ENC~:North 58'08'48', ~st,' 122.35.feet to a ~int for' corner;
~C~ North. 57'21~38-' ~st, 141.41~feet to · point for corner;
**:~". ~CR North 61'05~34~ ~st,* llS.44.~feet to · ~lnt for corner;
'~* ~CE North'S5~33~44~ ~st, 108.30 feet to a point for corner;
~E North 62'56~25~ ~st, 69.42.feet to · ~int for corner; .
: TH~CE North ,75'26~26'~ ~st, 48.24' feet to · ~int for corner;
~CE Ngrth 86'14~02' ~st, 70.93' feet to · ~lnt for corner;
~CE North 87'55~03' ~st. 118.29 feet to · ~tnt for corner;
~CE North ~8'57~16- ~st. 121.S0 feet to ~ ~tnt for corner;
~CE North 88'59~40' ~st, 124.31 feet to a ~int for corner;
~CE North ~8'31~31~ ~st, 130.07 feet to · point for corner;
~NC~ North ~6~55~17' ~st, 47.53 feet to a'~int for corner;
... ~CE Horth 19'59~26~ ~st, 29~37 f~et to · ~int for co.er;
~C~ North 5'57~56'' E~st, 95.82 feet to · point for corner;
' ~C~ North 8'22~40' Nest, 144.35 feet va · ~tnt for corner;
*'* ' ~ North 2~36~12' E~st~ 124.O2 feet to · ~int for corner;
~..,~ ~CH North 3'06~37' East, 113.98 feet to · ~int for co.er;
~ ~ North ~'10~34~ Hs,t~ 123.82 feet to ~ ~lnt for corner;
'~'~ ~E North .~1~t47" Hast, 2,SS~eet to t~int, ~or co~or~;~ the
'~.'.' .9~arkway ~d (an 88 fooc right-of-way), said ~fnt also
to the right' ~ing in t westerl~ dir~ti~ s~ hying s cent~l
radius Of 2156.00 feet and a tangent ~aFing of North S6'46'13"
;
TH~NCB. along., said~curvv,..~nd~.&lonB.~ the ~ s~td ,south.'~.,lino of P~rkway ~oul~v~rd,
92.89 feet to the end-of sntd,curve; :
THENCE South 0*56t2S,,...hst,~646.78~.feet~o~ihj~the,~said south line of Parkway
Boulevard to a point,.for corner;'.,.
TH~NC~ North 89003t35- £est,..230.00 feet to the beginning of · curve to the right
having · central anglo of 14'29~32~~ and a radius of 435.00 feet;
THENCe ·long said curve ll0.03~feet to the en~ of said curve, end to the beginning
of a curve to the left having t central angle of 5'49'42' and i radius of 665.00
THHNC£ along said curve 67.6S'feet to the end of said cu.~ve;
THHNCH South 0'$6'25" ~mst', 22.59 feet to a point for corner;
THP. NC£ South 89003t35- Nest, 1148.91 feet to a point for corner;
THHNCE South 1~04'16** Hast, 12.73 feet to · point for corner;
TH£NCH South 75'26'26- West, 20.26 feet to · point for corner;
TH£NC£ South 620S2'47** Nest,.:lSS.19 feet to · point for corner;
THP. NC~ South 55°29'13" West, l$S.38 feet to 8 point for corner;
TH~NC~ South 57~S$~31- West, ill.78 feet to · point for corner;
THHNC£ South 60'42'20' Nest,'.~ll2;70 feet to a point for corner;.
THHNCH South $8'07'$8' Nest,':87.57 ~eet to a point for corner;
TH~NCH South 32050t30' ¥0ot,',4S.01 foot to · point for corner;
THHNC£ South l°0Stl3- Hast, $$~9S feet to · point for corner;
THaNCH South 1'$?1S' Hast, 98.68 feet to a point for corner;
THHNC£ South 1~$4,22- Hast, 125.21 feet to · point for corner;
TH~NC~ South 2037'08- ~aSto'137.73 feet to ~point for corner;
TH~NCB South 3033*37" ~mst,~ 129.34'feet to a~point'for corner;
TH~NCR South 0'17e35' Nest~ 151,96 feet to a point for corner;
THHNCH South 0'23e29- ~est~",124.67 ~eet to · point for corner;
THHNCH South O°45*27-'Wost,'.65.98 feet to a point for corner;
TH£NC~ South 3~40e35' Hast,~20.97 feet to a point for corner;
TH~NC~ South 82029*44" hst, 71.27 feet to 8 point for corner;
THHNCfl South 38°31*14-~Hesto 123.95 feet to a point for corner;
TH£NC£ South 22006~17- Nest,'.132.00 feet to · point for corner;
TH~NCH North 89'55~03' Wes~,:.122.47 feet to a point for corner;
THP~dC~ North 8020~33** Nest, 79.77 feet to 8 point for corner;
TH~NC£ North 89~23~S9' Nest,.29,24 feet to a point for corner;
TH£NC~ South 85019'26' West~. 36.73 feet to the POINT OF BHGINNING and containing '
, ~ ~ BOUNDARY DESCRIPTION
i'-..'~, PART~.OP.*LINEAR~.PAIU~
'-'.':. !'?",? WEST PORTION ' · ...:
·..., ,.:.~? ..'
BEING a tract,of 1and si~uat~d;/ln 'the*S.A. ~ H.G.R~R'.','Survey, Abstract No. 1430
'.' tn the. City of Coppe11,. Dallas,Countyo;.Texes,end beinl · portion of that certain
t~act of land es described in deed*,froa' Good Financial Co~. to 14. Douglas Adkins,
T~ustee0 as zecozded in .Volume *,7618~ P~ge 2355 in the Deed Records of Dallas County,
Texms and bein~ nora l~rticularly.ide$cribed as~follo~s:. ,'.: .... ' ,.
CO~4ENCING e~ the. southuest~:.corner~ of · .t~act'of *lend' deeded to Ruth Perkins
as recorded in ¥olume ,~9241 ~.:;P~Be,;:4S9 , of the Deed' Records
said..potnt.~elso, bein~ on~,the ,~no~ch line o~ ~San~y · Lake.)~oad
right-o~-~ay);.Thence North/.1~22~49- ~est, 1216.70 ~eet leaving the said north line
of Sandy Lake ROad to the POINT*OF,.'BEGINNI~G; .
~ENCE Sou~h 85'19'26' Nest, ~.2~91 feet to t ~lnt for*c'o~er;
'~SNCE South 89*33*44" Mest,*.:6S':B2 feet to the.~tnt for co~er;
~ENCB South 4*38*30".~st,":87.10.feet to the ~tnt ~or eorner~
~CE North 72'1S*S7" West,* 87;70 feet to the ~int for corner;
~ENCE North 63'17~27' West,. 84;27 feet' to a ~int for'toner;
~CE North 66'08"16" ~e~t~*/l~.S7 feet t° a ~int for corner;
~CH North 32'23~SB',~st..112.71 feet to ~ ~int for corner;
~ENCE North 56'33'07- ~st, 67~:16 ~eet to at,tnt for
· .. ~ENCE North 42'06'32-'~st~.~7:=.30 feet' to a ~lnt for*co,er;
~CE South 47'49'27' ~st/')127;29 ~eet to a ~lnt for corner;
~ENCR South 2'~4'0~" .~st**12~.88 feet to n ~lnt ~r coner;
~CE South ~0'59'2~' ~st~'. S3;10 feet to a ~lnt for toner;
~a North ~8'01'14" ~st~=40;27 feet to a ~int for corner~
~B South 1+22,49- ~st,..~7.79 feet to the POINT OP.BEGI~ING and con,athenE
"l~-l~l-acret (51,8~7 sq~re feet)'of land:
: . .;,-..~.: ;~.). ..
.' EXHIBIT E
1. ~gr~c~l~ural Lease~.,..da~ed Dece~er 31, 1986, by and
between Parks of Coppell Jo~"nt:venture~I and II, as lessor, and
~. Letter agreement, /~"da~ed February 6, 1986, between
Parks. of Coppell Jo~n~ Venture ~I and Texas .Po~er ~
Company ("TPSL') gran~ing~TP~h .the righ~ ~o ~emporar~ly use a
fff~een foo~ (1S').,w~de s~r~p~ of' land ~o connect a po~er l~ne
~o provid~ electrical serv~ce~,~o the Hunfc~pal Build~ng for
3. Easemen~ for electric ~s~ribu~on l~ne purposes
Texas Po~er ~ hight . Company, recorded in Volume 86189,
page 660~ of ~be ~eed Records of D~lla~ Coun~y~ Texss.
~.4.-~: Project,ye Co~enants...of even date herewith 9ranted
ABQ 'oevelopment'. Corporat~on,~.. ~t~uly recorded ~n ~he Deed Records
' ~. Electrtcal~.Easement!~of even date herewith executed by
ABQ Developmen~ Corporatioh~.:.~and The Parks of Coppell Joint
~ Venture I~,-duly recorded 'in~ ~he Deed Records of Dallas Coun~y~
~ 6~~ Development Agreement of even da~e herewith executed
bY~T5e Parks of Coppell Jofn~ Venture ~I and ABQ Developmen~
": Corporation, duly recorded.~..~n ~he Deed Records of Dallas
.. Coun~y~ Tezas.
r~--
:' ..,..'~ .' ~ ~,.,.'. : .. .....-.,,..~.:.,.: .
,
6
':'"'("/" ;" ";" ; . ' ":,!ir'i! ~',.; TIOO,-~-'TI'~I ~ '
lr'$" ;l '"" ^
'ra~s ~eve~o~nt~Aqree~n~ ' '(,,A~teeme~") :~s made and
entered in~o' as~,o~,,,~bhe~,~day~Of~.~.. 1988.~
Texas joint ventur&, ~tinq, b~.':and:.:.(htOUgh ~Es'.duly authdrized
venturers, · ahd'~X'~'O~'~l'~'~C~~l~h.,(-Company. ), a New
Mexico corporation,~ acti.~q .by and...~t~r6~gh its duly authorized
officer '"'~;';'~" " ~'L:''. "~.f '~i~;, "~'" -
' ' ' .~: ' -"' /" "' '.' :,~,".;~R :,' ~'''
.,. '.. .. ~,;,;[ ...
., ..: .... :., :}~.i;,.~.;. ,
~E~AS, on ~he date' h~reo~, V~U~ h~s sold and conveyed
to Company that.,cerkain, land deScribed.::.in attached Exhibi% A
(the 'Sales TraCt")~. [p~rsuant to tha~ {cereain' Aqreemen~ to Sell
and purChase ,(the ~' Sales': Aqreemea~,)./~;.bebween Venture and
Company; and ..~?!'., *:. _=.: ..: . . .;;
~EREAS, - that' portion, of the~;:*Sales Tract described in
attached Exhibit B (the. ~,Company Si~') generally-is
adjacent ~o a portion, oi.~the easterly, boundary line of that
certain land owned .by Venture described in attached Exhibit C
(the 'Town Center.' Site"); and ' ..<'*,
~EREAS, 'ComPany' ackn0wledqes thi~ Vdn~ure, as an investor,
does nob have ~any.,i~ediate.,construction plans for the Town
Center Site, but( to. acco~odate:'~C0mPany's request and
enhance the future:.:invesbment value='of*'bhe-Town Cen~sr
Venture has agreed bo enter =into.bhiS~<.A~reemenb; and
.'. . .'.,, ' 2~ ' :' ',';.'f,)..r"....',.' ..
~R~S ~"," a s ~S'f*ma ee · i'a 1'~' 'i nddc~m~'~ ventu re ~ ~o .-. se 11
and · take ,, ~he '8a les?~Trac~,~ rom~ven~m~..ven~urm~ Snd-~Comp.ny
~:. i ~ '~ ;.. . ,:'~;-:'- +..,t ' · .," '; ,',..~.,-,.; ·
NOW~*. T~ERE~ORE; :. ~r -:"ah4',~ [6~'coh~tt~ri~io~ 'o~ ~he premises
and of the aqzeemen~s .conbainid'~h~c~ih;,.. Venbure,,.and Company
agree* as .,.follows ~?.~. ~ ·:. ;..'.,:';.,": . .:., ,.~ ~'.. ~....t?~:%~i~.:..:...:.~, .... :; .,..¥.~, ?.. ::.
1'~' Heartz.Road .and Utii~%l'~aci. ll~ies, ..
A.. oeacr~i°n, °e ,ConStrud~i°n,:~, COmpany aqrees
Company will...cause the construction of= ' (i) ~ road ~o
connect Park6ayf~Soulevard~ an4/Si~d~, Lake.:...Roa4 in Coppe].],
Texas ("~ea~tz:?'fRoad"),. albng',,,'a'~:pO~bion:~'o~ ~he westerly
~undar7 line:O~ the Compan~ Sit~:;~hd"the:.'easterly ~undary/
.' , ' .' ' ; ':~ ;'~t ' '
: . .::: :'. ,. , ....? :':,:.;
,...:....1~ ~. ,. .;,. .:
',,: ,: .~.';~.~ ;.,.-.-.
~ . ,'~,~; .:,'.,,
.,.... , ,.,% ,.; ,'~.. ,.
. :.-' . ~!, .,,, ~ !
line of the Town' center Stte~'~idh in' certain places is
the con,non-boundarY~'.~'line/of th~ ~C0mpany 'Site and the Town
Center Site~'. and .'~.(ii):~all "i.(~ti':lity :facilities in the
riqht-of-way~,of Heartz~,'.Road~uired -'by the'" City of
Coppell, -TeXas ('the.~#CiEy#)~,.~b.~allow'ithe development of
both the Town Center Site':~'a~d.~the C6mpany Site to the
maximum densities :permitted'?ufid~t~.:the 'zoninq desiqnations
applicable to',the Town C~nter'i:l~Sit~.~nd.~the'Company Site on
the date 0f-this.Aqreement,'~an~di!i. whether':or ~not required by
the City,':WaE~r and S~ni'tlry:'.':~t~llities"alonq the easterly
boundary ,line of' the. Town C~fiter.~ Site 'at locations no
qreater than' three~ hundred f~t';"(300')' aPart containinq
sufficient.?',caPacity' ~o ....
allow:~the:~.development of both the
Town Center .Site ,and.'-the.~.C~p~y~. Site to the maximum
denSities'.~iPer~itted~":!.U~der:~!'~.th~;~I" zoninq desiqn~tions
applicable to :the Town c~nter:~ite~ ~nd the COmpany Site on
the date "of'.'thiS' Aqreement~'~::(the Utility Facilities').
Unless Venture approves a .~di~erent' 'configuration in
wri~inq, the'denEerline of He~rtz~o~d ~h~11 be the
boundary -li~e:b~tween~Ehe'ComP~n~.'Site ~nd~the Town Center
Site, where'aPplicable, ~nd th~i~terly bOundsry line of
the Town Center .Site; where'.aPplicable, Both~Venture and
Company aqree~ to~. use rea~Onable.'~,~efforts to obtain the
City's acceptance..oi ~' Sixty .foot':~'~(i0')"ri~ht-0f-way width
for Heartz:Road~ . The centerlin~:and riqht-o~wey width for
Heartz Road".as described hereinib0ve is depicted in red on
the dr~winq attachedhereto as-Exhibit o.
B. "DedicatiOn' and Pla'~i.n~. Both Venture and
Company agree~ without charge, to dedicate to the City or
to each .Other one-half (1/2)~.of the' width of the
right-of-wa7 ~or Heartz ROad~he~'Heartz Road is located
upon the common bound&ry line~6f the company Site and the
Town Center Site.! '.Venture fUrther:agrees, without charge,
to dedicate, to the City .,or.'~o..Company for ~e~r~:z ~pad
right-of-wa7 a': thirty: fooE.'.(30').:~wide portion of the Town
Center Site.along that ~p6r~lon',of.. the easterly'boundary
line of ': the,:.,Town:, center~.~Site,i: which' is six hundred
twenty-one,feet' (~21') immediately'north of Sandy hake Road
(the "Limited Section")', ~ithini!o~ hundred eiqhty (180)
days a~ter::'the:date, o~ 'Ehis .A~ement~' c6mPany aqrees to .........
[ile .an ~p~l}c~t~6n.i!'~or::~!-:plkE~wt~the. City'(coverinq ~ll
or a portlon'.o~'.the.Co~pa~y Sit~)"~hich '~ill~.en'able Company
to commence;the' ~onstrVcEiOn o~.!~9~attz 'R~ad(and the Utility
Facilities."' ~Venture?may$,'make~:~th~' required right-of-way
dedications:'~or Heartz' Road o~:~t;pO~tiOns,'o~, the Town Cen~er
Site either' thrOUgh'.Joiader 'l~:,!~:~he,. plat ~prbcess or by
separate dedioation instruments~ i~' ~orm'.acaeptable to ~he
City. Company'shall=... (i)'submit!.O~he P~OpoSed preliminary C
plat to · Venture, at:,'least..':'thi'~ty :(30)" days prior
submissioniiof;Lth~! proposed. prOlifiC&r7 ~l~t .to the Ci~7~.~~'
(ii) make...~.'., any. ,i: reasonable ,i':Ch,nqe~.. in ~:"the. proposed
"~ ':.',",~ ~ ~'~ .: '-'' .... - ./ '. '.;'.~%~ ~V~'f '; '~,,'.:~,~'? ' ' ,/. ', ' ,:~ . ,"~,,',
h",'' ~" ' "' '" ~ ~ '~ .... ~1,.'~ ~'~''.~ ~'~'"''"" ' ' ' ".:.
· . . . -. :..~'~.. ..... , ; ·
preliminary plat requested` by,':~B~re; .ind'..(iit) advise '~.
Venture of changes required"from',!.kti~a:to time. by the City
in either .the Prellminary':..~'or~;,:.<t~e~i[final,.",plat.b venture ;'<,.
agrees to support.the plat:-,reqd~It!.'~f ,Co~any ii Company ....
complies with the te~ms,.'of[this.A~f, ee~e~t;..,,. - ,,
C. Construction.":"Com~ny:"ii:Ig~ that" Company will
cause the construction ,'of Hea~t~>Road and. the Utility
Facilities tO.be: . (i).cOmmenced.;o~',Or..before three hundred
sixty (360) days after' th~':dat~[Of-,',.thiS Agreement (the '"
"Heartz Road.Co~encement Da~e');,'~iand'. (ii) completed on or
before seven 'hundred twenty .(720)~.days after the date of
this Agreement, :(the'.~Neartz<>Road~'.C6mpletion' D&te#). The
Heartz Road Com~enceme~t,..:Dite<;.~&,d/or, the . Heartz Road
Completion Date,' as.i'applica~le,.!':i~ill:..,.'be extended by that
period egual't0 delayS;~uSe~;by"~orce, Majeure., As used in
this Agreement,'commencement~of Cdnstruction,.of Heartz Road
and the Utility Facilitiea means:the.excavation or grading
of the right-of-way.~ for Neartz. ,Road and the Utility
Facilities. As u~ed in this Agreement, the term #geartz
Road Completion' means ~the acceptance of Neartz Road and
the Utility-'Facilities by the. CitY? ss evidenced by the
City's certificate or other written~.evidence of acceptance
issued by the City. All constructidn,..of Heartz Road and
the Utility ~Facilities shall', bel :~<(i) performed without
material deviation-from plans '&nd','speclfications therefor
approved by the. Clty~ (ii) perfozm~d,.in a good, workmanli~:e
mannerl and (iii) diligently pursued to completion after
being commenced. ~ ... ?i
D. Costs. . As:. used in this Agreement, the term
'Heartz Road,Costs' means all-costs to';construct Heartz
Roa4 and the ~Utility ,Facilities'. (including, without
limitation, platting costs, engineering costs, governmental
approval and permit, costs, labor~ materials and contractor
fees) except-'for~ . (i) supervision and/or overhead cost~
and (ii) any costs for the construction of, Heartz Road or
the Utility Facilities attributabl~ to any property east of
the Limited Section. : ~ .... ' ,-: '~"{?{L~>~ .... ,: ' ....
~ , , ~ ',, i;,~,- { ~.~ 'C,;~<.~",~i'*'.-*; ..
E : ~~ i.!:All:,!~E."the Heartz Roa~ Chats
"> shall ~e paid.,by..Compan~-.within.-.,...,- ,-.,..,~-..-:,- tfiif'~. (lO).:days after 2h~ CO"
" date of the [{eartz,.Road completion;- but Company may b~
entitled to r~caiv~'partial'.reimbut~mant o~ .such costs as
described in subparlgraph F:::V of~.- this paragraph I.
" Notwithstanding : the ..,.lr~guirem~nt;,6:eontain~d.. in this
subparagraph.E that· company pay'f{':-lll of tho R~3rtz Road
Costs wiehin thirty (30) ~ays aerate!fha data o~ th~ '~gartz ~ '
Road Completion ,,, and.:',..=th~.' cagUitam~nt,:;~, ~ontained in
paragraph. 2 hereof that 'Company;',Pay:ill o~'th~'Fill Costs
within thirty> (30) days aft~r¢~ the daee 'of the Fill
' Completion, .company · shall have ;the right 'to withhold
,,:, . .; ~.~; ·
payment from any contractor or~mat~rialman -hich Company
believes has ~ot properly Perfor~ed~;(its obligations, but if
Company elects, to so:~ withhold !!~&fit,':~Company shall be
required to '.deposit :in, esc'to~:iwi, th~;..:ve~ture, in cash an
amount equal .to one hundrbd.;,fi[~F[~"Parcent (150%) of the
amount withheld (the.'Contest,:'Es~go~",Amount')., The Contest
Escrow Amount shall: be ::held '.by'i~!.v&nture 'in an interest
bearing account,-pursuant ; to .an~.~.escrow . agreement .with
Company in form satisfactory, toj.!/:venture .and Company (the
~Contest.Escrow Agreement#).. The~ Contest. EsCrow Agreement
shall provide that interest on the~ Contract Escrow Amount
either will'.be used to:retire the.'claim being contested or
paid to Company upon ;the 'settlement: and Payment' of the
claim being, contested. ~If~ co~pan~, elects: to ~ithhold
payment from any c0ntrac~or lot materialman: and deposits the
Contest Escrow Amount ~ith ventUre and executes and
delivers the C~ntest EScrow Agreement to Venture, the
deposit of the Coptest'.gacrow Amount.with Venture and the
execution and.deliVery of the Conees~ Escrow. Agreement to
venture shall, be deemed to establish Payment Evidence as to
the amount sO. withheld. As used tin 'this Agreement, the
te£m 'Payment.'Evidence# means Company fu£nishlng to venture
copies of construction contracts~"~t~invoices, statements,
executed and, notarized' llen waiverS"! from all contractors
and materialmen and other evidence reasonably necessary to
establish the. amount,.of the HeateZ-.Road Costs and the Fill
Costs and the full payment thereo[,.by Company.
F. Partial Reimburse~en~ o[ coats., As used in this
Agreement, :he~'. terms?Reimbursement Payment# means any
positive amount' resulting from ':their. following calculation:
(x) the total :of (1),the.produceD, or-,the Heartz Road Costs,
multiplied by;' stxty-one,percent.¥(&l%), plus, (ii) the Fill
Costs, minu____~s, (y).Four,..Hundred;'~Nine~y-Eight Thousand and
No/100 Dollars ($498,000.00). ,;:!,Venture agrees to pay
Company the'ReimburSement Payment in, cash thirty (30) days
after the ':later to occur of:i,. (i) the Heartz Road
Completion; (ii) the rill, COmpletiOn; or (iii) the date
that Company'furnishes to Venture'rthe.'Payment Evidence.
venture does not,pay, the..Reimbutsement Payment to Company
on or'before, the:.due,:date:, £ot.the,,Reimbursement Payment,
venture' agree~ to pay. intetest:.to..':.Company on the amount
the Reimbursement' Payment at a,per.annum rate equal to the
lesser, of the highest,lawful contractual 'rate of interest
or eighteen~percent (16%) per annum'~from the due date
the Reimbursement Payment until.-:.the Reimbursement Payment
ta actually Fa~ ~o Company by Venture..
p. cha"e ^, used
this Agre~ ~-~ :~-~ ~Additional....Purchase Price
payment" meanS,any. Positive amouht resulting' from the
following calculation: (x) FoUr?.Huhdred. Fifteen ThouSand
and o/ 00 'OOllars ,'i$41S 000:00),?.minu___a. (y) the total of
~ (i) the product.'of the":Beart~'-','.Ro&d Costs~ multiplied by,
sixty-on~ ' p~rc~nE'. ~'~."(61~),',:.. Pl~S;~. "(ii) 'th~ ~ill Costs.
Company agrees to. pay'veniute;thi,.~ddihional.Purchase Price
Pa~enb in..cash 'od o~' ~eiore~ehi~r~y (30) days aEeer the
last ~o occur, o~ eh&.' Hbarez~R&ad:~Co'mplebion or the Fill
Completion,'.,:: Ie .Company' doid~';.:.'~oe pay :".the Additional
Purchase Price'Pa~enb-bo.Vene~reion .or before the due dace
6or the Addiblonal Purchase Prica..Paymenb,. Company agrees
eo Par interest to Venture .on';'ehe~amoune o~ ~he Additional
Purchase Price 'Pa~ene', ab ::a ,~er :,~annum 'raCe equal bo the
lesser oE. 'the highest' la~Eul .'cOntractual . rate oE interest
or eighbeen'percen~ .:(18~):pe~',~annum ~rom the due dace
the Additional ;purchase Price;~i~enb until, the Additional
:Purchase :Price Pa~ene :. is '; a~eUally paid ' bo Venture by
Company; :?.:,~... ' ~ .~, ',~',.~' ::t:,; :.~':;.~,:...., .:
' "'~ i~."~ ., .~. ",;' ~ . ,
H. C~.' Cost, ,~effu~d~. -.:"ComPsny 8greta ko use
reasonable, efforts: eo cause, the: censerueEion of Hearez Road
and the Utility~acilities.purSu~nt;..to a project agree~nk
~i~h .the' CoPpe11: ~unicipal'.Uti,lity Oistric~ No. 1 (th~
'C~D') ~hich provides ,for tei~nds o~:- portions of the
construction Costs of Hearez Road and/or the Ueiliey
Facilities ~rom. ~he C~D ~o" company. (the 'c~o
Upon the ~.'receipe:.by .Company ~rom,'Ehe C~D off any C~D
Refunds~ Company.. promptly sha11'.delivet~ eo VenEure Ehae
amount' ~equal '.:to.'~ the ~ 'product~'; of
. (x) the C~D Refunds,
sul~iplied 'by, ",(y) six,y-one '~eteene (&l~).. I~ Company
does no~ pay 'Venture' Venkure,s· sixty-one p~.reenE (&l~)
share of '.any~C~D RefUnds on: 6r:'.beffore Ehirey (30) days
after ~he date. ehat ComPany. receives the' C~O Refunds
the C~D, 'Company aqreesiEo paY'.interest' eo venture on the
amoun~ o~,'.Such pa~ene at a.~pet' annum race equal ~o
lesser off 'the. htqhese', la~ful' Contractual' rate of intefese
or eighteen percent .(18~)~.per,' annum from and a~kbr said
~hir~ie~h (30Eh)day until:'.the~pa~ent is actually made-,by
I. 'C~ O~tsee;,'~,CompanY,s~a11 be.enti~led to deduc~
ffrom Venture's: share .oE" any 'C~D ,~e~unds. any amoun~ ~hich
is . then 'due_ by.' .venture 'E0 Company pursuanE eo
subparagraph~.~.~ of thiS.'.,parag~.bphLl' and/or· any Additional
.
Taxes which; Venture t is th~n ;,obligat~d eo 'pay pursuant
the provisibns of. paragraph'5-h~reof;~.:
" ~ ~ : . · , .... , .... ~.;,~.. ~.~,,~ ,~ . : .., ,.,.
2. r 11 Aureemen~. On or bef~re::~ive hundred forty (540)
days ~f~et. eh~.. dae~ o~ ·:eh.ts. ag~eemehe' (the 'till Comple~ion
Da~e'), Company' agrees ~o.caUse bh~"'domplebion:'o~ ~he placing
and grading.°~.::ehirey-iouc:,bhousand~.~EiU&, hundred' (34,500) cubic
yards of ~ill,*¢,On.~,a~POtbion .~'o~ ~:th'e".iTo~n ,Center 'Site · ae. a
location bo beiLspecified bY vene'~te:;, i" The rill'Completion Da~e
will be ex,ended:by ehae period equal~o,delays'caused br force
Majeure. The placing and gradin~':~}~d{::'SOch~='fill on the Town
Center 'Site shall,~:be :perform~d'with6uEii':material .deviation from
that certain Grading plan',..T.rict.~N~?l!ii. City:iof'Coppell, Dallas
County, Texas,'c'dated AU~ustl~:~.lgiS~?~;'revised March 5, 19~6,
prepared by Threadqi11~Dowd~y:i~ASSobiibeS.;~ Job' No~"85037 (the
?fading plan')'previouslY:fur~ished~.!by.venture to'Company and
~n conformity'with the mor~ it~ih~fi~'!Of'*the"$pecifications For
Controlled Earth"Fills~.attached:h~i~(o'~.'as. EXhibit E .(the 'Fill
Specifications")'br fill [%qUlr~meht,?l.i~Posed ~y"the City,'' The
placlng and grading 0f such ~fill~:6n!~[~e Town*Center Site shall
be performed undtr, the~.suPervision.'.!bf..,b soils' engineer employed
by Company and:',app£oved""by:~.Vent~e~;iand pursuant to a ~ill
contract (the:*'>'Fill"'Contract')',':~ith'.~a' fill contractor (the
'Fill. ContraCtor-) ,.employed::bp ~,com~any · Unless otherwise
agreed in writing' bYlVenture# comPany'.shall Obtain at least
three (3) competitive~bids' ~r~m'three?(3) different contractors
for the Fill 'Contract,"and:~the':~Fill"Contract and the .Fill
Contractor must".be.., approved b~ *VentUre, As used in this
Agreement, the term:"rill Completi0n-?means the occurrence o~
the flollowing: '.*.(i)[ the supervising~ ioils **engineer issuing a
certificate to Company and 'Venture ithat such .fill has. been
completed without.material deviation from the Grading Plan and
in conformity".with the': more": Stringent of the Fill
Specifications or'.'.fill requi~emeets* imposed by. the CityI and
(ii) Venture being furnished!, .~' :0p0qraphic verification that
the fill has been.placed-.~ap.'~ ~ :-.''/,: : on,;the.Town Center Site as
required by the' Grading :PI n ~1: costs to place'and grade
such fill on the Town.' Cent; . ~ite"~tthout'material deviation
from bhe Grading Plan and ln:~onform{tY with the mote stringent
of the Fill Specifications or fill requirements imposed by the
City (the 'ri11.Costs')'shall be Piid by Company ~ithin thirty
(30) days after the' date of ~he Fill Completion, but Company
may be entitled' to receive parclal,:relmbursement of such costs
as described in.subparagraph F gE.Paragraph I hereof. Upon the
occurrence of the" Ei11.'CompletiOn:...'and 'Company furnishing to
Venture the "Payment: Evidence, 'a11~,.'o£, Company's duties
obligations under..~his-:paragraph~2.;~bn'~lusively shall be deemed
fulfilled, and"company;:shall be:.d~'&~ed* fully released from all
claims or li~bilities arising?or~te~ltinq from the placing and
grading of such fill on the To~n cente't~.Site'by Company.
bhat Company will not: permit any::imechanic's or' matetlalm~n's re)
llen.to be filed which 'covers' orl;.'aEfects.'..any portion of the
Town Center Site (including,"~ith0ut~?limitation, any portion
~hereoE. dedicafed' as.' a :Part of:'.the!'~;'right,of,~ay Eot Heartz
Road) arising or'resuieing.ErOm khe:'.b0dsbrucb£anl, o£. Heactz Road ce)
. and the Utility tacilitiea"as tequi'ted~"in paragraph I hereo~ or Ca
the placing and ':grading:'of fill',on the To~n Center Site as go
required in paragraph 2' hereof ('~t~hibi~efl Lien'); IE any
P~ohibibed ~ien~ is."filed and Compa~'f,~.~ibhin b~enby (20) days///
-.. afeer Venkuge.~ noti'fies Company oi';'~h&~existence thereof, does
pursuant to the provlsions'o~.$ectio~ Sl,I?I through.,$g.l?~, of
the Texas ~rope~ty.:.Code~'.'O£('applia.l~le:..statutor~. provision
subsequently enacted or take Other:'.:"'Ia,tI6n.~tth £es~ect to the
Prohibited Bien ss~ts~actory.'t~.,.Veht~:~!Venture shall have' the
right (but not the obligatton).:.;tO,:pa~'.t~ am0~nt';alleged to be
due by the holder of such.~,'l'~ (th~[~[',~ele~se ~ayment') and
secure a release'thereof. Compa~ a~.~:~.to pay to Venture the
amount of any ,.Release Payment.'..: ~i~hifli,.ten,: {10), days after
Venture delivers...to Company a writte~.':d~mand for such. patrment.
If Company does~not pay .to .ventufe..?th~..amount of. any Release
Payment within ten.(10) days.after V~nture delivers to Company
a written, demand for such Pa~ment';'(.Company' agrees to pay
interest to. Venture, on the.iamount' ofi~the Release Payment at
per annum .rate fequal to':?the' ~less~.~,of the highest lawful
contractual rate..of .interest.,.:~r. eighteen percent (18%) per
.annum from and ,after. said. tenth'"(10th).'day until the payment is
actually made by Com~ny to Venture,..J .... ~'~, ~.~ . .
4. Force Maieurg.' As'used t,'.:'this Agreement, the term
'Force Majeure'..:mean's any 'delay C~Osed by labor disputes,
material shortages,,adverse .weather eohdittons or other causes
beyond the 'control. of'Company which.ld~.l~y the commencement or
completion, of :Company's' obliDations'..'¥.under' paragraph I or
paragraph 2 hereof,? Any claim for oxtehsion of time by reason
of the occurrence efta Force MaJeuro.~ent must be delivered by
company to Venture in writinO within, thirty (10) days after the
occurrence of such. Force Ma!cure event' or such claim for
extension of time shall be waived. ,
5. Lien to, Secure Ad V~lore~':'/Tax Obli a~. In the
Sales Agreement,. Venture . agreed, to pay any additional ad
valorem taxes (including any penalties, or interest thereon)
levied or.assessed .against portions of the Sales Tract arising
or resulting from Venture's utilizati6n during periods pr':or to
the date of this:Agreement of open land, or agricultural use ad
valorem tax rolief~ provisions (th~i'!lAdditional :Taxes").
secu£o Venture's, obligation .~o-.,pay 'the Additional Taxes,
Venture has by Deed.,of Trust .(the~,~Vehture Deed of Trus~') of
even date her~with...granted~ and congeyed to James W. Schell,
Trustee for Company, a lien.on~that....portion of the Town Center
Site describei .i,in ['attiihed:.,;Ei~i~t~ F.:' (the "Venture Lien
Tract'). .In Consideration ~'%for :'-:venture's. executing and
delivering the Venture Deed,.of, Trus~i~COVering...t~e. Venture Lien
Tract, Company hereby~'agrees.that:.,~:~(i)-~,Venture s'.agreement to
pay the Additlonal'..Taxes.:,~s a non~6urse, obli~atlo,; and
(ii) if V~nturm ~ails 0r.~ rl~uili to~p~.,,any Addi~ional,.Taxos,
. Company's sols recourse sh~ll he ~or~l~r~ of Company's
. on the. Venture.. Lien ~Trac~ pursuant;. ~0 the::'Venture Deed
Trust. A pozkion,.:of, the .Additional .Ta~'..are "ioll back' taxes.
' which maT. become due.upon~,,a change'~in..uSe o~"por~ions o~
Land from an ag~icul~ural:~"use.~o ano~her,:.use~-~.(the ~7Roll Back
Taxes'). Another portion of the Additional'TaX~s~ results from '
the possibility.that additional taxes:may be'due resulting from
the withdrawal of aqricultural.:us~..~X~mPtions from portions of
the Land (the ~Contested'-Taxes"),~:i~Venture~has filed litigation
in connection 'with. ,the '~.COnCest~d~.l~Taxes;~. and, upon~ the
resolution oi~such.litigati0~, VentUre!.may be,entitled to a tax
refund (the 'Refund") or.:ventUre.'~a~]!;be' required to pay the
Contested Taxes.: .Company aCknowledgeS and. agrees that venture
is entitled to ,the Refund,':,if ;appliCable. If:;Vent~re fails or
refuses to.pay, the Roll. Back Taxesi,(including any penalties or
interest ~hereon) when .th~'same. are!:.dUe-or if Venture fails or
£efuses to pay .the Contestedi'Taxes~'(including.anY venalties or
interest thereon) after the? entry~0~ 'a [inaI ;.non-appealable
~udgment that.the~same are. due, then Company may (but shall not
be obligated to) pay the .same, and~" in such event, Venture
ag£ees to pay-'~interest 'ko'Co~panY.'!,o~:':.the ,amount .of an7 such
payment ak a per.:annum, ra~e'e~ual'tO ~he lesser of the highest
lawful contractual' c'ate.iofi interest 0i' eighteen percent (18%)
per annum from the date of such payment b7 Company to the da~e
of repayment by v~nture .;'(the~."Additi0nal.. Taxes Interest").
Venture's agreement ~o.paY. the Addi~i0nal TaXes Interest also
is a non-recourse'obligati0n,, and,':~i!f,-Ventu£e .fails or refuses
to pay. any Additional Takes .Interesi,~ Company s sole recourse
shall be foreclosure of .Company's; lien on~ the Venture Lien
Tract pursuant to the Vent~re'Deed'of.'Trust.....If~khe litigation
filed by Venture.in connec~ion with the Contested Taxes is not
finally resolved'.~i~hln, two (2) years ;after the date of this
Agreement and,. if ~hereafter any purchaser or lender purchasing
or lending money secured.b7 liens, on..any portion of the Land
affected by the.property tax lien securing the payment of the
Contested Taxes refuses tO accept a.'.title insurance commitment
or title insurance policy containing exceptions arising from
the existence of the Contested .,Taxes, venture agrees that
Venture will, within'~thirt7 (30) days after Venture's receipt
of a reqvest from Company,that venture do so, esr:ow ~,oney or
tak~ other action, reqUired..,bY. :the!'? title :company .~hich is
i~suing, such title, insurance c0mniitment or title insurance
p,:~licy to delete!'such':title Comp&n~'S.~.exceptions arising from
the existence ..of'the~Contested. Taies!.!(the "Required Action#).
If Venture £ails 'or'.'refuses'Lt0 ;tlk~tthe Required Action on or ....
before ~he.end..:of'such-thirty:'~(30),£.daY.:~period, then Company may CO
(but shall not be~obligated~to)...tike:the Required Action, and,
in such event,.Venture agrees;to ply'interest .to Company on any
amounts expended by Company.tn',kakinq,.~he Requi~ed-Action at a 04
per annum rate. equal to.,-,~he lesser, o~ ~he highest la~ful
contractual race of::inte~es~ 'or,!:~eiqh~e~n.:,peicen.t (18%) per
annum irom the,date suoh; am0un~s,..~ert'.expended by Company to co
the ,.daft o£ repayment,"i"bT,, vent~t~i,(the .~..~equitod Action CD
Interest"). Veneure's., agteemen~ 'Co '~ay the. Required Action
Interest also,.ts, a non-recourse.,obligatton~T,'~&nd..< if Venture
fails, or refuses eo 'Pays, any Required,:Ac~ton~,l~eetese; Company's
sole recourse i. shall,..be :t~f. oreclosute'[~o{,,~Com~any, ts. liqn on
,.,;.' :~ ...', ':; ·
Venture Lien Tract pursuant to'the'.gent~ite Deed',0f Trust. If
Venture ~ails or',reEuses to pay the :Rol:l~Back.Taxes '(including
any penalties or interest.,thereon) when',the same:are'due or
V~nture Eails or.refuses tO:pay the'~,Con~est.ed~Taxes (includlng
any penalties ot interest thereon).:~fter:',the:.:entry of a final
non-appealable judgment that' the same,are:ddt or if Venture
£a£1s or refuses bo p~y any :Additi0A~l'~.TaxeS "Interest
Venture: fails or,'refuses .to'.,eake :any/~equired 'Action or
Venture fails or refuses t°' p,ay. an~.'R&q~tred ACtion ~nterest
a~d if such failure or refBsai'~has 'n~':~been cured on or before
nxneby (90) days' after Company'.:'has~,;d&livered written notice
thereof to Venture,.then Company shall:.be'entitled to foreclose
Company's lien 'on the Venture.'.Li&n ~,Ttact pursuant to the
6. Ventu[e'Le:~er o~ Credit. company agrees that, at any
time after the date hereog, VentUre~shall have 'the'£1qht
de,,ivey to ¢omPanY,"~a' letter '~f ctedi~ complying ~ith the
"provisions of this"paragraph 6, and:Company will release the
Venture Deed of. Trust. Any letter ~ o£ credit furnished
Company by Venture ,p~rsuant to this paragraph 6 must comply
with the follow/ny:"', (i) it must be','ini~anamount: equal to one
hundred ten percent ,:(110%)' of~ any: Additional' Taxes ~hich may
become payable after' the 'date 'of'iSSUance (as established by
tax certiflcate~, 0r''other Written.:'~'e~idence "of' the amount
bhereo~); (ii) it'~'mdst'., be;,t~revo&·&ble~ ·(iii) tt must be
unconditional except lot"the presentation of a'siqht draft
less than the full~ amountof the :Ptodeeds are dra~n) and a
sworn affidavtb.'from the 'presidehb'~'ot,'ia viCe· president
Company cerbifyinq.'bhab COmpany ts entitled bodraw all or that
portion og the proceeds of the 'letter of credit then being
dra~n; (iv) tbs expiration date must be.no earlier than one (l)
year after the date: ot issuance: .'(v) tt must be issued to
Company~ and (vl),it must be issued'by Cornerstone Bank, N.A.,
North Dallas Bank,:HBank Dallas, N,~;.'or another bank approved
by Company; Company',shall/'be 'entitled,to draw ~rom time to
time proceeds' of :the :lette~' of'credit,in amounts necessary to
pay any Addietonal:Taxes·if,,Veneure..fail~·.or refuses bo pay
same as provided;in paragraph 5he~&'&f afte~ ~the expiration
ninety (90) dags'ifrom'the daCe,of ~aliVery o~ a written notice
Co Venture *by ·Company. specifying.':Such failure or refusal.
Company also sha11,,be entitled:bo d~aW,all remaininq',proceeds
of the letter of, c~&dit ."if ~uch ~lette~ gE credit is
replaced by anothe[~*~letter,,bf:.'eredit',,.comPlging..,~ith the
provisions 'gE bhis,parag~aph"6:.at'.least[thirty (30) days prior
to the expiration date of 'the
' ,,then'effective ~letter of credit
or ig the bank. issuing ,,,the letbet,'~,:~0'g ,cradle, is granted
asstst.~nce or is: Closed 'by ,the ",Federal Deposit Insurance
Corporation. I£' the proceeds of bhe,~:?l&tter of~credit drawn'by
Company exceed 'any.*~Additional; Taxe~:*.;'~bhen' dd& ::and 'payable,
Company shall b~:.entitle~ 'to hold*Sueh*~O'c&ed~ aS'secUrity for
Venbure's obligation,to *pay: any furt~&t~!AdditiOnal Tax~s until
...... ,.~ '.~ ...... ~.:..... "~"¥
· .. , ..,..., . , ,. ..... ~:,~,~.,..,~., ..... ;,,_ ,; ,.. ,~..,~?~'
· .. , . ~., , , .,, ., . . ~. ;~,~.', , . ;;'~, ~ ~.. ~, ·
, . . ., . , . .:, . ; ',iq ,,~.,~. ~!,., ,~.:' .,,..~ . . ..'
' . , '. ,,~ '.~!~. .,. ~. ~;.?::~ .. ,
even~, ~he 'P~ymen~ ~ven~")~ . (~),~he..,~u~, ~ey~en~ oE
Add~on~ ?axes'.(eL~h~..by.ven~u'~.~i0~: by..Company
(L~) ~e de]~ve£y, by Ven~U~e.~,~o..Co~&~i-,o~':~anO~e~. ~e~e~ .o~
¢~ed~ comp~¥~n~ ~h ~he."p~ov~SLo~'0~'~:~'.~t~Ph 6. Any
Company ~h~. ~ay any ~em~nLng'~b~e, o~. such
(~o~e~he~ ~L~h any ~n~e~es~ ~he~eon):~o.-Ven~Ute."~pon ~he ~u~!
Eo~ ~! .Ad~Lona~,..~xe$,-~h£ou~h~.':.i~e~.~a~S~e o~ '~me, any
ex~on o~ ~abL~y"~o~. aL~ A~a~on~! ?~xe~ through the
o~e£ ~en ev~den~e.,o~,.:~ZL~ ~e~ .o~ .~e. ex~{~on
?. ReZe~s~"i'o~ b~en .on venture .b£en- ?~¢~. Z~ no~
~evLou~y ~e~e~se~ ~pu£su~n~ ~o ~he.~p~ov~ons o~ ~a~a~ph
he~eo~, Compan¥,'~ees ~o ~e~ea~e?k~e'Ven~e~Dee~ o~ T~u$~
u~on e~e~ ~he.'.~u~! p~/~nen~.o~. ~.,,A~on~! ~e~ by ~n~u~e
o~ ~he e~~on..'o~;.~b~ Eo~.~L:Aa~6n~ ~xe~ ~h~ou~h
o~he~ ~en 'ev~aen~e' o~ Eu~. p~e~ o~ ~e exp~e~on
~bi~y. "' . ~ .'..
8. bLen ~o ~e~u~e Company's Ob~ons. ~o secure ~e
~e~o~m~n~ o~ Company's obl~on~ un~e~ ~~p~ ~, 2 ~n~
3 he~eo~, Com~ny.,h~ by Dee~ o~ ~u~ (~he "Company ~.3e~
o~ ~he Comp~ny.,..5~e~:~es~be~:':~Ln' ~~he~ ~xh~b~ G
co~encemenb or.',,bhe comple~ion.:'oE:i~He~r~z Road and bhe Ukilib7
Facilibies on or beEore bhe :Hea~b~':~Ro~8 Co~encemen~ Da~e or
ehe ~eatez Roa~' Comp~ee~on'b~e'a~a/&f'::eo~ pa~ ehe.Heate~ Roa~
Costs ~t~htn eht~eT"(30)'-~aTs.aE~et:~,~he':~eate~ Roa~,.Comp~o~ton
or. ~E Compan7 Eat~s ~o cause;'~he'eb~P~e~on;oE ehe P~actng an~
gta~tng o.e ~t~on ehe To~n Ceneet~Stee,'on'ot =be~o~e ehe ~t~
Comp~e~ton Da~e.an~/oc eo':p~r'~he ~tZ~'CoseS'.~tehtn ~ht~e7 (30)
~aya ae~et ~he. Et~ comp~eeton .ot..~t~ Company,: eat~s ~o pa7
Veneute an~ smounea .,~ue,~o.~.VeneUte:~' by Company: pursuant to
paragraph 3 hereo~., and tE..CompanY.~.'Eu~'Ehet ~ails ko cause
co~encemene or:ehe .compleeion..or:..k~e:~payment~oE ~he obligation
hoe caused to be ,etmely per~Ormed.~'ot~-;paiO:::by,Company ~iehtn
ninety (90) days:a~eer ehe.deltver~~ eO"Compahr"bY Venture o~
~ ;'~ .';h
:,'. :"::." ::' . . 'i,., :..'
~.: ~ .. : ..
.... 3,-'. '4:.:. ' ~,.' ' :<
.......? .;~.~ , .... .:.~
caused to be ti~lr 'performed 'or paid;'!Vantura may foreclose
venture's lien "on" th~ .' COmpany .Lie~::',Tract pursuant to the
Company Deed of Trust. . ........ ,,t..-~,: :
Lime afeer the dace hereof,:,'Compan~'Shill hays the righ~ ~o
deliver eo Venture a letter :':of c~$diET.~'eomplyin9 wleh
provisiona of ~his paragraph 9~'~ ',and'{~V&~ure '~ill.. r~.lease
Company Deed o~ Trust. ' . Any ,~.;le~r~'~, ::.' credit.: furnished ~o
venture by Company -pursuan[ ~8 ;;[hl'S~;~'~¢dragraph 9' musk comply
wz[h [he follow~ng: (~) ~ mUs[. b~,'?,t~ , [he -amo~m~ of Seven
Hundred Thousand 'and No/100 Dollars ',(~70~000.00): (il)' ~ m~[
b~ irrevocable: (iii} i~-mus[ be .umco~dl[tomal excep[, for
pres~n~a[~on of ~he letter 'of Cr~di~ ,amd.a sworn af[tdavtb from
on~ of ~he venturers tn Venture c~t[tf~tng ~hak' vemkure
entitled to drawn all of the proce~dS:,"o~: the letter o~
(iv) its expiration-date must~b* no.-a~rlier th~n one (1) year
after the date of issuances'. (~)~ it ~ust'ba {Ssua~ fo
and (vi) it must 'be iSsued.':;,by' cdrnarstohe' Bank,'.:/N.A., North
Dallas Bank, MBahk Dallas',~"N.A.: or';¢another 'b~nk approved bY
Venture. Venture... shall ..be, entftled:~'.to' draw and retain the
proceeds 'of the-letter of~.credit .(as liquidated 8amages for
Company's failur~;to' fimely cause fha $Co~encemant and/or the
completion and/or ' the.".pa~ent- of' ComOany's obligations under
paragraphs 1, 2 or ~ hereof) if Company fails to cause the
co~encement or":the :completion of..Heartz~Roa~' and the Utility
Facilities on or, before the Heartz'.ROad'Co~encement Date or
the Heartz ~oad'.Completion Date and/or to pay the Heartz ~ond
Cost~ within thirty (~0)'.daYs after fha'~Heartz Road Completion
or if ComPany fails to'cause th~ completion of the placing and
grading of fill:on the Town Center Site'on or befor~ the Fill
Completion Date and/or to pay the Fill Costs within thirty (~0)
days after the Fill Completion or? if.' Company fails to
venture any amounts due to Ventur~ bY Company pursuant to
paragraph 3 hereof and if Company f~rther fails to cause the
co~encement or the completion'or the. pa~ent of the obIigation
not caused to be timely performed ..or .paid by Company within
ninety (90) days after the delivery ~to Company by Venture of
writt,n notice sp,cffyfn~ th, oblig~tiofic:whfch Company has-n~
Venture also shal:l' be' entitled"to",~-dr~h th~'-'pro~eeds o~the
letter, of credit'if 'such letter~ o~'~,credi~' is' not replaced by
another letter 6{'"credit ~omplyinq::~ith':'.th~' provfsions'.oi this
paragraph 9 at least thirty." (30)' darS,.',~rior, to the-.'exptration
of the then ~ffectivn letter oi~{credit.~or if :,tha.: bank issuing
th~ letter o~ ~redit Is qr,nt~d.sssi]t'inc~ or'is.'elos~d~ by ~h~
Federal D~posit Insurance Corp6ratiOa;...-~;;.I~ th~ proceeds 'o~ th~
l~tter of credit .'ar~ dra~n' bY'.~ Ventute'.~',:Ptlor 'to the occurrence
of th~'Company'.D~fault,,:,-V~ntUra shall;.b~'.~ntitl~d to hold such
proceeds, as S~curity' '~fOr.:. ~-tha ;'~patformanca.". ~0f Company's
obligations undar",,paragraphs '1', 2 a~d.ha~ifiar~o~y~ntil".ths first
, "' 1 :"': ' ': ":' '~ .... '. {
-...1 ;,-.. ,..
'~ih' "": .. :"
'. ',, i.~ . ~ ', .'. '-'?i~!~.~ :'~': ii .'~.',:,~i '
· . ,~,~,' ~!.~,: .~,.: .,.~....'~ ,
to occur oe: (i)'the ~Compan~.Deeau~?:'~n"~h~h'"ea~o Ven~uto ~.
shall be en~le~ ~o ,~e~a~n ~ueh ~be~ (Lo~e~he/ ~h any ~ '.
in~e~e~ bho~eon) a~ .~qu~a~e~~ ~amA~.;(ov Compan~'~ [a~u~e '.'~
~Comp~e~on ~ven~~)~ ot (~) ~h~'~Ol~Vo~:,?~'~ Compan~
venture o[ another letter" ~ De et~xt~-' eomptXing with the ..
p~ovisions o~ this paragraph.' 9 '..'(the 'Substitute Letter
Event"). Any such proceeds' held by Venture shall be placed in
an interest bea~ing account. I~ eiehet..~:the Completion Event DE
the Substitute Letter Event occu~s.~Pttor to the occurrence o~
the Company Default, venture Shall pay 'the P~oceeds (together
~tth any interest thereon)'to Company; ~/:'~ the Completion Event
occurs p~toz to the Company ~DeEault~ ..... any letter o~ credit
delivered pursuant to this paragraph'9 which ts stiI~ tn
venture' s possession, aha ll~.'be'.~ ~eeu~nea ,~eb Company' by veneu
., ;~;"..,,' ...... ..... ,,.... ,.. :~ .%: .;';~..~'~'~ /.,. , , ·
t0. Release" of bten ?on~'?com~,~.*.C~en'; Tract, te 'no~
previously release~ pursuant to the ;provisions DE paragraph g
he=eoE, Ventu=e agzees to release '~th&: Company Dee~ DE Trust
aEte= the later to occur o~: '(t) ehe~:Heart~ Roa~ Completion;
(ti) the FtI1 Completions' or~, (t~t}*;C0=PanY~- furnishing the
pa~ent Evidence eD Venture.'~ ?' '*~ ..... .'~. '*
. .., ~ .~L:LI ,'~ ;.': ~,-?.* .
yen:ute ' sha~l have :he ttgh~ ~o co~la~eta~y a~st~n to any
To~n Cen~e~ stee' ehe:,.Company Dee~ ~.&E'.~.TtuSe' ot an~ ~eeeet o~
provisions o~ ~ata~taph,,~.:heteo~. C6~panY"sha~l have ~he tt~h~
eo co~a~etal~ 'asstgn'~ eo'~:'any ~:~e~et providing Company
Oee~ oE.Ttus~ or'any ~ee~et.o~ ete~t~~-~utntshe~ eo Com~r by
portions, o~;,.~he'~To~n" Cen~e'r~ Si~':'~nd. ~he Compan~ Si~e, as
applicable,.'.as .'are requir&d ..b~ :.tho'.city. or applicable
public, uei l'iey.~ companies.? and ;at~'~teksonably necessary Eot
~he develop~n~ .:. oe 'ehe .~.Oehet :~. ptte~.S:',, siee,.':;.'Ptov.~ded such
easements do hoe, ineer~ere:::~i~h~,ot~:cause.~ddteiqhaz cose ~o
the devolopmenk 6E' the'. Cite ~on which ".they, ate' Ideated,
B. ,' Easemen'k'', .imptovement?~:~:C6~tS, :,'.The. costs eo
cons~ruck any easemene-:improve~nes.~ shall','~be paid by e~
party : causing:'"' bhe'~/'~onSkrucet66~ehereo~ ."'"(the ' "~asemen~
:. ,,;. , .... ~ :" . . , · .~,,c~,~,.,~t.~.,.. · . ~,~. ~ ...
;, ~. . ~. ~ · . - ,,~.~. ~.-., . ~* ~. .
, , .... . ,. ...... . .... . . .
~'~ : . · ;.'.';, ,'. , .
the Other Party shall reimburse [he!.:gasement. Improvement
Constructor for the Other~Party's'Pro:~Rata Share of the
Basic Costs in cash~ on that~ date ~hich~.,is the later of:.
(1) sixty (60) days a~ter the date. o~,~'.the"comple~ton of the
applicable easement improvements;. (ii):::~orty-five (45) days
after the Other Party has 'recelved'~,cOPiOS o~ construction
contracts, invoices, ,statements~'.~':~'~nd ~...o~her evidence
reasonably ~cessary to establlsh:'~'t~i~:amount of the Basic
Costs and the .full payment:', thereo£;'~ or .~tii) .th~rt~ (37)
days after the Other Party:ties int°~:°r"°tnerwise oegzns co
use such easement improvements;","*' As used in this
subparagraph, 'Pro Rata Share' meana'!;that amount equal to
the product of (x) the Basic-Costs,:,.multi li~P--k~' (y) a
fraction, the numerator'of which:,ls, the linear feet of
easement improvements, contained within the Other Party's
site and the denominator of bhich is-the total linear feet
of easement improvements' contained..'.:within the Easement
Improvement Constructor's site and the.ether'Party's site.
a ..... ~ ~---in .'~aslc Costs* means~'the minimum cost~
necessary to obtaih the .service d~sired by the Easement
Im rovement :Constr~ctor. - Basic' Co~ts;~',shall not include
P -- - ...... ~ '---ts:~'Of the Easement
supervision aha/or . Over,edu ~o ".
Improvement Constructor.nor, unless :apProved by the Other
Party in ~riting, shall-Basi~ Costs(include'items such as
landscaping improvements or ~nder~round electrical lines
(unless mandated by a controllinq .governmental authority)
not necessary to obtain the service.desired by the Easement
Improvement Constructor. .' ",.'. ' '
. !
C. Relocation- All .eisements referred to in
this paraqraph 12 , shall .contain . provisions providing:
(i) for the relocatlon of such easements by the party
owning the stte,.:upon which the applicable easement is
located so long as the service','to', the other site is
maintained on at .least' the same level and at no greater
cost to the .Easement Improvementi Constructor to provide~
service to its site as provided, bY .the appllcable easement
prior to its relocationl and:(il) that upon the relocation
of any easement· the ar~a covered by,the easement ~hich
relocated shall he,released and terminated. ~11 costs to
relocate such easem~nt.shall.;'be ,paid by the party wishing
13. Power ~ine,'.' R~10c~tiOh.-.",i',.V~nture . ,8n~ Comp8
acknowledge the ~-'~s-~nc~...of.--.a ..pow~t:?line cCnstructod upon
portionso~ th~ To~n:;Cen~r Si~o and th6b.Company..SiE~ by
Power t [Aght Co. ('TP$L') EO provid~"i~tvic~ to ~ho' ~u~tcip81
agreement, dated .February 6~ .1986, 'bC~6on. VCnEur~ and
qrantin9 to TP~h. ~ho iiqht ~o uso,.'Ofl:,:,'a"Eom~or~rY basis,
fifteen foot (15') .~ido s~rip oi land';;;aeross .portions et th~
To~n C~ntor Sit~,.and t~s Company SiE~ (Eh~.'Po~r Contract').
Tbs Po~[ ConhracE':providss'i°r'~hs'~uturo r~location et
. . , ~,,;.(..~.~.,,~ ....
',:',. :,i. '- . .~...:...: ,, . ,~-,~3 : I* . ,, , : , .
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. ', ,.,.'! . ~,' , . . i, ,.
',' . .~.,~
: ~.i~". ".~ '
~. ',.'.~.,. ,?; · ';
Power Line conditioned upon the p~rty'.~e~destinq' the relocation
bearing any reasonable costs, associated~:therewtth, i': Venture and
Company agree that either Venture* or~i~ompsnY shall have the
right to request, the: celocati~n~.:'Of~;~the Power .Line (the
'Relocation'), *and, .pursUan~.!.i,',;tO.*~.?~the ~ ~*,~PrOvtsio~s of
subparagraph A o~ paragraph.12~'hereo[,?~:both::venture and company
agree to grant easements acros~ .~.th6it~'~.re~oective sites,~ to
accommodate the Relocation.:~'*Vent~re','~nd~Com~ahY agree to pay
any reasonable costs for *Overhead ~'-.*eleCtrical improvements
located on each respective party's Site associated with the
Relocation, and Venture and Company agree that the provisions
o~ subparagraph B of paragraph.X2 ..hereoE .rio not apply with
respect to such costs, g~r any relocation of.the Power Line,
Venture arid Company a ~ to ~¢ooperate. with each other to
obtain a release of the Power Contract,/*i!~ ....
,f :?." .*
14. Enforcement. *~ I~ *Venture-ori**C°mp~y breaches any of
the duti~ o--~--~-~-[ga~ions~ impOsed upgn the applicable party
under the terms,* Provisions, conditions, · covenants and
agreements . contained herein (the ''applicable party, the
'Defaulting Party,), the other party. '~,(the**'Non-Defaulting
Party') shall have the right to{ (1) seek*injunctive relief to
require the De~aulting. Party to perform such duties or
obligations~ (ii). seek. compensation for *damages arising or
resulting from the ~ailure o~ the Do,SUlking Party bo perform
such dutie~ or~. obligations~ ~ (iii) cause such duties or
obligations to be performed in whirl= event all sums expended by
the Non-Defaulting Party in causing such duties or obligations
to be performed shall become a demand obligation owed by the
DeEaulting Party *to the Non-Defaulting Party from the dates
such sums are expended by the Non-De,suiting Party, shall bear
interest at the lesser of the highest lawful contractual rate
of interest or eighteen percent (18%)~ per annum ~rom the date
expended by the Non-Defaultlnq Party until repaid by the
Defaulting Party, and shall be sub,.eot to collection by s~it in
any court of competent jurisdlction~ or (iv) exercise
rights or remedies*otherwise available at law, in equity or by
statute. All rights and remedies shall,-be cumulative and not
exclusive, lb is expressly agreed that time is oE the essence
in the performance of all. terms~ provlsions~ .conditions,
covenants and agreements contained' herein. In'any. legal or
equitable proceeding for the*'enf~r~emen~..of any~Of the terms,
prov~sions, conditions, covenants ~or~ .agreements contained
herein or ~or dS~Sg,s for ~he breac~)':o[ an~ of the terms,
provisions, conditions, fcovenants '~or~!!~:a~reemerits contained
herein, tho losing' p~rt~ 'shall payf}.~he:~.,at~Orneys':' fees and
cou£~ coats of the..prevailing PsrtY,~.~';~6ntUre'.'hereb~;gran~s to ce)
Company ~he rtgheeo enter upon'ehat:p6tt[on oe the Teen"Center
Site reasonably necessary ~or ~he purpose oE causing the dueie~
or obligations o[ Venture eo be performed as contemplated;in
~hts paragraph ~4 and eo cause ~he,plaetng and:grading oE Etll
on ~he To~n Center.~ Site as tequir&d ~by paragraph 2 hereo[.
Company. hereby qtan~s. ~o. venture· ~he~,tighe ~o enter boon
. . . .. ', . ~ ~ ~, ~,~ ,'~",. ~ -.
'",.~ . '(. ...
por~ton of the Company Site ~/'rea~nably:'.necessary for the
purpose of causing the:duties'~or~obligations~'o[ Company to be
pec[orm~d as'' contemplated ':i i~' in:'. this paragraph 14,
Notwithstandinq tho [oregoieg' po[tiOnS of this paragraph 14,
Company acknowledges and ..agreesy~th~t.:.the, provisions of this
paragraph.14 are .not applicable':~ith'resPedt to any ~ailure or
£e[usal by Venture. to .,pay:--.the~,Additional.. Taxes and that
Company's remedies-~or:' such.' failure : are~,.ltmited to. those
contained in subparagraph I.. o[:f.l~pa~agraph I hereof ~nd in
paragraphs 5 and 6 hereo[. .'/ .. ,,~ ''.' ....
15. Covenants Runn£nq ~ith Band, As used herein, Venture
means and includes venture and all s~bsequent parties who [rom
time to time:own or hold legal, ot.'equitable title to all or
portions o[ the To~n .,Center Si(e.;:' As used herein, Company
means'and includei Company and all Subsequen~ parties ~ho [rom
time to time,o~n~or hold legal'0i.~.!.equitable title, to all or
por2iOns of., the ' Company, $itel'.'i. The'. ~erms, provisious,
conditions, . covenants and'. agreements ?cont~ined ' in this
Agreement ares, covenants running ~ith ...the'.;land and shal! bi~d
and inure to the-bent[it of venture, and .Company and their
respective · heirs, -devisees, 'personal:.. representatives,
successors or assigns ~ho item time to time own or hold legal
or equitable title to'all or portions of the To~n Center Site
or the Company. Site, " .i''"
16.. Expi~ation' of i~reeme~t.', Thi~ Agreement shall expire
on June 30,2000.,.Upon the expiration of this Agreement,
duties, obligations!and liabilities-imposed by this Agreement
shall lapse, and 'become -.null-" and. void except for any
reimbursement obligations under subparagraph B of paragraph 12
hereof accrued.prior to the date of the expiration of this
Agreement ~hich shall survive such expiration until paid.~
17. Control.
A. :'. Venture. ~ Not~ithst&ndinq... anything to the
contrary' contalned-:.hetetn, :so, long '.as Venture o~ns any
portion of the Town Cenher Site, all rights;to the remedies
set fiorth in clauses (i) and.,(lii) of..pi~aqraph 14 hereoE '
shall be/vested only. in',Vent2re 8nd nok~in any other o~ne;
of portions 'o[ .:the' To~n Center Site. · ~hen Venture no CD
longer owns,any portion!of.the ?o~n C~nhe~ Site, all rights
to exercise the remedies set~f0tth in clauses (i) and (iii) N
of paragraph,14 · hereof'- shall'~',,:be .,.vested in a party
designaked by all o[ the thud ;5~nerS oi the To~n Center
Site as:evidenced by an instrument of~ designation recorded
' in the Deed. Records oi.D8llS~ Coun~y,.'T~Iss, or' i~ no such _.
party is so.'~desiqna~ed, in ~h~..~hen o~ner, of ~he largest ,03
portion' of the To~n Center. Site. As used in this co
paragraph l?,.Ven~ure means :and .includes Venture and any
successor.o~ venture ,(inclUding,'.~ithout'' limitation, the
individual' venturers'.,.'in'.,VentUre)' or any 4tiiliate o~
.,~ ,. ,,,..,.,,.. ,, ........ ~ ~ ~:~ ?~'~.',~-~.ff~(~;.' , ~y, ,'~ ,C,".,.;~ ,,,. , ~,~ .~.. .,~,,
~or~h in clauses (i) and'~(~i~) .o~,f~t~gr~h 14 hereo~ h~ve
been assigned. /".'~ '..7"~'.'~:~¥;~ ~.:' -
contrary contains4 herein, ':So-L'.l~ng: as Company o~s any
portion oE the Company Site~ .all~f~rightS~ to 'the t~dtes set
[orth in clauses (i) and .(iii) o/~';pataqraph 14 hereo[ shall
be vested only in CompahY ~nd h6~'~in'-any.' other owner
portions o[ ~he Company Si~&. ~hen*.CompanY no longer o~ns
any portion o[ ~he Company Site, all rights ,~o exercise the
remedies se~ torch in clauses (1)and' (iii) o[ paragraph 14
hereof shall be~vdseed in a par~y: deSiqna~ed by all o[ the
~hen o~ners., o~ ~the - 'Company sile',:~' as evidenced by. an
ins~rumen~ o[, designa~ion recordedl.'in"'~he 'Deed Records
Dallas Coun~y,'.Texas; or ii no such patty is so designated,
in the ~hen O~ner .of the 3argest portion. OE the Company
Site, Rs used ' in this paragraph~ 17~ ' Company ~ans and
includes Company and any successor of COmpany or any
pa~ene, subsidiary or ~af[iliaee of,:Company' to ~hich the
rights ~o exetcise, the remedies.' see's-~or~h in clauses (t)
and (iii) of..patagraph 14 heteoi have been assigned.
18. Severabili~. I~ any term;'"-Ptovii'ion, condition,
covenant or .agreemene'coneained'herein 'is:'held to'be illegal,
invalid or uneneorceable, the legality,, · validit~ and
en[orceabili~y o[ the remaining ~erms,,.provisJOns, conditions,
covenants and agreements contained heget~ shall not be s~ected
~hereby, ~nd in lieu o[ each s~Ch illegal, invalid
unen[orceable term, provision, '?.' condition; covenant
agreement, the~e shall be added -~o' this Agreement a legal,
valid and en[orceable term, provision, condition, covenant or
agreement as similar as possible' 'eo.'-the ecrm, provision,
condition, covenant or agreement declat&d illegal, invalid or
unen[orceable. : .
19. No ~aiver. Except as p{ovided~ in paragraph 4 hereoE,
no ~aivec o( any o[ the ~erms,'~,provisions~ ; conditions,
covenants or agreements contained he~ein['sh&11 be:' ef~ective
unless in ~rtting executed by the pare~.~ot ~h0se benefi~ the
applicable ~erm, pcovisimt,, condi~ion~ eOvenan~ Or agreement is
intended No ~alvet oi any ~e t~ ~.'.~..' Provision, condition,
covenan~ or agreement con~ained :herein ~undet,, ~ pa~ticular
circumstance shall be.':rdeemed a ~aivet..6~'.'~uch"-.e~m;, provision,
condlbion, covenant .or agreement under, a~ di~[etenb'., circumstance.
20. ~eions. The c~P~ions co~'eiined in e~i~' Agreement
are lot convenience only and shall ln t{~no ~ay enlarge ot limit
~he scope or meaning .oS the various~/~;and several paragraphs
21. Gender. ~ithi'n .2his .'Agre&~efih~'"~ords oE art gender
shalt be held and construed eo;'.:incldde any other gen,~er, and
.: . '? .
, . : . ,. ,. ,:..:~'.,:
words in l:he singular number 'shall~*'l~"*'held*'. and consl:rued to
include t:he plural and vice vecsa,.,i~nli~SS .the*cohtext ot:he£wtse
22 Coun~e~. This , Aqr~ '~, has .'~
. been executed in
multiple countetpacts, each 'o~ ~hich.'sha11 ' be deemed an
o~iginal, and a11. o~ ~hich shall~?cofis~itu~e.bu~ one and the
same instrument.' I ;.~ ..-: ,. ,,' ~':. ',
23. Exhlblks. All exhlbi~s ' a~eached hereto are
inco~pocaeed herein, by ce~ecence ~ot a]~ purposes ~hereve~
cefe:ence is made to~ the same. '. , '.'
24. Governing ba~ and venue..: .t This' Agreement shall be
governed by and cons~cued in accordance ~ieh the la~s o~ ~he
Skate of Texas ,,':' and Venture ahd Company~both irrevocably
ehae venue for'ang dispu~e'involving..ehis'~Agteemene shall be in
any couz~ of competen~ ~risdicelon tn;.Vallaa"count~, Texas.
25. Complete Ag=eemene. '~ This ',Agtee~ne emboaies the
enei~e agreement be~een Venture an~ :CompanF
the subject maeeet hereof an~ supet, se~es all'Viler ag[eemen~s,
~iteen o[ oral, ~i~h cespece eo ehe"'sub~ect matter heteoi.
2&. ~en~ene' This Agreement'S(maYa[nee ~be"~amended,
oc ~e~minated except by an agtee~ne in ~tieing execu~e~ by
patties then o~ning o~ holding a legal(or.equitable ineecese in
the To~n Center Site 'and the Compahr Sit&. ~
..., .. ~,,.,?.'...~. . .:.
E~C~ED as.oE the day, month' i~'~ir
firs~ above ~ti~bon.
THE PARK~ OF' COPPEbb JOINT VENIRE
,".:' ,,~. tL, /. . "
.f. ,. ;;' -..:
.'- By
len
.,:~ .., Venturer
~ :,.....-. , ,':.:. . ;;:~:, ..-~,. ,
,:, ... ., , ....8y~ ' '
.......... ...: .Hin
DEED RESTRICTION AREA
TRACT- "A".
BEING a tract of land situated in the sabered Henderson Survey, Abstract No.
629, the Clarinda Squires Survey, Abstract No. 1327 Imd the a.A. & H.O.R,R. Survey,
Abstract No. 1430 in the City of Coppell, Dallas County, Texas and bain8 a portion
of that certain tract of land as described in deed frma Good Firm.~cial. Corp. to
H. Douglas Adkins,. Trustee. as recorded in Vela]Be 76188, PaEe 2355 in the Deed Records
of Dallas Count. y, Texts and being more particularly described es follows.*
COI~MENCING at the southwest corner of a tract 'of land deeded to Ruth Perkins
a.q recorded in Volune 69241, Page 450 of the Deed* Records of Dallas County, Texas
said point also being on the north line of Sandy lake Road (e variable width
right-of-way); Thence North 1°22'49" #est, 620.80 feet leaving the said north line
of Sandy Lake Road to the POINT OF BEGINNING;
THENCE North 1'22'40" #est, 2004.13 feet te thk*beginntnf of · curve to the
having a central angle of ~9oS8t22,, -nd a radius ef 209.00 feet;
THENCE along said curve 100.38 feet to tho end of said curve, said point
on the southeasterly line of Parkway Boulevard (an 88 foot *right-of-Ny);
THENCE North S8'38049to East, 422.S4 feet *tlon~ the said southeasterly line of
Parkway Boulevard to the befinntns of · curve to the ri~ht hvinj t central tails
of 3028,30,, and · radius of 21S6.00 fee~;
THENCE along aatd curve, and the said southeasterly line of Parkway Boulevard,
130.76 feet to the end of said curve;
THENCE South 27'S2'41" East, 2SO.00 feet' 'letVtnf~ the said southeasterly line
of Parkway Boulevard to · point for corner beane in a curve to the left runnln~
in a southwesterly direction and having a~entr·l anfl~ of 3028'30t' · radius of
1906.00 feet and a ch6rd bearing of Sou~h 60023'04" #est;
THENCE mlonf said cdrve 11S.60 feet to the end of said curve;
THENCE South S8°38'49' West, 24S.8S feet t6 ~ point for corner;
THENCE South 1'22'40" East, 206S.68 feet to.i point for corner;
THENCE South 89'S1014" #est, 2S0.06 feet to the POINT OF BEGINNIN~ ar.J conttinir.~
14.814 acres (6~S,270 sq~re feet] of lend.
7
Stan Strickman/ABQ Development Corp.
625 Silver SW--iuite 200 f ' t '
Albuquerque, f~M 87125
This MU~a{~DOMo~°pmont.,Agreemen~ ("Agreement") to made
and ente~ed into am of the ~daV.of,~Docember, 1088, ,between
ABQ~Dove~o~mont*~OorpoFi~n,,,(,,Oompan~,), a New Mexico cor-
poration, aching by and through itc dul~ authorized officer, and
Pa~kway-Partner~,~{J, par%~h~p,,), a Texas general partnership,
acting b~ and through itc duly authorized partner.
1~,00
WHEREAS, on the date hereof, Company=has sold and. con-
veyed-to~PaFtnerohjp that.wcertaln land deecr2bed.,ln the attached
Exhibit .~'A",(~he "Sales Trac~") pursuant to that certain Contra=t
of Sale (~he "~ales Con~uaut") between Company and
and
WHERKAS,..,the Sales-Tract.:t8 contiguous,to propert~ owned
by Compan~.w~h th~.ea~teFn-and.,sou~heFn bounda=ies of the Sales
Tract. being conti~ous..~o,.8~ripe .of .~and. owned..by Company which
aFe.~ub]ect.to a Mutuel-DFelnego.gaoement dated May 24, 1988 end
duly recorded in Vo]ume,~88109, Page 2946, of the Deed Records of
Dallas County, Texao (the "Easement Are~ and
WHKRKAS, Company acknowledge~ that Partnership, as an
investor, does not,have~anymi~ediate.~onetruction plane for the
Sales Tract, bu~"to..e~ence,~..the-future..tnveet~ent value of the
thte. Agreemenl; and
~ER~AS, Oompeny~and . the.. Partnership ~acknowledge the
neceeeit~.to coo~e~ate.ln.,.~the.futu~e In Pautne~ehl~,e developmeut
of the Salem Tra=t and Company's construction of improvements to
the proposed llnear park-system,, including drainage system impro-
vements, upon the ~asement~Area. or...as may be required by the City
of Coppell, Texas, for the. proposed linear park s~etem
drainage eystem{ and
~H~REAs., ae a'~ate~l~l~.induce~ent .to Company to cell
conve~ the Sa~e~ T~act.,,-to~Partnerehtp,...and-to..Par~nerehip
porchaee..the Sales-Tract-.-f~om .Company,.Company .and Partnership
agree: to. enter~.~nto.,this.Ag~eemen~m
NOW, THEREFORE, for and in consideration of the premises
and of the agreemento contained herein, Oompany,.and
agree.ac followe~
~. ~velo ment of s ]~ T~act. Company
~°°~er~te'~C~~~o~P ~,~M~th Partnerohtp~e deve~op-
menc of the ~aleo T~act:,Vto-the.~a~ ~t{-f~il~ zoni,g den~
MUTUAL DEVELOPMENT AGREF'~7~'- Pa~a 1
,'3900 Ii 720
Company shall consent to or Join in Ithe platting of ,';ompany's
adjacent land to the south and east of the Sales Tract that is
presently zoned for multi-fami~y uses b~ the City of Coppell,
Texas, so long az same will not impair or impede Company's
construction of the proposed linear park system and drainage
system Improvements upon land owned by Company.
2. Malntenance'~" ~t"~is' contemplated., by Company and '
~ar~nershlp! t~at..the ~Ott¥~'of Coppell will 'accept the reapon-
s'lb~ltY:and,obligation~fo~,,maintenance.of the-linear park system
and.~ drainage, aystem.,~to~,~be..,conotructed by'~'Company up~= the
~eesment Area,. ~HONevt~)~.~f~he..C~t~,Of. Coppell~refuees to accept
the::rsapo~a~b~t¥ andl~ob{~gat~on for malntenanceof such ltnear~
P~r~nershlp'e axpense'!k~.such l~near~.Park system and drat~
system l~provemente upo~F~he.gase~ent Area Partnership agrees
to J[effect such 'maintenance responstblltt~ and obligation by
(~) creation of an appropriate property owners association
bearing the responsibility.and obligation.of such maintenance, or
(it) imposition of restrictive .covenants .upon the Sales Tract
imposing the responsib~lit¥"and.~.obltgatton of"such maintenance
and providing that Partnership, Company and tha.C~ty of Coppell,
Texas are beneficlariea,~of,~.euch..restrtctive.,covenanta and, as
such, are empowered to enforce same, or (iii) such other method
as may be mutually acceptable to Partnership, Company and the
City of C0ppell, Texas.
3. Temporary Constructtn~__Easement. Partnership
hereby GRANTS "AND CONVEYS to Company, '[~"Company~s successors
and assigns, a nonexclusive Temporary Construction Easement, in,
under, over and across such portions of the Sales Tract as are
reasonably necessary for the construction of the drainage park
system and linear park system required by the City of Coppell in
the Easement Area. Provided, however, Company, in its cee
thereof, shall not unreasonably interfere with Partnershtp~s use
of the Sales Tract. Upon completion of such construction work,
this Temporary Construction Easement shall cease and terminate
and Company shall restore and clean up the surface of the Sa~es
. Tract covered b¥_._such Temporary. Construction Easement into
substantially ira prt~r condit~on to the full extent reasonably
practicable. Partnership hereby bind~ itself and its successors
and aeslgna to WARRANT AND FOREVER DEPEND this Temporary
Construction Easement In, under, over and across the Sales Tract
unto Company and Compan¥,s successors and aasigns against every
party whomsoever lawfully claiming the same, or any part thereof,
by, through or under Partnership, but not otherwise,
4. Permanent Easement. Partnership.hereby ORANTS AND
CONVEYS. to Company, and Comp~ny's successors and assigns, a
.nonexclusive Permanent'Easement. in, under, over and across that
strip of land of the Sales Tract fifteen feet (15') in width
located psra~lel to and..adJaoent to the'eaeter~ and southern pro--
MUTUAL DEVELOPMENT AGRF?~EN~ - Page 2
8900
perty'~lln~$'of'"~'the"S~Tss"Tract' (th~ "Permanent Eaeer,,mt Area")
for the purpose of providing access, ingress and egress tr. the
Easement Area and the "Compafly Easement Area" (as defined in a
Mutual Drainage Easement by and between the Parks of Coppell
Jolnt~ Venture II and ABQ Development Corporation dated May 24,
1988, and duly recorded in Volume 88103, Page 2345, of the Deed
Records of Dallas County, Texas) and any other area of land
lncluded~ within the~ltnear, park ,.~aystem and dratnage system
required, by the" Cit¥~of:..Coppell,~.for equipment and machinery
necessary for the construction, improvement, maintenance, repair,
Inspection and reconstruction of such areas and/or any ~;aprove-
manta therein. Partnership hereby binds itself and l~e suc-
cessors and assigns to WARRANT AND FOREVER DEFEND this Permanent
Easement in, under, over and across the Permanent Easement Area
unto Company and Company's successors and assigns against ~very
party whomsoever lawfully claiming the same, or any part thereof,
by, through or under Partnership, but not otherwise. Provided,
however, Company, or its successors and assigns, shall leave such
Permanent Easement Area at the same level and condition that it
was in prior to any entries upon same by Company, or its suc-
cessors and assigns, to the full extent reasonably practicable,
and tn the event that any entry should cause or produce damage to
any Improvements that may be situated upon such Permanent
Easement Area, Company shall promptly pay to Partnership any and
all damages that may be caused by reason of such entry.
PartnerShiP agrees not to construct any impediments to such
access, ingress and egress, such as, but not by way of limita-
tion, fences or walls.
5~'~ Addtti°nal~Ltnear~'Park':'Drainage~.System Easem htS.
~r~.~ereh~p._agrees toigrmnt, convey:o= dedicate such easements or
fee' title ownerehlp~.q~porttone of the Sales Tract as may be
required by the Clt¥.'~of}!Coppell~ Texas for the linear park system
and drainage syatem..i~,.lmprovementa, so long. ee same will not
unreasonably Interfere with Psrtner0htPee ~or proposed use of
the Sales Tract. , ..... us
6. 9onatructton:.,,,of 'Llnear,;.ParkSystem and D~'atn,"g~
Syste~. Company agree$,.that:.,lt:shmll construct the Improvements
to the'linear park :eYstsm;"and~:drmtnage system at no cost to
Partnership and shall-do'.so,wlthout material deviation from plans
and speclftcat!ons to,be~approved by the City of Coppell, Texas.
?. Plats and Company ADDrovals. Partnership agrees
that Partnership shall deliver to Company copies of any plats
(including all engineering Information) covering all or any part
of the Sales Tract and will secure Company's prtor written appro-
val to any easement granted to a third party on or across the
Sales Tract which would, or c~uld, affect In any manner the land
area necessary for the drainage system required by the City of
Coppell, Texas.
MUTUAL DEVELOPMENT AGreeMENT - Page 3~
J9001 7206
8'~""'Devsl°pment~Eesementa~Partnership ag~='.,~s to grant
a~ch,~,aasements~-acrose"the ~ales TraCt-as"'are requested t,~ the
City.of Coppsll' or public utility companies and as are r6aeonably
necessary for the development of the other lands owned by Company
within ~he City of Coppell sc long as same do not unreasonably
Interfere with or cause additional costs to the development of
the Sales Tract.
9. ......~nforoement. If, Partnership or Company breaches any
of. the.duties or obltgatlons,.lmposed upon"the applicable party
under.the terms, provtstons~ condttlons~ covenants and af~ceements
contained herein (the applicable party, the "Defaulting Party"),
the other party.(the "Non-Defaulting Party") shall have the right
to: (t) seek.Injunctive relief to require the Defaulttng.~Party
to perform such duties or obligations, (1t) seek compensation for
damages arising or resulting from the failure of the Defaultlng
Pa~ty to ~erform such d~tts~ o~ obligations, (ttt) cause such
duties or obltgatlone~to~.be.:.performed. In ~whlch event all sums
expended by the Non-Defaulting Party, In causing such duties or
obligations to be performed sha11..become a de.and obligation owed
by the 'Defaulting .Party-,,to the...Non-Defaultlng Party ~rom the
dates such sums are expended by the Non-Defaulting Party, shall
boar interest at the lesser of the highest la~ful contractual
rate of Interest or eighteen percent (18~) per annum from the
data expended by the Non-De,suiting Party until repaid by the
Defaulting Party, and shall be subject to collection by suit In
any court of competent ~urladlctlon, or (Iv) exercise all rights
or remedies otherwise available at law, tn equity or by statute.
Ail rights and remedies shall be cumulative and not exclusive..
In any legal or equitable proceeding for the enforcement of any
of the terms, provisions, conditions, covenants or agreements
contained herein or for damages for the breach of any of the
terms, provisions, conditions, covenants or agreements contained
herein, the losing party shall pay the attorneys' fees and court
costs of the prevailing party.
10. ~ovsnants'-~Runnlna ~lth Lane. As used haretn,
~l~tnersh~p .~e~ns..,ndalncludes ~P~rtnirehlP.,.~nd mil subsequent
title to all'or'Portt~ni.:of ~the~$sles Tract.. As used herein,
Company means and Includes Company' and all subsequent parties
fro~ ~l~e to time own or hold legal or equitable title to all or
portions of the Easement ~..ea. ~he terms, provisions, con-
dlttons, covenants and~agreemsnts..contalned In this Agreement are
covenants.running wlth~the.land and shall bind and inure to the
benefit ,of Partnershlp-'lnd, Oompany and their reepeotlve heirs,
devisees, P~'reonal...repreeentatlvee, successors or asstgna who
from time to time own...or, holi.,lsgal or equitable title to all or
Portions o~ the;Salee,.~ract or,the Easement Area.
MUTUAL DEVELOPMENT ~'~..~E__~N_~T - Page
89001 ,7207
11 '. ~xptratton~'-of~Agreement...:.~:~tThte~Agreee, ent shall
explre~'-..on',,Decembe~.. 31, .... 2008. Upon.".ths .expiration of :'his
Agrsement,.,.._all ~lghts,..,.....duttes obligations and liabilities
lmpossd -b¥.,~thls Agreement-.shall lapse.and beC~a null and void
except, for the rlghts, duties and obligations under the Permanent
Easement-.granted pursuant~"to~:;paragraph '4' of this Agreement and
the obligation and~.,,reaPonelbillty ~for]~malntenanoe imposed pur-
auant-,to~:parapraph~3..of~t~ts~'Agreement, which shall survive such
expiration and continue In full force and effect until otherwise
terminated.
12. eeverabtltty. If any term, provision, condition,
covenant or agreement contained herein ts held to be illega~
Invalid or unenforceable, the legality, validity and enfor-
ceability of the remaining terms, provisions, conditions, cove-
nants and agreements contained herein shall not be affected
thereby, and in lieu of each such illegal, Invalid or unenfor-
ceable term, provision, condition, covenant or agreement, there
shall be added to this Agreement a legal, valid and enforceable
term, provision, condition, covenant or agreement as similar as
possible to the term, provision, condition, covenant or agreement
declared illegal, invalid or.unenforceable.
13. N__o. ~alver. No waiver of any of the terms, provi-
sions, conditions, covenants or agreements contained herein shall
be effective unless tn.writing and executed by the party for
whose benefit the applicable term, provision, condition, covenant
or agreement Is Intended. No waiver of any term, provision, con-
dltton, covenant or agreement contained herein under a particular
circumstance shall be deemed a waiver of such term, provision,
condition, covenant or agreement under a different circumstance.
14. Captions. The captions contained In this Agreement
are for convenience only and shall tn no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.
15. Gender. ~tthtn this Agreement, words of any gender
shall be held and construed to Include any other gender, and
words In the singular number shall be held and construed to
Include the plural and vice versa, unless the context otherwise
requires.
16. ~0unter~arts. This Agreement ha~ boon ~xecutad In
multiple counterparts, each of which shall be deemed an original,
and all of which shall constitute but one and the same Instru-
ment.
17. ': Exhibits. Ail exhibits attached hereto are Incor-
porated herein by reference for all purposes wherever reference
Is made to the same.
~UTUAL DEVELOPHENT Aa~NENT .- Pag~ §
I8. Governin~ Law and Venu~. This A~re~aent shall he
governed by and construed in accordance with the law~ of the
State of Texas, and ?artnerehip and Company both irrevocably
agree: that venue for. any dispute involving this Agreement shall
be In any court of .competent Jurisdiction tn Dallas County,
Texas. ~
19. Complete Aoreement. This Agreement embodies the
entire agreement between Partnership and Company with respect to
the subject matter hereof and supersedes all prior agreementG,
written or oral, with respect to the subject matter h~eof.
20. Amendment.. This Agreement may not be amended,
varied or terminated except by ~n agreement tn writing executed
by all parties then owning or holding a legal or equitable
Interest In the Sales Tract and the Easement Arem.
EXECUTED as of the day, month and year first above
written..
PARTNERSHIP:
PARKWAY. PARTNERS, a Texas
general partnership
Ge~ /~--{ler , Partner
COMPANY:
ABQ DEVELOPMENT CORPORATION
Vice President
MUTUAL DEVELOPMEN~ %OREEMENT - Pag:: 6
89001 ?.209 ,
THE STATE OF TEXA$ -. :§
COUNTY OF DALLAS §
This .l~.lnstru~.e~.t was acknowledged bef_or.~ me on the ~O~j
Partner ~ r~WAy ~TRERS, a Texas general partnership, on
behalf of sa~d partn'e=eh~p.
OIVq ~NDE~_~ HAND AND SEAL OF OFFICE. th~ %he ~
NOTARY P --
THE STAT~F TEXAS
My Co~selon Expires: Printed Name of Notary:
THE STATE OF TEXAS §
§
COUNTY OF DALLAS §
This Instrument wad acknowledged before me on the
day of _~R~ , 198J, by Stan Strlckman, Senior Vice
President of ABQ Development Corporation, a New Mexico cor-
po~ation, on behalf of said corporatIon.
GIVEN UNDER MY' HAND AND SEAL OF OFF~CE, thee the ~
day of ~..~_..~::.~c_ , 1988.
' THE STAI~ OF TEXAS
My Co~se~on Expires: Printed Name of Notary:
JWS/pcl#94 I
AGREE1
.M.UTUAL~DEVELOPMEIi,f AGREE[dENT - Pag~ ?
J:~27, l~Zlas C~unty, Texas, and be~ng l portZon of the ~4, M~) acre tract ~o~..~and
conveyed to AB(t DeveZopment Corpor'et~on In VoZu~e 8810:~, Page 21Z~ of tt~.. Deed
Records or DeZ2as County, Texas. .~Jd $.845 acres of l~.nd belh9 more iMirtZ~...~ar]y
cl~scrlbed by Mtes and tound~ as follo11: , .
' EEGZNVZI~ at I 3/2"1~on tod lylno In 'the South rJl~t-or-v~y.
Boulevard [.an ~8 foot *.~l~ht-of-way),. said point; belt~ on a eur~e, end lylno ·
. chord Mafln~ _of S 87' $~' 18" fi ~2.88 feet frps a 112' 1rog tod et the
North,est ~orner of' Lot 1, Block 4, Parkvle~ Add/t/on to the City of' Coppe11,
· . ~aco~ded In Volu~e ~80~1, Page J~44 of the Deed Records or Dallas County,
". Texas, and'the ~ost Northntly Northeast corMr of thc aforesaid
.DeveJopment ~poratlon T:ect.
THEM:E aZon9 the West end North Jlne of' the mutual dr·Irma· ease~en~ recorded
In VoJu~e 8820.~, Page 2145 of' ~e Deed 'Records, Dallas County, Texas, as
folloi'Jt
.... 2. $ OJ: 35' 05' g . 2.55 feet to I 112'JJlal'lOd;
.~; S ~3' 05' J~' W 11~.~8 feet to ~ llZ' Iron tod;'
a. S 02' .14' 54" W .124.02 feet to · 1/2" lion
" $.' S .I:RI. 23' 5~" E J44..~$ feet to a JI2' 1ton tod; ·
~. 5 05· ~' ~8' Y at .94.4g feet passlr~ · 1/2" Iron tod In al! 95.82
feet to a point;
8, $ 8~· ~' 5,9" fi 47,~ feet to I l~x~tnt; .
· ..: $ 88* 30, 1~" fl ,130.07 feet to · polnt;
.lO. ~ 88° 58' 22" fi .124..11 feet to · point;
THEM:~ N 00' -,)' ~)" fi $?~..14 reef d~4rtJnO- the'North line
draZnege easement to a 1/2" Iron toe 2ying 2n the South tl*O~.-or-~ay or the
arorestid Parkway Bottlererdt
THENFIE NARTHEASTERLY "'. "42~.~¢ feet ~lon~ a cu~v~, to the R/ght, tmv~rq} ·
· adlus o1' 215~.00 fe/t~ a central an~le of 21' 3~' 44% · chord b~arlr~
N 80' 5~' 52# E 4~.21 feet tt/ THE PLACE DF BEGZMVZMI and cont.alnlnO 3.84]
acres t254,502 ~uere feetJ of
8
Richard M. Dooley/Jackson & Walker ': .. ..... .... ' ~: '~ .. GF#Ml?2778COP
901 Main Street, Suite 6000 { .::';"?' J:~.
Dallas, Texas 75202 ' '; '
9335 2 2 91/03/89
T~t S''? Fi rs t~Amendment~' to "Mu tua l~-Dr a ~nage'~ Easement.. ( "Fi r s t
Amendment') is made and entered into as of the.~O_~ day of
December, 1988, by ~nd bet~een"-The---Psrks-,-of Copp~ll
venture II ("Venture"), a Texas Joint venture, actinq by and
through its duly authorized venturers, and'"ABQ,.-Development
Corporation ('Company"), a Ne~ MeXico corporation, acting by
and through its duly authorized o[ficer,
W I TN ES SETH !
WHEREAS, on May 24,' 1988, Venture and Company entered {nfo
that certain Mutual ' Drainage,~-Easement (herein so called) /'
recorded in Volume 88103~,, pages,2345,.through-.23&9 of the Deed
Records of Dallas County, Texas; and -.~
WHEREAS, Venture and"Company~w~sh--to.--amend ~the Mutual
Drainage 'Easement to .clarlfy-.certain--,portions- thereof and,t~
add certain provisions'thereto-;
NOW, THEREFORE, for and in consider&tion of the agreements
contained herein and for other good and valuable consideration
received by both Venture and Company, the receipt and
sufficiency of which is hereby acknowledged and confessed by
both Venture and Company, Venture and Company hereby agree a~
fol2ows:
1. Definitions. All defined terms used but not defined
in this First Amendment shall have the meanings ascribed to
such terms in the Mutual Drainage Easement.
2. Correction. Clause (1) of the second sentence
contained in Paragraph'5 of the' -Mutua! Drainage Easement is
hereby corrected to read as follows! "(½) sixty (60) days
~fter the date of the completion of the applicable easement
improvements and all improvements to the applicable easement
area (the Venture Easement Area or~ the Company Easement Area)
required by the City;".
3. ~dit[~__~'. The Mutual Drainage Easement is hereby
amended by adding the following new paragraph 18 thereto:
18. Mowing: Company~,agreeS~tO~a~se.,both.-ba,k~
of the dratnage, cha~B~l""i~th~t~[~'l~t~n.of--,the-Company
Easement .Ares .... ~lo~ated~'~eqldJ~l~mmto'.~the .... Parkview
Addition ~o.,-~he.Cl~y..~u~.-CoppeI.l~TenoS~ ..... ~o be kep~
clean o~ ~ras:~"and"~ris.-and-Eo-be-mowed_on a,re~u~ar
bssisso that--t e.~-qra~l'~-tn,-~u~~ion-.-of~-'the.company
Easement Area.,..never,-.exceeds--a~,hefght.--of--six.inche$
4. No Zmp~ed Amendment. ~xCep~ as expressly amended
hereby, the Hutual Drainaqe Easement shal~ remain in full force
and effect as originally written.
5. Bindin~ Effect. This First Amendment shall be binding
upon and inure to the benefit of Ve~ture and Company and their
respective successors and assigns.
EXECUTED as of the day, month and year first above written.
VENTURE:
THE PARKS OF COPPELL JOINT VENTURE
v 'M~chael R, ~llen ~oint Venturer
~Glen A. ~inckley Joint Venturer
By: John B. Kidd,
Joint Venture r
Attorney-in-Fact
" By: The Slaty Susanne Alien
Special Trust,
Th& Christine Anne Alien
Speetal Trust,
Th~
John Michae! Al~en
~
SPecial Trust,
The David Ctittenden Ai~en
Special Trust,
Joint Ventur=-s
."St/chael R. Allen
each ~uch Truse
9
~ 9340 2 2 01/03/$?
STATE OF TEXAS §
§ KNO~ ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS §
That ~BQ D~0~M~NT~'~OR~0RATIONy a New Mexico cor-
poration (herein called "G~t~"), for and tn con~tderatlo~ of
(t) the sum of Ten and No/ldO Dollars ($10.00) a~ other good and
valuable consideration to Grantor tn hand paid by
the receipt and sufficiency of which am~ hereby acknowledged, and
(t~) the execution and delivery by Grantee of ~ts one ce~{n
Deed of T~u~t Not, (the "Not~") of even 4~e he~ewl~h, {n ~he
orlglnal principal sum of $474,858.00 executed by Grantee and
interest at the rate therein ~pectfted, th~ payment of which Note
t~ ~ecure4, Inter alt~, bY the Vendo~'S--Dt~ and the ~upertor
Titl~ h~retn and hereby expressly r~tatn~d and re~ervefl upon the
property herein de~cribed ~nd conveyed and t~
~ocurod by a Deed of--Trust of even date herewith to Jame~ W.
Schell, T~u~tos, ref.r.nc~ to which t~ he~b~ made for .11 pur-
po~e~, ha~ GRANTED. SOLD ~nd CONVEYED, and by the~e pre~nt~
tn Dalla~ County, .Tex~e, .. whtch.'-.ts-~.desorlbed- in-.Exhibit
at~ached hereto and incorporated h~reln by ~hl. reference for
purpo~e~ together with-.~ll...~nd--.,sin~lsr~the--~lght~,.,.-b~nefl~.
prtvtlegee, easementsr..tenements,~.heredltamen~e-~nd..mppu~enmne6s
thereon ov in ~n~ise-eppertalning
ments loc~ted thereon---.mnd,.any..,rlght,
Orantt~ In and to sd~mcent.,t~e,t.-~nd
~{ Thie conveyance'.l~'m~".~nd..accep%ed-sub]ect,, however,
"P.rmltt~d Exc~ptlons")-'s~t. forth on-.Exhlblt--"B" attached h~rsto
~nd tncor-porat~d h~r*tn.by.thts..-~sfsren~s-{o~.sll pu~po~e~.
TO HAV~ AND TO HOLD the above described
together with ~13 and ~tn~ul~r the- rt9ht~ ~nd--~ppurt~nanc~
thereto tn an~tse belonging, ~ub]ect to the P~rmttted ~xceptton~
as aforegatd, unto Grantee,-lte..succegsore-,~nd~a~t~, forever:
and subject to the Permitted ~xcepttons, G~antor does hereby bind
Itself, Its successors ~nd ~stgns, to WAR~NT AND FOReVeR D~F~ND
all and sln~lar the said premises unto Grantee, Its successors
· nd assigns, against every person whomsoeve~ lawfully clmtmln~ or
to claim the ~me or any p~rt thereo~, by, thr0u~h or under
Grantor, but not otherwt~o.
But it t~ expreo~ly agreed that ~rahtor herein
Vondor'~ Lien, ae well no the Supe~tor Title In ~nd to the above
SPECIAL WARRANTY DEED WIT~ VENDOR~ ~IEN - P~ge 1
9001 7173
described property, pr mises and improvements umtil the Note has
been fully paid according to the face, tenor, effect and
thereof, when th~.s Deed shall absolute, but that a releaee of
said Note and the liens securir~g same by the owner and holder
thereof shall be sufficient to release the lien herein retained
without the Jotnder of the Grantor here~n, its successors and
a~s~gns.
IN WITNESS WHEREOF, this Special Warranty Deed is exe-
cuted on behalf of Grantor, by the undersigned, on thie the
day.of D6eemher~ ~9~8'.
GRANTOR:
ABQ D~V~LOPN~NT ~OR~ORATION,
New Mexico COrpOration
---""$tln Strt~ckman, Senior
Vice Pree~dent
STATE OF TEXAS
COUNTY OF TARRANT
Thl~ instrument was acknowledged before me on the
day of December, 198~, by STAN STRICKMAN, Sgnlor Vice President
of ABQ Development Corporation, a New .Mexico corporation, on
behalf of sa~d
~OIAR¥
THE STATe"OF TEXAS
My Commf~on Exp~r~: Printed N~me of Notary:
AFTER FILING, PLEASE RETURN
TO GRANTEE'S ADDRESS:
Parkway Par~ner~ ~
JWS/pcl#94
S.DEED1.
SPECIAL WARRANTY DEED ~WITH, V~./~DOR'S LIE.Nr - PaOu 2
BEZ~G $.84~ acres or 'Jehd Joceted Jn. the CLAR, TM:R $Q~rlE$ 3~Y, Abstract
conveyed to ~ ~yelo~ent Corporation ~n Yo~ ~8~0~, Page 232g or t~,~ ~ed
Re~rds or ~llss Co~ty, Texas. ~d ~.8a3 acre~ o~ ]and ~1~ ~re ~'rtle;d~rIy
described by ~tes ~nd ~ds aS ~o11~
~GZ~ et a J/2" l~n ~d ly1~ Jn the ~h ~]Dht~r-~y. ~ne
~u]e~rd (an 8g root*~lDht~r-~y),.sald ~nt ~1~ ~ · e~, end lyZn
chord ~a~l~ .p~ S 87° 5~' 18" W ~2.88 teat f~ · 112" Iron ~d ~t the
~rthwest ~or~r or LOt 1, B]o~ a, Parkvlev A~ltlon to the City oF Co~ell, .'
. .. ~eeorded In Vol~e 88081, Page J944 of th~ ~ed Re~rds ot ~]lls Cq~ty,
· Tex~S, and 'the ~st ~rth~ly ~rtheast mr~r o~ the ~Fore~l~' A~
.~veZo~ent ~rpora~on T~IcE.
T~ IZo~ the ~est and ~rth JJne or the m~] ~raZ~e eas~nt re~r~d
Jn VoZ~e 8810~, Page 2~45 or ~e ~ed *Re~rds, ~11a~ ~ty,
follo~
.... 1. S 0~.' 15' 0~' E 2.~ feet ~ a'l/2"~mn
' 2. S 030 0~' 'J~' W 123.82 f~t ~ I 1/2" J~ ~d;
~: S O~' O~' 1~' W 1~.~8 feet to ail2" 1~ ~d~
a. S 02e ~' ~" W J2*.~ f~t ~ a II2" Z~n ~d; '
5.' S.O8° ~' ~" E, J~.]5 feet ~ a J/2" l~n ~d; ·
~. S 05° ~' ]8' W at ~4.4g feet ~s~ a 1/2' J~n ~d ~n
feet ~ a ~lnt~
'7. S 1~· 5~' 2g' W 2~.~7 feet to
8. S 8&' 53' ~9" f ' 47.~ feet to I
~..: 5 88° 30' ~" W ~0.07 feet to 4 ~lnt;
10. ~ 680 58' 22" f 124.~1 feet to a ~lnt;
Jl. S 660 55' ~" W JO2.7~ f~t ~ t ~ln~l
T~ N ~* 5~* 5~" W 57J.]4 feet ~p~rt~ ~e ~rth lJ~ or ~ld
ato~eM1d Pa~ay ~ule~d~
T~ ~T~AS~Y 4~6.~& ~eet alo~ · ~ to tM ~ght,
~adl~ or 215&.~ feet, a central angle Or jje )~e J4we I ~rd ~arJ~
N 80· 5&' ~2" E 4]&.21 feet to T~ ~A~ ~ ~GZ~ and ~ntal~
acres (254,502 ~re ~feet) o~ Z~nd. ' ·
EXHIS~ "S'--
This conveyance ts made and accepted subject to the
following:
1. Those restrictive covenants and other
matters as contained ln, a Declaration of
Protective Covenants executed May 24,
1988 and duly recorded In Volume 88103,
Page 2440, of the Deed Records of Dallas
County, Texas.
2. Agricultural Lease between The Parks of
Coppell Joint Venture ! and II, as ~''
December 31, 1986, said Agricultural
ABQ Development Corporation pursuant to
a Partial Assignment of Agricultural
Lease between The Parks of Coppell
Joint Venture II and A~Q · Developmen~
Corporation.
3. Any rights, Interest, easement or claim
arising from or Inuring to.any party as ~
result of the location of 'an underground
telephone line along the north side of
the subject property conveyed hereby as
shown on the survey dated November I1 /
1988, 'prepared by Jack M. Crawford
R.P.S. No. 4059. '
J~S/pcl#94
R~H.B ....
900 I 7 I,'7,6
A
m~, .~. j.~. SLorJ~S warml'tgs were ,recelve~l llAYe enda. ngered tile .lllile
br ihs U. S. Weather R~frean'at New York. Wad' ~ot"at faa,it fn 'failin~ .tb;ahi~,
'~esc warni~tgs were repeated m~ Mhnday allhongh lhe 'sierra cam~ in feat ,1~ '
morning. Thc winds increased in veh~ity, N. 1~.. lint the Warnin~s'predidt~'/,~
:tml shifted to N. I~:. Nn reqnes[ was made easterly wimls and rain:'.
I)y Ibc 'J'illic S. f~r nssislancc h~wcver, ca~se a light barge tn I~mlnd
m~lil ni~c ~'clock ~hmday mor~li~g, when stakes. The Irinl ct,irt was, Ihere~for~i
I)crlh w;15 r~cc ¥~:(I hy al)l~llallt'5 I~g m;~s- ])ceres a~rlncd.
let. ]le t'cfl~se(I I)~ca~se it wo~lhl ha~.(~ hcen
too da~g('rous Io shift Ihs I)arge at Ihat
tim¢. Ih:gore the storm std)side(I, the heavy
sea~ had c~[t~se(I Ihs I)af'ge Io p~)liml agains~
and ride up over [he st)lies, causing damage
to h~r wearing slril)s.
[i] AIq)ell~nl argues that Ihs Tillie S., DOYLE et al. v. STANOLIND OIL &
while lyi~g at the slakes, was only a Ii- CO. et al. '
ceases or ii,rhea, ;md Ihat, Ihere[ore, it
(~w~J bcr t)o a~rmalivc (htly of care. The No. 10~5.
c~nlrl I,:h)w. h~)w~ver, rclyi.g o~t ~)[er opio- Olrctdt (;start or Api~,nI.' rltlh (Sr(.tdt.
behl th;u the Inw~ige relalionsl~ip comintted
while Ibc b;Irge lay :il Ihs slakes, ami Ilia[ Rehenrln~ ~enled Jan. 12, 1042.
(ll(~ al)p(:llant was ~l)ligalc(! !o lake r(.as~,~- I. CourSe ~343
;ihle ~';ir~ oF her. That ol)ininn has so re- [n ~clh)n i~ ~('deral c~url for lille and
ct:rely reviewed the cases and d~clrifies in- poss(:ssioo of land. question whelher there
v~lvcd Ih~t [~rlhrr ~laboralion is mmc~
was proper joinder ~J parties plaintiff was
ccssa, ry. 'i'h~re, while n~t forecG~sing thc irately one o{ procedure conlrnlled by fed-
po~ihilily o~ olhcr arra~gem~d~ b~lween oral rul~s. Federal R~des o[ Civil l'roce-
Ih~ p:~rlir~, w~: m*rquivocally hchl Ih;u, mt- d~lre, r~le Z0(a), 28 U.~.C.A. following lec-
h'~s Ih~: ~:~,lttary ;Hq~ears, the c~mlraict in tion 72.1c.
Ihcse t'irclnnsl;il c~s is G~r a retold IrilL
Jhlrns liters, v. I'enn~ylvania Railro~ld Com- 2. Courts ~343
pany, 19,~X A.M.O..t82, relied qq~on by ap- Pla,oliOs ~itin~ for litle~fid
I~elhmt, Ihs c~ntrary did appear; the barge lo tract of land described in pet,lion
was a "mar~ct Ix~ll," which was Io he left males a~cl bound~ and as bisected hy
at Ihs strikes by the shippers, for their own mnn ~undary line between two~
convenience, radii her cargo was sold and lracls, one of which was owned by one
delivery could be made. ~ee, also, Valen-
plaintiff, and Ihs olher by lhe olher
~ine, ],c., v. I'ennsylvania Railroad Cons- plainliffs, were properly joined
p~ny, Iq.t8 A.M.C. 595, a~rmed 2 Cir., 101 notwithstanding per,Hen sh~fwed ~'
]:.gd 1011. and not a joint owner~hip.'~'Feaeral Rule(
[2] We lurn I~ Ihs queslbm of negli- of Civil Procedure, hdc ~C~), ~'U~5.C,~[
gcnce. AIq~ellanl coldencls thai Ihs Tillie ~ollowing seclion 72~.
~. w;~s ;~l fauh for failh~g to pul out 8. Deeds ~3
fenders. Assmning that tbs piling was set Under Texas law~ there are
in flush with thc walk or runway, so that tic,ally controlling ~lee,,'in .;deter,ninE
fenders would not have gone between the .
e~ and.effect, of a conveyaneej
~q)rights, they might still have failed to pre- intent,oD of the parties q~ derived fro~.t~;"
vent thc damage, which was caused by the etruments, in.light of
barge's riding up over the splits. The which they were ~xe~uted a6d ac~e~'6n,'ia
value of fenders was extensively gone into contro!lii~~ ..~ .. ..... ..
at the trial, and, although there is n0 si)e-
cage finding on the subject, we must as: 4. Deeds ~111 ,
~nme {lint tbs ce,ri below held aKahlst Under la~ oi 'Texas,~pte~umpft~,it
aq~pellanl. We Ih,ak the evidence amply against the~etehlion
~hows Ibat fenders wmdd not bays pre- or air'ps between tracts o~te~ ~
vented Ihs damage. AIq~ellant.also argues o~, slid in Proo~ss of,disc,nE o~, k
tilat tbs I~redicted S. E. storm would not tract.' '
/).OYI.I¢ v. STAN()I,INI) Oil.& OAS (~O.
sss r. ta ~ ·
5. l)eeds ~lll ACliou by the Sln,oli,d Oil & Gas Corn-
' Where ~.tl of n tract vnrio.~ly re- plluy ami others offal.st Gl()ri~ !r. Doyle
fc~rc,I Io ~s c..lai~iuff 104, 107, aod 1~ ami olhers for title a.d possession of I~nd,
acres, ~ranlor made a series of convey- wherein dele,da.Is filed a cross-aclion,
~,c~'s .I s.bshuflially Ibc s~me lime, ami Frlm~ a jmlRmeol f~r pinS.lifts.. Ibeir
descril-'d cerlni, c~mw:ynnces as a ri.rib 20 Ibm for ~ummary j.dgme.t, 38 F.Supp.
~,d ~ s~mth 62 acr~.s, ffra.lor i,le.ded Io 89.1, defendanls appeal.
c.nvey ~11 Isis Imhli.gs a.d did not iute.d Affirmed.
tn rclam lille Io a oar~w slrip of 2.7l acres
I.,l~vce. Ihe uorlh ~ml so.th Iracls, i. view ~nl Goodell, of T)nllas, Tax., for
oi iht .nSf.tm o.~slr.clJo, hy the parlies, la.Is.
;m,I foci of Ihe dilTcrcnt eslimal~:s of acre- Fra.k ]. Scnrb~ck and Snowden M. 1.eft-
affc was tmiml..lanl except f~r Ibc light wicb, I~lh of Dallas, Tax., for appellees.
d~cy Ihrew oo gra.h~r's iuleulion. Before tlUTCIII[SON and McCORD,
t. ~eeds ~118 Circuit Judges, and DAWKINS, l)islrict
psrllllon ~8 J.dge.
Where there bas been a division of
I~,d i.to separnle parcels hy parlilion or IIUTCIIESON, Circuit Judge.
I,v deeds, ~r where Ihere has bee. a con- The suit was for Ihe title and
vcya.ce of laml adioS.lng or abulli.g on ~ of ~ tract of 2.71 acres of land; described,
ri~lr of way or easement, every presm.p, in Ihe petition, by metes and ~nnds, ~nd,
~in. will be indulged nffainst inlention to as bisected b~ the ~m~n ~undafy line
Ic~ve ffures or slrips between tracts so par- between two adjoioi.ff tracts, oneow~ed b~
lilioncd or conve~ed, one of lhe plaintiffs, the other by lh~'0ther
two. There was ~ motion to dlsml~,
7. Dee~* ~11~ of mis-joinder of parties-plaintiffs, be~anse
Parllllon ~8 Ihe petilio~ slmwed not joint bat
I. ahse.ce of clear and convincing evb ownerships, a.d a morion for mor~
dance lo the contrary, inslrumenls effeclin~ stalenten~ or for bill of partic.l~rL
a division of a Iract of laud by conveya.ce overruled, there was an anawer and
0r parlition will he co.strued as intemlinff action In effect deuyin~ plai.tiffs'i nhd
~n divide and as dividinff the l~nd inlo ad- serling defendants' lille. Pl~inliff~ th~re-
j.i.i.ff parcels ~ml .or as intending to upon moved for summ~ry Jud~fltnt~o~
leave gores or strips betwee,, basis of ~. 611 ahd ~ba lea~e?, dat'~ ~p~ll
- : 28, 19~0, from Arthur' ~ri~l~an t6' ~. A.
Skipper, under wh~c~ ~th
Appeal from the Dislrict Co. rt o~ the defendants hold, ~ ~ed from Arthur
United Sidles for the Easlern District of ti~n to F~rl ~rlsti~n? a eonl~et,~ ~
Texas; Willinm Ii. Alwell, Judge. ~ssi~nments,s executed by Fra.~ R.
i ?his after ~ met~ .nd ~un(l. de~H~ J D.t~ ~to~r 32, 10~8 in4
tio. of n Irn*:t o.t of the Jle.ry llntlm- by m~t~ nwd Imflnfl. ~ eom dA~
way 8urvoy, emml.(linf **lhen~ to the mst ~ thb J. k{. Farmer
of laml mor~ or I~", ~ntln.ed "thin he- ~, 10~1. r~m r~tef to ~r' iht'
Inl Ihl .nme land de~l~ to us by J.M. dalton, ~ltlflf that rNtet b
Farmer by d~l recorded ~ Yol. ~8, pale ' ~nd ~lm to Jill th
i~. I)eed ~eenrd~, ~relf ~unt7, 'ex~t in "the ~! end ~10 ie~ ~ tk~ ~
~ ~er~ re)hi to the ~lo;ed oeh~l end 8 ~ &e~ ~t of the 'A~h0F
church, there heio~ I~ n~res moro or lena trnnt In ¢h~ llenry lltthiW~y Bo~, ~'
er but in . r~e.t ..rv~y theFe w.8 rmmd 4 (.) Ami~h~ht,t~*~oJl';s6d '~e~
lo be 107 ner~ er Inml more ~r leos". Ii from ~tef to ~o~ ddt~' 3dhue~ :~, .
~nch,ded th,m~ "I~ J. inte.ded herein to ' JORI. ~ntn161n~ tho b~e
~.vey In the lea.e, .Il Innd we own In set ohs la ~he
the .lmve ..rvey eseept ~ ocr~ Bold of ebo~e, f~k th6t Iht !*~ (hd Ill
the ~ W corner to ~RF] ~,rloti~n, de~d Iln(l~r It a~' ~OW Owh~ by
r.or~p4 in flregK O(.mtT, T)ee,I /te~rd., '~.eli. lln( thit h~' k~l~8ill
It hH.I the Inte,,lion to Include .11 Innd And Iflllr~ of t~e ofl~..l l~e in~ ~-
awned or elehn~ by I~or In /aid ,u~ eat owner of tk~ leske ~ ~ hf
veT.'* bm tbe 8 RI m~ or ~o
12.3 lf~DI0R&L RI~PORTI~R. 2d B~I~
plea.tiffs' decedent, a release~ executed by tracts ~or oil as adjoini.g owners. The~
pl~imiff, an a~davite of ~ st~rvcyor, that ~ntention was, Ihat the instrume.ts Fos~cf
thc area calculated according to the metes executed, including those u.dcr whiclt
a~td bare,ds description used in the Arthur plaintiffs claim, show Ihat he intended to
Christian lease, was 104.95 acres, and that and did assign all of his right, title a.d in-
dcductis~g thc Earl Christian 2S acres, there tercst in and to Ibc Christian Isaac huh[
would bc left io the lease, whefl Uoster estate, and that instead of being separat~
made hi~ conveyances. 79.94 acres, the fact by a narrow gore or strip, the tracts ow~ed
that l;oster during his IJ~e time had never, by plaintiffs adjoin.
mxd his widow had not u.til in 19~, The only attempted controversies of
claimed that he had left a strip or gore be- these instruments, the a~davit and these
tween the North 20 and the North 31 of facts, by defendants, was Ihs filing
the South 62 acre tracts and that plaintiffs surveyor's a~davit which slated; that the
have go.c upon and developed the two Christian lease, by actual survey on the
trac~ ag lazed; (b) an a~igumeut of oil "whereas the said lea~e and nil
and gan len~e from F~ter to llugh~ dst- thereunder fire uaw owu~ by F~ter,
mt b'ebruary 11, 1031, c~utaiuJug the anise solar la annie eove~ aa u.divided
referene~ and d~rlptlon la the Ohr~- interest In and to the N 81 aer~ of the
tiao l~ae ne .~ve act out and a~iguing ~ 02 seres of the )~d coverml by it.' ]t
the .aid lease in lo far an it eove~ the sells b~ undivided 1/~ lutereat in the
N 20 aer~ of the a~ve-de~rl~d tract lease In ~ far aa Jt eove~ the N UI acres.
of land. (e) &n a~l~ment to R~r nad 'l~,ere tollow, the .amc de~riptiu, of the
l'e,~delton dated &~rll 10, 1931~ referring N 31 acre. H Is eontalu~ lu the H~ser
to the ~hriitlau-~kipper oil mud gan lease a~wlKnment.
for de~erlptio., and ~rauuferring in undl- Sq~ releuse, dated April 19. 1034.
vid~ ou~-hlf of the owner's interest in from th~ p~intiffs (o gist Texas Oil Itc-
It tn ~ far aa it ~vera O,e N 8t aero of fining ~ml,any, reh~ to ~e ~'~r iud
tim ~ 62 aero of the land covered by It, R~er ~ntraet of date Jnuuarf ~, 1~1,
n.d de~ribh, g th~ ~1 aer~ aa I~ H the mlgnmen~ made by g~ter of all
tallows: "INit North ~undar~ line of .aid his i~erut h tho N ~ of tk~ ~ 02
Booth 02 aer~ shall h I~at~ by funning and a mervafion of an oil payment ther~
a li~Ae parallel to ~e Booth ~uadary line In. and reMt~ that ~ter had r~eiv~
et ~id land coverd by said leaN, and ua fuH and fi~! pa~ment and ttlta.~'tb.
u to cut off B2 acres In addition to and ~ast Texan OII Refining Oompau7 aud'i~
exclusive of the approximately ~ aero pr~morn from all obllsatioM
tract d land eonvex~ by Arthur Ghfiu- the eontrae~
tiaa and wife. ~]lza Ohrbtiau to ~rl ' "1 have exam[ned the field notes
~hriulian. ~d ezelu.ive of tko ~]or~d out ~ an oil and gal I~u dated
.cll~l and church lot out of tho 8oMb- ~. 10~, r~rded Yol. 4, Page 8~ of tke
wot earner. ~th of which were ez~ptd Oil and aaa ]dale R~rd. of 'Oregg
from the Arthur ~hr~tlau leaH." '~e ~uuty. TezH, from Arthur ~lriMi~n
~uth ~uu~ry line et said 8~ aer~ shall and wih. Eliza (~rbtian, Jack O.
~ loe&t~ by running ~ lin~ parallel ~o and W. O. ]iur. t tn B. A. Rkt~r.,
the North ~)uudary lin~ of said fl2 aer~ hav~ ealeul~ted 0~0 ar~& embraced
tract. I~ated H atotuaid, and at .ut~ n the d~ription ut o~ In ~atd oil i~d
dhtance to the 8ou~ the~from as to in- lean and find ~ area to h 1~.95
elude ~1 acres betw~u said North and ~e a~ve mesition~ I~ c~.taJun
fluuth boundary linu; ~ 8outh ~und- ~a~e excepting '~ ~er~ .old
ary Ibm of said 31 aar~ herein shall bo N.W. ~rner ~ ~arl ObrJatJan;'
~iucident wi~ the North boundary Hne Cwuty-fivo ae~ he ~#~ed f~m ~,
of 31 acr~ of said lea~ ~i~fled to gor~ aer~g, widch I h~vo ~aleul~te~
by F~ter." (d) ~ aMliument from ~'~- will ~ left 79.~ acrm.
tlr to ~aMt Tuxao Reflfling ~onlpany. "l have *xamlued th0 l)~d to
dit~ April 10, 1~1, In the .nme ter~ Ohrjotl~, whic~ WM rd~rr~ to
as ~t to lt~r. ~nveyln; 1/~ of g~- a~v~ mentiond oil lad gas .lea~
~r'a lnt~r~t. (e} An Huiznment, Jun. which ~ wH d;t~ ~t~r 1~.
20, 1932, from ¥~r ~ ~'rauk I~ ~'~- and r~rd~ In Velum0 ~, pagq ~, ~;d
ter. ~le., referring to ~e Ohrbtlan-8~i~ X have a~ ~d Ge nr~
~wiug d~cri~ ]au~ Sm Orejg (~uut~ It.d 0f ~iug,~ .~ aC~f
~lng ~ ncr~ mor~ or i~, known ~ t~e 2~.~ ae~. If lhlo e~uut ~ ~duc~
AKhur ~hriutian Farm, iu the llen~ from ~. total of l~.~. them will
Rafl,iwa~ survey". It fu~er r~tM ~.10 ~ of had."
I)OYI,I~, v. 8TANOI,INf) OIL & (]Ai~ CO.
Kr.mid ('.,il;ti,led. ,:,)l 104.9S acres ns pi:hl- lhe [:ct lh:l Iht nsNiRmnc~nl~ ~lld Iht
lilts' SIIllVC},4)r had conlplllcd it frtllll its tract nlltll~r which part of Ihrm were
field iIO1~, ilor 10~ acres Rs it recites was were substantially conlemporRucollS; and
fo.nd hy a rCCelll SllrVey, hilt 1~.71 acres; tile fact IhRt for years chlring which l:lai.-
Ih~t ~c(lllcliliK [rom Ibis fllll(llllll, the 25 ti~s haYe developed the land for oil ns
acre ]{arl (~hristiall Iracl. leaves R4.71 joiners, neither Fosler nor appellees Gave
acres; lit;il when lite two 31 acre end lite claimed the existence of ~ slrip or'gore he-
~ acre Iracts assigned hy ];oster are de- tween them; flirnish [ndisptilahle evidence
dilCtc*l fl*(llll Ibis, there fClll~ins IIiiCofl- of fin inlellt on the part of ]:oster to pass
x. cy~d, 2.71 acres; alid that it is ilnpossilllc to nil of his inlerests in the lense, nn~ not
coati)talc Iht aclnal ~rea of ~ tract fronl the is now helaledly claimed, Io reserve ns
s.rvcyor h;~s do.e, wilhont an acing[ slit- small narrow strip I)elwee. Ihs Norlh an~l
vcy o. the grmmd. Sonth tracts.
S.Gmilled on the mellon for snmmary
jmlgmc.I Ihere was a jndgment G~r plain- [1,2] We agree with appellees. The
lilts. AppellRnls here insist, 6r~t, Ihat it qneslion o{ joi.der is purely one of pro-
was error lo overrnlc Iheir motion for mis- cedars and is conlrolled hy the federal
j~imlcr o{ parlie~, i. thai Ihs pleading rains. The Texas anlhorilies appellanl~
sh.wed .,~l that I~lRinliff~ were joinlly in- cite are withont applicalion. Rnle 2{}(a)
ICteSled in Ihs laml shed for, b.I Ihat each l~ermissive Join~ler, in Ihs largeness
claimed a. entirely different and segregated compreheosivencss of ils lerms is pec.liarly
part, o.e the North, Ihs olher, Ihs So.th, applicahle here. l'lai.liffs here, in Ihs very
hal{ of il. On tGe merils Ihey .rge Ihnt lerms of the tale, assert right to relief
thc s.rve~,~r's n~dRvit filed by defemlants joinlly nmi severally, or in the allernntive,
~lmwi.g Ihat after assigning the two .11 m respect of a series of transaclion~ or
acre tracls and the ~ acre tract onl of the currences and q.e~tio.s of law and of fact
L~rislia. i~'ase, Ihcre remained nnassig, ed common to all of them arise in the action.
and hclongi.g Io Foster a Iract of 2.71 It would Ge di~cnlt lo imagine a more
acres lyis~K hetween the ~ and the Norlh ~ite case.
~1 a~re tr~cts, and plainti~s n~d havi.g [3, 4] On Ihs instils, Ihs case is tnled
c0ntraverted this a~davil, defendauts, not by Texas decisions which have !o.~ estnb-
plai.tiffs, shmdd have had jndgment, or at lished that in determininE the scope and
least Ih~' mo[ion for snmmary jndgment e~ect of a conveyance, there nee nn nrti-
she.hi h~ve heen de.fed and the canse set
down for trial on tl~e merits, fieinlly cnntrollin~ rules. The seltled law
here is that the in~ention of the pntlie~
AIq~ellecs insist than the issne of mis- derived {rom the inslr.ments, in the light
j~,imlcr is determined against appellanls by of Ihs circumslances nnder which they ~ere
Rain 20(a), Rains of Civil i~rocednre, 28 execnted and acted .~n, is controilin~ and
U,S.C.A, ~ollowing seclion 72~c.~ On the n presumption arises against the relentio.
merils they nrge Iha~ the a~davit o{ plaio- o[ ~ores or strips belween trncls of
li~s' snrveyor raised no malarial issue of sold ns a part of, nnd in the pr~ess o~ dis-
~act, Gees.se Ihs controlling qneslion in Ihs ~sin~ of, a larger tract. If the assignment
conslt~lction o[ Ihs inslrnments in question of the Norlh ~ acres had c°~dnined n call
is not the n.mber of acres aclnally included for the Sonlh 62 acres or the assignment of
in Ihs Go..daries of the Christian lease, its Norlh 31 acres had called for the North
b.t Ihs nm. her of acres Fosler, as assig.or, ~ acres, it would of course be readily
~hought were included in it. They insist mitred that there was no intention to Iplit
Ihat Ihs i.struments as a whole, in Ihs light t~em apart.
of the recilatioos in Ihs assignments he
made, tl~al the Iract had been recenlly sur- [5-7] Appellants' whole ease is based
rayed ami fo.nd to contain 107 acres; of n~n the contenlion that in Ihs absence
my Jol. I. one action ne plelnuffs if Ihey fendnnt ne~l not be IMe~led In oblnln-
a~ert any tight to rdief ~olntly, several- In[ or defendin~ against hll the relief d~
I~, or In the alternnllve la respect of or m~ded. Judgment may be Wen for one
nrisln[ o.t of the name trn.nnctlon, ~- or more of the plaintiffs a~rdl.; to
~trrem~, and If any q.~th.n nf law or or more defendnnl..eeordln[ to their
fact common to nil of ~em will eden In .p~lve
~.ch a j.lnl.K call, the only ~vay the 20 Iract of I.ml will l~e con~lrnrd .~
n,tres cnn Ii~,. laid off is by 6xink ils Norlh In divide and as dividin~ Ihs Innd i.to
Ihle cnincid~,nl wilh the Norlh li,e of Ihe joining p:~rceis ~ml nol as i,lemlink
h:ase nmi ils So. Ih line ~1 ~ ~int which leave s,ch kores or slrips helween. Amon~
w~mhl give 20 heres, neilher re,re nor less. lhe ma,y a,lhoritics which m~y he oiled Io
If Ihe assignmcnt lo lhe 20 ~cres slood Ihis ~int ~re: Beck v. G,If l~rl,clion
:done, if il were Ihe only facl in the c~e, Co., Te~Civ. App., II.] S.W.2d 258; ri~
:q~Pellanl wonhl umio,blcdly he rikht. !1,l Bravo Oil CO. v. Weed, 121 Tex. 4~7,
it by no me~ns stands ~l~me. 11 sl~n(l~ ns S.W.2d 10R0, R5 A.I..R..191; l)nwson v~
olio of a s(:rh:s of collvcyances m;~de ~t sub- 1lickm~n, Tex.Civ. App., 9.~ S.W.2d
slnnli~lly Ihe snme lime for Ihe pnrpose of Cnnlley v. Gnlf Pr~l,clion Co., I.]~ 'l'ex.
dividing Ihe land iuto n,d sellink it off ~s ~ 339, 14.1 S.W.2d 912; ford v. McRae,
N~rth 20~nd n South 6Z acres, so ~s lo dis- fex. 1~, ~ S.W.Zd ~; ~Mo~ls v.
pose of all of il excepl the m~divided i,ler- Oil ~ G;~s Co., fex.Cm~.App., 12
est relained by l:oster in the ~orlh 31 ~; Cf. Shcll Petrolcnm Corp. v. Ward,
a~:res. St:~ndink then ~s one of ~ ~eries of Cir., !~ 3;.2d 778.
illslr~lllCIIIs so designed, no rensm~ahle con-
S,n Oil Cmnpn,y v. Smith, Tex. Civ. APp.,
ch~sion co.ld he ~rrived ~1 ~s Io lhe inlenl 113 S.W.Zd 68.!, ciled by nppell~nls w~s
;~ml effect of Ihe jnstrnme,ls ~s ~ whole, tided o, f;~cls hnving no remole
lllnn Ihnt T;osler, by sellink the Z0 ~s lhe blance Io Ihose ~! bar; ~ml Zeppa v.
Norlh 20 ~nd Ihe 6Z ~s Ihe Sonlh 6~. di-
ton Oil Co. of Tex~s, Tex.Civ. App., 113 S.
vided in Inrn inlo a Norlh ~ml South b~lf. W.2d 612, on which ~ppell~nl~ so ~lronkly
inlemlcd to divide his holdings i,lo three
lr~,cls, hy using Norlh ~ml S~mlh ~ lhe rely, does nol, we think, at nil Present the
basis of the division, ~nd ~s divided, to sell point on which Ihis cn~e lnrn~. 3'h~re
~11 lhal he owned in them. snbjecl to ~n oii i.slr~lment not only showed an inle,lion
I~ny,le. nl. '~he ex,ct am,m~l of ~creaRe in hnl did ~clunlly, reserve a slrip belween Ibc
Ihe Irncl seems ~lw~ys Io h~ve been ~ litlle l~st I~ and Ihe We~l 50 ~cres. The
uncerl~in. Referred to thronkho,t the lion lhere w~ nol whelher ~ slrip wonld be
lense ~s a 10,I ~cre Ir~ct and, by c~lc,l~ljon found lo exist, b.t whelher the sidled ~n~n-
i, ~ccordnnce wilh Ihe mele~ ~nd ~,nd~ lil~ of 18 acre~ wonld iimil lhe strip lo Ih~t
,sed in the le~se, shown Io co.l~in !~.95 amonnl in Ihe f~ce of m 6,din~ that
~cres, stRted in the lease lo have been fonnd was more limn 18 ceres between l~e
hy a recent snrvey to he 107 acres more or I~ and West 50. The prinelple on'which~
that case went off ia wilho.t spplic~lion'
less, ~nd now claimed by defe.dnnts to be here. There Ihe q.estlon w~s merely as t~':
109 ~cres, these different estimates of ~cre- whether the q.antity stated Io Ge in the
nKe are important only for Ihs liKht they slrip shonld control elements'in 'the de-
throw tlpml the intention of Ihs Rr~nfor to
p:~r~ with all or only a p~rt of his holdinRs, seription which seemed more si~nifie~n~:~:
The a.th.rilies not only in Tex~s hot else- especially in view of ~e fact ~ fonnd
where slronRly declare thnt where there the emlrt tha~ the parties to Ibc inslrnmehfs~
hns heen a division of land into separate had Kiven them n contrary c~.strncliofl."
p;lrcels, by partition or hy deeds, or where ]lets, wh~t is contended for and what will'
there has I~en a conveyance of land adjoin- .ot be permitled is the insertion of a
i,~, or abuttlnK on, a riRlit of way or ense- between two tracts, contrar~ to the maht*
ment, every presumption will be indulK~ lest Intention of the p~rties, ns shown ~t~
aRainst the intentio, to lc.ye ~res or strips by the instrnmente themselves and by
l~etween tracts so partitioned and conveyed, uniform construction ~iven to them hy the
~t Js the Iow t~ Ih~t in the absence of dear parties, th.t tile trsclg conveyed did;
~nd eonvhlein~ evidence to Ihs contrary, ~honld, nd join.
inslrumenls e~eetinK snch division of a The judKment wac riRht. Ti tn
B
,~2~. Tex. 441 SOUTH WESTERN REPORTER, 2d SERIES
c,mstances when selli,g to an impostor, credit card as lite only proof of identity.
The holder's liability has its limitatio,s The j,dgment nmst therefore l~e reversed.
whether it he said that the iss,er cannot We are mlahle t<} render j,dgme,t here
avoid liability for his ow, negligence, or favor of Sears hy holding, as Sears
that the promise of the holder shotlld be Ibat there was ,o evide,ce of its lack of
conslr,ed as heing condilional upon the care. Many p,rcbnses were made i, the
merchant's ftdfillme,t o[ his obligalio,, same slores, n,d one New Y~rk area st,re
See Comment: The Tripartite Credit Card inquired of the L.bhock st~re as to
'rransacti~>,: The Legal Infant. 48 Calif. credit standing in cmmection wilh
L.R. 459, 483 (19()0). in G,If Refini,K large pnrchase wilho,t any q,estion heink
Co. v Williams ]{oofing Co., ~8 Ark. ~Z~ raised aho,t the irreg,larily. 'l'l~e case
186 S.W.Zd 7~, 158 A.L.R. 754 (1945), the mast he remanded to the Conrt of Civil Ap-
holder of the card had prinled "C;OOD peals for reco,sideration of the poi,ts of
FOR TRUC~ ONI,Y" on the face of the factnal ins, fficiency I~ s,pport the
credit card. It was held that the seller was finding, wbicb is a matter solely within
req,ired Io ,bserve Ibe limitation. In an that co,rt's j,ris~licti.,.
of re, cited Orcko, case. the address on the
The jndgment is reversed a~rl the ca,se
credit card of the holder was slmwn to he
is remanded to the Co, rt of Civil Appeals
in Oregon. while ldnho license plates were
[or {,rther proceedi,gs co,sisient with II,is
on the car nsed by the impostor when the
purchases were ~:~adc. This was held to opinio,.
raise a fact q,estio, as to the seller's care.
U,ion Oil Co. of California v. Lnll. 220
Ore..112. 349 P.2d 2.13 (1960).
[8.9] The cases differ as to the natl~re
of the les,er-seller's dnty of care. a,d as to
the h, rden of prooL We hold that the
seller ,ced ,or dema,d m~re idc,tif~ation Jerome ANGELO el u~., Peltllo~ers,
than the credit card ns n matter of normal v.
procedure. This is the fnnction of l~e ~. E. BIS~AMP~
credit card, and it sholdd be cm~sidered sat- No. B-1203.
isIactory cvide,ce of ide,tity oi the bolder
or a,thorized user. mdess the appearances ~,i~rmn~ On, ri. of 'rexns.
or circmnsta,ces wa, Id raise a q,estion i~ May 14.
the mi,d ~f a reaso,able seller. I'roof that
the seller did fail to ,se ordi,nry care in Reh~arin~ Dpnlod .Imm 11. 1~1.
this respect is a defense to the lial~ility o[
the hohler of the card. and the Imrden of Action in Irespass in try tille was
proof sbo, ld be pl~ced ,pon him. bro,ght to determine ownership o[ aha,-
d~med railroad right-of-way. The District
[10. 11] The Co, rt of Civil Appeals has Co,ri, Jefferson Comity. Jack Rronhshire.
r,led that the j,ry iindi,g in favor of J.. e,tcred jndgme,t for the
Sears. as to its care in ascerlaining the nod the i~lni,tiifs appealed. The lien,-
identity ~,d authority of the persons ,sin~ n,,at Court of Civil Appeals of the Ni,lh
the credit card, was not s~pported hy suf- S,preme J,dici~l District. Stephe,snn, J.,
ficient evidence. [Iowever. that coati has 431 S.W.2d 947. aifirmed a,d error was
i,c~rrectly idaccd the Imrde, of i~roof npon I~rn,ghi. The S,preme Cm~rl. 1
Sears a,d has further enlarged the b, rden J.. behl that w]lere railroad had
o, Sears hy holding that it could not dis- right-of-way dnri,~ time owners of real
charge its d,ty o[ care by accepti,g the estate s,hdivision were vesled wilb litle
ANGELO v. BIS(JAMP Tex.
~l(Ij;icclit laild, the ~,orthern portion of right-of-way a(ljoi~i~g lot conveyed where
riRhl-of-way ripc~e~l i,~lo fee si,nple lille disp~ted ~rea was commercially v~d,~alde
vested i,~ s~d~divisio~ ,~w~ers so that pre- property ~1 the h~l omvc).cd w~s smaller
sm~q~lio~ of ~,~ i~te,~t to convey al~lti~ nnd presomahly less valnalde than the
casement was .et applicalde in s~d~livisio~ joini.g. ~l~a,~doncd r~ilroad right-of-way.
o~wler's s~l~se(itte~lt co,~veyance et certain
lots adj.i~dng s~ch ~d~a~do.cd right-of- ~. Appeal and Error
way. ~ince S~preme Conrt dctermi~ed Ihat
J.dgmc,~ls of trial co~rt a,~d Co~rt of Co~rt of Civil Appeals ha~l hased ils j~dg-
Civil Appeals reversed a~d j~lgment rea- me~t on ~msom~d con,ch,sion, it became
dcrcd i~ accorda~ce with opinion, necessary and approprinle to consider as-
sig~m~e~ts of error pcrtai~dn~ to st~t~te
limitalio~s iss.e which was considered! to l~e
I. Deeds ~111 immaterial a~d had .et hecn passed ~pon
])ced lo la~l ab~tting o~ railroad by i~tcrmediale cot~rt.
righl-of-~,ay co~ve),s title to cc,~ler
righl-of-~vay Itnlcss co~trary i~te~t is ex- 6. Adverse P0s~esslon ~41
pressed in instrmne~t, hcca~,se co~veya~ce tn view of determinalio,~ that deed
is presm,~ed to reflect a~ i~lent lo carry grantee did ~ot carry title to dispelled Iract
wilh it Ibc app~rlc~a~t e;~scmenls n~d inet- as an appt~rte~ant cascmo~t or as a "strip
do~ts I~clo,~ging to property at time of con- and gore", gray,lee failed to show that he
vey~ce, had received lille to Iract io reg~dnr chni~
of transfers ami had ,~ot cst~ddished lille
2. Easements ~24 m~der three years' star,tie et li~l~itations.
X~here railroad had ahandoned right- Vernon's Ann. Civ. St. arts. 5507, 5508.
of-way d~ri~g lime ow,~ers of real estate
s~d~division wcre vested with lille Io adja- - :
ce~t la~d. Ihe northern porlion of right- Carl R. C;riffith. l~eamnont, for pclilion-
of-w~y ripe~cd i~to fcc simple title vested ers.
i~ s~d~lirisio~ o~v~ers so Ihat pres~mplion
of an integer to co~vcy shuttling easemc.t ]~avon L. Jo.es, ]~eamnont. for respo~d-
was .et apldicadde i~ s~d~division ow,~er's eat.
s~d~seq~e,~t co~veya,~ce of certain lots ad-
joi~i~g s~ch alfa.do,,ed right-of-way. ][AMILTON. J~stice.
3. Deed~ ~117 This an actio~ i~ Irespn~s lo try title
~¥hco it is apparent Ihat relatively bro~ghl hy the petitio~ers lo determine the
~arrow strip of land which is small i,~ size ownership of a 50 foot hy 140 foot tract of
a~l vah,c i. comp. riso~ to ndjoi~dng tr~ct land oat of the norther~ half of an ahan-
co~veycd by gra~tor h~,s ceased to I~e of do~ed railroad right-of-way.
bc~cfit or importa~cc to Kra~lor, ~nder The petitioners in this case were con-
"strip a~d gore" doctrine it is prest~med vey~ Lots 18, 19, ~, 21, a.d 22 in ~lock
tJ~t gra~tor i~te.~led to convey snch nar- 21 of the Jarrett Additio~ to the City of
row strip along with la~'ger tract. Beat~mont on April 6, 1956. Each of these
see p,ddicnti~n Words nmi Phrases five lots meast~re 25 feet by 140 feet.
f~,. (~lher jt,(licinl ~o~mtrt~etlo~m lt~d Solllh of a~d adjacent to Lot i8 ~t Ihe
defi~tilio~m, tim~ of thi~ co~v~y~llc~ w~s ~11 easeme,~t
4. Deeds ~117 for a right-of-way belonging to the
mo~t, So~r Lake n~(I Western Railroad
"St,-ip a~,d gore" doctri~c w.s not ap- Company in dispute in this case. It is ~ot
plicaldc to co~vey =d~ando~ted railro=~tl dispelled that this eascme~t was limiled to
526 Tex. 'itl SOUTH WESTERN REPORTER, 2d SERIES
a riliht-of-way ohtaioed hy the railroa~l iii [2] Il, lhe ease at bar, however, the
c~mdemnation procecdi;~s on ];el,rliary 24, j,ry delermined lhn/ the railr~n~l al~an-
1912. doued the riRht-of-wny d,[rin~ Ihe time the
petitioners were vesled with lille te~ Ihe
(In K'larch S, 1059 lhe petitioners con- intent la,~d. Whc,~ Ihis nl~nmlonment
veycd I.ms IR, 19, 20, 21, and 22 to the re- c,rred, the 50 fo,~t by 1,10 fool norlbern
spomle~t; the deed described the five ~rlion of the ri[bt-of-way ripened into
mmd~ered lois as I~ein[ i~ I[Iock 21 ~[ the fee simplc title vesle~l ht Ihe pelilhmcrs.
Jarrelt Additio~ to the City of Beaumont. ~lale v. l%ller, supra, 407 ~,W.2d
Al Ir~al, the jury iom,I in answer lo spe- 47 Tex.Jur.2d Railroads, Sec. 1{)2 (1%3).
cinl i~sues II,at the riEht-oi-w~y had been With Ihe dis;~ppearnuce of Ihe easeme~t
ahandoned before th~ co~veyance to the right ~nd the inveslih~re o[ fee title
rcsp~mde~l, Imf d,rh~[ the time the peri- the pelilioners, a pre~m~qdlon of nn
tioners had Ihle Io the five lots; Ihe j~ry lent lo convey Ihe ab~ltinE easement
also i-.mi Ihal the respondent had hchl
not ~pplic~lde. Therefore we find the
exclu~i~,e, peacenhle, nnd adverse posses- Cm~rt of Civil Appeals in error h~ofar
sion of the laml in controversy for over it here applies the doctrine nrticulaled
three ),ears I~elwee~ March 5, 1959 and the ~io Br~,ocase.
August 21, 1~3. After these jury [iml-
inks, the trial court entered judgme~/ for The re~l~)~tde~l, wilh the Cm~rt
the respondent. Appeals agreeing, conlends Ihal lite 50 foot
hy 1.10 fora tract passed I~ him m~der Ihe
The (:m~rl of Civil Appeals h~s ~ffi~med "slrip ~,d ff~re" doclri~e followed hy lhis
the judgment of the trial court. 431 S.W. Court i~s Canlley v. (;ulf Pr~d,cli~m Co.,
2d 017. In its opi.ion, Ihe Court of Civil 135 Tex. 339, !,13 S.W.2d 912, 915 (1~)-10),
Appeals hehl Ihe March 5. 1959 deed to the to wit. that:
resp.ndent to include Ihe conveyance of
Ihe disp,led Irnct, relyi~sg upon opi.i~ms by "Where it appears that n ffrantnr has
this Co,fl in Rio Bravo Oil Co. v. Weed, co~veyed all land owned by him adjoin-
121 Tex. 422, 50 S.W.2d 1080. 85 A.L.R. inff ~ nnrrow strip of land that has
391 (1932) ami (:amley v. Gulf Production ceased Io be oF nny benefit or impor-
Co.. 13~ Tex. 339, 143 S.W.2d 912 (1940). lance to him, Ihe presmnption is Ihnl lhe
This (:m~rt d~es o,t [iml these c~ses con- fir;rotor inlemled to incl,de such slrip
trolli,g nmi co,cludes Ihat the jmlgments s.ch omveyn,ce; unless it clearly
below ~re in error, pears in Ihe deed, by islai, nmi specific
I;mg,nffe, Ihnt Ihe ffra,lor i,tended ~o
[1] I, l~i. Ih'avo Oil Co. v. Weed, su- reserve the strip."
pta, this C~mrl hehl Ihal a deed Io land In SIr;~yhorn v..lones, 1~7 Tex.
nh,Ui,g on a railr,ad right-of-~vay con- S.W.Zd 623, 63g (1~)57), Ihls Co,rt recog-
veys lille Io the ceoler of lite righl-of-w~y nized this doctrine as
t~nless a contrary i,le~tion is expressed
Ihe inslrmne~t. This is a well-eslablished "expressiou thai il is nffni,st p.hlic
rule i. Texas, and is hased upon Ihe pre- cy to leave lille of n Im~ff n:~rrow strip
stlmptio~ Ihat a conveyauce reflecls an in- or ffore of Innd in n Rra~lor c.nveyinff a
tention t. carry wilh il the ~pp, rlen~nt l~rffer Irnct ndjoinin~ or s, rro.mlinff
easemems ami incidems belonffinff to the Ihis strip." See also llaines v.
properly at the time of the co,veya,ce. 154Tex. 272,276S.W.2d777(1955).
l~io Ilrav, Oil (:o., s.pra. 50 S.W.2d 1(~5;
26 C.J.S. Deeds ~ 106 (1956); see also Slale [3] [I is our c-ncl,si.n Ih~l this doc-
v. Fuller, ,107 S.W.gd 215 (Tex. Sup.19(~0; trine was conceived and i,tended I~ apply
C,x v. (:ampbell, 135 Tex. 428, 143 S.W.2d to relatively n~rrow slrips of In,d, small
361 (1910). size nnd v;d,e in c~mparison Io Ihe adjoin-
--a. NGELO v. BISOAMP ~ 52'/
inff Iracl convcyc(l lly Ibc granior. 2~ C. 3~9 ~.W.2d 650, 653
.J.~. I)ccds ~ 107(a)(1956); sec also McKce McKelvy v. Barber, 381 ~.W.~d 59 (Tex,
v. Stewart, 139 Tcx. 260, 162 S.W.Jd 948, Sup. 1964).
950 ('l'cx.(;o,nm. App. 19.12, ol~inion adopt-
cd); Miller v. Ermn, 314 S.W.2d 389, 395 At IriM l~e j~ry fonnd io answer 1o
(Tex.Civ. App.---Fort Worth 1958, no writ special issue that the rcspo,dcnt had held
hisl.); giro,n, v. l(udco Oil & (;ag Co., 132 exclusive, pe~ceal,le, ~ud ~dver~e po~se~-
I.'.2d 211 (5lh Cir. 19-12); (~ilics Service sion for ~ period of Ihree ye~r~ or longer
(~. v. I)unlnp, 117 F.2d 31 (5th Cir. 1941). bclween M~rd~ ~, 1959 ~od An~n~t 21,
I~l these inglances, whe~ il i~ ~pparen~ Iq63. The respomlenl ur[ed in Ihe courlg
that the ,,arrow strip ha~ ceased to be o[ below Ihal fie Ired perfecled tille IhronEh
bcucfit ,}r importance to thc grantor of thc Ihe Ihree years' adverse pogSegg~Ott
larger tract, it c~m he presumed Ihat thc Art. 5507, Vernon's Ann. Civ.gtat., by hohl-
graf;for intended to convey such n strip, ins possession nnder his deed describing
Ibc five lots hy nomher. Art. 5507 provides
[4] But in this case, if title to the dis- that title to reMty can he perfected
Imted tract is to pass re}der the "strip and three years' peaceable and adverse posses-
gore" d~ctrinc, it nmst do so by virtue o[ sion nndcr title; title is defined in Art.
thc convcya;~¢¢ o[ the adjoining l.ot 18. 5508, Vcrnon's Ann. Civ. Stat. ns a "rcgnlar
I.ot 18 is smaller aod prcsomabl~ less valu- chain of transfers from or under thc soy-
able than thc tract here in dispute. The creignly of the soil."
evidence shows that the disputed area, as
well as thc platted lots, is commerciMly [6] In this case, the rcspondent's
vahtMdc property within Ibc City of Bealt- March 5, 1959 deed does not purport to dc-
mont. To apply the "strip and gore" doc- scribe or convey thc disputed realty.
trine to prcsnme the intent to convey this view o[ oar holding nhove that this deed
disputed tract wonhl be to presnme that hy did not carry tltle to the dispnted tract as
the conveyance o[ a smaller city lot, the an appurtenant ea~ment or as a "strip and
grantor intended to convey a larger sod gore," it necessarily follows that the re-
perhaps more vahml}le adjoining tract. In spondent has failed to show that he re-
this Conrt's opinion this is not in keeping ceived title to the tract io~ rcgnlnr chain
with thc intent or policy of the strip and of transfers. For this reason we cooclude
Rotc doctrine. Accordi.gly, we hold the ns a matter of law tl~nt the respondent has
doclrinc to he ioapplicahle in this instance, not cstahlished title tmtlcr the three years'
statute of limitations.
[5} Thc Court o[ Civil Appeals has
als,) hchl the petitioners' assignme,ts o[ er- ht accordance with the conch,stoas of
rot i,crtaining to thc statute of limitations law reached alive, lhe judgments o[ Ibc
issue ansxvcrcd by thc jury to be immatcri- trial conrt and the Lk)nrt of Civil Appeals
al and has therefore not ruled t;potl them. are reversed. Judgment is rendered that
As this Court has determioed that the lhe petitioners recover of and front the re-
Court of Civil Appeals hased its judgment spoudent title to ~nd p~session of the dis-
below tll)Oll an Inlsollnd c~mclusion, it be- paled 50 foot I)y 140 foot tract south
comes necessary and appropriate to consid- and adjacent to Lot 18 in Block 21 of lhe
er this queslion of law not ruled npon in Jarrett Addilion Io thc Cily of Beanmont,
Ihe i~slermcdiate cotut. Porter v. Wilson, Jcffcrsou Connty, Texas.
Tex.Cas~s 4~1-442 S.W.Id~ll
C
~.0~ 'rex. ~ 146 SOUTH WESTIIIIrIN IIEPOI1TEIrt. 2d
had l~cfore it these statntcs nmi ~nlcs ofhcrwlse, the q,csti~n then
fhcrcm flor. March 3. 1936, Ihis opinion whether s,ch taxes or fec~ might there-
old,ion slg,cd hy Ibc AUorney Gcncrnl paying them. It ;s ~t least pla,tilde that
after "havi,K I~ccn considered i, con- covcry wo,ld l~c de,icd nnder the provisi,m~
{crc,cc.' l, s,l~slancc, lids ol, iuion held o[ Art. 4.3~q, si,ce thc payment~ were not
that the powers conferred in II~c nl,~ve (by those mn~in~ their) deposited in
q,otcd provision o[ II~e net, while very trees,fy s,spe,se ~cco,nt re,let proicst
hmad a,d ge,cml in charncicr, did ,o[ provided i, Ih~t article. See ll~iney v.
inch,lc that of a~scssin~ ~ l~x or fee ~s n Malone. Tex. Civ. App.. 141 S.W.2d 713.
coudilion precedent to iss,ln~ n license to The case ~t her, however, prego,ts no
those parlicipnti,g in raci,g, and Ihat thc ~nnlo~o,s sit,atica. The fcc~ were col-
slate had ,o interest whatcvcr in linc rural, leered solely n~ vohmf~ry
~Vc havc ,o doubt of thc correct,ess of Ihi~ to a f,,d in which the contrilmtors had ~,
view. Co,ccdlng, ar~uc,do, thc power o[ inier~st ami in which the state or pnhUc h~d
Iht icgislalurc to delegate to Ihc C0mmis- none. Thc district c0,rl hod the ~cner~l
s~o, h-~:~l n,lhorily lo prcscrihc llcc,sc power to nppoint ~ ~eceivcr to dlttdhnie
fees. ii is pcrfcclly clear II,hi n- such n,- Ihs m~cxpcmlcd halenco o{ Ihs fuml
Ihority wa~ allcmptcd lo hc dclcgalcd. The Iho~e whom ii mi~hI jmlicially delcrmine
nulhority Of the Cm,mis~iou Io make r, lcs to he ils riKh~fnl owncr~; ami appcllnni~
nmi rr~,latim~s was expressly llmiicd to l~nvi,~ s, rrcmlcred possession of the f,nd
rcason~ldc rcstric[ioos and c mht~ ns to the receiver in obedience 1~ the decree.
with reference to hOhli~ races .oder the Ihelr rcspectiv~ d,tics ami rcsponsihilltles
act nmi Ihs coral,ct of pnrlicipn,is in s,cli in re~ard In it, of whnlcver character they
races. There is no i,timniio, of nny dele- might hove been ,p to that time, ceased
~nliou of n,thorltg to collcct nny liccn~c or altogether nnd I1~cir interest in the s,bject
olhcr fees from nnyone except Ihnsc ~pccif- molter of Ihs s,it was nt a, end. Philllp~
ic~lly prcscrihcd in Ihs net ii,elf n,d re- v. Paine. Iil Tcx. I12, 229 S.W. 849.
q,ircd to he paid into the State Trens,ry The motion is granted and the appeal dis-
for thc primary pnrpose of dcfrayi,~ the missed.
expo,scs of ndmlnlstrntion of Iht net. Snh-
division (4) of Role 152 clearly shows lhat ~
thc p, rpose of the Commission in prcscril)-
i'g these fccs was one wholly ontsidc Ihs
p, rvicw of the nct.~nnmcly, to raise an
i,s,rn~ce or hene6t fnml in Ihs interest o[
j. ockcys, trainers, nmi others pnyinE Ihs
fees. It is tr,e the rule provided Ihnt 'JosLIN et ale. ~TATE ,t ~1.
thc Commission might devote Ibc fnnd to
such olhcr p,rposcs ns it miEhI choose, nnd No. 8618. ..
was not rcq,ircd to accom~l 1o n,yo,e in re- ~tt o[ Civil Appe~le el Texa~ .AhaUn;
g~rd to its disposition. This. however, did
~ot chnn~e the character o{ the fnnd so Io,~ Nov. 18.
ns it was ,ct diverted to olhcr p,rposcs; Rehenrin~s l~nlea D~. ~1. lg40.
and when Ihs act was rcpcnlcd nmi Ihs'
Commission ~holishcd, thc m~cxpcmlcd hal- I. ~a~dRrleS ~13, 20(I)
nnce in the f,nd relaincd its original char- l'rivnl:e grnnt~ of lnmln ~r~lorln~
ncicr de~ ~e*l iii Sol). (4). as money received at.resin, highways, nml no,nnvl~nhle nt. renmn
from vohmtary contributions lo a fm,I convey tll.le to the ~,ter of the str~l.s, hiEh-
created primarily, nt least, for thc t)c,c~t wnyn. nmi nirenms even t. ho,~h tim corners
of the contribniors; it was expressly to I)e ore mnl-k~d, the lines ore de~nltely local, e4,
so "held and rcgardcd." Umlcr ~o tenso,- nml the q,nntll~ of Innil Is exnelly nm:ertnl~-
nhlc II,cory c~n the slnle he co,sidereal od. m)le~s the deed co,thins n cio,se which
ns hnvi,g nny interest in the nncxpcmlcd expressly ~leclnres n cn,trnry Int~,Uon or
balance of this fm,l. co,tnlon some d,~,lnrnUon equivalent ~ such
[2.3] If the Cnmmissinn. ncli,g u,dcr
a prcsmncd n,thorily, had altcmptcd to ~?~eead~le~
levy nl~ excise tax or privilege fcc for ~nme Prlvnfe Rrflntfl of In,an I~nr~Iprlng
p,ldic p,rl)o~c con,cereal wilh thc ncl or rnllrond rl~ht~ of ~vny convpr Iii. lc ts
' JOSI,IN v. STA'I'E 'Pex. 209
center of the rights of why even though lite Acl[oii by tile State of Texas and others
riehl nuteu descrlbhlg Lite hind stol) aL tile agaillSt A. F. Joslh, a,~ others, involvh,g
01de line uldes8 a contrary letenLiotl Is ex- the ownership of the title to a portion
pressed !il l)lahl nlld une(ltllv(mal Lei'ms. tile T. & l). RaiJwa~ Colllpally'S right of
3. Boundaries ~14, 200), 22 way in Et)or County. l~rom Ihe judgment,
defendants appeal.
{he~ e~tl b~ h)t'll(ed Oil {}t~ gl'OIIlll], flad the Reversed slid jtldKmell[ directed.
httentloit or the Imrl. ies where thaL can be l{ornsby & Hornsby, o{ Auslin, and Fred
delinltely lt~certalned, 3irfi iml~ortnnt in tie- II. Wo~lard and Kleberg, I']ckhardt &
terrain s,~ the extent of a gramt or laml bet- I.owe, all of Corptls Christi, for appellallt
del-ht~ o~ n street, hlghwtly, nommvlgnble ~. F. Joslin.
qtre:~m, or ralh'ond right or why. Will. K. Ilall, of Fort Worth, Whitaker,
4. B0o~darlet ~14, 20(I), 22 Perkins & Tm'pin, of Midlaml, Samuels,
.. 'l'hotJgh the intelHion of the parties to a Foster, lJrowll & McGee, of fort Worth,
C,'nnt where n~t~rt~dmlble genernll~ con- and John W. Stayton and }{lack & Graves,
trois, nbaent all exjn'esa re~ervntloJI, the all of ~ustit], for appellauts Skclley Oil
grent la ~:oneluslvely I,'em*med lo go to Iho (;o., California Co., Empire Gas & Fuel
center of n Immmvlgnl,lo stremn, hlghwsty, or Co., Tide Water Oil Co., Texas Co., Phil-
ralh'lmtl right of way ami ~*ther evhlem:e lips I'ulrolcmn Co., W. l~. C, nmell's cslal~
emit:er]ling the i~arlles' l~lte~th)n becomes Jolm Scharbauer, and Millard l~idson.
tmimlmrlant. Wm. McCraw, l,'ormer Ally. GelL, and IL
~. B0~ndarlet ~20(3), 22 Grady Chan(llcr, Asst. Atty. Gen., fur appcl-
A $rant by the ~late of laml~ bordering lee Slate of T~xas.
on a slreet or highway eo*~tah,ln~ Im ex- Gerald C. Mann, Alty. (;en.~ Janles
press re~ervathm sh-uhl le co~*strued the A~st. Ally. Gen., and Robert E. Kepke,
~ame as gv. tfl~ between lmlh'hhmls, ~nd Assl. Ally. Gen., Win. l(a~ Miller and
the qame lu [rile Of It gramt by the state llenry II. llrooks, both of Austi]t, for ap-
of lamla borderh~g on a rltih'ond right of way. pellets Elden Il. Busb~ and Grisham-llunter
6. Court~ ~0(I) Coq*oration.
A Judgment, In a treSlmss to try title
milt by the stnte ngninat rnih'ond determln- BAUGII, Jnstice.
It,g thnt r:dh'oml maluh'ed only ~tll ensemelit The controlling question involved in this
over certain hind and dhl not nequh'e n tee case is the ownership of the title to a
$hnlde title thereto, wes i~ot "slate deelsla" lion of the T. & P. Ry. Co.'s right of way
aa ~*gahlst owl,ers of ndJohH,g hinds hi ~ult in Ector county. When this ease was
levolvhtg question whelher pate.t~ by the milled in this cotlrt, there was pending
st~te eoi, veyed title to ennler or right of the Supreme Court, on writ granted from
wily or Ilierely to It~ aide lines, where own- the Amarillo Court of Civil Al)peals (80
ers were m,t Imrtles to earlier suit 8~d eon- S.W.2d l~0), the ease o{ Cox v. Camp-
bell, involving ownership of a portion
~tructlon of lheh' Imtents wns In no way thc right o{ way of the same Railway Com-
brought In question.
See ~Vol'ds nlld l'hr,s,s, l'erm,ne,t party hi Gregg Comtty; thc question
~dition, for ,all other delinitio,s o{ volwd being whelher thc owners of
"St,r~ I)~eisis". adjoining the Railway Company's right
way acquired title to the cemer of the right
7. g0urts ~0(I) of way, or whether the side lines of the
The docl.rhte of "stare {leelsl8" elq~llo9 right of way marked the bomtdary of their
only to questhnta or htw, It htvolves ms respc, clive laml5. Oil Ihe assuml,lion that
element of "eal~qq,el", nmi It Ol,eVnles ets ldl Ibc decision in the Cox v. Campl}cll case,
per~,a nmi ~mt merely on the Imrtles to Tcx. Sup., 143 S.W.2d 361, would control
the particular i)roceedhJg alJ(I their privies, the disposition of this case, we have with-
Buu Wurd~ ~md /'llrnuea, l'erma~ut~t held decision hereJll tllitJl (hat case was de-
,dillon, fur all other deli,itioou of lei'lit[lied by Ihe Stlpl'ellle Court.
"l~stOpl*el'*. The lamls inw, lvcd in the b,slant case are
-- ~ Ihe ~ame as those iltvolvcd in 'J'cxas & 1*.
Ry. Co. v. St;de, 'l'ex. Civ. App., 52 S.W.2d
Appeal from District Court, Travis Cotm- 957, al}h'mcd by the SUln'cmc Court in 12.t
ty; Il. A. ])ulan, Judge. Tex. ,182, ~8 S.W.Zd 580. Other tha,i
210 ~l'ex. ~'~ 'I.IB ~OUTll Wlr,,~'I'IOlIN lt~l'OllTlr, ll, 2,1 ~IE~
conlrr~w, rsy ,vcr who has a I,rb~r right to way; nor i~ it cnnlrnvcrlcrl Ihnt Ihe
an oil lense on sold lands, which depends quantlt? of land slated in lhe purchnse~
o~l whelher Ihe State has title fl~ereto, the from the State was contained within the ~.
pnrnm,tml q~estin~* presenlcd is wheqher field notes of such ~urveys. Nor have the
Ihe sale 1)y the Slale of ils lands, umler field owners of Ilse abullhtff I~tsd~ p3id lbo
notes of surveys calling to go only to mark- ~nything f~r the I~nrls inchtdcd within Ihe ";'..
ed cot.ers m~ the edge of 1he right ~[ w~y, right ~f w~y which they now claim ~s n
gave Ihe purchasers of ~dj~ininff Inmls ti- part of their ~djni~fiuff tracts. But most
lie extendis~g to the center of the right of o[ the ~nme facts were pre~enled i~ lhe
w~. Rio Bravo nnd Cox v. C~mphell cases,
pm, to which the S~lpreme Court applied
[1] ~t has long been sellled that pri- the rule neverlheless.
vote grants of lands borderiuff upon streets,
highways, a,~d non-n~viff~ble streams, even In Ihe Rio Bravo and Cox v. C~mpbell
though the corners be marked, the lines del- cases the portions of lhe railroad riffhls o[
initely located, and quantity of land exact- w~y involved h~d been acquired hy the R~il-
ly ascerinined, convey title to the ce,~lcr o~ way Compn~y from priwle owners, nnd
theslreel, hiffhway~r~lrenms, ual s~zuch not Ihronffh ffrnnts from the Stale, ns w~
deed conlnins n clause which expressly de- true in II,e inslant case. In Ilmse
elates Ihe conlrnry intenli~ or cnntnin~ Iht ~late h~d Iherel~fore pnrled wilh ils
some olher declaratim~ cquiv~les~t Io such tille to nil of Ihe I~mls involved, the co~-
express declaration." Texas Bilu!ilhic Co. ~roversles were between prlvnte p~rlle~,
v; Wnr~vic~, Tex. Com. App., 293 S.W. Iff0, ~nd a co~structio~ o{ lhe oriffln~l
164; Milchell v. B~s~, 26 Tex. 372; l-)s~t- {r~m thc Sl:~le wa~ n~t involved. It i~ the
ton v. Vierling, Tex. Civ. App., 152 S.W. contenlion of Ibc ~ppellees Ih,t Ihe llber~l
450, 453. This, umler the rule of construe- rules of cou~tructi~,n in favor of Ihe grin-
lions nf snch ffranls, is now well settled by tee ~s belween private parties do nol ~pply
decision in this State. to imhlic ffrn~l~ made hy ~he State; but
: that in snch czscs a slrlct rsde of conslruc-
e And it is now settled by decisions lion in favor o{ the Slate and offal,st the
of S ~prcme Conrt Ihat Ibis rule of con- granlee must I~e applied: cil i,~ff pnrtlc~-
slrucli~m apl,lies xvill~ equal force to gray,ts larly, among other cases, Sclmlre v.
bordering upon railroad rights of w~y. l(io ney, 'Fex.Civ. App., 204 S.W..~42; City of
Br,vo Oil Co. v. Weed, 121 'Fex. 427, .~0 S. A~stin v. llall, 9;~ 'l'ex. 591, 57 S.W, 563;
W.2d 10g0, R5 A.L.R. 391: Cox v. Camp- Magnolia l'et. C~. v. W~l~er, 125 Tex. 4.]0,
bell, Tex.Sup., 14.~ S.W~d .~61. ~s. is 8.] S.W.2d 929.'
true notwithstnmli~ff Ihe former ~sec~sson b ~ i
of ~l~e Supreme Court in Couch v. l exn~ & [~] Two cnrdi,~nl rule~ o[ constri~-
P. i~y. Co., ~ Tex. 464, ~67, 90 ~.W. ~C~, ilo, of the extent of, ~r,,t ,re, (1)
which case was specifically c~n~idered i~ th~ f~t~teps o[ the ~utveyor, where the},
Brnvo nnd Cox v. Carol,hell cases, czn be located on the ground; and (2) the I~'~ij':
1he
Rio
A~d ns nl,l,lied to co~veyn~ccs bordering intention of the p~ttie~, where tlmt c~ ~ I.~'~
npo~ railro:,l rights of way, the Supreme he definitely ~certaine~. 'And appellees
!
Conrt in Cox v. Cn,npl)ell [14.1 S.W.2d 3fi6], nrffe that upon re~rveys of Ihe lands nd-
referrinff to such rule of cnnstruclirm, say:. joinlnff Ihe rlghl of way, Ihe [ool~teps o{
"nmi such rule is ~ot overcome even lhouffh the surveyor up~m which lhe patents were
the field ~oles descril)is~g the Inml st~)p at. i~sued were defi**ilely e~lnl)lished ns fin-
the side line of the slreet, lmhlic highway, lng only to the ~ide li,~es ~f Ihe tight of
or rnilrond right o~ way, unless n c~,~lrary way; nmi that the facts and circums~anc-
intcnlioss is expressed in plain nnd uneq~iv- es, nnd tl~e findi,sffs of lhe trial court, show
ocnl terms." that it was Ihe intention holh of Ihe State
No such express reservation of lille in nnd of the grnnlecs, that msly the Innd~ Io
the Stale lo the rnilrond right of way here the edge ~,f the right of way be iucluded.
involved, was made in the ffrnnts to Ihe llut it was hehl hy ]ndge Key in l)ullo~ v. '.'
individu:tl l, srchnsers of the adjoining In,~dS Vierlinff, suprn, notwithslnnding lhe foot-
from Ihe St~te. It is not c~)nlrovcrlcd, steps of Ihe surveyor, which were Ihcre :~ ..
however, that the foolsteps of the survey- found; nnd Iht exact acreage inchi~led
or, the calls for coarse and dislnnce, hud within Ihe field notes, in the nhsence of n
the idenlificatlon of mar~ed corners on the clear reserv,lion in Ihe grant ~howlnff ~
gro,nd o{ the lands here involved, extend- contrary i~tention,'the convey,nee went lo
ed only to the side lines of the right o[' the center of n non-~avigablc slrenm. The
same rule has been applied to streets and 517, 523, 61 N.lg. 891, 85 Am. St.llel). 694.
highways in Texas Bitulitlsic Co. v. War- In subseqncnt cases decided by that sa*ne
wick, supra. While the intention of the conrt, however, Graham v. Stern, supra.
parties 1o a grant, where ascertainable, gen- was distinguished on ils own facts, and
orally controls, Ihe following significant general rnle that a grant by the Slate
language is used in the Rio Bravo case [121 governed by the same rnlcs apl)licable to
Tex. 427, 50 S.W.2d 1087, 85 A.L.R. 391]: private grants, was announced and fol-
"The prime object aud pur~se of such. lowed. See 2 A.L.R., p. 35, as,d cases there
rnles for construction] ia to enable them.to annotated.
ascertain and ~ivc effect to the true inten, 2. In Schulze v. Dabney, snpra, Judge
lion of the parties a,st,~ ~acls i*u,.tie,s ~ Jenkins clearly recog, izes tlu, t his bohl-
iace*sti~t~**t ~tls wa**se tettt,~l ~ o/1~.~' ing is contrary to that of the Supreme
(Italics ours.) And thc settled rule of laW Courl in Mitchell v. Bass, supra, bnt held
therein aunonnced and followed in Cox v. the Bass case inalq)licablc becanse decided
Camp~li, supra, is that, abseut an cxprcqs under thc civil law. llowever that may
reservatiou, the graut is coa,clusively pre* bare been, thc Snprcme Court ilself, on the
sumcd to Eo to the center of the non-navi- issne here involved, has cited wilh approval
gable s~team, highway or railroad right of and folh)wed the Bass case in Texas llitu-
way. There being 0o such reservation in lithic Co. v. Warwick, Tcx. Con~.fipl).' ~9.1
thc grant, uuder such rule of constructio0, S.W. 160, 162; Cox v. Camld,cll, Tcx. Sup.,
uther evidcucc as to what was the inten- 143 S.W.2d 361. The necessary result of
tion of the parties becomes uni*u~rtasu, these decisions by the Supreme Court is to
Now as to the apldicatio,~ of this I'nle of overrule, if san~e were necessary, the views
constrnction to public grants. The case of expressed by Judge Jenki,s in Schntze v.
City of Austi,~ v. llall, snpra, involved a Dabncy. And since the Supreme Cotlrt in
grant bordcri,g upon a ,s,t~iy~,bt~ streant, the Rio Bravo and Cox v. Caml,belI cases
It is now settled by the decisions herein- n~ade expressly al)plicable lo gra,,ts adjoin-
above cited, and olhcrs, that sncb rule ing raih'oad rights of way thc rule al)pli-
docs not aPl*ly to laltt]s I)nrdering hi*On nay- cubic to non-navigable streams, streets and
igable streams itlld tide waters, ll-wcvcr, highways, in which latlcr cases public
highways, railroad rights of way and non-
grants are COliStrtlCd i~ thc same manner as
**avigable strca,ns constitute a distinct clas- private grants, it follows that such con-
silicalion from navigable streams, and such struction applies with equal force in the
i',tlc of conslrtlclioll us Io lands bordering grants here involved.
on thc former d~es apply to the littler.
[6] The remaining question presented
[5] The general rule is that a grant by is whether the former suit I)y the State
the State of lands bordering npon a street
or hi~way, which contaius no express res- against Ibc Texas & P. Ry. Co., inw)lving
crvatlon, is to be constrt~ed in the same the same land as here, in which the Slate
recovered its jndgment, but to which shit
maimer as grants betweeu individua5.
Mitchell v. Bass, 26 Tex. 372; l;ristoe v. lhe adjacent owners were not parlies, is
Bhnn, 92 Tcx. 76, 80, 45 S.W. 9~8; Wil- stare dccisis as against them in the instant
loughby v. Long. 96 Tcx. 19-1, 71 S.W. 545; suit. In that suit (see Tcx. Civ. App., 52
Aa,Icl'son v. l~ohiso,s. 111 Tcx. 402, 229 S.W.2d 957 and 124 Tex. ,182, 78 S.W.2d
580) thc State shed the T. & P. l~y. Co. in
S.W. 459, 238 S.W. ~3; 8 Am.Jur., ~ 47,
p. 780. Thc ollly 'l'cxlts cilse, al)plicld)le to trespass to try title to that portio** of the
right of wi*y here involved. The T. &
the precise qucstioll here illvoivcd~ is l~y. Co. by cross action pleaded specially its
~chutzc v. Dalmcy, supra, principally relied
Ul*O~ by al)polices. On alii)cai to the Si,- asserled chain of title fron~ the Slalc. It
I,rcl*~e (:ourt (sec 228 S.W. 176) Iht dcci- was also slipnlatcd in that case Ihat the
sion of this court, writlcn by J*ldgc Jcn- Slate had, prior to thc filing of Ihat suit,
patented to individnals all of the adjoining
risc exact qs*csli(m here presented not dc- cilically called to run lo n,arked corners on
citled by thc Supreme Coort.
thc edge of Ihe right of way, and thence
Two matters in corn,cotton with Judge wilb its side lines parallel wilh, and ~
Je,d~ins's decision in 'l'ex. Civ. App., 204 S. varas from, the center of the raih'oad track.
W. 3,12, arc to be noticed: Thc trial court snstained in that ease the
1. lie predicated his opinion largely np- Stltle's eXCel,lions to the special pleas of ti-
on the ease of Graha~n v. Stern, 168 N.Y. tlc made by Ibc T. & P. I~y. Co., and ten-
d~red j,dfflncnt that Ih~ Stal~ recover ~ni(I It would eslabllsh ~ s~ranffe dnctrlue lo
I:,ld ~lb.~ecl I~ Ihe ea~en~enl Ihereon h~ hnhl that ~n~der lhe pre,per cnl~slfllClioll o(
law~r ,~f lhe r;~ilroad co~p:.~y. Ih~ field nntes in Iheir p~tenls, 3n~b by
It is tr~e Ihat the j~dffmeut in Ihnl cn~e lue lhereo[, Ihe p~rcha~ers of
did award Ihese land~ Io the Slnle; bat lnml~ hod ~cfl,dred from the Slnle lille
non~ of Ihe n~vs~ers nf Ihe adjois~i~ff lands the center of the railroad right of w~y; but
were parlie~ Io Ihat s~sit; nor was Ihe cnn- Ihat they nrc now deprived of ~ny riffhl to
slrucli~n of their, pale~sls in nt,y manner assert that lille I~y ~ jndffment obtained by
hronght i~ qneslion. ]~s reality, ns Ihe opin- the Stale against s,me~ne el~e in ~ suit
ions of this co~rt and of the Supreme to which they were oot ~ party, and in
Court readily disclose, tl~e only issue Ihere which Ihe issue of their title was not ~d-.
presented n~l delermined w~s llsnt the T. judicnted.
& P. l~y. Co., when it obt~im~d its right of Under the conclusions reached it hecome~
way across that section of Ihe Slate, nc- unnecessary for t~s to determine the
quired only nn e~scment over this Inml; between A. F. ]osli~ ~nd Eldrn 11.
aud did nnt nC~lnire n fee simple lille there- ~s Io which one of Ihrm hod ~ prior right
Io. Whelher the State had snbse~lnenlly Io n mineral lense ~n said Innds. The
Imrled wilh its tille to this Inml to olhers right of eilher In s~ch lense depended ~1~'
was n~>t involved nor adjudicated in any o~ title in the .State Io lhe Innds involved.
m~,ner. For the reasons slated, Ihe judgme~t of
[2] Nor is the judgment in Ihnt case, the trial conrt i~ reversed ~nd judffme,t
in o~r ~pi~finn, slate decisis nf the q~eslinn here rendered that the State o{ Texas, ~
of law pre~enled in the i~sln~t case. The plni~tiff hell,w, and Ihe defemlnnt~ Joslin
doclrine of store decisis is now ~ seltled nmi llnshy, lease npplicnnls, lake nothing' ~
j~nrt of o~r .j~sri~pr~ldence. II applies "~- nffnln~t the nlher defendnnls named.
ly I'~ ~l~esli~,~s of law; it involves no cie- Reversed'and rendered.
meat ~f esloppel, ~ml it opernles on all per-
s~ns, and m,t merely Ihe pnrlie~ Io the par-
licular prnceedinff and Iheir privirs."
Tex.Jnr., ~ .~68, p. 46, nnd cases thrre cited. ~
Snch, for example, ~s the construclion by
Ihe c~rt of last resort, of a wrillen
me~l, or of ~ judgment, or Ih~ ~djudicnlion
of the boundaries of a particnlnr snrvey.
The latter inslanco is one which n~st fre-
queasily ~cc,rs. ~ee Porter v..Slate, Tex.
Work, Tex. Civ. App., 94 S.W.2d 7~4,
federal l{~yally Co. v. Slate, 128 'Fex..~g4, ~ur~ of Oivll Appe~l~ of '~exn~.
98 S.W.2d 99.~, 996; ~11 cited nnd relied Now 27, 1~40.
~pnn by appellees. ~ But Ihe question 0f law
decided on appeal in lhe for~ner suit by ~eh~nrlng l}enled l)ee~ 11~ 1040.
lbo Stole against Ihe Texas & P. ~y.
Co. wn~ whelher the T. & P. ~y. C~. I. ~arrlor~
obtnhsed the lille to, or merely nn easement A l~tll.l~ nll~gln~ that d~f~ndnnt
over, Ille innds i~cl~ded in its right of way. eont~net~d to trnn~r~ pinlntlff'~
That was the co~trollinff fl~eslinn prese~led g~o~l~ nnd I.hnt n~ffll~nt ~due~ o~
and decided on that appeal; nsanifestly ~n m~ nmi err~w-d~femlanl, wh~ trnek~
o~tirely different question of l~w from Ihat lltl~d Jolntl~ and ~ernll~ wn~ the dlr~l
here prese~lted~lhat is, whetl~er pntenls by nnd proxin~nt.~ enuge o~ Io~ and
, Ihe Slale to indivldu~l purchasers of ~dja- lion ol ~1~ wa~ no~ d~mnrr~bl~ a~ ehar~.
cent lands, co~vey title to the center of Ihe ln~ ~egll~ene~ o~ I~Inlntl~'~ p~rt, though
right of w~y or merely to ils side lines. Imllm~n~ wn~ ~li~el~d, li~ ~ipported Jud~-
Clearly, we think, the decision of Ihe for~- m~n~ for pinlutl~ agnlu~ ero~.def~ndnnl.
ef "q~estio/~ of l~w" couhl not and should wh~r~ Jur~ nequll.l.~d dofentl~n~ o~
ilot ~pply to, control, or determine lhe lat- and ~n~lelod ero~-defe~Inn~ of
ter "~lUeSlio~ of law", a selmrnte ami dis- proxhnntel~ en~wln~ dnmn~e~, ~ml
li~ot q,estion, delertninable to,der el~tirely wn~ r~mter~d o~ t.heor~ of ~ Joint nmi ~-
different principles ~ud decisions. ~rni torl nnd no~ on th~or~ of bnllm~n~
D
MEMORANDUM
TO: KRA
FROM: WDF
DATE: June 26, 1991
RE: RIGHT-OF-WAYS excepted from a conveyance: What happens to
the underlying fee?
QUESTION PRESENTED
Where a deed conveys land but excepts therefrom the conveyance
of a Right-of-Way, does fee title under the Right-of-Way convey to
the grantee?
SHORT ANSWER
Unless the excepted Right-of-Way is unequivocally reserved,
the fee title under the Right-of-Way passes to the grantee.
DISCUSSION
"[I]t is fundamental that a warranty deed will pass all of the
estate owned by the grantor at the time of the conveyance unless
there are reservations or exceptions which reduce the estate
conveyed. Also that the property excepted, or the estate reserved
is never included in the grant." Cockrell v. Texas Gulf Sulphur
co., 157 Tex. 10, 299 S.W.2d 672, 675 (1957).
An instrument of conveyance which conveys land
definitely described in such instrument, and then
excepts from such conveyance a road, railroad Right-
of-Way, canal Right-of-Way, etc., as such, occupying
a mere easement on, over, or across the land
conveyed, conveys the fee to the entire tract, and
the exception only operates to render the conveyance
or grant subject to the easement.
Lewis v. East Texas Finance Co. Tex. 146 S.W.2d 977, 980 (Tex.
1941) .
It is well known that separate ownership of long
narrow strips of land, distinct from the land
adjoining on each side, is a fruitful source of
litigation and disputes. To avoid this source of
contention, it is presumed that a grantor has no
intention of reserving a fee in a narrow strip of
land adjoining the land conveyed when it ceases to
be of use to him, unless such fee is clearly
reserved.
Cant!e¥ v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, 915
(1940).
A grantor may defeat the presumption by the use of adequate
language in his deed. Haines v. McLean, 154 Tex. 272, 276 S.W.2d
777, 784 (1955).
Language of "save and except" is not considered to be an express
reservation of the fee under a Right-of-Way. Id. at 782. Moore v.
Rotello, 719 S.W.2d 372, 376 (Tex. civ. App.--Houston [14th Dist.]
1986, writ ref'd, n.r.e.).
In the Rotello case, the deed read as follows:
"Thence N 78 degrees W, and up Big Creek, 151.0 varas to the
place of beginning, containing 57.17 acres. Save and Except 2.35
acres for the I. & G.N.R.R. Right-of-Way, leaving 54.82 acres, as
surveyed by. Evans Moody, Registered Public Surveyor...". Rotello
at 376. The court held the fee title under the Right-of-Way passed
to the grantee despite the save and except and net acreage
provisions. Id.
In Penn v. Holland, 105 S.W.2d 351, (Tex. civ. App.--Galveston
1937, writ ref'd.), the Court held that a deed conveyed the fee
under an excepted Right-of-Way. The language in the deed set out
a legal description of the tract "save and except three (3) acres
of land out of said tract, the same having been conveyed by me to
the Houston Galveston Electric Railway Company." Penn at 353.
In Lewis v. East Texas Finance Co., supra, the Court adopted the
holding of Shell Pet. Corp. v. Ward, 100 F.2d 778, (5th Cir. 19 ),
cert. denied, 307 U.S. 632, 59 S. Ct. 834, 83 L.Ed.2d 1514 (19 ).
The Shell case involved the conveyance of a tract of land that was
bisected by a canal. The description of the land by metes and
bounds included the 5.6 acres covered by the Right-of-Way deed.
Following a description of 162 acres, the deed stated:
"save and except therefrom 5.6 acres taken up by the rights of
way of the Neches Canal Company lateral, making 156.4 acres herein
and hereby conveyed."
The Shell court held the conveyance passed the fee under the
excepted Right-of-Way stating: ~
This principle is especially vigorous in operation,
where, as here, a construction is contended for
which would produce the unreasonable result of
splitting into two pieces a tract of land, which
existed as one tract, subject only to an easement,
and which, in reason, must be considered to have
been conveyed as such, and not to have been split
into separate parts, with a thin wedge of land
between.
Stroud v. Hunt Oil, 147 S.W.2d 564, 566 (Tex. Civ. App.--Eastland
1941, no writ) (quoting Shell Pet. Corp. v. Ward, supra).
It should be noted that in the Shell case, the court held that
describing the canal right-of-way as "5.6 acres taken up by the
right-of-way" was so ambiguous as to require construction. The
case holding could possibly have been different had the excepted
acreage been described in unambiguous terms.
CONCLUSION
There is a well settled presumption in Texas, that the fee under
a excepted or reserved road, canal, or railroad right-of-way etc.
conveys with the fee of the surrounding tract when it is conveyed.
However, this presumption may be overcome by clear unequivocal
language in the deed.
Deeds "saving and excepting" or setting forth a net conveyance
of acreage have been held to nevertheless convey the fee under the
excepted acreage.
MEMO.ROW
MEMORANDUM OF [.AW
TO: Steve Soule
From: Karl R. Albert
Date: 6/27/91
Re: Right-of-way reservations/conveyance
FACTS
A
--_____ B
CONVEYED
C
E Right-of-Way
F
RETAINED
G
ti
QgESTION_PRESENTE~D
1.) Where tract ABCD is conveyed out of a large tract ABG}{
and is described by metes and bounds as not including any
part of tile ri§hr of way CDEF, w.tll any portior~ of the lee
under the right of way nevertheless be conveyed with ABCD?
~IIORT ANSWER
1.) Yes, in the above example, fee to the center line of the
right of way is conveyed.
[W]here a deed conveys by specific field notes
land abutting on a street or public highway or
railroad right of way, it conveys title to the
property to the center of the street, public
highway, or railroad right of way: and such rule
is not overcome even though the field notes
describing the land stop at the side line of the
street, public highway or railroad right of way,
unless a contrary intention is expressed in plain
and unequivocal terms.
Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361 (1940).
"...[E]ven where the grantor owns at the time the land
on both sides of the easement, his conveyance of a tract
adjoining one side carries fee title 'to the center line."
Haines v. McLe~B' 154 Tex. 272 ..... 276 S.W.2d 777, 782
(1955).
"...[A]bsent an express reservation, the grant is
conclusively presumed to go to the center of the non-
navicable stream, highway, or railroad right of way."
~oslin v. Statg, 146 S.W.2d 208, 211 (Tex. Civ. App.--Austin
1940, writ ref'd).
CONCLUSION
Unless a clear, unequivocal contrary intention is
expressed in the deed, a conveyance of tract ABCD would
carry with it the fee to the center line of the right of way
CDEF.
E
HABY v. HOWARD Tex. 39
Cne ~* ?$7 S.W~2d ~4 (Tex. App.--.8',n An(ohio P)88)
court was precluded from finding adverse Testimony offered by appellees' witnesses
possession by appellees as a matter of law. showed that the property was in part used
Appellant's first point of error is sustained, as a picnic area by neighbors in the vicini-
ry. Finally testimony was offered by Viola
Title b~t Circumstantial Evidence Haby that she had paid taxes on the prop-
Appellant next complains that the appel- erty continuously up to the present.
lees were not entitled to recovery of the Clearly the issue is disputed; the evi-
disputed property under the doctrine of dence does not establish as a matter of law
title by circumstantial evidence as a matter the complete non-claim of the apparent
of law. She argues that the doctrine is not record holder. Therefore, the court may
relevant in this case and should not be not find as a matter of law that appellees
applied when genuine issues of material have demonstrated a right to title by cir-
fact exist, cumstantial evidence. The second point of
[10] The doctrine of title by circumstan- error is sustained.
tial evidence is basically a common law
adverse possession cause of action. This is Doctrinz of Strip and Gor~
also referred to as the "lost grant" theory. In his third point of error appellant com-
Where'a party has asserted a claim to plains the trial court erred by ruling, as a
property in dispute for a long period of matter of law, that appellees were entitled
time, has established a general reputation to recovery under the doctrine of strip and
of owning the land, is able to establish a gore.
complete non-claim b~l the holder of ap-
parent record title, and lack of a claim by [12] When it is apparent that a relative-
any other person over the same period, a iy narrow strip of land which is small in
court may presume the existence of a "lost size and value in comparison to the adjoin-
grant" that conveyed the property in dis- lng tract conveyed by the grantor,
pute to the adverse claimant. Purnell ~. ceased to be of benefit or importance to the
Gulihur, 339 $.W.2d 86 (Tex. Civ. App.--EI grantor, it may be presumed that tho
Paso 1960, writ ref'd n.r.e.). The court in grantor intended to convey the narrow
Purnell found the claimants had estab- strip along with the larger tract under the
lished title by circumstantial evidence doctrine of "strip and gore". Angelo v.
through their long term assertion of the Biscamp, 441 S.W.2d 524, 526-27 (Tex.
) claim for the property. The court also 1969). In one case, a warranty deed to a
f found claimants had established a general parcel of land did not include a strip of land
! reputation of being the owners of the prop- next to a river bank, but there was evi-
e erty in dispute, as shown by the tax rolls, dence that the deed was intended to include
h the plat books, and the redemption receipts such a strip since there was no fence sepa-
o from the State of Texas. This was com- rating the strip from the rest of the parcel
s bined with a showing of a complete non- of land, and the strip by itself had little
2 claim by the holder of the apparent record value, if any. Under these circumstances
title and an absolute lack of any showing the strip was held to pass to the grantee
~t that the property had been claimed or used under the "strip and gore" doctrine.
e. by any other. Id. at 92. Strap. thorn v. Jones, 157 Tex. 136, 300 S.W.
y, [11] In this case there is no question of 2d 623, 638 (1957).
~e a lost title or a grant. Neither do appellees [13, 14] The strip and gore doctrine ap-
,le claim or offer proof of payment of taxes, plies only when that specific .strip is not
.ct Appellees offer evidence of possession and included in the field notes or the property
ed the reputation of their ownership, description of the conveyance. Id. The
On the other hand there is evidence that deed from Titus Haby to J.R. Lambert does
vi- the property was claimed by appellant and not include the disputed strip. We note
of that appellant made use of the property in that the disputed strip is not small in size
· iai dispute to graze cattle from time to time. when compared to the adjoining tract con-
40 Tex. 757 SOUTH WESTERN REPORTER, 2d SERIES
veyed by the grantor. In fact the disputed appellees were entitled to recovery of the
property is approximately the same size as. disputed property under the doctrine ef
that granted in the deed, both being ap. strip and gore was not proper~ The third
proximately one and one-fourth acres. We point of error is sustained.
next look at the value of the disputed prop-
arty lying between the 1072 foot and tl)~ 7'he Deed from Hab~l to Lambert
1084 foot contour lines along the lake
shore. Lastly, appellant complains the trial
Appellees argue that the disputed prop~ court erred in ruling, as a matter of law,
arty is isolated and worthless, a 50 foot, that the deed of real property from Titus
wide strip of land containing nothing b~ Haby to J.R. Lambert was unambiguous in
rocks, brush, and cedar trees. Attached to favor of the grantee. Appellant argues
their motion for summary judgment is the that genuine issues of material fact are
affidavit of A.C. Schwelthelm, a real estate present in the record and indicate ambigui-
appraiser, who offers his opinion that th~ ties in the deed and such ambiguities are
land in dispute, standing alone, has poteu- issues of material fact to be determined by
tial only for use for picnicking and recrea- the trier of fact. The 1918 deed contained
tion. Schweltheim considers the value of the following language:
the property limited when used for grazing That we, Titus A. Haby and wife, Lizzie
because of its size and shape. He statas Haby ... convey unto J.R. Lambert ...
that the property has a nominal value bat all that certain tract and parcel of land
adds that it is doubtful that the property ... containing one and one-fourth (11/4)
would be marketable as a severed tract, acres of land, and known as Cedar Point
Appellant argues that the strip of proper- Bluff on the east side of an [sic] fronting
ty in dispute, located between the 1072 and and adjoining Medina Lake, more fully
1084 "natural contour lines", tgijoins over described as follows:' beginning at a
100 acres of land owned by Viola Haby but stake, a point where the south line of
located below the 1072 natural contour line, such survey no. 1, intersects the high
When the water level drops below the 1072 datum water line of the Medina Lake;
natural contour line the disputed property fence east 133 yrs. along said south line
adjoins a substantially larger area of th9 of said survey no. 1, to where said line
exposed lake bed and is used to grase again intersects the high datum water
cattle. In addition the deposition testimony line on the west side of a deep gulch;
of Carle, also an appraisal expert, reflects fence following said high datum water
his opinion that the disputed property has line in a north westerly, western and
some value when considered with the larg- southeastern direction to the place of
er parcel of which it was a part. This beginning and containing one and one
would apply whether the disputed strip quarter acres of land, more or less ...
were considered in conjunction with the o~ [15] Appellees argue that calls for acre-
and one-fourth acres deeded to appellees mr age in a deed are the least reliable of all
if the disputed strip were considered iu calls. Texas Pacific Coal & Oil Company
conjunction with the adjoining lake bad v. Masterson, 160Tex. 548, 334 S.W.2d 436,
owned by Viola Hahy. 439 (1960). Calls in a deed for adjoinder to
There is conflicting evidence as to the natural objects as a boundary or terminus
actual value of the disputed strip of proper- are given priority over calls for distance.
ty, which is not small in size in comparison Bickler v. Bickler, 403 S.W.2d 354, 361
to the adjoining tract conveyed by the (Tex.1966). They argue that because the
grantor. Finally, the record reflects some deed states the property conveyed fronts
evidence of the benefit of this property t~ and adjoins Medina Lake, the call for ad-
Haby, the original grantor. Under the cir- joiner to Medina Lake must control, even if
cumstances these issues are for the finder it means conveying more acreage than the
of fact. A ruling as a matter of law that amount of acreage specified in the deed.
F
568 Tex. 787 SOUTll WESTERN REPORTER, 2d SERIES
estate was not expressly devisod, Victor is taken ns true, attd 3) every reasonable
and Dorothy each took, by way of a residu- inference is indulged in favor of the non-
ary clause, an undivided one-half interest in movant and any doubts resolved in its fa-
the 24 acre mineral strip,t Victor, acting var. Nixon v. Mr. Properly Management
as executor of his mother's estate, con- Co., 690 S.W.2d 546, 548-49 (Tex.1985);
veyed to himself the 106.88 acres "lying Dieter v. Baker Service Tools, 776 S.W.2d
West of the uew State Highway 59 Ex- 781, 783 (Tex.App.--Corpus Christi 1989,
pressway ... together with all and singu- writ denied). A defendant is entitled to
lar the rights and appurtenances thereto," prevail on a motion for summary judgment
and he conveyed to Dorothy the 105.03 if he establishes as a matter of law that no
acres "lying East of the new State ttigh- genuine issue of material fact exists on one
way 59 Expressway ... together with all or more elements of the plaintiff's cause of
and singular the righka and appurtenances action. Dieter, 776 S.W.2d at 783.
thereto." Tile mineral interest underlying In the present case, there is no dispute of
the 24 acre strip was not expressly con- fact. The dispute concerns the legal conse-
veyed in either deed. quence of the conveyances described above.
Subsequently, Victor conveyed the sur- Texstar contends that, by application of the
face and minerals of his 106.88 acres, and strip and gore doctrine, appellants no long-
Dorothy did the same with her 105.03 er own the mineral interest in the 24 acre
acres. The deeds contain descriptions of strip. The issue is whether the dcscrip-
the tracts by metes and bounds to the edge tions in the deeds executed by Victor and
of the highway, "together with all and sin- Dqrothy, conveying their respective acre.~,
gular the right~, and appurtenances there- operate to transfer title to the center of
to." 'The conveyances were made subject highway 59. We hold that they do.
to various utility and road easements.
Texstar acquired an oil and gas lease on The Strip and Gore Doctrine.
the 106.88 acre tract and drilled a well [3,4] It is a well-established rule of the
which produced in paying quantities. Ap- common law that absent an express reser-
pellank~ sued Texstar for drainage of the ration to the contrary, a conveyance of
24 acre strip, asserting their alleged miner- land bounded on a public highway carries
al interest. By appellants' first two points with it the fee to the center of the road as
of error, they contend that the trial court part and parcel of the grant. State v.
erred by granting Texstar's motion for Williams, 335 S.W.2d 834, 836 (Tex.1960);
summary judgment and by denying appel- Goldsmith v. H, mble Oil & Refinin.o Co.,
louts' motion for partial summary judg- 145 Tex. 549, 199 S.W.2d 773, 775 (1947);
meat. Since both points involve the same Cantley v. Gulf Production Co., 135 Tex.
issue, title to the mineral strip, we will
339, 143 S.W.2d 912, 915 (1940); Cox v.
dispose of them simultaneously. Campbell, 143 S.W.2d 361, 362 (Tex.1940);
[i,2] When reviewing the granting of a Rio Bravo Oil Co. v. Weed, 121 Tex. 427,
sttmmary judgment, this Court follows 50 S.W.2d 1080, 1083 (1932); Mitchell v.
three well-established principles: 1) the Boss, 26 Tex. 372, 380 (1862); Texa.~ Bitu-
movant for summary judgment has the lithic Co. v. Warwick, 293 S.W. 160, 162
burden of showing that there is no gennine (Tex. Comm'n App. 1927, judgm't adopted).
issue of material fact and that it is entitled This presumption of intent to convey title
to judgment as a matter of law; 2) when to the center of the highway applies if tbs
deciding whether there is a disputed mate- appurtenant strip exists in fact at the time
rial fact issue precluding summary judg- of the conveyance. Williar~% 335 S.W.2d
meat, evidence favorable to the non-movant at 836. Cf Goldsmitk, 199 S.W.2d at 776
I. Appellants take under Ihe residuary clau~ be- as grantor, owned the tracts abutting both sides
cause, as later discussed, the strip and gore of the highway. See Rio Bravo (h'l Co. v. Weed,
doctrine would not apply to the conveyance 121 Tex. 427. 50 S.W.2d 1080, 1083 (1932).
between Louise and her children since Louise,
KRENEK v. TEXSTAR NORTH AMERICA. INC. Tex. 569
Cleo ~- 787 S.WAd S4~6 (Te,z. App.--42orpu~ Chvt~l 199Q)
(where the road was not in existence when Creek Basin Authorit~t, 589 S.W.2d 671,
the deed was executed). Furfimrmore, rite 678 (Tex.1979); Tex. R.Civ. P. 166a(c). Ap-
presumption is not overcome by the fact pellant~' first and second points of error
that the deed describes the abutting laod are overruled.
by metes and bounds extending to the edg~ By their third point of error, appellants
of the highway. Williams, 335 S.W.2d at contend that the trial court erred when it
836; Cox, 143 S.W.2d at 366; Warwick, granted Texstar's motion for a protective
293 S.W. at 162 (whm:e the deed described order and, as a sanction, awarded Texstar
the property by metes and bounds, $750.00 in attorney's fees. Appellants
stopping at the street line). On the oth~r claim that after the trial court entered the
hand, the pr~umption does not apply if the smmnary judgment itl favor of Texstar,
grantor owns land abutting both sides qf appellants discovered additional evidence.
the strip. Rio Bravo, 50 S.W.2d at 1086; In connection with this "new evidence,"
Couch v. Texas & Pacific Raiiwa!l Co., 99 appellants se/'ved Texstar with a second
Tex. 464, 90 S.W. 860, 861 (1906). Like- request for production of documents. The
wise, the presumption doe8 not apply if fils smnmary judgment was rendered pNor to
strip i~ larger and more valuable than tile this discovery request. In response, Texs-
conveyed tract. Ang¢lo v. Biscamp, 441 tar filed a motion for a protective order and
S.W.2d 524, 527 (Tex. 1969). sanctions, as.~erting that there was no long-
er a dispute pending between appellants
[51 Applying the foregoing prineiple~, and Texstar.
we reach the inescapable conclusion that
Victor and Dorothy conveyed the mineral [7] Under Texas Rule of Civil Proce-
strip. Any other construction would nulls- dare 166a, a court may adjudicate claims
fy the rule repeatedly announced by tile upon which there are no genuine issues of
Texan Suprenle Court. Appellants' deeds material fact. The clear purpose of Rule
conveyed tracts abutting the highway, ua~ 166a is to make the issues determined in
lng a metes and bounds description to the the motion for summary judgment final.
edge of the highway. The highway exiate~ Lindvr v. Valero Transmission Company,
736 S.W.2d 807, 810 (Tex. App.--Corpus
st the time of the conveyance. The two Christi 1987, writ ref'd n.r.e.); City of
tracts did not have a common grantor for Houston v. Socony Mobil Oil Companl],
tile relevant conveyance, i.e., Victor con-
421 S.W.2d 427, 430 (Tex. Civ.App.--Hous-
veyed his west half and Dorothy conveyed ton [lst Dist.] 1967, writ ref'd n.r.e.). The
her east half. Lastly, we find that fils issues decided cannot be fro*,her litigated
s~rip (2,860 feet by 330 feet or 24 acres) unless the summary judgment is set aside
wan not larger than the conyeyed tracts, by the trial court or reversed on appeal.
recognizing that each appellant owned ,# Lindez; 736 S.W.2d at 810; Soconll, 421
one-half (12 acre) interest. Having coil- S.W.2d at 430.
sidered all tile relevant factors, we hold
that aa a matter of law, appellants co/~- [8] To be final, a summary judgment
veyed the strip when they conveyed thei~ must dispose of all parties and issues in a
tracts; consequently, they had no mineral, lawsuit. Chas~ Manhattan Bank, N.A.v.
h~terest that could have been drained by~ Fourteenth Court of Appeals, 33 Tex.Sup.
Texatar. Ct.J. 278, 279, 1990 WL 17468 (Feb. 28,
1990) (orig. proceediug); Tcgr 'v. Dudd&s-
[6] Appellants, within their first point ten, 664 S.W.2d 702, 703 (Tex. 1984). A
of error, argue that Texstar is estopped to summary judgment granted on separate
deny appellants' title to the minerals by issues within a single cause of action is
virtue of Texstar's acceptance of tile oil partial and interlocutory until all of the
and gas lease and Tex~tar's payment of issues are either adjudicated or ordered
delay rentals. Assuming Texstar could be severed by the trial court. Chase, 33 Tex.
estopped, appellants' peint nevertheless Sup. Ct.J. at 279; Pan American Pc,role-
fails because the argument clearly was not um Corp. v. Texas Pacific Coal & Oil Co.,
presented to tile trial court and was there- 159 Tex. 550, 324 S.W.2d 200 (1959). Tile
fore waived. City of ttoustou v. Clear finality of a summary judgment is
G
912 Tex. 143 8OUTII ~VFISTI~tlN IIF, PORTI~II1, 2d
nnder the will of Mrs. Pierce and was 4. Boundaries
thereby estopped to assert a different claim, Where partition.map nnd partition de-
aS is attempted ill this suit. It is sufficient eree set apart a narrow strip of land a.~
to say that tile record as presented does road reservation, ami strip was never u.~ed
not show as a matter of law that defend- ns road, nmi grantor bonght and conveyed
ants in error so elected. See 44 Texas adjoining lot hy deed describing, lot ns
Jurisprudence, page 871, Section 29, where- "* * * heginnlng 80 feet W. of the N.
in it is said: "An election may be express w. eot. of Lot No. 2 * *
or implied. When not expressly made, it 25 1~. keeping 30 feet from the West line of
is a question of intention and mast be de- l,ot No; 2 for a road re~ervntlon * * *",
c~ded from all the facts and circnmstances and grantor nnd bls children surrendered
of the particnlar case. The question has possession of lot and strip to grantee, and
been said to be one of fact ordinarily and there was no showing that strip was of bene-
to be submitted to the jury for determi- fit to grantor or Umt there was nny reason
nation." We pretermit further discussion for reserving it when eonveynnee was made,
in view o~ another trial. ,.-" the deed conveyed title to the strip.
The judgment of the Court of Civil
Appeals which reversed and remanded the
judgment of the trial court is affirmed. Error to Conrt of Civil Appeals of Sixth
Opinion adopted by the Supreme Court. Supreme JndJcJal District.
Suit in trespass to try title by Mary
Can(icy and others against the Gulf Pro-
dnction Company and others wherein Ben
m"mu"sm~ Laird intervened. To review a jndg-ment
of tile Court of Civil Appeals, 118 S.W.2d
448, affirming a jndgment for defendants,
plaintiffs briaR' error.
OANTLEY et .el. v. GULF PRODUCTION Judgments of the trial conrt and of the
CO. et al. Conrt of Civil Appeals affirmed.
No. 7457. Mayfield, Grisham & Grlsbam' and J. A.
Lantz, ali o1: Tyler, and Wynne & Wynnb_,
Bupreme ODer( of 'rexn&' of Longvicw, for plaintiffs ill error.
Oct, 23, 1940. John E. Green, J'r., John Brongbton, B.
I. Deeds '~:::~118 C. Clark, Robert F. Carter, and Irwin W.
Where n grantor has conveyed all land Coleman, all of Houston, for defendants in
Owned' by him adjoining a narrow strip or error.
Innd that has ('ensed to be of any benefit to SIIARP, Justice.
grantor, presumption Is thnt grantor Intend-
ed to inelnde such strip in conveyance un- Mary E. Cantley, Polly Timms, and Al-
leas it Cl¢~arly appears in deed, by plain lan- bcrta Tibbs,. being the children of John
guage, that grantor Intemled to reserve strip. Do,glass, deceased, joined by their hus-
bands, filed a trespass to try title suit for
2; Boundaries 41=~20(I), 22 " a 30-foot strip of land~ designated as Lot
Where a deed conveys by specific field No. 5 in a partition of the Tucker estate,
notes land abel(lng on a street or puhlle set aside in the decree of partition for a
highway or railroad right of way, deed con- road, which was never opened.' Plaintiffs
veys title to property to center of street, in the trial court specially pleaded title
highway, or right of way, and such rnle is by the ten years statnte of limitation;
not overcome even thongh field notes de- which was sustained by the finding of the
scribing land stop at side line of street, jury. The Gulf Production Company, aS
highway, or right of way, unless a contrary the alleged leasehold owner, and various
intention ia expressed in plain and unequivo- royalty owners, the fee owner,, and the
esl terms, heirs of Tncker were made defendants.
Ben Laird, the owner of Lot No. 2, which
3. B0undarle~ ~:~20(I) adjoins the land in controversy, intervened.
Where a highway ts lald orr entirely Tile trial court entered judgment denying
on owner's land, rnnnlng along the margla the plaintiffs and the intervenor any re-
of his tract, and owner nftermvnrds conveys covcry. The interven0r did not appeal.
the Innd, the foe in ~vhole of soil of highway from the judgment of the trial conrt. The
vests in grantee. Court of Civil Appeals at Texarkana
OANTLE~ v. GULIO I'ItODUIJTION CO. 'rex. 913
firmed the judgment of the trial court. 118 Wc qnote from the opinion of the Court
S.W.2d 448. of Civil Al)peals the following statement
In 1910 a 668-acre tract of land was par= of facts [ 118 $.W.2d 449]:
titioned in the District Court of Gregg "It is clear from other recitals ill the
Connty among the heirs of M. E. Tucker. decree and from this map as filed that a
The report of the Commissioners, contain- narrow strip of land was set apart as a
ing field notes for each subdivision, aud ac- 'road reservation' between Lot No. 2 to the
companicd by a partitiou map prepared by east ired Lots Nos. 1, 4 and 5 to the west.
thc comity surveyor, was duly recorded. A This decree describes LOt No. 5 to-wit:
substantial reproduction of tile map relat- "'Out of the W. P. Chism survey, be-
iug to the land in controversy is inserted giuning 30 feet West of thc N. W. corner
herein: of Lot No. 2, a stake in Rabbit Creek;
Lot No. 5 Lot N-°.c~
I.
Lot N.~ 5
914~ Tex. 143 $OUTI1 WESTI~IIN REPORTER, 2d 8IOIIII~8
Thence S. 25 E. keeping 30 feet from Lot West llne of said road. It i~ to be further
No. 2 for a road reservation 750 yarns to nnted that the deed refers to the tract
the N. E. coruer of Lot No. 4', Thence ~ being Lot No. 5 and refers to the decree
81 W 800 yrs. to ~abbit Creek; Thence with n plot then of rccm-d. This plot shows
down said creek to thc place of beginning, that the cast llne of I.ot No. 5 fronting
contnhfin~ 74 ncrc~.' on fl~e strip stops nt ~l~e exterior llne of
'"Thc entire tract was in the woads at such road rcscrvalion and shows lhe loca-
the time of the pnrtitiou. After John tion of this strip of lnnd for a road.
Douglass, thc f~thcr of these appellants, * *
pnrchnscd Lot No. 5 and Ben l.Mrd ac- "Douglas acquired a ten-year limitation.
quircd Lot NO. 2, lhese lands were fenced title to thc whole 30-foot strip, nnd title to
nnd placed in cnltivntion. The fence o{ the West lmlf of the strip hy virtne of
Douglass erected abont 1913 included the thc convcynnce to him of Lot No. S. When
30-foot strip in controversy which he col- he and his children conveyed this lot off,
tivatcd, nnd his possession of it ripened this 30-foot strip was s]tlmlcd upon thc
into a ten-year limitation title. A road was eastern edge of his laud then conveyed by
never cslnh[ishcd upon tlfis strip. Don~lnss him. lie owned no Innd on fnrfl~cr to thc
opened ~p n road on this I.ol No. 5 which East of thc strip."
ran strip controversy The 30-foot strip of land in controversy
west
O~
the
in
which was used in ilcn o[ thc road dcsig- was created as a road reservation in thc
nntcd in thc partition decree. After thc p~rtition prncccdin~s, hut was never nc-
dlscovcry of oil in that Commmfiiy an ira- tnnl[y used in its entirety asa road. Plaln-
proved lfighwny w~s constroctcd through ti~s claim' fl~s strip ~ Innd by I]nfitntlon,
Lot No. 5 west o[ thc strip in controversy, nnd thc jury found H~nt }ohn Don~lass had'
"The des~riplion 6f I.ot No. 5 in the deed ncqnil-ed Ihe innd hy the ten years stnhlte
wherein John D~uglnss ncqulred ~ille nmi of limitntlm~. The defendnurs contended'
fl~e deed wherein Dot,glass and the chil- that the description used made the 30-foot
dren of his deceased wife cnnveyed off in strip n part or I.ot No. 5, and this conten-
1929, nuder x~hich last conveyance appel- tion was npheld by the trial court nnd by
lees cl~im title to :this 30-foot strip are the Court of Civil Appeals. The descrip-
the same, and each rends as follows: tions relating to this 30-fo~t strip, ns usedl
i~i the partition proceedings and in subse-
"'A part of lhe W. P. Chlsm sur. and
qucnt instruments, are substantially as fol-
kuown as tract No. 5 beginning 30 feet lows:
West of the Norfl~west corner of l.ot No.
2 ~ stn~e in Rabbit Creek; Thence South The description of I~t No. 2 makes no.
25 E~st. keeping 30 feet from Lot No. 2 for mention of the strip, its West line being
a road reservation 750 varas to the North- "thence N. 25 W. 1415 vara~ to the center
east cor. of Lot No. 4; Thence S. 1o Rab- of Rabbit Creek."
bit Creek; Thefice down said creek to The description of Lot No. 5 reads:
place of beginning containing 74 acre~ 0f "*.* * begimfing 30 feet W. of the N.W.
land, described as tract No. 5 in Commis- cor. 0{ Lot No. 2 * * *', thence S. 25 E.
siouers' ). M. Hosldns Co. to keeping 30 feet frmn tlie West line of Lo6
report
District Court of Gregg Comity, April term No. 2 for a road reservation 750 yarns."
A. D. 1910 il~ the case of Lizzie Cra~vford The description of Lot No. 4 reacls~
et als v. Aurelia Laird et als, * * * "* * * to a stake 30 feet West of th~.
~vhich report is ou record in Book X pages West line of Lot No. 2, said 30 feet
17~179 in records of deeds of Gregg for a road reservation; fl~euce N. 25 W~
County, Texas, for full explanation ref- keeping 30 feet West of the West line o[.
ercnce is made to said records.' l~t No. 2."
"It is to be noted that the deed executed Johu I)ougla~s bought I~t No. 5 by tlgl.
by Douglass and his heirs called for be- description in 1912, and sold it hy the same
ginning point to be thirty feet West of description in 1929. John Donglass and
the Northwest corner of Lnt No. 2 and his children surrendered possession of all,
feet from Lot No. 2 for a road reserva- this stril~. So far as this record discloses,.
tion. This, in effect, calls for thc .W~st they never made any claim to. lt until this
line of this road as tlie' East line of Lot suit was filed. The controlling question.
No. 5, or it may be said that it designates for decision here is: Did the deed from
this thirty-foot road or strip as the Easterfl Douglass and his children convey the title
boundary of said Lot No. 5, or along the to this 30-f-or strip of lafld, t6'tlteir gran-.
CANTLI~¥ v. OULtV PRODUCTION CO. 'l~ex. 915
~s3 s.w.za
tees, or did tb~y exclude this strip from grantees. This act definitely indicates that
such conveyance? they intended to convey all land owued by
thein in this survey.
[1] It is well known that separate own-
ership of long narrow strips of land, dis- In the case of Rio Bravo Oil Co. v.
tinct from the land adjoining ou each side~ Weed, 121 Tex. 427, 50 $.W.2d 1080. 1084,
is a fruitful source of litigation and dis- 85 A.L.R. 391, the rule of presumption was
lmtes. To avoid this source of contention, amlounced with reference to conveyances
it is presumed that a grantor bas no inten- of land adjoining a railroad right of way.
tiou of reserving a fee in a narrow strip Tim rule ailllomlced in that case was based
of laud adjoining the land conveyed when upon a practical effect of the intention of
it ceases to be of use to him, unless such tile grantor iu such conveyance, and not
fee is clearly reserved. The reason for solely upon a consideration of public poll-
tim rule is obvious. · Where it appears that cy. In the course of the opinion rendered
a grantor bas conveyed all land owned by in tbat ease it was said:
btm adjoining a narrow strip of land that "The use of this presumption is merely
has ceased to be,of any benefit or ira- the al)plication in a different form of the
portance to bi,n, thc presumption i~s that familiar rule of construction which has
the grantor intencled to include such strip always been enforced by the courts, that
in snch conveyance; unless it clearly ap- is, to indulge tile presumption that a grant-
pears ill the deed, by plain and specific lan- or intends to couvey to his grantee all
guage, that the grantor intended to reserve 9f the apptlrtenant rights incident to the
the strip. See Cox v. Campbell, Tex.$up., beneficial enjoyment of property whicll lie
143 S.W.2d 361; Rio Bravo Oil Co. v. bas conveyed. In other words, when a per-
Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 son conveys a piece of property abutting
A.L.R. 391; Texas Bitulithic Co. v. War- upon a public highway or nmmavigable
wick, Tex. Com. App., 293 S.W. 160. For an stream it is but natural to assmne, in tile
annotation of the decisions bearing on this absence of an express reservation to the
question, see also 123 A.L.R. 543, 47 A.L.R. contrary, that he intends to convey tbe
1277, and 2 A.L.R. 7. same with all of the beneficial rights eh-
In this instance'Donglass~:and his chii, joyed by him in its us~. * * *
dren conveyed all the laud.lthey owned i~ "We think tile legal presumption is sus-
this vicinity adjoining this strip of land. tained by sound reason when it is based
sod surrendered possession of such land t~ upou the fact that valuable rights and
the grantees, including the strip in corn privileges appurtenant to property should
troversy. There is nothing in this record be presumed to pass in a conveyance there-
to show flsat this land was of any benefit t® of in the absence of a clear aud uucquivo¢itl
Douglass and .his clfildren, or that there intention to tile contrary," .
existed ally reason for reserving it at die
time the conveyance was made; nor is [2] In the recent case of Cox v. Camp-
there uny language used ill the deed o~f bell, Tex. Sup.~ 143 S.W.2d 361, this Court
cvltvcyance made b~ ~hcm that it w~s t):e. ir reviewed this qncstion anti thc decisions
imentiou to' defiuit¢ly reserve ti,is ~trip rclativg thereto, and reiterated the following
ffOIll liUCli CollYeyalll~. general rule: "Tl,c rs,lc has bcc, t definitely
announced in tile Warwick and Weed cafes
Ill construing ' tile conveyance from that where a deed conveys by specific field
Douglass and Iris children to their grantees
with reference to this strip,, it must be notes laud abutting on a street or public
highway or railroad right of way, it con-
kept iu mind that jn tile description of the vcys title to tile property to tile center of
various subdivisions'of thc land partitioned, the street, public highway, or raSh'cad right
as above, described, reference is made to of way; and stlch rule is eot overcome
the map accompanying the report' of tile
even though the field notes describing the
Co,uufissiuuc,'s, which was duly reco,ded, land stt{l~ at the side lille of the street,
The .deeds executed aftdrwards refer to public' highway, or ,'ailroad right of wily,
such subdivisitms for a definite description t,nle'.s a cont,'ary intention is expressed
of the land conveyed.' The map clearly plain and u,tcquivocal terms."
'shows 'that tiffs strip was reserved .for a
road. The description of the land con- [3] Ill 9 Cori)us Juris, p. 203, § 97, it is
veyed by, Douglass and his children doe~ said: "Where a highway is laid off en-
not show an intention to :reserve this strip tirely on the owner's l~nd. running algng
of land...In short, they surrendered this the margm'of his tract, and he afterwards
strip with tile other.land conveyed to tits:ir COltvey:~ thc laud, thc fcc in thc wholq of
916 Tex. 143 SOUTII Wlr, S'I'ERN ItEPOIVI'I,,'IL 2d SERIES
the soil of the highway vests in bis gran- tact.., show with certainty that tile call for
tee." For a discnssion of tile foregoing an ndJolader was hy mistake.
rule, see the followi,lg authorities: Snoddy
v. Boles, 122 Mo. 479, 24 S.W. 142, 25 2. Zud~lment ~:=570(6)
S.W. 932, 933, 24 I..R.A. 507: Johnson v. Whore parties to cm,nty's .suit In
Arnohl, 91 Ga. 6.59. IR S.F_'.. 370; Taylor v. pnnn lo try title 1o ree,lv~r .school lnnd
Armstrong, 24 Ark. 102, 107; Ilaherman agreed to have ~urveyor Invc,."tlll,'lle th~ hind
v. Baker, 128 N.Y. 253, 28 N.E. 370, 13 In eonlrovor."y and, thel'onfl~:~r, UlWm
I..R.A. 611; In re Rnhhins et al., 34 Minn. ~lon of report of inve.ntlgntlon, mdt wa."
99, 24 N.W. 356, 57 Am. Rep. 40; Clnleo v. mis.ned by eounly, tile agreement nmonuled
Champlin Ref. Co., 178 Oki. 198, 62 l'.2d only to an ngreement to tllsmls~ the cause
82; Pattie v. Consumers', etc., Co., 6 Cir., nnd dht not enn.~titnte a compromise and
71 F. 626. See also 11 C.J.S., Boundaries, ~ttlemont of the merlls of the enll.~e of ne-
§ 35, pp..580, .581, 582. ties, and the Jndll~nent of all}mi."ssi there-
In view of the pnhlic palicy of this Slate fore wan ,lot "re.n indicate" in mlb.~equent
with refere~ce to such strips of land, and salt in tr~,.~pn,~.n to try title betweea the
the presumption that it was tile intention same pnrllen to recover the snm~. lnnd.
of the grantors to convey such narrow 8*e Words and l'hrn~,~.",
strip to the grantees with the other land Edithm, for MI othe~ definitlon~
ndjoining same, we do not thluk that it "Re. Judi~tn". .
affects the rule, so far as the title to tho 3. Boundaries
strip is concerned, if the road was never Ill bonndary dinp,t.e between county
used or if it was ahandoued. Amerman v.
Missouri, K. & T. R. Co., Tex. Civ.App., and defendnnl:.", where evhlenee did not
tahll~h tlmt the enil for an ndJoln¢ler was
182 S.W. 54. mnd~ by mistake, county's mirvey marie ot~
[4] Applying the foregoing principles ~ame day Ill 1~40 as survey on which
announced hy this Conrt to lhe facts in- fendant.n relied flx~,d nnme bomHinry line
volved here, the conclusion is inescapable; lln.ni.n of the ndJolnder, mlb.~eq,ent
from the language used in the conveyance by county and repre.~entntlons made In con-
from Douglass and his children to the scan- veynnee.n ny eonnty fixed .~ame line, eondnel.
tees, that it was the intention of the scan- ot~ parties ~howed relinn~ on snch repre-
tots to include this strip of land in such ~entnt. lon.n, and previo,s milt filed by coon-
conveyance. Any other construction of ty Involving same dl~pnte had been dis-
such conveyance would nullify tile rule ml.n.neft by county after Inve.nthcallon I)y sur-
annonnced in the decisions above cited, veyor, enll for dl.ntnnee would not I~
and xvhich has become the public policy of lowed to control over tim enll for the.
this State. Jolnder, aa against coal.enrich or county that
We have carefully considered the ques- the call for adjolnder xvas conjectnraL
tions raised in this record, and conchld~
that the trial conrt and the Court of Civil
Appeals correctly decided the issnes i~.~- Error from Disl'rict Court, Cass County;
voived iu this case. Therefore, tile judg-
ments of the trial court and of the Court R. II. llarvey, Judge.
of Civil Appeals are affirmed. Suil in trespass to try title by Cass Comi-
ty anti another against Derious Ramho
and others. Judgment for defendants was
.. affirmed by the Court of Civil Appeals, 131
;-~.~ $.W.2d 214, and plaintiffs bring error.
Judgment of the Court of Civil Appeals
affirmed.
Newlnnd, Cornett & Whltworth, o[ Lin-
CASS COUNTY et al. v. RAMBO et al. den, Wyune & Wynne, of Lougview, anti
No. 7651. Virgi~ Childress, La,vier, Wood & Ch}i-
Supreme Gourt of Texas. dress, aud R. O. KenlcY, all of ttouston,
for plaintiffs in error.
Oct. 16, 1940.
Ramey, Calho,n & Marsh, of Tyler, Ben
I. Boundaries ¢:=3(5) A. Ilarper, of ttouston, Lasseter, Simp-
A call for an ndJolmler will be rejected Sou & Spruiell, of Tyler, W. H. Francis
had call for distance will control, If the and Walace Itawkihs, both: of Dallas.