Mitchell v. Castellaw

151 Tex. 56, 246 S.W.2d 163 (1952)

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Nature of the Case

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Facts

The property at issue consisted of three lots which originally had a common owner, Stapp. The court arbitrarily designates these as Lots 1, 2 and 3. Lot 3 was leased out as a filling station for the entire time at issue. By the time of suit, the lot was owned by Stapp's daughter (P), who had inherited it. Stapp conveyed Lot 1 to Anderson, her daughter, and Lot 2 to Smith. D later acquired Lot 2 from Smith. In the deed to Smith, Stapp reserved an easement over Lot 2 with the following language: 'It is expressly agreed and understood that grantors, their heirs or assigns shall not build or permit anyone else to construct any type of building or anything else on the portion of the lot described as follows, and that grantor shall have the right to use this part of said lot as a driveway.' Smith later conveyed the lot to Mitchell and Powers (D), using essentially the same language with respect to the easement as quoted above. P sued to invalidate the easement arguing first that the easement was in gross, and therefore extinguished when P took title to Lot 3; and second, that the reservation of the easement was repugnant to the grant of the whole lot, and should, therefore, be treated as if never written. Ds appealed.