The report of the decision of the Court of Civil Appeals for the Fifth Supreme Judicial District in this case may be found in138 S.W. 150. It contains a fuller statement of the pleadings, physical conditions, issues, etc.
The question of the right of plaintiff to recover was submitted to the jury upon the single issue of a "prescriptive right" in the club to maintain the lake on plaintiff's land, though the charge injected into that issue an element of estoppel based on evidence to the effect that such maintenance of the lake had caused sediment to fill the channel of an ancient slough therein; said charge being predicated upon the theory that, as such maintenance unquestionably began as a trespass and continued for ten years, it gave the club such prescriptive right, unless the Gaston agreement and the Bateman contract with the club each rendered such maintenance not "adverse" to the land owner, thereby, together preventing such maintenance from ripening into said prescriptive right; and, further, that if the club had acquired such prescriptive right, Thomas, as owner of the land formerly owned in turn by Gaston and Bateman, had a reciprocal right to require the club to maintain such lake on his land.
This issue as to the existence of such prescriptive right divided the Court of Civil Appeals, the majority holding against plaintiff thereon, reversing the judgment of the District Court in his favor, and rendering judgment against him. *Page 498
Under these circumstances I desire to state my views upon that issue somewhat more fully than they are reflected in the terse yet comprehensive treatment given it in the foregoing opinion by Chief Justice Brown.
Could the club, prior to the cutting of its dam and the draining of plaintiff's portion of said lake, have successfully asserted, as against Thomas, a prescriptive right to maintain said lake on a portion of his land? That depends upon whether the club's maintenance thereof was or was not, for ten years, "adverse" to the owners of said Thomas tract. Texas Western Ry. Co. v. Wilson, 83 Tex. 155, 18 S.W. 325.
Gaston bought that tract in 1894. While he owned it the club built upon its own land a dam which backed water up, filling Gaston's part of the slough, spreading the waters, and creating on his land a lake of four or five acres. There is no controversy but that, in originally flowing Gaston's land, the club acted without authority or permission from Gaston, or that maintenance by the club of said lake on the Thomas tract for more than ten years continued to be "adverse" to the owners of that tract, unless the Gaston agreement and the Bateman contract, in turn, and the course of conduct by and between the club and the land owners, thereunder, respectively, rendered such maintenance not "adverse" to said owners.
Said agreement and said contract were substantially alike in so far as they severally bear upon the issue of a "prescriptive right" in the club. Gaston, while owning said land, and after said lake had been formed thereon, orally agreed with the club that it might use his portion of said lake for hunting and fishing, so he would not be annoyed by anybody coming through, but that he might use his part of the lake, for himself, for fishing and hunting, and, accordingly turned over to the club control of the lake on his land. Gaston sold said land to Bateman in April, 1904, and Bateman sold it, in September, 1908, to Thomas. Plaintiff's portion of the lake was drained early in 1909.
The Bateman contract gave to the club, for its members, "exclusive rights and privileges of fishing and hunting in the slough, or branch, known as Gaston slough, which runs into the open lake of the Fin Feather Club," but provided that "Bateman and Steele shall reserve the rights for themselves and guests to fish and hunt in and on said slough on their premises at pleasure, without paying to the club any fee or charge on account of such guests," and stipulated that "said Bateman and Steele shall enjoy the fishing and hunting privileges of the club and the privileges of the club house and grounds," without being required to hold stock or pay dues.
Neither the Gaston agreement nor the Bateman contract in express terms, specifically authorized or permitted the club to so flood any portion of the Thomas land or to maintain a lake thereon, and the provision in said contract "that the grant of privileges each to the other herein made shall be determinable by either party at pleasure upon giving thirty days written notice to the other party," strongly suggests that said contract was not intended to extend to secure to the club such *Page 499 authority or permission; nevertheless, as the lake had then been formed upon said land, the effect of said agreement and of said contract, as a matter of law, was to place Gaston, and Bateman, in turn, in the attitude of acquiescing in and consenting to the maintenance of said lake, over said slough, and as said lake then stood on said land, at least to such extent as to prevent such maintenance thereof from being "adverse" to the owners of said land, while such agreement and such contract, respectively, were in force.
In other words, the Bateman contract, primarily, was merely a fishing and hunting privilege contract, with semi-reciprocal features, and that may have been, and, it seems to me, probably was, the ultimate intention and purpose of the parties thereto in making it; nevertheless, as a matter of law, its necessary and further effects were to create and continue an acquiescence and consent upon Bateman's part to the maintenance of the lake on his land, substantially as it then stood, and also to operate as a clear recognition by the club of Bateman's right, as owner of the land, to use such portion of the lake for the designated purposes of fishing and hunting by himself and Steele and their guests, all so long as such contract might remain in force. The Gaston agreement evidenced a like acquiescence, consent, and recognition of rights upon the part of each party to it. Consequently, the legal effect of the Gaston agreement and of said Bateman contract was to stop the running of time in the matter of "adverse" maintenance of the lake, thus rendering such further maintenance thereof not "adverse" to the owner of the land, the agreement or the contract remaining operative, thereby removing the basis for such prescriptive right, and putting that issue definitely out of this case.
And with it, of course, goes the issue as to the reciprocal right of Thomas to require the club to maintain his portion of said lake. To this extent I concur in the views of the majority of the Court of Civil Appeals, and, in so doing, am in accord with the foregoing opinion of our Chief Justice upon that point.
It follows that plaintiff's right to recover damages must rest solely upon the ground stated in said foregoing opinion, resulting from the status which had so grown up between the club and the owners of the Thomas tract; in which, I think, should be included and specifically here mentioned the fact that the club's maintenance of the lake on the Thomas tract had caused the ancient slough therein to become filled with sediment, thereby destroying the valuable fishing preserve which existed upon that tract before the club erected its dam which caused the formation of said lake thereon.
That portion of said opinion which refers to the adjustment by Thomas of improvements upon his land adjacent to his lake and to adjustment by him of the uses of his land to conditions created by the formation and maintenance of the lake, states the rule correctly, as an abstract proposition, but, inasmuch as the only adjustment by Thomas of his improvements or uses, so far as the evidence discloses, seems to have been made with a view to sale by him of fishing and hunting *Page 500 privileges in his portion of said lake — the very thing which the Bateman contract inhibited — I do not think such adaptation and improvements come within the rule so announced, and am, consequently, unable to see that said rule applies to the facts of this case, except as related to the filling of the slough with sediment. Plaintiff testified: "I don't know that there is any damage outside of this five acres covered by the water."
Clearly the effect of the Bateman contract was to prevent him, while it was in force, from selling privileges to fish in or hunt on his part of the slough, which, by fair implication, meant his part of the lake; and, since said contract was appurtenant to the land, and seems to have been of record when Thomas bought it, Thomas was likewise bound and restricted by its terms, and so can not recover damages from loss of sales of such privileges. Moreover, this record shows that at the close of the evidence plaintiff, by his attorneys, in open court, abandoned his claim for all such damages. For both reasons it was error for the trial court to submit to the jury that element of damages. Several witnesses, other than the plaintiff, testified, specifically, to the amount of damage done to plaintiff's tract of land by draining off his portion of the lake.
I find in the Bateman contract nothing relating to "amusement," other than fishing or hunting; nothing giving the club "the exclusive right to control" plaintiff's portion of the lake, or "full control and ownership of all the fish in the lake"; and nothing giving to Bateman or Steele "the right to invite their friends and persons visiting them to join them" in fishing or hunting on the premises owned by the club.
I concur in the order made.