concurring.
I concur to the extent of agreeing with the result reached by the majority. It is with respect that I disagree with the holding that the suit is not one for the recovery of land or damages to land within the meaning of Subdivision 14,1 of Article 1995, Vernon’s Annotated Civil Statutes of Texas.
Venue in this case properly lies in Hays County under the mandatory provision of Subdivision 14, Article 1995, supra., therefore, we do not reach the question of whether venue lies in Hays County under Subdivision 4, Article 1995, supra.
The majority refers to a part of the pleadings, but I wish to refer to certain portions, which, in my judgment must be considered. It is well settled that where venue is claimed under Subdivision 14, the nature of the suit, that is, whether it is one for the recovery of lands, to remove encumbrances, or to quiet title, is determined only by a consideration of the whole of plaintiffs’ pleadings. See Renwar Oil Corporation v. Lancaster, 154 Texas 311, 276 S.W. 2d 774; Pringle v. Southern Bankers Life Ins. Co., Texas Civ. App., 296 S.W. 2d 347, no writ history; Pickens v. Langford, Texas Civ. App., 270 S.W. 2d 285, wr. ref., n.r.e.
It is equally well established that the easements involved here as shown by the pleadings brings the suit within the contemplation of Subdivision 14, supra, and that such easements may be created by parol agreement or representation which has been so acted upon by others as to create an estoppel en pais. See Harrison v. Boring, 44 Texas 255; Wolf v. Brass, 72 Texas 133, 12 S.W. 159; Handal v. Cobo & Dosal, Texas Civ. App., 225 S.W. 67, wr. ref.; Hogue v. Glover, Texas Civ. App., 302 S.W. 2d 757, wr. ref., n.r.e. It is essential, of course, that under Subdivision 14 an interest in land be established by the plaintiffs, and then, of course, the only other venue fact is the location .of the land. It is my contention that both of these essential elements have been established by the record. With these principles of law before us, I respectfully incorporate in this opinion parts of the pleadings for a better understanding of my position. Before doing so, however, I conclude the majority position, that the Court of Civil Appeals erred in holding that this is a suit *330for land, is based largely on its belief that such holding is in conflict with Smith v. Rampy, Amarillo Civ. App. 1946, 198 S.W. 2d 592; Morris Plan Bank of Fort Worth v. Ogden, Ft. Worth Civil App., 1940, 144 S.W. 2d 998. These cases are cited apparently as authority for the well recognized principle that suits against former owners who have parted with all title prior to the filing of suit are not suits for the “recovery of land” or “damages to land” within the meaning of Subdivision 14, Article 1995, supra.
The paragraphs of the plaintiffs’ petition to which I specially refer read as follows:
“6.
“a. Commencing with the date when each plaintiff bought a lot in one or more of the Eagle Rock Ranchitos, the James Defendants recognized the rights of the Plaintiffs to use and to exercise their rights, including easements, throughout the ranch and its facilities and continued to recognize and to honor Plaintiffs’ exercise of such rights. In 1955 the Defendant Conso Realty Company conveyed to the Defendant corporation Eagle Rock Ranch the lands hereinabove referred to as the ranch by a deed dated April 13,1955, and recorded in Volume 164, Page 272 Deed Records of Hays County, Texas. On the same date the Defendant Eagle Rock Corporation conveyed to Defendant Eagle Rock Ranch approximately 108 lots in the three sections of Eagle Rock Ranchitos, such conveyance being recorded at Volume 164, Page 270, Deed Records of said county. Both conveyances were made pursuant to a written contract between the grantors and Defendant C. B. Smith dated March 31, 1955, whereby he remained personally liable for the performance of the contract and for the performance of grantees’ obligations, covenants and duties under said deeds.
“b. From and after April 13, 1955, the Smith Defendants continued to recognize the rights of Plaintiffs to use the ranch and its facilities and recognized the rights of Plaintiffs to exercise their easement rights throughout the ranch and continued to recognize and to honor Plaintiffs’ exercise of such rights until about June 1, 1957.
“10.
“a. Throughout this petition it has been alleged that the various representations, inducements and promises made to the Plaintiffs were made by the James Defendants and their duly authorized agents acting in the scope of their employment. Such *331representations, inducements and promises were made up until the properties were sold and conveyed to the Smith Defendants. After such sale and conveyance the Smith Defendants as owners and acting through their duly authorized agents serving in the scope of their employment continued to make all of the same character of representations, inducements and promises to prospective lot purchasers as had been previously made by the James Defendants.
“b. Those Plaintiffs who purchased after April 13, 1955, and other persons of the same class, relied upon such representations, inducements and promises which were similarly made by the Smith Defendants and but for which Plaintiffs would not have purchased their properties in and adjacent to Eagle Rock Ranchitos and would not have made valuable improvements.
“c. Each of the Plaintiffs in purchasing a lot and in making valuable improvements on those lots which have been improved did so in reliance upon all of such representations and inducements by the respective Defendants. Each of the Defendants is estopped to deny the various easement and other rights herein alleged to exist.
“11.
“Under and by virtue of the foregoing facts, Plaintiffs acquired easements appurtenant to the grants of their respective lots as to the areas and facilities shown on the said recorded plats and acquired easements appurtenant, easements by estoppel and licenses in writing and by estoppel throughout the ranch for outdoor recreational purposes, including swimming, fishing, tennis, golf, shuffle board, horseback riding, hiking, picnicking, nature study and other related outdoor sports and pursuits.”
“14.
“In Cause No. 7313, styled Eagle Rock Ranch, et al, vs. Edward_C. James, et al, now pending in the District Court of Hays County, Texas, the Smith Defendants, acting as Plaintiffs therein allege in substance that all of the lands involved herein, viz., the ranch and the lots (as hereinabove described) acquired by the Smith Defendants from James and his corporations were represented to be free and clear of all liens, encumbrances or other claims by any person except certain specific *332liens and encumbrances set forth in the exhibits attached to Plaintiffs’ Original Petition in that case. There then appears the express admission by C. B. Smith and Eagle Rock Ranch in said pleadings that various persons in the vicinity of the lands involved claim and own rights of entry, and other easements, for use of the ranch lands and that said easements and rights of entry are of numerous classes and kinds and that representative of the character of such easements are those set forth in a certain affidavit filed for record in Hays County, Texas. (The affidavit referred to is recorded at Volume 168, Page 187, Deed Records of Hays County, Texas, and was executed by various owners of lots in said subdivisions, including some of the Plaintiffs herein.)
This latter pleading refers to a suit brought by Smith against James et al. Plaintiffs introduced in evidence the Smith petition, which reads, as follows:
“Now come the plaintiffs, Eagle Rock Ranch and C. B. Smith and complain of the defendants, Edward C. James, Conso Realty Co., and Eagle Rock Corporation in this plaintiffs’ original petition for the rescission and cancellation of certain instruments and conveyances, and in the alternative for damages, and respectfully show unto court:
“I.
“Plaintiffs are residents of Travis County, Texas, and plaintiffs Eagle Rock Ranch also resides in Hays County, Texas, being a corporation organized and existing under and by virtue of the laws of the State of Texas; defendant Edward C. James is a resident of Harris County, Texas, and the other defendants áre corporations organized and existing under and by virtue of the laws of the State of Texas, and of each thereof Edward C. James is the President, and Conso Realty Co. is a resident of Harris County, Texas, and Eagle Rock Corporation is a resident of Hays County, Texas.
“II.
“Pursuant to the terms of a written contract dated March 31, 1955, executed by plaintiff C. B. Smith and the defendants Conso Realty Co., Eagle Rock Corporation and Edward C. James, and pursuant also to certain warranty deeds and other instruments executed April 13, 1955, by Conso Realty Co., Eagle Rock Ranch, Eagle Rock Corporation and C. B. Smith, all of which instruments are attached hereto and made a part hereof *333as Exhibits A, B, C, D, and E, plaintiff, Eagle Rock Ranch became the owner of certain lands and improvements, livestock, ranch equipment, office equipment, and other personal property, for a valuable consideration, as set forth in said exhibits, including the assumption of the unpaid balance of one certain promissory note in the original principal sum of Two Hundred Six Thousand Two Hundred and Fifty Dollars ($206,250.00), executed by Conso Realty Co. to the order of the American National Bank of Austin, Texas, and including also the execution and delivery by plaintiff corporation of its vendor’s lien note in the sum of Twenty Five Thousand Dollars ($25,000.00) payable to the order of Eagle Rock Corporation, such note being payable in installments, one in the amount of Eight Thousand Dollars (9,000.00) [sic] on one year from date of execution of said note; a second installment of Eight Thousand Dollars ($8,000.00) two years from said execution date; and a third and final installment of Nine Thousand Dollars ($9,000.00) three years from date of said execution.
“HI.
Plaintiffs show that at and prior to the execution of all of the aforesaid deeds and other instruments in writing, the defendants warranted, agreed, and represented as.a fact (in writing as reflected by said Exhibits, and orally from time to time during negotiations leading up to the execution of such instruments, and by letters and correspondence, such oral representations and other representations in writing and warranties and agreements also being too numerous to plead, but all of which are well known to the defendants) that all of the real estate improvements, equipment and personal property aforesaid was free and clear of all liens and encumbrances of every character except certain specific liens and encumbrances set forth in said exhibits; and in this connection the plaintiffs would show that they were diligent in all things, and free of any negligence in relying, as they did rely at all pertinent times upon said representations, agreements, and warranties, and would not have made said contracts or executed of said instruments otherwise.
“IV.
“Plaintiffs say that they have recently discovered that various persons in the vicinity of the lands involved (the names of which persons are too numerous to plead, but are well known to the defendants) claim and own rights of entry, and other easements, for use of the ranch lands set forth in the aforesaid exhibits and described therein, and by reason of which such *334representations, agreements, and warranties have proved to be false and untrue, and plaintiffs say that said easements and rights of entry are of numerous classes and kinds and are well known to defendants, and no more particular pleading of their nature should be required, although in this connection, the plaintiffs would show that representative of the character of such easements are those set forth in a certain affidavit filed for record in Hays County, Texas, a true copy of which is attached hereto and made a part hereof as Exhibit F.
“V.”
“Plaintiffs say by reason of the aforesaid facts that plaintiffs are entitled to rescind, and hereby do rescind the transactions before mentioned, offering to do equity in the premises as the chancellor may direct; and in the alternative plaintiffs say that the reasonable market value of the properties transferred plaintiff corporation by defendants was, and is, at all pertinent times Two Hundred Fifty Thousand Dollars ($250,000.00) less than such value would have been had such properties been as represented, to plaintiffs’ damage Two Hundred Fifty Thousand Dollars ($250,000.00), for which they here sue in the alternative in the event it be determined that rescission and cancellation should be denied.
“WHEREFORE, plaintiffs pray that the defendants be cited to appear and answer, and that upon trial they have judgment rescinding and cancelling the instruments hereinabove pleaded, and the transactions relating thereto, and for such incidental damages pursuant to and consistent with the remedy of rescission and cancellation as plaintiffs may show, and, in the alternative, plaintiffs sue for their damages at law in the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) and for general relief and all costs of suit.”
It is true, as stated by the majority, that plaintiffs alleged that the Smith-defendants had actual and constructive knowledge of the plaintiffs’ easements, etc. However, I think it appropriate to point out that such pleadings were in the alternative.
It is clear to me at least that in view of the pleadings and proof, it necessarily follows that in determining venue, we cannot conclude as a matter of law that the petitioners (James Defendants) have parted with all their title. The law announced in the Rampy and Ogden cases, supra, have no application. The trial court’s order, overruling the plea of privilege, recites that *335the parties stipulated that all necessary preliminary, and procedural steps had been taken to bring all pleadings properly before the court, and that the court heard and considered evidence thereon. A part of this evidence was the Smith petition, alleging among other things, that they were diligent in all things pertaining to their purchase from the James Defendants and that they relied upon certain representations that the land was free of such claims now presented by the plaintiffs; that after the purchase, they learned of plaintiffs’ claim of easements and rights of entry affecting the land involved. They further alleged that “* * * by reason of which such representations, agreements, and warranties have proved to be false and untrue * * Smith asked for cancellation of the deeds. I agree with the cases cited in the majority opinion which hold that on appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.
Since the hearing was only on the plea of privilege, and was not a trial on the merits, we view the matter as though the deed had not been executed. This is true in view of the pleadings that James guaranteed the performance of each and every covenent and condition contained in the contract dated March 31, 1955, and further agreed that “ ** * no right, by prescription or otherwise, is vested in any person or class of persons in any property sold hereby, * * Thus, James, by the execution of the Smith transaction created an encumbrance upon plaintiffs’ titles making him a necessary party under Subdivision 14, supra. It, therefore, cannot be said that the James respondents are to be classed as “strangers to the title.” When I refer to “James respondents” I mean to include the Eagle Rock Corporation and the Conso Realty Company.
Plaintiffs’ petition not only discloses that the suit is one for the recovery of lands and to remove encumbrances upon the title created by respondents and to quiet title, but is also a suit for damages to land, the second mandatory ground of venue as to the nonresident defendants under Subdivision 14, supra. The damages alleged and claimed by petitioners result because of the acts and conduct as above discussed on the part of the petitioners in interfering with and cutting off plaintiffs’ enjoyment and use of the lands. The petition reflects that there is a substantial loss in value to the lots and improvements thereon as a result of the denial of plaintiffs’ easement rights. See Morris Plan Bank of Ft. Worth v. Ogden, supra; Tracy v. King, Texas Civ. App., 249 S.W. 2d 642; Rogers v. Scaling, Texas Civ. App., 285 S.W. 2d 259.
*336I think it would be more consistent with the record to hold venue in Hays County under Subdivision 14 solely, rather than Subdivision 4. For the reasons stated, the judgment of the Court of Civil Appeals should be affirmed.
Opinion delivered January 14, 1959.
Rehearing overruled February 18, 1959.
. — “Lands.—Suits for the recovery of lands or damages thereto, or to remove encumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or any part thereof, may lie.” (Emphasis supplied).