Posted on 05/05/2010 6:53:01 AM PDT by Responsibility2nd
BOERNE — The developer of Stone Creek Village apartments didn't heed warnings in 2006 about encroaching on a neighbor's easement. Now, parts of seven occupied buildings have been ordered removed.
The problem must be remedied in 180 days, state District Judge Keith Williams said in a judgment filed last week in a lawsuit by John and Nelda Vogt.
“The Vogts are entitled to undisturbed possession of their easement and their possession has been invaded without any semblance of right,” Williams wrote.
Williams also ratified a jury award last May exceeding $1.5 million in damages for the Vogts, who own the 20-foot-wide access easement that connects Main Street to his 1-acre parcel behind the 128-unit apartment complex.
“It's wonderful,” said John Vogt, 80. “Justice has been upheld.”
The award includes $1 million for malicious prosecution stemming from a 2008 incident in which Vogt, a feisty former constable, used a tractor to try to clear the easement of fencing, air conditioning units and other obstructions. A grand jury declined to indict him.
The rest of the award was for drainage problems caused by the complex on land the Vogts have called home since 1952.
A default judgment was entered at trial against Trada Partners VI, the builder and original defendant, which has gone out of business.
Left holding the bag are apartment owners, the property owners association, and partners in a shopping center that fronts the complex on North Main Street.
The center's parking lot infringes on the easement, as does a drainage culvert.
Trial evidence showed Trada built seven buildings in the easement, based on an expectation the Vogts would agree to vacate it in exchange for alternative access. That didn't happen.
Former apartment manager Susan Rogers called it “pretty drastic” to now tear about two feet off the encroaching buildings.
John Vogt, noncommittal on whether he'd take cash to preclude the demolition, said he felt sorry for the apartment owners, adding, “They trusted the wrong people.
“My personal feeling is the Trada people ... didn't figure a country hick Texan would fight them this long,” he said.
The case will be appealed, vowed Bram Dresden, who owns one of the fourplexes on the easement and is a partner in the strip center.
“Some innocent people, which are all the investors, are somehow stuck with a fairly large judgment,” he said by phone from California.
He called Williams' demolition order unreasonable, since the Vogts can reach their acre via their homestead even with the easement blocked.
Steve Schulte, Vogt's lawyer, said, “The so-called ‘innocent investors' had full notice of the dispute when they bought in, then hired the Trada lawyer to defend them, and continued to assert the same frivolous claims and defenses.”
At a Feb. 22 hearing, defendants' attorney Todd Prins asked Williams to set aside the jury verdict, saying the Vogts suffered no irreparable harm and hadn't proved the complex caused the flooding.
Prins said the prosecution of Vogt wasn't malicious because he admitted damaging Trada property.
He also said the Vogts weren't entitled to future use of the easement since they were awarded compensatory damages, for which he said Trada alone should be liable.
Vogt obtained a 2006 injunction to halt preliminary work along the easement. The 4th Court of Appeals lifted it in 2007.
Moral: Don't mess with Texas (Or Texans either, for that matter.)
Or Texans and their land, either!
It is nice to see that the "little" guy does win now and again.
The award includes $1 million for malicious prosecution stemming from a 2008 incident in which Vogt, a feisty former constable, used a tractor to try to clear the easement of fencing, air conditioning units and other obstructions. A grand jury declined to indict him.
Nice indeed.
Who cares how he can reach his homestead? The law is very specific on how easements are to be handled by agreements of both parties of the bordering properties.
He never agreed for an intrusion into the easement, so the easement must be cleared of the intrusion.
Welcome to the real world, now put on your big boy pants and deal with the consequences of buying property that was involved in litigation.
I missed that...where did you get it?
” built seven buildings in the easement, based on an expectation the Vogts would agree to vacate “
Wow; some people really are stupid.
Man, I haven’t been through Boerne since the early 80’s - a girlfriend’s father had a nice spread out that way. Small, quiet town that if you blinked, you blew right through “downtown”.
NC is correct. Technically Vogt didn’t own the easement. And when the article says....
...who own the 20-foot-wide access easement that connects Main Street to his 1-acre parcel behind the 128-unit apartment complex....
that is not technically correct also. All Vogt has here is a legal right to access his property though someones else’s property.
It doesn’t say which piece of property the easement came from.
I misread that too, thanks for catching it. So the old man was originally allowed to cross someone else’s land to get to his property and wiley enough to know that after a certain amount of time he could claim that as “his”.
Fight on fellow Texans.
You might want to get that in writing first
The easement is a legally binding agreement, he didn’t just one day claim it unilaterally. Its probably written into the deed on the property.
“I missed that...where did you get it?”
That’s what an easement is. It is the right to pass through another person’s property. The farmer had the right to pass through the neighboring property to access his back parcel. Then the owner of the property with the easement built apartments on the easement.
“I will just go ahead and build on someone else’s property and “assume” they will eventually sign it over to me”!! (my paraphrasing)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.