One year and four days after a lawsuit trial, brought by Graveyard Point residents, 261st Civil District Court, Judge Lora Livingston has issued a final judgment favoring the plaintiffs.

The lawsuit involved Tim Dalton, Sandra McKenney and Susan Brown versus Harbor Ventures, Inc., Flagship Marine Corporation, and Rand K. Forest, doing business as Shoreline Development.
The judgment was an effort to protect the plaintiffs’ concerns that a proposed marina would infringe on what they believed to be their legal easement rights.
The plaintiffs had argued their easements had been violated by debris, that ingress and egress had been limited by the defendants, and maintained that the original deed had barred commercial development. The plaintiffs attorneys also argued that their original concerns had previously been ruled on by the Travis County District Court in Evans versus Pollock in 1990, based on the original division of the Stewart Ranch. The ranch encompassed most of the property in question before the lake was built.
Yet at the heart of the lawsuit was the plaintiffs’ assertion that their easements on the Stewart Tract had definitively barred commercial businesses.
Livingston left no doubt in her ruling that she agreed.
“The Dalton-McKenney Property was originally partitioned from the Stewart Tract and conveyed by A.K. Stewart and Annie Stewart to Rosa Sanders on Sept. 16, 1944 and the deed of the conveyance for the Dalton-McKenney Property executed by A.K. Stewart and Annie Stewart to Rosa Sanders contained in a restrictive covenant that it is ‘agreed and understood that no commercial enterprise shall ever be operated upon said land herein conveyed,’” Livingston wrote in her opinion.
The wording for Brown’s easement reads similarly.
“The Brown Property was originally partitioned from the Stewart Tract and conveyed by A.K. Stewart and Annie Stewart to Mr. William Sassman and Ms. Mamie Sassman on Sept. 16, 1944 and the deed of conveyance for the Brown Property executed by A.K. Stewart and Annie Stewart to Mr. William Sassman and Ms. Mamie Sassman contained restrictive covenant stating that it is ‘agreed and understood that no commercial enterprise shall ever be operated upon said land herein conveyed,’” Livingston wrote in the judgment.
The judge went on to spell out her interpretation of the subsequent subdivision of the Stewart Tract.
“The deeds of conveyance for all but one of the subdivided portions of the Stewart Tract for all but one of the subdivided portions of the Stewart Tract conveyed by A.K. Stewart and/or Annie Stewart to third parties, other than persons within the first degree of consanguinity [refers to the property of being from the same kinship as another person] or affinity of A.K. and Annie Stewart, included substantially uniform restrictive covenants prohibiting the operation of a commercial enterprise on such land conveyed,” Livingston wrote.
The judge noted that after A.K. Stewart and Annie Stewart died, as the estate was executed, that the tract was developed “in a course of conduct which indicates that they intended to inaugurate a general scheme or plan of development for the benefit of themselves and the purchasers of the various subdivided portions of the Stewart Tract that would prohibit any portions of the Stewart Tract from being used for the operation of a commercial enterprise.”
“By implication of the mutually-benefiting scheme of development by A.K. Stewart and/or Annie Stewart, or subsequently the portions of the Stewart Tract retained by A.K. Stewart and/or Annie Stewart without a restrictive covenant prohibiting the operation of a commercial enterprise on such land are imposed with a restriction prohibiting the operation of a commercial enterprise on such land by virtue of the negative reciprocal easement doctrine,” the judge wrote.
“The Harbor Ventures Property was part of the Stewart Tract retained by A.K. Stewart and/or Annie Stewart and Defendant Harbor Ventures had constructive notice of the intended general scheme of plan of development by A.K. Stewart and/or Annie Stewart that would prohibit portions of the Stewart Tract from being used for the operation of a commercial enterprise,” the judge wrote.
Livingston said that by virtue of the negative reciprocal easement doctrine, the Harbor Venture Property is “burdened with a restrictive covenant prohibiting the operation of a commercial enterprise…”
By doing so, the judge said the defendants had “materially breached” the restrictive covenant prohibiting the operation of a commercial enterprise on the Harbor Ventures property by operating or allowing the operation of a commercial enterprise on its lot.
“The court herby orders, adjudges and decrees that defendants … be permanently enjoined from operating or allowing the operation of a commercial enterprise on the Harbor Ventures Property.”
The judge ordered the defendants to pay all associated legal costs and assessed a monetary judgment. Tim Dalton and Sandra McKenney were awarded $83,000, while Brown was awarded $43,000.
The defendant’s attorney, Molly Mitchell, said there are still post-trial motions to file and that all options were being considered.
“We were very surprised by the ruling,” Mitchell said.
Currently, plans are under consideration by another firm, Crosswater Yacht Club, to construct a marina on another tract in the area. According to Dick Kemp of Kemp Properties, he does not believe the land currently under consideration was part of the Stewart Tract. Crosswater Yacht Club was not named in the lawsuit and has obtained a permit from the Lower Colorado River Authority to build a marina.