Opinion
No. 10-05-00291-CV
Opinion delivered and filed March 15, 2006.
Appeal from the 220th District Court, Hamilton County, Texas, Trial Court No. 04-10-00189.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting)
MEMORANDUM OPINION
Appellees Eldora and Chris Hagelstein sued Appellants Mark and Kim Montange for a declaratory judgment that a road crossing the Montanges' land was a prescriptive easement and an easement by estoppel. After a bench trial, the trial court found for the Hagelsteins, declaring that the road was an easement, enjoining the Montanges from interfering with use of the easement, and awarding the Hagelsteins attorney's fees. Complaining primarily about the sufficiency of the evidence, the Montanges appeal. We will affirm.
Factual Background
Eldora's parents (the Edmondsons) purchased a 390-acre tract (the Hagelstein Tract) in Hamilton County in 1944. Eldora inherited the tract, which has been the primary home of the Hagelsteins since the late 1980s. Adjacent to the Hagelstein Tract is a 231-acre tract (the Montange Tract) that the Montanges purchased from the Olsens in 2003. The Montange Tract is situated between FM 2005 and the Hagelstein Tract, which operates as a ranch where the Hagelsteins raise cattle, lease to deer hunters, make sugar-free candy, and recreate. The easement is a thirty-foot wide road that connects the Hagelstein Tract to FM 2005; it forks along the way, with one part leading toward the Hagelstein Tract and one part leading to the "back forty" of the Montange Tract. One point of the Hagelstein Tract touches FM 2005, but because of a large hill with a steep incline, an entrance there is not practical.
The road was described as a fairly nice gravel road. It is locatable on the ground and is identified on a survey and a topographical map. Eldora could remember using the road to cross the Montange Tract to get to the Hagelstein Tract as early as 1944. Her recollection was that the road has continuously been used without permission to get to and from her land since 1944. Eldora could not recall that she or her parents ever sought permission to use the road. Deer hunters have used the road, as have the Olsens and other prior owners of the Montange Tract, but the Hagelstein Tract is the only property the road has ever been used to access. Doris Leach, a longtime neighbor who was a friend of the Edmondsons, testified that she and her husband had used the road since 1949 to get to the Hagelstein Tract. Her husband did plowing and farm work for the Edmondsons, and on one occasion when he was driving a tractor on the road to the Hagelstein Tract, the teenage son of a prior owner (the Karaseks) threatened to shoot Mr. Leach, who then told Mr. Edmondson about the incident. After Mr. Edmondson talked to Mr. Karasek, he told Mr. Leach that he would not have any further trouble using the road. Mr. Leach did not have any further trouble.
The Olsens, who had purchased the Montange Tract in 1983 from the Selheimers, referred to the road as the Edmondson Road. On one occasion, Mr. Olsen objected to deer hunters misusing the road by driving off the roadway and tearing up his pasture. At one point, to control excessive deer hunter access, Mr. Olsen, after conferring with Eldora, put a shared lock on the gate. Eldora initially did not want the lock but later agreed to it. On another occasion, Mr. Olsen took down a sign on the fence that read "Hagelstein Farm."
In 1990, the Hagelsteins built an indented entrance gate where the road meets FM 2005 on the Montange Tract. The gate has a decorative "H" (for Hagelstein) on it. Eldora said that, while she discussed her desire to build the gate with the Olsens as a courtesy, she did not seek their permission. The Hagelsteins also improved the road when it got too muddy by adding base material to it at their expense. Again, Eldora said that, while they expressed their desire to improve the road to the Olsens as a courtesy, they were not seeking permission. The Olsens did not object to the gate or the road improvement. Mr. Olsen testified that he interpreted the Hagelsteins' discussing with him the gate construction and the road improvement as seeking his permission.
David Lane, a surveyor, prepared a survey of the tracts when the Montanges purchased from the Olsens. His plat and field notes describe the road by metes and bounds, and the survey describes it as "existing road used by others." The deed from the Olsens to the Montanges reserves and excepts from the conveyance and warranty "any claim of easement by neighboring property owners for use of roadway" as shown on Lane's survey. The Selheimers' deed to the Olsens refers to the road twice, describing it as "ranch road at a gate to adjoining property" and "the said apparent access Easement."
When the Olsens decided to sell, a realtor told them that the road devalued their land by about $20,000. Mr. Olsen approached Eldora about "buying" the road back for what it would cost to construct a road at the steep hill where the Hagelstein Tract meets FM 2005.
Ele Hagelstein, a 41-year-old son of the Hagelsteins, testified that he remembers visiting his grandfather (Mr. Edmondson) at the Hagelstein Tract as far back as when he was four to five years old by using the road and that he could not remember his grandfather ever asking anybody for permission to use the road. Ele built the gate at the road entrance in October 1990. While building the gate, Mr. Olsen visited him; Ele did not ask for permission to build the gate, nor did Mr. Olsen try to stop him from building it.
Chris Hagelstein married Eldora in 1962, and it was in that year that he first visited the Hagelstein Tract. He accessed it then by using the road in the same way that he still uses the road. He was not aware of anyone asking for permission to use the road since 1962, and he did not ask Mr. Olsen for permission to build the gate or improve the road; he talked to Mr. Olsen about those matters only as a courtesy. Mr. Edmondson, Chris's father-in-law, never talked to him about having someone's permission to use the road.
Sufficiency of the Evidence
We will first address the Montanges' second issue on prescriptive easement because we find it dispositive. That issue asserts that the evidence is legally and factually insufficient to support the trial court's findings that the Hagelsteins' use of the road was adverse and exclusive.
We apply the established standards of review for legal sufficiency and factual sufficiency. In this case, the trial court issued findings of fact and conclusions of law. Findings of fact in a bench trial have the same force and dignity as a jury's verdict upon jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). Although we show deference to a trial court's findings, those findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury's answers. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Dominguez v. Castaneda, 163 S.W.3d 318, 325 (Tex.App.-El Paso 2005, pet. denied). We review the trial court's conclusions of law de novo. Dominguez, 163 S.W.3d at 325. Under de novo review, the reviewing court exercises its own judgment and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).
In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). There is legally insufficient evidence or "no evidence" of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
When the party without the burden of proof at trial complains of the factual sufficiency of the evidence to support an unfavorably answered jury finding or an adverse express or implied finding, we must consider and weigh all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.-Waco 2000, pet. denied). We will set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Ellis, 971 S.W.2d at 407. Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633.
When challenged on appeal, findings are not conclusive on the appellate court if there is a complete reporter's record, as there is here. Zac Smith Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). Generally, we will not disturb a trial court's findings if there is evidence of probative force to support them. See Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136-37 (Tex.App.-Waco 2005, pet. denied). A finding may be disregarded if it is not supported by the evidence or is immaterial. See S.E. Pipeline Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999). A finding on a question is immaterial if the question should not have been submitted to the factfinder or if it has been rendered immaterial by other findings. Id. The trial court is required to make findings of fact only on controlling issues, not on matters of evidence. ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex.App.-El Paso 1996, no writ); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex.App.-Houston [1st Dist.] 1995, writ denied).
A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for a ten year period. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979); Johnson v. Dale, 835 S.W.2d 216, 218 (Tex.App.-Waco 1992, no writ). Use of land by permission of the servient estate's owner, no matter for how long, cannot subsequently ripen into a prescriptive easement. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950). But once a claimant has shown an open and continuous use of the land for at least ten years, a rebuttable presumption is raised that the use was nonpermissive, was under a claim of right, and thus was adverse, and the servient estate owner then has the burden of rebutting this presumption by showing that the use was permissive. Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609, 613 (1951); Johnson, 835 S.W.2d at 219. A prescriptive easement can be proved by circumstantial evidence. Schultz, 237 S.W.2d at 615.
On the exclusive-use element, the Montanges argue that the evidence showed that deer hunters and prior owners of the Montange Tract used the road in addition to the Hagelsteins; Eldora admitted that all of the Montange Tract's prior owners would have used the road too. In a case of first impression, the Austin court addressed this "joint use" issue and distinguished prescriptive easement cases that were based on continuous use alone. See Scott v. Cannon, 959 S.W.2d 712, 721-22 (Tex.App.-Austin 1998, pet. denied). We agree with the approach in Scott because this case, like Scott, is a case "involving both joint use and independent acts to show adversity." Id. at 722.
For purposes of establishing exclusive use, the Hagelsteins offered evidence of independent acts showing adversity only for the time period of the Olsens' ownership. The Montanges argue that the Hagelsteins' alleged independent acts showing adversity — building the gate and improving the road — were not done adversely because the Hagelsteins discussed those acts in advance with Mr. Olsen, who construed those discussions as seeking his permission. The Hagelsteins construed the discussions as merely a neighborly courtesy. The trial court resolved this conflicting evidence in favor of the Hagelsteins, and we cannot say that the mere occurrence of neighborly discussions between the dominant and servient estate owners negates adversity as a matter of law. Thus, we conclude that this evidence of independent acts is legally and factually sufficient to support the trial court's exclusive-use finding.
On the adverse-use element, Eldora testified to continuous and open use of the road without permission since 1944; Mrs. Leach since 1949; Chris since 1962; and Ele since around 1969. With this evidence, the Hagelsteins thus raised a rebuttable presumption that their use of the road was without permission for each of the time periods testified to by these four witnesses. But because the Hagelsteins satisfied the exclusive-use element with evidence of independent acts showing adversity only during the Olsens' ownership of the Montange Tract, they must have satisfied the adverse-use element for that same time period. The Montanges thus had the burden of offering evidence to rebut the presumption for only the time period of the Olsen ownership, which they did with Mr. Olsen's testimony that he put a lock on the gate (and gave a key to the Hagelsteins) and that he characterized the Hagesteins' approaches to him about building the gate and improving the road as seeking his permission.
In its findings of fact and conclusions of law, the trial court found that the evidence raised the presumption of nonpermission and concluded that the use was adverse, which we treat as a fact finding. See Lucas v. Tex. Dep't Prot. Reg. Servs., 949 S.W.2d 500, 502 (Tex.App.-Waco 1997, pet. denied).
Cf. Cottrell v. Amburn, 1999 WL 1101360, at *3 (Tex.App.-Texarkana Dec. 7, 1999, pet. denied) (not designated for publication) ("Everyone else who testified, regardless of the different dates that they stated, left a period of time of more than ten years between the time that the road was built and the time when the gates were locked. It was completely within the province of the jury, based on the evidence that was presented, to find that sometime between 1957 and the present the public used the Roadway continuously for a period of ten years or more.").
But evidence rebutting a presumption is not conclusive and merely presents a fact issue for the factfinder. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex.App.-Houston [1st Dist.] 2004, no pet.); cf. Machala v. Weems, 56 S.W.3d 748, 760 (Tex.App.-Texarkana 2001, no pet.) (fact that prior servient estate owner put lock on gate and gave key to party claiming easement was merely "consistent with an interpretation" that party's access was with permission). Eldora's testimony that she discussed improving the road with Mr. Olsen because it's prudent to do so when "you're dealing with anyone else concerning their property," is subject to interpretation by the factfinder; it could mean that the road was Olsen property, or it could mean that the road crossed Olsen property. Finally, we have the Hagelsteins' and Mr. Olsen's compelling testimony about his attempt to "buy back" the road from the Hagelsteins. Considering the evidence during the Olsens' ownership, we find the evidence legally and factually sufficient on the adverse-use element.
We overrule the Montanges' second issue on the Hagelsteins' claim for prescriptive easement, which alone will support the trial court's judgment declaring an unspecified easement. We thus need not address the Montanges' first and third issues on easement by estoppel and easement by necessity.
At the end of their brief, and without asserting a separate issue, the Montanges challenge the sufficiency of the evidence for findings 15, 17, 21, and 23. We agree with their assertion that these findings are evidentiary, and we will disregard them as immaterial.
Scope of the Easement
The trial court declared an easement "for all purposes of ingress and egress." The Montanges' fourth issue complains that the evidence is legally and factually insufficient to support the breadth of this scope. Other than pointing to future possible annoying uses (such as rock hauling or chicken transporting), the Montanges make no argument how the evidence is insufficient. Historically, the Hagelsteins' use of the easement for ingress and egress was never limited. Over time, their use has been for personal, agricultural (a tractor), and business (deer hunters) purposes. We find the evidence legally and factually sufficient to support the scope of the easement.
Attorney's Fees
Issue five challenges the Hagelsteins' ability to recover attorney's fees under the Uniform Declaratory Judgments Act (Tex. Civ. Prac. Rem. Code Ann. § 37.009 (Vernon 1997) (the UDJA)), arguing that the Hagelsteins' easement claim is not the proper subject of a declaratory judgment claim. We agree that a party may not recover attorney's fees under section 37.009 when the UDJA is used solely as a vehicle to recover attorney's fees. See National Enterprise, Inc. v. E.N.E. Props., 167 S.W.3d 39, 44 (Tex.App.-Waco 2005, no pet.) ("A declaratory judgment action may not be used solely to obtain attorney's fees that are not otherwise authorized by statute."). But numerous cases reflect an award of attorney's fees under the UDJA to parties seeking to establish an easement or to defeat an easement claim.
E.g., Fagan v. Crittenden, 2005 WL 428469, at *3 (Tex.App.-Waco Feb. 23, 2005, pet. filed); Steel v. Wheeler, 993 S.W.2d 376, 381 (Tex.App.-Tyler 1999, pet. denied) ("We hold that invoking the Declaratory Judgments Act to determine rights of ingress and egress is proper.") (citing Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985)); Houston Bellaire v. TCP LB Portfolio I, 981 S.W.2d 916, 922-23 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Elder v. Bro, 809 S.W.2d 799, 800-01 (Tex.App.-Houston [14th Dist.] 1991, writ denied); Canales v. Zapatero, 773 S.W.2d 659, 661 (Tex.App.-San Antonio 1989, writ denied).
The Hagelsteins rely on section 37.004 as the basis for their declaratory judgment claim. The UDJA is remedial, and we are to construe it liberally; "its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. Rem. Code Ann. § 37.002(b) (Vernon 1997). The Hagelsteins sought a declaration of their rights in the road, and they introduced at least three different deeds into evidence, and two of them make specific references to the road. Based on a liberal construction of section 37.004 and its remedial purpose, and the history of similar cases awarding attorney's fees, we find that the Hagelsteins' request for declaratory relief falls within section 37.004. The trial court did not err in awarding the Hagelsteins attorney's fees. We overrule the Montanges' fifth issue.
It provides in pertinent part:
(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Tex. Civ. Prac. Rem. Code Ann. § 37.004(a) (Vernon 1997).
We affirm the trial court's judgment.
DISSENTING OPINION
As more people buy tracts of land in remote areas of Texas, the more we must deal with the legal issues related to access to those tracts. One of the common sources of access is by way of a dirt road along the side of or across someone else's property. Frequently, the nature and frequency of travel is significantly altered from the prior use of the road because the new owner's use of the property being accessed is different than the prior owner's use of the same tract. Likewise, ownership of the tract being crossed is likely to have changed. At some point, the new owner of the tract being crossed tries to obstruct the road or to prevent access across the property.
It is about this time that one of the landowners contacts a lawyer, and what was once a couple of neighbors working together to survive in rural Texas is now a lawsuit. Almost invariably, there are multiple theories of a right to cross one tract to access another. Both sides of the litigation begin to research the history of the two affected tracts. The tract being accessed finds the elderly witnesses that have some memory of using the road for access as a child and that have no memory of any other access. Sometimes, they may also recall a fence, or a gate, or improvements.
And, because of the nature of the issue, the owners of the tract being crossed try to find anybody that can remember other uses of the road, prior owners who gave permission, or other evidence that defeats one or more elements of each legal theory that would otherwise allow someone to cross the property.
Then come the surveyors that place a definition on the physical location of the road. It defines both size and location across the tract. It is reduced to a nice printed plat.
Then there are the pictures; pictures of a dirt road, an old fence, a gate.
All this evidence is dumped on a fact finder for distilling a legal theory on which access is granted or denied. The inevitable appeal will assert various theories for access arguably supported by the record and the response will be that all the elements of none of the theories were proven. It is, generally, the same legal problem for the appellate court whether access is granted or denied.
A fairly typical case is the Scott case from Austin. Scott v. Cannon, 959 S.W.2d 712 (Tex.App.-Austin 1998, pet. denied). Another case, one decided by this Court, is Johnson. Johnson v. Dale, 835 S.W.2d 216 (Tex.App.-Waco 1992, no pet.). In Johnson this Court addresses the various legal theories, the elements, and the sufficiency of the evidence of the various elements. We clearly identified the theories on which the judgment was based. This is important because the associated rights under each theory upon which access is granted are different.
This Court, however, departed from the method we had used in Johnson in the case of Fagan. Fagan v. Crittenden, No. 10-04-00042-CV, 2005 Tex. App. LEXIS 1492 (Tex.App.-Waco Feb. 23, 2005, pet. filed) (mem. op.). In Fagan, the majority pulled up woefully short of the analysis we had traditionally conducted for the right of access cases. Fagan v. Crittenden, 166 S.W.3d 748, 749-750 (Tex.App.-Waco 2005) (Gray, C.J., dissenting on denial of rehearing). The majority reviewed a single theory that would support access and stopped. Id.
I dissented because I did not believe the elements of the theory had been proven, as found by the majority. Id. I also dissented because the majority had failed to review the other theories and, thus, had failed to define the specific rights of access that had been obtained, as well as the limitations on those rights. Id.
It is not surprising that this case, decided by the same majority, is no different than Fagan. First, they rely on a novel argument accepted on one of various alternative theories of access by the Austin Court of Appeals. Scott v. Cannon, 959 S.W.2d 712 (Tex.App.-Austin 1998, pet. denied). The Austin court had reviewed multiple theories of access. They accepted an argument that "exclusive use" for some types of access cases was different than "exclusive use" for other types of access cases. I do not believe that the element of "exclusive use" changes based upon the nature of the case. Thus, I believe affirming access under the only theory reviewed by the majority in this case is erroneous.
It is not surprising that the petition was denied in Scott. Because there were multiple theories under which access was being granted, there was not a compelling need to resolve the issue discussed below regarding whether "exclusive use" meant different things for different types of cases. In Scott, the Austin court determined all the cases in which joint use defeated an easement by prescription were decided on the basis that exclusive use was the only basis on which to prove adverse use. This is the theory being adopted by the majority. The problem with this theory is that the majority has confused two elements — exclusive use and adverse use. The Supreme Court has consistently treated them as different elements — so will I.
And the majority reviewed only one of the multiple theories. Thus, the majority errs because it fails to address all the issues necessary for disposition that are presented on appeal, see TEX. R. APP. P. 47.1, because an affirmance on another theory, even if I am wrong on the exclusive use evidence/element, would define additional or different rights regarding the extent, nature, and duration of the access rights granted. Thus, we are required to review each theory properly presented. Further, Appellants argued that the scope of the easement granted is greater than the rights obtained under the theories, if any, upon which access was granted. I agree. The access obtained by adverse use can be no greater than the nature of the access engaged in to obtain the right. The grant of access for "all purposes" of ingress or egress would be an unrestricted right and could greatly exceed the use of a single owner if the property was used for some other purpose — like a residential subdivision.
If it is shown that the rights under two theories are identical, it would be proper to decide if access is proper under either theory. If a right to access is found on one of the two — it would then be acceptable to not review another theory that would yield identical rights.
CONCLUSION
Because the majority makes the same errors in this case, as they did in Fagan, I respectfully dissent.
Because the precedential value of Fagan, i.e. the rule of stare decisis, does not apply until the decision is final, it is appropriate to continue to note my dissent. Brooks v. First Assembly of God Church, 86 S.W.3d 793, 798 (Tex.App.-Waco 2002, pet. denied) (Gray, J., dissenting), overruled by, Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).