Opinion
No. 04-04-00869-CV
Delivered and Filed: November 23, 2005.
Appeal from the 49th Judicial District Court, Zapata County, Texas, Trial Court No. 4875-a-1, Honorable Manuel Flores, Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Sekula Farms, Inc. appeals a summary judgment granted in favor of Elizabeth Garcia Giesick establishing an easement across Sekula's property. Sekula raises three issues on appeal, asserting: 1) the trial court erred in granting Giesick's traditional motion for summary judgment because Giesick did not establish her entitlement to an easement as a matter of law; 2) the trial court erred by excluding documentary evidence offered by Sekula Farms at the summary judgment hearing; and 3) the trial court erred in awarding Giesick attorney's fees. Because we conclude Giesick did not establish her right to an easement as a matter of law, we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
Factual and Procedural Background
The dispute in this case involves Giesick's use of a road (the "contested road") that crosses Sekula Farms's property and connects to FM 2687 in Zapata County, Texas. Unity of ownership last existed between Giesick and Sekula Farm's respective properties in 1924. In 1924, 13,449.5 acres of property originally owned by Anastacio Garcia were partitioned into six tracts by his heirs at law. Under the terms of the original partition deed, Share A was set aside to Alejandro Garcia, the predecessor in title to Sekula Farms. Share C was set aside to Manuel Garcia Martinez, the predecessor in title to the portion of Share C currently owned by Giesick. Share C was later divided by a partition deed in 1988 into Shares C-1, C-2, and C-3 between Manuel J. Garcia, Israel Garcia, and Roberto Garcia. Elizabeth Garcia Giesick's father, Israel Garcia, was the original owner of Share C-2. At the time the dispute arose, title to Share C-2 was in the Estate of Israel Garcia. Giesick was the independent executrix of Israel's estate.
The 1924 partition deed did not provide ingress and egress for the parties to their respective tracts, but Manuel J. Garcia testified that Alejandro Garcia and his descendants historically permitted ingress and egress onto their property. The contested road has existed since at least the 1930s and has been continuously used by the occupants of Share C to access FM 2687. Prior to November 2000, Sekula Farms permitted Giesick and her family to use the contested road to access FM 2687.
On October 25, 2000, however, Sekula Farms posted signs on the contested road indicating the road would be permanently closed, and restricted access on November 11, 2000. Guadalupe Garcia, the son of Israel Garcia, filed suit against Sekula Farms in his individual capacity for restricting his access to Share C-2. Sekula Farms filed a counterclaim and a third party action against Giesick, as well as the owners of Shares C-1 and C-3, requesting a judgment for damages arising from their prior entry on Share A, a declaration that no valid easement existed, and an injunction to prevent further use of the contested road. Giesick was named as a third party defendant both individually and in her capacity as the independent executrix of the Estate of Israel Garcia. Sekula Farms ultimately dismissed its third party action against the Estate of Israel Garcia, and Giesick filed a plea in intervention seeking a declaratory judgment confirming the right to use the contested road for ingress and egress across Share A to Share C. Giesick later filed a traditional motion for summary judgment, asserting her right to an easement as a matter of law. In support of her motion for summary judgment, Giesick offered the deposition testimony of Manuel J. Garcia, Jorge Escudero, and Daniel Sekula. Giesick also offered deeds depicting the transfer of ownership of Tract A, a partition plat dated 1924, and her own affidavit.
Manuel J. Garcia, the grandson of Manuel Garcia Martinez, testified that he was born in 1929. Manuel was raised on the ranch located on Share C, La Purisima, until he was six years old. As a child in the 1930s, Manuel recalled the existence of the contested road and testified that in order to access Share C from the public highway, his family used the contested road across Share A. Manuel could not remember accessing Share C through any other roads, and testified the contested road was the only road his family used. Manuel believed the contested road existed before his birth, but he had no personal knowledge as to the year the road was built, and had never discussed the history of the contested road with his elders. Manuel admitted he had no personal knowledge of the contested road's existence or use in 1924.
Jorge Escudero, the grandson of Alejandro Garcia, was born in 1939 and visited the ranch located on Share A, San Salvador, on many occasions. Escudero testified that he often visited his relatives at La Purisima and would access Share C by using the contested road. Escudero did not recollect seeing any roads leading from FM 2687 to Share C other than the contested road. Escudero acknowledged that the owners of the adjoining tracts of property, Shares B, D, and E, never used Share A to access public roads, but he did not know how the owners of the adjoining tracts exited their respective properties. Escudero testified that the contested road had been used continuously by the owners of Share C, and he believed the contested road was reasonably necessary to the use and enjoyment of Share C because it was the only road used to access FM 2687. Escudero had no personal knowledge of the contested road's existence or use in 1924.
Daniel Sekula testified in his deposition that the contested road existed in 1973 when tract A was purchased. Sekula speculated the contested road had been built by the original owner of the 13,449.5 acre tract, but he had no personal knowledge of the contested road's existence at the time of severance.
In her affidavit, Giesick testified that she spent several weeks a year living with her grandparents on the La Purisima ranch in the 1960s and 1970s. During Giesick's visits to La Purisima, her family used the contested road to access Share C, and to Giesick's knowledge there were no routes connecting to a public road other than the contested road.
The trial court entered an order granting Giesick's traditional motion for summary judgment. The trial court awarded Giesick attorney's fees under Section 37.009 of the Texas Civil Practices and Remedies Code, and entered an order of severance.
Implied Easements and Easements by Necessity
In its first issue, Sekula Farms contends the trial court erred in granting Giesick's traditional motion for summary judgment because genuine issues of material fact exist with respect to the existence and necessity of the contested road at the time of severance. In her motion for summary judgment, Giesick asserted an easement by necessity, or in the alternative, an implied easement across Sekula's property.
A. Standard of Review
We review a summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To obtain a traditional summary judgment, a party moving for summary judgment bears the burden to show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the non-movant is true. Id. at 548-49. When the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the judgment if any of the theories advanced are meritorious. State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
B. Discussion
An easement is a liberty, privilege, or advantage granted to a person or persons without profit, either personally, or by virtue of that person's ownership of a specified parcel of land, to use another parcel of land for some limited purpose. See Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied). Where an easement exists, the parcel owned by the grantor of the easement is referred to as the "servient estate," while the parcel benefitted by the easement is referred to as the "dominant estate." Id. at 110.
To claim an easement by necessity, a landowner must prove: 1) unity of ownership of the dominant and servient estates existed prior to the severance; 2) use of the roadway was a necessity; and 3) the necessity existed at the time the estates were severed. See Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984). "The way of necessity must be more than one of convenience for if the owner of the land can use another way, he cannot claim by implication to pass over that of another to get to his own." Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958).
Sekula Farms concedes, and the record supports, that unity of ownership existed between the dominant and servient estates in 1924. Thus, we confine our analysis to the remaining elements of an easement by necessity, present necessity, and historical necessity.
Sekula Farms contends that Giesick's summary judgment evidence did not establish historical necessity. We agree. None of Giesick's witnesses had personal knowledge of circumstances as they existed in 1924, the time of severance. Compare Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 632 (Tex.App.-San Antonio 1997, pet. denied) (holding that owners of the dominant estate established historical necessity where one of the witnesses had personal knowledge of the easement's necessity at the time of severance) with Wilson v. McGuffin, 749 S.W.2d 606, 609 (Tex.App.-Corpus Christi 1988, pet. denied) (where witnesses did not have personal knowledge of the easement's existence and necessity at the time of severance in 1901, the evidence was insufficient to support an easement by necessity); see also Tiller v. Lake Alexander Props., Ltd., 96 S.W.3d 617, 623 (Tex.App.-Texarkana 2002, no pet.) (noting absence of evidence that necessity existed on the date of the severance); Miller v. Elliott, 94 S.W.3d 38, 44 (Tex.App.-Tyler 2002, pet. denied) (noting evidence must show necessity at time of severance). In reviewing a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 549. Because the testimony does not conclusively establish that the necessity existed at the time of the severance in 1924, we must resolve this doubt in favor of Sekula Farms. Furthermore, we note that Guadalupe George Garcia testified in his deposition that a gate was located at the southeastern corner of Share C which could be used to access a county road by crossing land owned by a different third party. A reasonable inference could be made that the gate existed to allow access to the county road, thereby creating another way for Giesick to access Share C. Accordingly, under the applicable standard of review, we conclude that Giesick did not meet her burden of providing her entitlement to an easement by necessity as a matter of law.
As an alternative ground for summary judgment, Giesick asserted an implied easement over Sekula Farms's property. A landowner may claim an implied easement by proving: 1) unity of ownership existed between the dominant and servient estates; 2) the use of the easement was apparent at the time the dominant estate was granted; 3) use of the easement was continuous so that the parties intended its use to pass by grant with the dominant estate; and 4) the easement was reasonably necessary to the use and enjoyment of the dominant estate. See Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex. 1966). The party claiming an implied easement has the burden of proving his entitlement to the easement, and whether these requirements have been met is determined at the time of severance. Holden v. Weidenfeller, 929 S.W.2d 124, 129 (Tex.App.-San Antonio 1996, writ denied).
Sekula Farms contends Giesick failed to prove the second element to establish an implied easement, i.e., the contested road was existent and apparent at the time of severance. We agree. None of Giesick's deposition witnesses had personal knowledge that the contested road even existed at the time of severance, and could not verify the contested road's apparent use at the time the dominant estate was created. See Heard v. Roos, 885 S.W.2d 592, 594-95 (Tex.App.-Corpus Christi 1994, no pet.) (the jury's finding that an implied easement did not exist was upheld where owners of dominant estate could produce no real evidence that an apparent and well-defined road existed at the time of the dominant and servient estate's severance in 1919). Further, the partition plat offered by Giesick as an exhibit to her motion for summary judgment rebuts the existence of the contested road at the time of the dominant and servient estate's severance. The 1924 partition plat depicts an internal ranch road leading from the La Purisima in Share C to San Salvador Ranch in Share A, but it does not depict the existence of the contested road. Without proving this essential element of an implied easement, i.e., that use of the easement was apparent at the time the dominant estate was granted, Giesick did not establish her entitlement to an implied easement as a matter of law. Sekula Farms's first issue is sustained.
Conclusion
The burden of proving entitlement to an easement ultimately lies on the claimant. See id. at 594. Giesick's summary judgment evidence did not establish as a matter of law that Giesick was entitled to an easement across Sekula Farms's property. Accordingly, we hold the trial court erred in granting Giesick's traditional motion for summary judgment and therefore reverse its judgment and remand the cause to the trial court for further proceedings consistent with this opinion. Because we sustain Sekula Farms's first issue, we need not reach its other issues. Tex.R.App.P. 47.1.