Opinion
03-22-00422-CV
10-31-2024
Uptown Cars, Inc., Newcastle Management Trust and Jerry Landers, Appellant//Cross-Appellants, v. Newcastle Management Trust and Jerry Landers, Uptown Cars, Inc., Appellees//Cross-Appellee,
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-16-000432, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
Before Baker, Kelly, and Smith, Justices.
OPINION
Thomas J. Baker, Justice.
We grant the motion for rehearing filed by Uptown Cars, Inc., withdraw our previous opinion and judgment issued on March 22, 2024, and substitute the following opinion and judgment in their place.
Easement rights to access Lake Travis-specifically, whether an express easement allows non-waterfront property to build a road and boat dock on adjacent lakefront properties and whether the non-waterfront property has prescriptive-easement rights to maintain a boat dock- are at issue in this case. The non-waterfront property owner, Uptown Cars, Inc., sued its neighbors, Newcastle Management Trust and Jerry Landers (together, Neighbors), to resolve the dispute. On the parties' cross-motions, the trial court rendered final summary judgment determining that Uptown does not have the right to build and maintain a road or boat dock on Neighbors' properties but does have rights to traverse their properties to access the lake and to recreate on the shore. For the following reasons, we reverse the trial court's judgment in part, affirm the judgment in part, and remand for further proceedings.
BACKGROUND
The undisputed evidence establishes that Uptown owns fee title to an approximately 1.577-acre tract of land (the Property) terminating at its east boundary at the 670-foot contour on the shores of Lake Travis. Newcastle and Landers own the surrounding tracts, which each extend eastward from the 670-foot contour purportedly to the centerline of the lake. Below is an undated photograph depicting the Property (within the red outline) and the adjoining tracts. The photograph depicts a time when the lake level was higher than it is currently, making it appear that the Property has direct lake access, but it does not. The purple outline depicts the original area burdened by an express easement area and specified by metes and bounds in the express easement, although the easement extends on the east all the way to the shoreline of the lake, wherever it may be.
Lake Travis is a flood-control lake with widely varying surface levels; accordingly, the shoreline of Lake Travis moves as the surface level of the lake changes. Sierra Assoc. Grp. v. Hardeman, No. 03-08-00324-CV, 2009 WL 416465, at *1 (Tex. App.-Austin Feb. 20, 2009, no pet.) (mem. op.). The 670-foot contour is a line that is 670 feet above mean sea level. Capitol Rod & Gun Club v. Lower Colo. River Auth., 622 S.W.2d 887, 889 (Tex. App.-Austin 1981, writ ref'd n.r.e.).
(Image Omitted)
Uptown acquired the Property from the Zieschangs in 2015, who acquired 1.07 acres of it (Tract 1) in 1972 and the remaining .49-acre portion in 1997 from its then-owner, Volente Group of Texas, Ltd., after it was discovered that the Zieschangs had inadvertently built their house beyond their property line. Tract 1 includes an easement on the properties to the north, south, and east of the Property, which are now owned by Neighbors. The easement was first granted in a 1956 deed from the original owner of all the properties involved in this dispute and has been conveyed through official title records to all subsequent owners. The easement's text is reprinted infra in the Discussion section. The easement's text identifies an area (designated as the "water front"), lying between Tract 1 and the shoreline of the lake and belonging to the servient estate (now owned by Neighbors), on which the dominant estate (now belonging to Uptown) has certain rights. The parties' dispute concerns the scope and continued existence of such rights, but Uptown's chain of title indisputably includes the easement conveyed in the 1956 deed.
The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Easement, Black's Law Dictionary (11th ed. 2019).
In its original petition, Uptown petitioned the court "to establish a prescriptive easement on real properties owned by" Neighbors, alleging that it had recently purchased the Property from the Zieschangs. Uptown alleged that its "predecessors in interest [the Zieschangs] used the Newcastle/Landers properties in a manner that was open, notorious, continuous, exclusive, and adverse beginning no later than 1972 for purposes of maintaining, using and accessing a boat dock and accessing Lake Travis." Therefore, Uptown contended, it is "entitled to a prescriptive easement across the Newcastle/Landers properties for various purposes as have been enjoyed in the past," which purposes include "the ability to construct, anchor and maintain a boat dock, access to the boat dock from [Uptown's] property . . . and other recreational purposes such as (without limitation) swimming, sports, lounging and fishing."
Neighbors filed an original joint counterclaim for trespass and seeking a permanent injunction enjoining future trespass, alleging that Uptown had entered their properties and "attempted to construct and maintain a boat dock" without their consent. In supplemental counterclaims, Newcastle and Landers each pleaded for declaratory relief under the Uniform Declaratory Judgments Act (UDJA), see Tex. Civ. Prac. & Rem. Code §§ 37.001-.011, seeking "determinations with respect to questions concerning the current viability and/or interpretation of the access easement" and attorney's fees. Neighbors pleaded that the easement "merged with the dominant estate and no longer exists" by virtue of the Zieschangs' acquisition of the approximate .49-acre portion, which "wholly encompassed the servient tract on which the easement existed" and "extinguished" the easement. Alternatively, they pleaded for a declaration concerning the "true boundaries of the access easement and an interpretation of its limited purpose."
Uptown filed a motion for partial summary judgment, arguing that no genuine issue exists as to any material fact necessary to establish as a matter of law that it has an express easement across Neighbors' properties "for access to Lake Travis by horse, foot or vehicle, including automobile and boat." Uptown argued that its express easement "necessarily includes the right to construct and maintain a road that would allow a vehicle to travel across [Neighbors]' land in a reasonably safe manner (which requires construction of a road)" and to "make recreational use of the lake, including . . . launching a boat and remaining at the edge of the lake . . . for the purpose of swimming, wading and other recreational uses reasonably associated with use of Lake Travis." Neighbors filed traditional and no-evidence motions for summary judgment arguing that (1) the express easement on which Uptown relies was extinguished in 1997 or, if it still exists, does not authorize construction of a road as a matter of law; (2) Uptown's prescriptive-easement claim fails because the evidence conclusively proves that its title predecessors had "no intent to appropriate the right" to maintain a boat dock on their respective properties; and (3) there is no evidence of any of the required elements of Uptown's prescriptive-easement claim.
In its second amended (live) petition, Uptown alleges that it is "entitled to judgment" establishing that it has an express easement over Neighbors' properties, including the right to maintain a boat dock, to construct and maintain a road to allow lake access, and to do all things "reasonably associated with recreational use of Lake Travis" for itself and its guests and invitees. In the alternative, it alleges that it is entitled to a judgment establishing that it has a prescriptive easement allowing use of Neighbors' properties "for the purpose of maintaining a boat dock, and the right to do all things reasonably associated with recreational use of a boat dock on the lake."
The trial court signed an order on the parties' cross-motions for summary judgment that granted in part and denied in part each of the motions. The order specified that (1) an express easement (Easement) exists providing the owner of the dominant estate (currently, Uptown) "access to the water front, even though it may vary with the rise and fall of the river and lake"; (2) the Easement provides for ingress and egress to the waterfront "whither on foot, horseback or in vehicles of every kind" and to "recreational use of Lake Travis at the shoreline" including "the right to remain at the edge of and in the lake on Defendants' property" but does not provide "the right to construct a road, boat ramp, or boat dock"; (3) the Easement was not extinguished through the doctrine of merger; and (4) there is no evidence creating a genuine issue of material fact on the essential elements of Uptown's prescriptive-easement claim. In a later order, the trial court awarded each Neighbor approximately forty percent of their respective requested attorney's fees plus conditional appellate attorney's fees, which rendered the summary-judgment order final and appealable. Uptown filed a notice of appeal, and Neighbors each filed notices of cross-appeal.
The trial court signed a later Amended Order on Cross Motions for Summary Judgment, on Landers's and Newcastle's motions to modify. The amended order is the operative order for purposes of this appeal and the order from which we cite the court's findings and conclusions.
DISCUSSION
The standards for summary judgment are well-established, see Tex. R. Civ. P. 166a(c), (i), and we review de novo the trial court's summary-judgment ruling, Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). When an easement is unambiguous, we construe it as a matter of law. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 703 (Tex. 2002). On appeal, Uptown challenges the trial court's delineation of the Easement's scope, ruling on Uptown's prescriptive-easement claim, and awards of attorney's fees. On cross-appeal, each Neighbor challenges the amount of attorney's fees that the trial court awarded it, and Newcastle additionally challenges the trial court's ruling on its extinguishment claim.
Uptown's issues
In three issues, Uptown argues that the trial court erred in (1) limiting the scope of the Easement by determining that it does not include the right to build and maintain a road, boat ramp, or boat dock on Neighbors' properties; (2) granting Neighbors summary judgment on its prescriptive-easement claim; and (3) awarding Neighbors attorney's fees in the absence of evidence that the fees were reasonable and necessary and when such awards were not equitable and just.
Whether the trial court properly limited the scope of the Easement
An easement confers upon one person the right to use the land of another for a specific purpose, but it does not convey the property itself. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 870-71 (Tex. App.-Austin 1988, writ denied) (determining that phrase "easement and right-of-way" granted right of passage over and across all land lying between specified 670-foot contour line and waters of Lake Travis). Put another way, an easement is a non-possessory interest in land that authorizes its holder to use the property for only particular purposes. Marcus Cable Assocs., 90 S.W.3d at 700. We apply basic principles of contract construction when considering an express easement's terms. Id. The contracting parties' intentions, as expressed in the grant, determine the scope of the conveyed interest. Id. at 700-01.
We generally construe language within a contract according to its "plain, ordinary, and generally accepted meaning." Piranha Partners v. Neuhoff, 596 S.W.3d 740, 742-43 (Tex. 2020). When construing a contract, we must, if possible, give effect to all the contract's terms so that none will be rendered meaningless, and we must read all the provisions together so as to give each provision its intended effect. See Kelley-Coppedge, Inc. v. Highlands Ins., 980 S.W.2d 462, 464 (Tex. 1998); Forbau v. Aetna Life Ins., 876 S.W.2d 132, 133 (Tex. 1994). We must be particularly wary of isolating individual words, phrases, or clauses and of reading them out of the context of the document as a whole. State Farm Life Ins. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995). For example, courts should presume that words that follow one another are not intended to be redundant. See Gulf Metals Indus., Inc. v. Chicago Ins., 993 S.W.2d 800, 805 (Tex. App.- Austin 1999, pet. denied).
An easement's express terms, construed according to their generally accepted meaning, delineate the purposes for which the easement holder may use the property, and nothing passes by implication except what is "reasonably necessary" to fairly enjoy the rights expressly granted. Marcus Cable Assocs., 90 S.W.3d at 701; see Lakeside Launches, 750 S.W.2d at 871 ("In determining the scope of an easement, we may imply only those rights that are reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner."). Thus, if an easement expressly delineates the purposes for which the holder may use the property, a use pursuing a different, non-delineated purpose is not allowed. See Marcus Cable Assocs., 90 S.W.3d at 701; see also Davis v. Johnston, No. 03-10-00712-CV, 2012 WL 2499472, at *16 (Tex. App.-Austin June 28, 2012, no pet.) (mem. op.) (collecting cases holding that "ingress and egress" to lake does not grant right to use waterfront land for general recreational purposes or to exercise waterfront privileges such as mooring boats and tethering boat docks). Applying these principles and the rules of contract construction, we consider the Easement's express terms.
After first conveying fee title to Tract 1, the relevant and undisputed deeds in Uptown's chain of title additionally convey to Uptown, as grantee,
an easement over, upon and across all land owned or controlled by [grantor] lying between the above described land [Tract 1] and the Colorado River or the shore line of [Lake Travis] as it is now or may be hereafter established, being described by metes and bounds as follows:
BEGINNING at the Northeast corner of Tract 1 for the Northwest corner of this tract;
THENCE North 60 deg. 10' E. 138.6 feet to an iron stake at the water's edge of Lake [Travis] for the Northeast corner of this tract;
THENCE with the water's edge of Lake [Travis] South 120 deg. E. 100.0 feet to a point on the water's edge for the Southeast corner of this tract;
THENCE South 81 deg. 31' W. 163.4 feet to an iron stake in a rock mound on the 715 foot contour and at the Southeast corner of Tract 1 for the Southwest corner of this tract;
THENCE with the 715 foot contour and the East boundary of Tract 1, North 12 deg. 11' E. 55.1 feet to an iron stake in a rock mound and North 11 deg. 20' W. 44.9 feet to the PLACE OF BEGINNING, and containing 0.33 acres of land, more or less;
And as the said water front may hereafter vary with the rise and fall of said river and lake, provided, however, that as the shore line fluctuates with the rise and fall of the water the portion of the water front controlled by the grantee herein shall be in the proportion which the frontage hereby conveyed bears to the total frontage on the lake of the land controlled by grantor lying on each side of the land hereby conveyed, and the grantee herein, his heirs and assigns, shall have the free and uninterrupted use and liberty and privilege and easement of passing over and upon said land, together with free ingress to and egress from said river or lake whether on foot or on horseback or in vehicles of every kind; provided, further, that the easement hereby granted is subject to all easements heretofore granted to Lower
Colorado River Authority and to any other person upon and over said land.(Emphases added.) Notably, the Easement does not expressly designate that use may be made of the servient estate for the purpose of maintaining boat docks, boat ramps, or roads. Instead, and relevant to the parties' dispute, the Easement does four significant things:
• It specifies the geographical boundaries of the servient estate subject to the easement (to which we refer herein as the Easement Area);
• it quantifies the portion of the Easement Area that is "controlled by the grantee" (to which we refer herein as the Recreation Area);
• it grants to the dominant estate broad rights to "pass over and upon" the Recreation Area; and
• it grants to the dominant estate rights of ingress to and egress from the lake.
We will discuss each item in turn.
Firstly, the Easement specifies that the Easement Area is essentially a rectangle bounded on the west by the 715-foot contour (the eastern boundary of Tract 1), on the east by the varying shoreline (i.e., "water's edge") of Lake Travis ("as it is now [in 1956] or may be hereafter established"), and on the north and south as described in the metes-and-bounds description and extending beyond the specified markers in a straight line to the shoreline (but not beyond) when the lake recedes below its height at the time of the 1956 deed.
Secondly, the Easement acknowledges that because "the said water front" will vary and the "shore line" will fluctuate, "the portion of the water front controlled by the grantee" (the Recreation Area) will be a variable area rather than a fixed one. The Recreation Area equals "the proportion which the frontage hereby conveyed bears to the total frontage on the lake of the land controlled by the grantor lying on each side of the land conveyed." Neither party takes issue with the trial court's failure to make a finding on the length of the waterfront or attendant size of the Recreation Area, and we therefore do not further address this aspect of the Easement.
The trial court's amended summary-judgment order reads, "The parties are not disputing the length of the shoreline for waterfront access. Those details are contained in the easement and, as they are not under dispute, the Court makes no ruling on that issue."
Thirdly, later in the same sentence-after quantifying the Recreation Area to be "controlled by the grantee"-the Easement outlines the extent of such "control." It specifies that the grantee "shall have the free and uninterrupted use and liberty and privilege and easement of passing over and upon said land," with "said land" necessarily referring to the Recreation Area. While the phrase employs two expansive adjectives-free and uninterrupted-and three expansive nouns-use, liberty, and privilege-all of those terms, collectively, modify the phrase "passing over and upon said land," indicated by the single appearance of the preposition "of." The relevant, common meaning of the word "pass," as used here-i.e., "over and upon said land"- means to "move, proceed, [or] go." See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/pass (last visited October 28, 2024). Thus, these second and third portions of the Easement grant broad rights to the grantee (and its heirs and assigns) of being physically present on (i.e., of moving about and upon) the Recreation Area, always and in the grantee's sole discretion. However, we cannot conclude that the right to be present and move about on the land, as expressed on the face of the Easement, includes the right to construct a boat dock, boat ramp, or road. See Marcus Cable Assocs., 90 S.W.3d at 701. Being physically present or even lingering and recreating on land cannot reasonably be construed to include activities that would significantly alter the land such as erecting structures and improvements that are affixed to the land.
Moreover, the Easement Area expressly terminates at the shoreline (wherever it may be at any given time) and does not extend eastward of the shoreline. Yet a boat dock- whether tethered to the Easement Area or attached to the submerged lakebed-would necessarily be floating on the water above the lakebed and thus east of the shoreline. The same issue arises if this portion of the Easement were construed to allow the construction of a road to the lake because the road would inevitably extend eastward of the Easement Area, at least when the lake level rises. Furthermore, to construe the words "use," "control," "liberty," and "privilege" as granting the right to construct a road and permanently alter the natural landscape-when that express purpose is not delineated-would expand the rights in the Easement to possessory rather than non-possessory rights, which we may not do absent an express intention in the instrument of conveyance. See id. (citing Restatement of Property's distinction between easements-which permit owner to use land for only specified purposes-and possessory land interests-which permit owner to make any use of property). We conclude that this portion of the Easement does not convey the right to construct or maintain boat docks, boat ramps, or roads.
Fourthly and finally, the Easement additionally conveys the right of "free ingress to and egress from . . . [the] river or lake whether on foot or on horseback or in vehicles of every kind." The right of ingress and egress is a separate and distinct one from the above-discussed right to pass over and upon the Recreation Area, as evidenced by the fact that it follows the phrase, "together with." Otherwise, the phrase conferring the right of ingress and egress would be redundant, and we are to construe easements so that every provision is given effect and none are rendered meaningless. See Kelley-Coppedge, Inc., 980 S.W.2d at 464. Uptown argues that this delineated purpose of free ingress and egress includes the right to construct a road or boat ramp down to the lake because it is "incidental and necessary" to "reasonably enjoy" the express right of ingress and egress, particularly in "vehicles of every kind" (including boats). See Lakeside Launches, 750 S.W.2d at 871 (stating that when rights are not expressly granted, courts may imply only those rights reasonably necessary to fair enjoyment of use or purpose specified in express easement with as little burden as possible to servient owner).
In the context of the Easement, the right of "free" entrance to and exit from the lake, even in vehicles of every kind, reasonably means that the servient estate may not restrict or impede the grantee's comings and goings across the Easement Area to reach the lake. See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/free (last visited October 28, 2024) (defining "free" as "not obstructed, restricted, or impeded"); id., https://www.merriam-webster.com/dictionary/ingress (last visited October 28, 2024) (defining "ingress" to mean entrance, "the act of entering," or "the power or liberty of entrance or access"); id., https://www.merriam-webster.com/dictionary/enter (last visited October 28, 2024) (defining "enter" to mean "to come or go into"); id., https://www.merriam-webster.com/dictionary/egress (last visited October 28, 2024) (defining "egress" to mean exit or "the action or right of going or coming out'); Ingress, Black's Law Dictionary (11th ed. 2019) (defining "ingress" to mean "the right or ability to enter"); Egress, Black's Law Dictionary (11th ed. 2019) (defining "egress" as "the right or ability to leave"). By specifying that the grantee has a right of "free" ingress to and egress from the lake, "whether on foot or on horseback or in vehicles of every kind," the Easement contemplates that the grantor may not impede the grantee's lake access when the grantee is using one of the enumerated means of travel, if the means is capable of passing over the existing terrain. The delineation of permissible travel modes prohibits the grantor from denying the grantee egress and ingress when it is traversing the land via one of those modes.
But no express right to construct a road or alter the land to enable lake access by vehicle of any kind is conveyed in the Easement. When Texas caselaw has addressed road use, construction, and maintenance rights in the context of ingress-and-egress easements, the easements at issue expressly mentioned roads. See, e.g., Clearpoint Crossing Prop. Owners Ass'n v. Chambers, 569 S.W.3d 195, 200 (Tex. App.-Houston [1st Dist.] 2018, pet. denied) (construing fifty-foot-wide "road access easement" conveyed "for the purpose of constructing, maintaining, operating, repairing, and removing a road" "in order to provide Grantee" "free and uninterrupted pedestrian and vehicular ingress to and egress from" property); United Servs. Prof'l Grp. Inc. v. Hurt, No. 05-14-00108-CV, 2015 WL 8013509, at *6 (Tex. App.-Dallas Dec. 7, 2015, no pet.) (mem. op.) (construing "a 50 foot road easement for egress and ingress"); Unger v. Landry, No. 01-03-01331-CV, 2005 WL 21396, at *2-3 (Tex. App.-Houston [1st Dist.] Jan. 6, 2005, pet. denied) (mem. op.) (construing easement "of passing in and along a certain roadway now across a certain tract of land" and providing metes-and-bounds description of easement that was thirty feet in width); Adams v. Norsworthy Ranch, Ltd., 975 S.W.2d 424, 428 (Tex. App.-Austin 1998, no pet.) (construing "easement of passing in and along a certain way or road," "together with free ingress, egress and regress"). Unlike in those cases, wherein the easement expressly referenced a "road" and usually provided for specifics such as location and width, here it is unlikely based on the express text that the original grantor both (a) intended the grantee to have a right to build a road (when there is no mention of a road) and (b) further, left the specifics of such a right unmentioned.
Limiting the right of ingress and egress to disallow construction of a road, as the trial court did, is consistent with this Court's precedents limiting the scope of easements allowing ingress and egress to a lake, without more, to only that right. See Harbor Ventures, Inc. v. Dalton, No. 03-10-00690-CV, 2012 WL 1810205, at *11 (Tex. App.-Austin May 18, 2012, pet. denied) (mem. op.) (concluding that express easement allowing "ingress and egress" from lake did not contain implied grant to use property for general recreational purposes); Davis, 2012 WL 2499472, at *16 (determining that easement granting right of "ingress and egress" to lake did not include rights to maintain boat docks or engage in recreational activities on shore); Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 51-52 (Tex. App.-Austin 2005, pet. denied) (determining that easement allowing "free access" to lake water and use thereof "for domestic purposes," as well as right of "ingress and egress" to lake, did not provide right to use servient land for recreational purposes or to build and maintain structures, including boat dock); Lakeside Launches, 750 S.W.2d at 869-71 (determining that "an easement and right-of-way" granted only right of ingress and egress but did not convey right to anchor and float commercial boat dock); Wall v. Lower Colorado River Auth., 536 S.W.2d 688, 691 (Tex. App.- Austin 1976, writ ref'd n.r.e.) (determining that easement granting "right of ingress and egress" to "the water's edge" did not grant implied right to use and enjoy lakefront property and build and maintain structures and facilities that are "useful and appropriate for lakefront property," such as trailer houses).
Furthermore, and similar to our determination above as to whether the Easement allows boat docks, the construction and maintenance of a road-even if initially built only on exposed earth to the west of the shoreline-is not reasonably contemplated by the Easement's express reference to ingress and egress because such road, or even just a portion thereof, would inevitably be underwater when the lake level rises and would, thus, encroach beyond (i.e., eastward of) the water's edge. The Easement Area expressly extends only to "the shore line of [Lake Travis] as it is now [in 1956] or may be hereafter established," and in no event extends eastward beyond the shoreline. We conclude that the Easement's grant of the right of "free ingress to and egress from" the lake does not include the right to construct and maintain a road.
We hold that the trial court did not err in limiting the scope of the Easement in the ways challenged by Uptown, and we accordingly overrule Uptown's first issue.
Whether summary judgment against Uptown on its prescriptive-easement claim was proper
Uptown next argues that summary judgment against it on its prescriptive-easement claim entitling it to maintain a boat dock was improper because the evidence raised a material fact issue on each element of the claim. To establish a prescriptive easement, Uptown has the burden of proving that it used Neighbors' land in a particular manner that was (1) open, (2) notorious, (3) exclusive, and (4) adverse (5) continuously (6) for ten years or more. See Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 717 (Tex. App.-Eastland 2012, pet. denied); Cambridge Holdings, Ltd. v. Cambridge Condos. Council of Owners, No. 03-08-00353-CV, 2010 WL 2330356, at *8 (Tex. App.-Austin June 11, 2010, no pet.) (mem. op.); see also Davis, 2012 WL 2499472, at *21 ("A prescriptive easement may arise from a property owner's knowing acquiescence (whether actual or constructive) in a claimant's adverse use of the property under a claim of right continuously for ten years or more.").
The creation of an easement by prescription is not favored in the law, and evidence of a prescriptive easement must be clear and positive and should be strictly construed. See Cambridge Holdings, 2010 WL 2330356, at *11. Before courts will take the "severe step" of taking property rights from a record owner without express consent or compensation, the "law reasonably requires that the parties' intentions be very clear." See Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (per curiam).
Uptown does not allege that it has maintained a boat dock on Neighbors' properties for any period, much less the requisite ten years. Rather, it bases its prescriptive-easement claim on the Zieschangs' alleged adverse use of Neighbors' properties to tether a boat dock for over thirty years, as expressed in its live petition: "Beginning no later than 1972, [Uptown's] predecessors in interest used the Defendants' property for purposes of maintaining and using a boat dock on the lake . . . [, and] such use was prescriptive and was, for at least 10 years, open, notorious, continuous, exclusive, and adverse." To support this theory, Uptown proffered documents demonstrating that through the chain of title it has "privity of estate" with the Zieschangs. See Davis, 2012 WL 2499472, at *21 (holding that ten-year requirement for prescriptive easement may be established by tacking successive interests if there is privity of estate between each holder and his successor and noting that adversity requirement for prescriptive easement is same as that required to prove adverse possession); Cooke v. Morrison, 404 S.W.3d 100, 110 (Tex. App.-Houston [1st Dist.] 2013, no pet.) (same).
Easements acquired by prescription are appurtenant to the land, meaning that they run with the land until terminated and that a successor in interest to the dominant estate may rightfully continue using the prescriptive easement after it has been established. See Albert v. Fort Worth & W. R.R. Co., 690 S.W.3d 92, 98-99 (Tex. 2024) (noting that "way easements" are easements appurtenant and that, "once established, the way easement allows the successors in interest to the dominant estate to continue crossing the servient estate along the established way"); Davis, 2012 WL 2499472, at *21 ("[O]nce a prescriptive easement is established, it can be passed on to successors."); see also Martin v. Burr, 228 S.W. 543, 546-47 (Tex. 1921) ("It is not denied that the deeds would have passed matured prescriptive rights appurtenant to the lands[.]"). Thus, as the Zieschangs' successor in title, Uptown may assert the Zieschangs' use of Neighbors' properties to satisfy the time requirement (ten years) and to establish that the Zieschangs' matured prescriptive easement rightfully passed to it, provided the evidence supports the establishment of a prescriptive easement by the Zieschangs. See Albert, 690 S.W.3d at 98-99. We thus consider whether Uptown presented evidence creating a genuine issue of material fact on each element of the establishment of prescriptive easement through the Zieschangs' use of Neighbors' properties for a boat dock.
Although easements appurtenant, once established, may be terminated through several different means including abandonment, see Albert v. Fort Worth & W. R.R. Co., 690 S.W.3d 92, 98 (Tex. 2024), Neighbors did not raise any of those defensive theories as a ground to support their summary-judgment motions. Cf. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (recognizing that summary judgment cannot be affirmed on ground not asserted in motion).
To defeat summary judgment, Uptown proffered Mrs. Zieschang's affidavit and deposition in which she testified that the Zieschangs had maintained a floating boat dock on Lake Travis from 1973 until 2007. Mrs. Zieschang averred that the dock "stayed in basically the same place since it was tied to the shore by cable to the same two shore anchors on either side of the current big oak tree at the shoreline." She averred that the George/Reed family "owned the land surrounding" the Zieschangs' property until 1996, when Volente bought the surrounding land and later sold some of it to each Neighbor. The Zieschangs removed the dock in 2007 only because of its deterioration and intended to replace it but never in fact did because of health and personal issues.
Mrs. Zieschang testified that when she and her husband discussed purchasing the Property from Warren Jones, the Jones family had a preexisting dock near where the Zieschangs later anchored theirs, and Jones told them that he would move his family's dock after the purchase. After the Zieschangs purchased and anchored their dock near the big oak tree, both docks floated simultaneously for a while, and the grandchildren of both families used "both docks back and forth." At some point, Jones moved his family's dock a bit up the cove to the north. Mrs. Zieschang testified that Jones "assured" her and her husband that they had the "right" to maintain a boat dock "because of the easement" as it was "stated in the deed." Also, "the only thing [Jones] ever referred to [as the source of their right to float a dock] was the easement," and the Zieschangs based their understanding of their right to maintain a dock on Jones's "word" about what the easement, as stated in the deed, "implied." The prior owners of the land now owned by Neighbors never told Mrs. Zieschang or her husband that they could not maintain and float a boat dock on the property, and the Zieschangs never asked any of the adjacent property owners for permission to float their dock and were never given express permission by such owners to do so.
It is not clear from the record whether Jones retained title to any property in the area after he sold the Property to the Zieschangs or for how long his family maintained its dock after the Zieschangs' purchase.
Mrs. Zieschang testified that when she and her husband conveyed the Property to Uptown in 2015, they intended to convey "all of the rights" and "anything that was in the deed that Warren Jones had given to us when we purchased the property," plus the area later purchased from Volente and "any easements" they had because they had "no reason to keep anything." The title instruments in the record pertaining to the Zieschangs' conveyance of the Property to Uptown expressly reference and convey the Property itself, the Easement as originally appearing in the 1956 deed, and all "rights and appurtenances" belonging to the Property. When listing the Property for ultimate sale to Uptown, the Zieschangs advertised that it had an easement right to maintain a boat dock on the water in front of the Property.
In its summary-judgment order, the trial court determined that there was "no evidence creating a genuine issue of material fact on each of the essential elements" of the prescriptive-easement claim and that there was "no evidence of actual possession that was consistently and continuously adverse or hostile to [Neighbors] and their predecessors-in-title for the required statutory period." Having reviewed the record, we conclude that Uptown met its burden to produce summary-judgment evidence creating a genuine issue of material fact on each of the elements required to establish a prescriptive easement.
The "hostile" or "adverse" character of the use necessary to establish an easement by prescription is the same as that necessary to establish title by adverse possession. Reid Ests. Civic Club v. Boyer, Inc., No. 01-09-00282-CV, 2011 WL 6938513, at *5 (Tex. App.-Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.); Cambridge Holdings, 2010 WL 2330356, at *8. As such, the claimant must demonstrate that the property's use was of such a nature that it reasonably notified the true owner that a hostile claim to the land was being asserted. Reid Ests., 2011 WL 6938513, at *5. In other words, the claimant must have acted under a "claim of right"- i.e., with the intent to obtain a permanent right to use the property in a particular way, not merely to obtain permission from the rightful owner to do so. Cambridge Holdings, 2010 WL 2330356, at *8.
The claim of right must be inconsistent with the landowner's legal rights to use the same property, but it does not require the intent to dispossess the rightful owner or to even know that there is one. See id. Rather, it requires the intention to permanently appropriate the right to use the property as one's own to the exclusion of all others. See id. If a claimant mistakenly believes that she has the right to use the property in the way she uses it, and such belief is coupled with actual, visible possession and use, such belief may constitute a "claim of right" sufficient to create a fact issue on adversity and hostility. See Calfee v. Duke, 544 S.W.2d 640, 641-42 (Tex. 1976) (holding that evidence of claimant's belief for over twenty years that he was rightful owner of property in question constituted "claim of right" and, when coupled with actual and visible possession and use of property, satisfied statutory requirements for adverse possession); Davis, 2012 WL 2499472, at *8, 24-25 (upholding trial court's findings that claimant established prescriptive easement to maintain dock through title predecessors' maintenance of docks for decades, despite some evidence that initial use of property for that purpose was permissive); Masonic Bldg. Ass'n of Houston, Inc. v. McWhorter, 177 S.W.3d 465, 474-75 (Tex. App.- Houston [1st Dist.] 2005, no pet.) (upholding verdict in favor of prescriptive easement even though claimant and title predecessors mistakenly believed property belonged to them and did not "intend to take" title holder's property, when evidence showed that they intended to use and did in fact use property exclusively as their own); King v. Inwood N. Assocs., 563 S.W.2d 309, 312-13 (Tex. App.-Houston [1st Dist.] 1978, no writ) (noting fact that adverse possessors' mistaken belief that they owned land in controversy did not defeat claim, citing Calfee, 544 S.W.2d 640, and determining that fact issue on adversity supported submission to jury); cf. Ellis v. Jansing, 620 S.W.2d 569, 571-72 (Tex. 1981) (holding that summary-judgment testimony of claimant that he "never claimed or intended to claim any property other than that described in his deed" did not raise fact issue on adversity to establish title by adverse possession because it disproved that claimant made any claim of right). The claimant's intent to appropriate a right to land is determined by "external circumstances"-what "they did or did not do to manifest their intent to claim" the right to use the land-rather than by their "internal thought process." Reid Ests., 2011 WL 6938513, at *12.
A floating boat dock like the one at issue "must be physically attached or anchored to the dry land to keep it from drifting and it must be close enough to the land for access, which access often includes a ramp of some sort that is also attached to the land." Davis, 2012 WL 2499472, at *25. As such, this type of use for purposes of a prescriptive easement-unlike the use of a road or a driveway-is "uniquely adverse or hostile to the servient estate" because it is "a possessory-type use in that it requires some form of continuing, physical possession, albeit small, of the real property," bolstering the claimant's "distinct and positive assertion" of a claim of right and the adverse and hostile nature of such use. See id. We conclude that Mrs. Zieschang's testimony about (1) the basis for her family's maintaining a boat dock on Neighbors' properties- that they were "assured" by the predecessor Jones that they had such right as stated in their deed- (2) the failure of the Zieschangs to ever ask for or receive permission from the servient owners to maintain a boat dock; (3) the decades-long, unchanged tethering of the sizable floating dock and ramp at the same shore location; and (4) the Zieschangs' intent to permanently maintain a dock and replace it when it became debilitated, including advertising the Property's sale as including such right, creates a genuine issue of material fact on the "adverse" and "hostile" elements.
The "exclusivity" requirement means that the claimant's use is exclusive to the landowner's use, and it is not met if both the claimant and the landowner both use the same portion of the property in the same way. See Davis, 2012 WL 2499472, at *26; Harrington, 372 S.W.3d at 717 (citing Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979)). Although this Court has "sometimes stated imprecisely that a prescriptive easement claimant's use of property must be 'exclusive' not only of the property owner, but of 'all other persons,' this is plainly not the case literally." Davis, 2012 WL 2499472, at *26 (citation omitted). The role of the "exclusivity" inquiry is to distinguish adverse and hostile third-party uses from those that are equally consistent with uses subject to permission. Id. No evidence shows that the owners of the servient estate during the relevant period-initially the George/Reed family and later Neighbors-also used the property at issue to maintain a boat dock, and there is no evidence that the Zieschangs were granted permission to maintain a dock. And, although Mrs. Zieschang testified that dozens of people used the boat dock and surrounding area over the years as their guests, such use by their guests does not defeat the "exclusivity" requirement because there is no evidence that such persons were the servient landowners. We conclude that a genuine issue of material fact exists on the "exclusivity" element.
For prescriptive easements, "open" use refers to use that is not made in secret or stealthily, while "notorious" use refers to use that is actually known to the property owner or is widely known in the area such that the property owner would reasonably be expected to know of it. Cambridge Holdings, 2010 WL 2330356, at *10; see also Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 787 (Tex. 1954) (noting that "claim of right" must be manifested either by oral assertion made to owner or by being so open and notorious, through visible acts, that knowledge on part of owner will be presumed). The purpose of these requirements is to ensure that the property owner has ample opportunity to protect against the establishment of prescriptive rights. Cambridge Holdings, 2010 WL 2330356, at *10. The element of "continuous" use requires the claimant to continue asserting an adverse and hostile claim of right and to physically use the servient property throughout the prescriptive period, uninterrupted by any physical obstruction or legal claim against such use by the title holder. See id.
Mrs. Zieschang testified that her family floated a boat dock on Neighbors' properties, continuously tethered to the shore at the same two anchors, from 1973 to 2007- roughly thirty-four years. Although always tethered in the same place, the dock floated freely- not in relation to any property lines, but generally above the land that now belongs to Neighbors- sometimes listing northwards up the cove and sometimes further down the cove, and generally oriented perpendicular to the shore but sometimes orienting in a thirty-degree angle with the shore. Mrs. Zieschang further testified that the dock was still tethered in the same location when each Neighbor purchased its property. She testified about the dock's size and characteristics: it measured thirty-four feet by thirty-four feet, had a roof over the boat slip with walkways that extended out another two feet beyond the walkways, and contained a four-foot by seven-foot storage shed covered by a separate roof. The dock had a "gangway-style floating walk ramp" to enable access from the shore and protect it from rock damage the fluctuating water levels might cause.
The record does not contain evidence of those acquisition dates, but based on the other evidence in the record, each Neighbor must have acquired its property sometime between 1996 and 2007, as evidence indicates that Volente purchased all the property surrounding the Zieschangs' from the George/Reed family in 1996 and the Zieschangs removed the dock in 2007.
Attached to Mrs. Zieschang's affidavit were several satellite images of the dock over the years depicting its location relative to the Zieschangs' house, the cove, and the surrounding properties. Although the dock's angle to the shore appears to vary between listing towards the cove and away from it or being perpendicular to the shore-consistent with Mrs. Zieschangs' testimony-its general location relative to the Zieschangs' home appears constant, as depicted in the diagram supra. Mrs. Zieschang averred that her family paid property taxes on the boat dock every year, and she attached to her affidavit records from the Travis County Appraisal District's tax rolls showing the dock was built in 1975. Taking as true all the evidence favorable to Uptown and indulging every reasonable inference and resolving any doubts in its favor, see Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), we conclude that a genuine issue of material fact exists about (a) whether the Zieschangs' use of Neighbors' land for their anchoring and floating of a dock was not stealthy or secretive (i.e., was "open") and was "continuous" for the ten-year statutory period and (b) whether Neighbors' predecessors-in-title would reasonably have been expected to know about such use (i.e., that it was "notorious"), especially considering the decades-long, continuous presence and frequent use of a dock of such size.
Neighbors argue that the Zieschangs' use was not "continuous" on any particular parcel of property because the dock floated freely, sometimes floating over what is now Landers's property, sometimes over Newcastle's, and sometimes over third-parties' across the cove. However, summary-judgment evidence shows that for more than thirty years, including over twenty years while Neighbors' lands were under the common ownership of their predecessor in title, the Zieschangs continuously anchored their dock with cables attached at the same two places on what is now Neighbors' land and used a boat ramp to access the dock from the shore. Thus, a genuine issue of material fact exists on the "continuous" element by virtue of the longstanding presence and use of the anchors and cables attached to the land for the purpose of maintaining and using the dock, and we need not consider the significance of the fact that the dock moved around on the water's surface. Moreover, even if Neighbors have valid title to the lake bed, the waters above the bed belong to the public and may be used freely by Uptown and others. See Diversion Lake Club v. Heath, 86 S.W.2d 441, 445-46 (Tex. 1935) ("[T]he water of the lake, notwithstanding the fact that most of its bed is privately owned, is still public water."); Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 48 (Tex. App.-Austin 2005, pet. denied) ("As with all navigable bodies of water within Texas, the State owns the beds and waters of Lake Travis[.]"); see also Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 653-54 (Tex. 2020) (noting that although legislature had passed statute (the Small Bill) allowing State to convey its stream and river beds previously held in public trust, general and longstanding law in Texas is that navigable waters and their beds are reserved to State for use of public under public-trust doctrine).
While we recognize that the creation of an easement by prescription is not favored in the law and that evidence of a prescriptive easement must be clear, positive, and strictly construed, see Cambridge Holdings, 2010 WL 2330356, at *11, our task in this appeal is not to construe the evidence or make a final determination as to whether Uptown will be able to prove its entitlement to a prescriptive easement, but only to determine whether it has produced enough evidence to bring the claim before a factfinder. We conclude that it has and thus reverse the trial court's summary judgment on Uptown's prescriptive-easement claim and remand that claim for further proceedings. Uptown's second issue is sustained.
Whether the trial court erred in awarding Neighbors attorney's fees
In its third issue, Uptown argues that the trial court abused its discretion in awarding Neighbors attorney's fees, contending that (1) the evidence was legally insufficient to support any award of fees, and (2) it was neither equitable nor just to award fees because Uptown "prevailed on the main issue" in that Neighbors "wanted to eliminate Uptown's easement" through their extinguishment counterclaims, which the trial court rejected, and Neighbors' counterclaims for declaratory judgment were "merely incidental" to its claims for relief.
While the UDJA authorizes awards of attorney's fees, it does not require an award of them to anyone. See Tex. Civ. Prac. & Rem. Code § 37.009. Rather, it "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). "Unreasonable fees cannot be awarded, even if the court believed them just, but the court may conclude that it is not equitable or just to award even reasonable and necessary fees." Id. Further, an award of attorney's fees is not dependent on a finding that the party "substantially prevailed." Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996).
Moreover, in UDJA actions, "courts have the authority to award less than an amount determined by a jury to be reasonable and necessary and . . . this is a matter committed to the trial court's sound discretion." Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004). That is, the determination of whether an award of attorney's fees would be equitable and just is not susceptible to direct proof but instead is a matter of fairness considering all the circumstances. See id. at 162-63. The trial court is not required to award attorney's fees to the prevailing party in a declaratory-judgment action and may even award attorney's fees to the non-prevailing party. Moosavideen v. Garrett, 300 S.W.3d 791, 802 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). "Thus, the attorney's fees provision grants the trial court broad discretion to (i) afford all parties the opportunity to request fees; (ii) decline to award fees; and (iii) allow an award only when reasonable, necessary, equitable, and just." Feldman v. KPMG LLP, 438 S.W.3d 678, 685 (Tex. App.-Houston [1st Dist.] 2014, no pet.).
In light of this law and what trial courts may consider when exercising their discretion to award attorney's fees in UDJA cases, and because we are remanding the issue of whether Uptown has a prescriptive easement, we also reverse the attorney's fee awards and remand the issue of whether, after final determination of Uptown's prescriptive-easement claim, it is equitable and just to award any party attorney's fees-and the amount of such award, if any-and thus do not reach Uptown's third issue. See Austin JSB, Ltd. v. Otwell Realty, Ltd., No. 03-22-00459-CV, 2023 WL 5311524, at *11 (Tex. App.-Austin Aug. 18, 2023, pet. denied) (mem. op.) (reversing award of attorney's fees and remanding for reconsideration considering disposition reversing portions of judgment under UDJA); Board of Med. Exam'rs v. Nzedu, 228 S.W.3d 264, 276 (Tex. App.-Austin 2007, pet. denied) (remanding issue of equitable and just attorney's fees considering holding reversing judgment on merits); see also Tex. R. App. P. 47.1.
Neighbors' issues
In two cross-issues, Newcastle argues that the trial court erred in (1) denying its motion for summary judgment on its claim that the Easement was extinguished, and (2) failing to award it the entirety of its requested attorney's fees. In one cross-issue, Landers argues that the trial court abused its discretion in failing to award him the entirety of his requested attorney's fees. We do not address Newcastle's second cross-issue or Landers's sole cross-issue, however, considering our disposition reversing and remanding the issues of whether Uptown has established a prescriptive easement and the equity and justness of any award of attorney's fees to Neighbors. See Tex. R. App. P. 47.1.
As to Newcastle's first cross-issue, it moved for summary judgment on its counterclaim in which it asserted that the Easement had been extinguished under the doctrine of merger when by a 1997 deed the Zieschangs acquired the portion of the Easement described by metes and bounds. The undisputed summary-judgment evidence establishes that in 1972 the Zieschangs built a house on what they believed was their property. However, they realized sometime later that the house, in fact, sat largely outside their property boundaries and partly within the portion of the Easement described by metes and bounds. In 1997, the property on which the Zieschangs' house sat belonged to third party Volente. In 1997, Volente by quitclaim deed conveyed the metes-and-bounds portion of the Easement to the Zieschangs, plus additional land extending the Zieschangs' fee title southward some distance and eastward to the 670-foot contour. Newcastle contends that Volente's conveyance of the metes-and-bounds portion of the Easement extinguished the Easement in its entirety. We disagree.
"Under the merger doctrine, if an easement exists and then the owner of that easement acquires a greater estate, the two estates merge into the greater of the two and the lesser is extinguished." Cecola v. Ruley, 12 S.W.3d 848, 852 (Tex. App.-Texarkana 2000, no pet.). This is because "[o]ne who owns fee simple title no longer needs an easement across his own property, since the fee simple gives him the right to use all of the property." Id.; see also Howell v. Estes, 12 S.W. 62, 62 (Tex. 1888) ("The principle is elementary that, to constitute an easement, the dominant and the servient estates must be held by different owners; and when the owner of an estate enjoys an easement over another, and acquires title to the latter, the easement is thereby extinguished."). Under the merger doctrine, an easement is terminated when "all the benefits and burdens come into a single ownership." See Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 534 S.W.3d 558, 578 n.7 (Tex. App.-San Antonio 2017), aff'd, 593 S.W.3d 324 (Tex. 2020) (citation omitted).
Newcastle's argument fails on this last point because the evidence conclusively established that less than all the benefits and burdens came into a single ownership by virtue of the Volente quitclaim deed. See Tex. R. Civ. P. 166a. By such deed the Zieschangs acquired only (1) the portion of the Easement Area specified by metes and bounds in the 1956 original deed (which extended eastward only up to the shoreline in 1956, which was then about thirty feet west of the 670-foot contour) plus (2) the land to the east of the 1956 shoreline as far as the 670-foot contour. However, the Easement Area includes not just those two areas but all the land between the north and south boundaries of the metes-and-bounds area that extends eastward all the way to the water's edge, as it changes over time. That area's fee title remained held by Volente and is now held by Neighbors. Accordingly, the trial court did not err in denying Newcastle's motion for summary judgment on its counterclaim of extinguishment through merger of the Easement. We overrule Newcastle's second issue.
CONCLUSION
We reverse the portion of the trial court's Amended Order on Cross Motions for Summary Judgment granting Landers and Newcastle summary judgment on Uptown's prescriptive-easement claim and remand that claim for further proceedings. We affirm the remainder of that order. We also reverse the trial court's Order on Defendants' Motions for Award of Attorney's Fees and remand the issue of attorney's fees for redetermination upon final disposition of the prescriptive-easement claim.
Affirmed in Part; Reversed and Remanded in Part on Motion for Rehearing.