Opinion
03-23-00663-CV
06-20-2024
#1 STR, LLC, Appellant v. Harry White, Appellee
FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY NO. 423-8724, THE HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Smith and Theofanis
MEMORANDUM OPINION
Rosa Lopez Theofanis, Justice
#1 STR, LLC (STR) appeals from the trial court's summary-judgment order granting Harry White an easement by necessity across STR's property and its supplemental order setting out the granted easement's specific metes and bounds. For the following reasons, we reverse the trial court's orders and remand the case to the trial court for further proceedings.
The facts are taken from the summary-judgment evidence.
Alce White and Betty White owned land in Bastrop County. In 1948, their land was partitioned into ten tracts for their ten children. A 2015 survey that was admitted as summary-judgment evidence depicts the ten tracts as partitioned:
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In the 1948 partition deed, Tract No. 7 was deeded to Harry White's father. In 1966, Harry White's father deeded the tract to his children, and Harry White currently owns the tract.
In 2021, CTX4R, LLC purchased Tract No. 4 and then subdivided it into four separate lots with each lot having access to Milam Lane. A 2021 survey that was admitted as summary judgment evidence depicts Tract No. 4 as subdivided:
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As subdivided, "Tract 1" was a rectangular lot in the southwest corner of the former Tract No. 4, and the three other lots-identified as Tract 2, Tract 3, and Tract 4 on the survey-were "flag lots" with access to Milam Road by a 60-foot-wide strip of land running from the tracts east to west to the road. CTX4R conveyed "Tract 4" of the subdivided Tract No. 4 to STR, and STR currently owns it.
In September 2022, Harry White sued STR to establish "an easement by necessity by establishing the necessity of a roadway to access his landlocked property" on STR's property and sought a declaration as to the "route and width of the easement." He asserted that: (i) his property-Tract No. 7-was landlocked and had been since the partition in 1948, (ii) his property and STR's property were contiguous, (iii) he was "seeking an easement along the 'pole' of [STR's] property to Milam Road," (iv) the easement sought was "not a mere convenience, but absolutely necessary for any form of ingress and egress into and out of [his] landlocked property," and (v) "[t]hroughout the years, [his] property was at all times accessed by travelling across [STR]'s property." Attached to his original petition were deeds and other documents concerning the properties at issue including Exhibit G, which was a copy of the 2021 survey with highlighting of the proposed easement's route and placement on STR's property:
(Image Omitted)
STR filed an answer, and approximately eight months later, White filed a traditional motion for summary judgment. White asserted that because his property was landlocked after the 1948 partition, he was entitled to an easement by necessity as a matter of law "along, through, or over what is now [STR's] land to a public street or highway." He sought "a declaration as to the extent and parameters of the easement in accordance with the proposed easement attached hereto as Exhibit G," which is the Exhibit G that was attached to his petition and is shown above. White's summary-judgment evidence also included maps of the parties' properties, the 1948 partition deed, and other deeds related to the properties.
STR filed a response to White's motion for summary judgment with evidence. STR argued that White "may be entitled to an easement by necessity over someone's property to access a road" but that he had not established, and "certainly not as a matter of law," his entitlement to an easement by necessity as depicted in Exhibit G. STR's evidence included: (i) Google maps of the land that was partitioned in 1948, (ii) a 2015 survey of White's property, (iii) a 2017 survey of Tract No. 4 before it was subdivided, (iv) a survey of Tract No. 4 after it was subdivided, (v) a 1975 express easement filed in the Bastrop County real property records, (vi) a Google map showing the route of the express easement, (vii) an application in 1988 and an amendment to the application in 1991 to the Bastrop County Appraisal District for an agricultural exemption to White's property, and (viii) an affidavit by Sean Murphy who was a managing member of CTX4R. The application to the appraisal district provides instructions for accessing White's property via "Old Red Rock Road" or "Farm Road 20 to Road 342" and represents that the property was being used for grazing cattle. In his affidavit, Murphy averred that STR's property is "entirely unimproved," that it is burdened by an express roadway easement, and that "[t]here is no indication of previous use of the 'flag pole' portion of STR's property to access Milam Lane." The surveys, maps, and other evidence show that the express easement is a 30-foot roadway easement that provides "ingress and egress" to Tract Nos. 8 and 9, starting at the southwest corner of Tract No. 8, running briefly west and touching White's property and then running south through portions of Tract Nos. 4, 3, 2 and 1 until it reaches Lone Star Road. The surveys also show that there is a roadway easement from Tract No. 10 running south on the eastern edge of Tract Nos. 1, 2, 3, and 4.
In its order granting White's motion for summary judgment, the trial court granted an easement by necessity as a matter of law "across the entirety of [STR's] property from the western terminus at which [STR's property] borders Milam Road to (60) feet east of the southwest corner of [White's] property." The trial court ordered that the easement "shall be perpetual and irrevocable"; found that "the purpose of the easement shall be for providing free, uninterrupted and unrestricted pedestrian and vehicular ingress from Milam Road to [White's property] and egress from [White's property] to Milam Road"; and ordered that the costs of improvement and maintenance of the easement were to be shared jointly by White and STR. In the supplemental order, the trial court set out the specific metes and bounds of the easement, attaching a survey to the order. STR's appeal from the two orders followed.
The trial court also granted White the right: (i) "to use as much of the surface of [STR's] property that is adjacent to the Easement Property (if any) as may be reasonably necessary to install and maintain a road reasonably suited to the needs of [STR's property]"; (ii) "to maintain the Easement in a neat and clean condition and shall have the right to construct, install, maintain, replace, and remove a road with all culverts, bridges, drainage ditches, sewer facilities, and similar or related utilities and facilities under or across any portion of the Easement property (collectively, the 'Road Improvements')"; and (iii) generally "to remove or relocate any fence or other obstruction within or along or near the boundary lines of the Easement if reasonably necessary to construct, install, or remove Road Improvements."
ANALYSIS
On appeal, STR argues that the trial court erred in granting summary judgment because although White "may very well have demonstrated his entitlement to an easement by necessity to reach his landlocked property," he "presented no evidence, let alone conclusive evidence, regarding the proper location and size of the easement." STR argues that White "is not entitled, and certainly not as a matter of law, to the precise easement over STR's property in the exact location he desires or deems most convenient" and that "the only evidence in the record contradicts the location [White] has chosen."
Standard of Review
We review the grant of summary judgment de novo. Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023). "A party moving for traditional summary judgment must prove that no genuine issue of material fact exists and it is entitled to judgment as a matter of law." Id.; see Tex. R. Civ. P. 166a(c), Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022).
When, as here, the plaintiff moves for summary judgment, it must conclusively prove all elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). "Evidence is conclusive only if reasonable people could not differ in their conclusions." City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). The reviewing court must take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); see Zive, 644 S.W.3d at 173 (stating that when reviewing summary judgment, courts view evidence in light most favorable to non-movant, "crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not").
If the movant initially establishes a right to summary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
Easement by Necessity
An easement by necessity "results when a grantor, in conveying or retaining a parcel of land, fails to expressly provide for a means of accessing the land." Hamrick v. Ward, 446 S.W.3d 377, 382 (Tex. 2014) (citing Alley v. Carleton, 29 Tex. 74, 78 (1867)); see Staley Fam. P'ship v. Stiles, 483 S.W.3d 545, 548 (Tex. 2016) (stating that when owner conveys part of tract of land and retains landlocked portion, necessity easement over portion conveyed may be implied so owner of landlocked part can access it). "Whether a property owner is entitled to an easement by necessity is a question of law, although underlying factual issues may need to be resolved in order to reach the legal question." Staley Fam P'ship, 483 S.W.3d at 548. "The party claiming a necessity easement has the burden to prove all facts necessary to establish it." Id. (citing Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 1944)).
To successfully assert an easement by necessity, a party must establish: "(1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed." Hamrick, 446 S.W.3d at 382. "The 'necessity' element for an easement by necessity 'means that the use of the easement must be economically or physically necessary for the use of the land and not merely desirable.'" Pisarski, Inc. v. Hong Bui, No. 07-17-00118-CV, 2018 Tex.App. LEXIS 6789, *6 (Tex. App.-Amarillo 2018, no pet.) (mem. op.) (quoting Payne v. Edmonson, 712 S.W.2d 793, 796 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.)); see Machala v. Weems, 56 S.W.3d 748, 755-56 (Tex. App.-Texarkana 2001, no pet.) (requiring party seeking easement by necessity to present testimony or other evidence of absence of other means of ingress and egress to property in question at time of severance and currently). For an easement to be a necessity, the claimant must show that he lacks any alternative route to legally access the public roadway from his property. Duff v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958); see Staley Fam. P'ship, 483 S.W.3d at 549; see also Machala, 56 S.W.3d at 755 (explaining that "if the owner of the land can use another way, he cannot claim by implication a right to pass over that of another to get to his own"). "[A] party seeking a necessity easement must prove both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question." Lester v. Conway, No. 04-15-00730-CV, 2016 Tex.App. LEXIS 13187, at *5 (Tex. App.-San Antonio Dec. 14, 2016, no pet.) (mem. op.) (quoting Hamrick, 446 S.W3d at 382).
"The scope and extent of an easement by necessity should be no more than is reasonably necessary to the use and enjoyment of the property as it existed at the time the dominant and servient estates were severed." Pisarski, 2018 Tex.App. LEXIS 6789, at *6 (citing Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.-San Antonio 1996, writ denied)). "The right to select the location of the easement belongs initially to the owner of the servient estate at the time the dominant estate is created, which right is to be exercised in a reasonable manner, having due regard for the rights and interests of the dominant estate owner." Lester, 2016 Tex.App. LEXIS 13187, at *11-12 (quoting Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex. App.-El Paso 1993, no writ)). "If the servient owner fails to do so, then the owner of the dominant estate may locate the easement of necessity with due regard for the convenience of the parties." Id.
Did White conclusively establish his entitlement to the easement by necessity?
For purposes of White's motion for summary judgment and on appeal, STR does not dispute that White established the unity-of-ownership element and that some means of access to White's property is a necessity that has existed since the 1948 partition. STR's position is that White has not established as a matter of law that he was entitled to the easement that the trial court granted on STR's property.
White counters that Milam Road is the "nearest roadway" to his property, that no owner of STR's property "ever located an easement granting [White] access to Milam Road or to anywhere else," and that, therefore, he, as "the dominant estate holder, chose the location of the easement which unquestionably created the least burden to all concerned." He argues that "the only logical path of the easement was and is indisputable" and that the granted easement was "the shortest possible distance and least possible encumbrance of [STR's] property." In his pleadings before the trial court, White also asserted that the easement that he was seeking "along the 'pole' of [STR's] property to Milam Road" was "not a mere convenience, but absolutely necessary for any form of ingress and egress into and out of [his] landlocked property" and that "[t]hroughout the years, [his] property was at all times accessed by travelling across [STR]'s property."
In his appellee brief, White also asserts that the trial court "took judicial notice of the permitting requirements which could not be overcome on the 60-foot wide 'flagpole'" and that "there was grudging acknowledgement that it could serve no purpose for either party other than as a roadway." He, however, cites to a page in the clerk's record that does not support this assertion, and we do not have a reporter's record from the hearing on his motion for summary judgment.
White's factual allegations in his appellee brief and his pleadings before the trial court, however, are not summary-judgment evidence. See Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818-19 (Tex. 2021) (stating that "pleadings generally do not qualify as summary-judgment 'evidence,' even when they are sworn or verified" and that "party cannot rely on its own pleaded allegations as evidence of facts to support its summary-judgment motion"); Reyes v. Saenz, 269 S.W.3d 675, 678 (Tex. App.-San Antonio 2008, no pet.) (stating that conclusory statements in motion for summary judgment do not constitute summary-judgment evidence).
Further, even if the summary-judgment evidence established that Milam Road is the nearest roadway to White's property, that fact alone would not conclusively establish his entitlement to the easement that he proposed across STR's property. See Machala, 56 S.W.3d at 755-56 (concluding that appellants failed to establish necessity of easement when they did not offer testimony or other evidence that easement was necessity and not mere convenience and concluding that depiction in exhibit of "county road" did not, "without more, establish the designated area of that 'road' as an easement by necessity"); cf. Pisarski, 2018 Tex.App. LEXIS 6789, *6 (concluding that trial court could have reasonably found that "easement of this size and location was a necessity" based on testimony "that the 2,506-square-foot easement was necessary to facilitate the continued productive use of her landlocked tract").
It was White's burden to conclusively establish that the placement and route that he proposed for an easement by necessity on STR's property was "reasonably necessary to the use and enjoyment of [his property] as it existed at the time the dominant and servient estates were severed" and also that there was a current necessity for the proposed easement. See Pisarski, 2018 Tex.App. LEXIS 6789, at *6; Miller v. Elliott, 94 S.W.3d 38, 44 (Tex. App.- Tyler 2002, pet. denied) (holding that trial court did not err in granting no-evidence summary judgment as to claim related to existence of easement by necessity when there was "no evidence that the alleged easement was reasonably necessary to the use and enjoyment of the dominant estate, both at the time of severance and continuing as of the date [the party] filed their response" and observing that "easements of necessity are temporary because their existence is dependent on the necessity that created them").
Assuming Milam Road was located where it is currently at the time of the 1948 partition of the properties, the documentary evidence shows that there were other possible servient properties for providing access to the road, such as Tract Nos. 5 and 6. White did not present evidence about the lack of alternate routes for accessing the road such as why those tracts were not available or suitable for providing him access to the road. He also did not present evidence that anyone was attempting to access his property in 1948 or as to the status of Milam Road in 1948. And when viewed in the light most favorable to STR, its evidence supported that White has had access to his property but not by way of the easement that he proposed on STR's property. See Zive, 644 S.W.3d at 173 (viewing evidence in light most favorable to non-movant). The evidence showed that in 1988 and 1991, White's property was being used for grazing cattle and that it could be accessed from "Old Red Rock Road" or "Farm Road 20 to Road 342." White did not present contrary evidence, such as that he was no longer able to access his property as he had in the past. STR's evidence also showed that: (i) there was an express easement providing access for Tract Nos. 8 and 9 that touched White's property and provided access to Lone Star Road, (ii) there was an express easement for Tract No. 10, (iii) the flag-pole portion of STR's property was undeveloped, and (iv) White had not used the flag-pole portion of STR's property to access Milam Road. See Hamrick, 446 S.W.3d at 383 (explaining that "underlying rationale" of easement by necessity was to "provid[e] a means of roadway access to land only so long as no other roadway access exists").
The 2015 survey shows that Lone Star Road is also known as "County Road 342."
In his brief, White argues that no such "easement was ever perfected" and is irrelevant, but White does not cite to the record or authority to support this argument, and we must view the evidence in the light most favorable to STR. See Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022).
Applying the applicable standard of review, we conclude that White did not prove as a matter of law the necessity elements for the easement that the trial court granted on STR's property and, therefore, that the trial court erred in granting summary judgment. See Tex. R. Civ. P. 166a(c); Zive, 644 S.W.3d at 173; see also Reyes, 269 S.W.3d at 678 (reversing trial court's summary judgment granting easement by necessity and concluding that testimony raised genuine issue of material fact on whether property owners "have other possible legal means of access to their property and on whether access across [property] is a necessity, as opposed to a mere convenience"); Lester, 2016 Tex.App. LEXIS 13187, at *14-15 (requiring right to select location of easement by necessity "to be exercised in a reasonable manner, having due regard for [servient property owner's] rights and interest").
STR also challenges the granted easement's dimensions on the ground that White did not present evidence or explain "why sixty feet is necessary for pedestrian and vehicular ingress and egress and why a narrower easement would not have been sufficient" and argues that the trial court erred in granting White "relief regarding easement maintenance and cost-sharing that was never requested." Because we have concluded that the trial court erred in granting summary judgment that White conclusively established his entitlement to the easement by necessity across STR's property, we need not further address these arguments. See Tex. R. App. P. 47.1, .4.
CONCLUSION
For these reasons, we sustain STR's issue, reverse the trial court's summary-judgment orders, and remand the case to the trial court for further proceedings consistent with this opinion.
Reversed and Remanded