Opinion
No. 01-07-00431-CV
Opinion issued December 22, 2009.
On Appeal from the 9th District Court, Waller County, Texas, Trial Court Cause No. 06-08-18415.
MEMORANDUM OPINION
This suit was instituted by the Brookshire Katy Drainage District (the "District"), a political subdivision of the state of Texas located in Waller County, against Lily Gardens, LLC. The District brought suit to obtain, among other things, a declaration that a bridge covering built by Lily Gardens upon a culvert within the District's drainage easement violates the District's easement rights, as well as applicable rules and regulations.
The trial court granted Lily Gardens' motion for summary judgment and awarded attorneys' fees to Lily Gardens under the Declaratory Judgments Act. In two issues, the District contends the trial court erred in: (1) granting Lily Gardens' motion for summary judgment because the bridge covering encroaches on the District's easement rights and violates other rules and regulations; (2) awarding attorney's fees to Lily Gardens because Lily Gardens is not entitled to fees under the Declaratory Judgments Act.
We reverse the judgment of the trial court.
I. Background
The Brookshire Katy Drainage District is a conservation and reclamation district containing the waters of the Buffalo Bayou and the Barker Reservoir, which was created by the Texas Legislature in 1961. See Tex. H.B. 302, 59th Leg., R.S. (1965), amended by Tex. H.B. 2959, 77th Leg, R.S. (2001); see also Tex. Const. art. XVI, § 59; Tex. Water Code Ann. § 53.088 (Vernon 2000). The District is charged with the "drainage of its overflowed lands." Tex. Const. art. XVI, § 59. To accomplish this, the District "shall have and exercise, and is hereby vested with, all of the rights, powers, privileges, and duties conferred and imposed by the general Laws of the State of Texas." Id.
This dispute concerns a 13.1161 acre property in Brookshire traversed by the District's easement. The easement is the product of two express easement grants, identical in language, made to the District in 1962. The easement is an approximately ten-foot deep unpaved drainage ditch that severs the front portion of the property from the larger back parcel. A cement bridge attached to a culvert within the ditch connects the front and back parcels of the property.
In 2004, Appellees Richard Flueckiger and Kenneth Luedecke created Lily Gardens, LLC, which purchased the property. Lily Gardens planned to cultivate existing trees and plants on the property in order to create a botanical garden with an outdoor wedding venue and to sell flowers and aquatic plants.
Following its acquisition of the property, Lily Gardens began constructing a covered bridge on the culvert within the easement. Lily Gardens intended to use the bridge to transport members of the public from a reception facility on the front part of the property to a gazebo on the back portion of the property for use during weddings and other events. On May 22, 2006, the District sent Lily Gardens a cease and desist letter stating that the construction of the bridge covering constituted an encroachment on the District's right-of-way and otherwise violated the easement restrictions. The parties dispute whether construction of the bridge structure was finally completed.
Lily Gardens claims that before it could finish the bridge structure, the District demanded that construction cease and claimed appellees were trespassing. In photographs introduced by appellees as summary judgment evidence, the bridge covering appears to have two completed walls along with a roof.
On August 8, 2006, the District filed suit against Lily Gardens. In its petition, the District asserted causes of action for violation and breach of the easement, trespass, and nuisance. The District also sought temporary and permanent injunctive relief as well as a declaratory judgment that Lily Gardens' structure interferes with and violates the easement, along with the District's rules and regulations.
Lily Gardens filed a traditional and a "no evidence" motion for summary judgment as to all causes of action. On December 15, 2006, the trial court issued a summary judgment order holding that "the bridge covering at issue . . . does not encroach on the [District's] easement rights," and that Lily Gardens is "not required to remove the bridge covering and [Lily Gardens] [is] expressly allowed to complete the bridge covering."
After conducting a hearing on attorney's fees, the trial court signed an amended final judgment on June 1, 2007. In the amended final judgment, the trial court reiterated that it had granted Lily Gardens' traditional and no evidence motions for summary judgment, disposed of all of the remaining claims, including awarding attorney's fees, and denied the District's motion for reconsideration. The amended final judgment also restates that the "bridge covering" does not encroach on the District's easement rights and that Lily Gardens is not required to remove it.
II. Standard of Review
A. Traditional and No-evidence Motions for Summary Judgment.
We review a trial court's summary judgment decision de novo. Bendigo v. City of Houston, 178 S.W.3d 112, 113 (Tex. App.-Houston [1st Dist.] 2005, no pet). A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Memorial Med. Ctr. v. Howard, 975 S.W.2d 691, 692 (Tex. App.-Austin 1998, pet. denied). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant establishes a right to summary judgment, the burden shifts to the plaintiff to present evidence regarding a fact issue. See id.
A party may also move for a "no-evidence" summary judgment. See Tex. R. Civ. P. 166a(i). A trial court must grant a no-evidence motion for summary judgment if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See id. In reviewing a no-evidence summary judgment, we review the evidence presented by the summary judgment record in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). Lily Gardens filed both a traditional and a no-evidence motion for summary judgment.
B. Interpretation of Easements
An easement is a non-possessory interest that authorizes its holder to use property for a particular purpose. Koelsch v. Indus. Gas Supply Corp. 132 S.W.3d 494, 497 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (citing Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)). We interpret easements according to basic principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700; DeWitt County Elec. Co-op. Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999); Koelsch, 132 S.W.3d at 497. Courts construe contracts as a matter of law and we review their rulings de novo. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 226, 229 (Tex. 2003) (applying rule in arbitration-agreement context) ( citing Coker v. Coker, 650 S.W.2 391, 394 (Tex. 1983)). The intent of the parties, as expressed in the grant, determines the scope of the interest conveyed. Marcus Cable, 90 S.W.3d at 700-01; Koelsch, 132 S.W.3d at 497-98. To interpret the parties' intentions adequately and to discern the scope of the rights conveyed to the easement holder, we focus on the terms of the granting language. See Marcus Cable, 90 S.W.3d at 701 ( citing DeWitt County Elec. Coop., 1 S.W.3d at 103 and Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664-65 (Tex. 1964)); Koelsch, 132 S.W.3d at 497-98. An easement "should be interpreted to give effect to the intention of the parties ascertaining from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created." Marcus Cable, 90 S.W.3d at 701. We rely solely on the written terms of the easement unless the language is ambiguous. Koelsch, 132 S.W.3d at 498. When terms are not defined, we give them their "plain, ordinary, and generally accepted meaning." Marcus Cable, 90 S.W.3d at 701.
III. Discussion
A. Encroachment on the District's Easement Rights
The proper determination of this dispute turns on the express terms of the instruments granting the District's easement. The easements are "for and in consideration of the benefits to be derived on account of and from the construction, operation and maintenance by Brookshire-Katy Drainage District, of the drainage canal and system upon and through the land [. . .]" The easements grant to the District "a right of way and easement for the purpose of constructing, maintaining, operating, repairing and re-constructing a drainage canal, including drains, ditches, laterals and levees, upon, over, through and across the land [. . .]"(emphasis added.) The easements provide further:
The DISTRICT shall have all rights and benefits necessary or convenient for the full enjoyment or use of the rights herein granted, with the right of ingress and egress to and from said drainage canal right of way, provided, however, that after construction of said drainage canal, said right of ingress and egress of the DISTRICT shall be limited to the said right of way and to existing roads and passageways. The DISTRICT is given the right from time to time to . . . abate other obstruction, upon said canal right of way, that may injure, endanger, or interfere with the construction, operation, maintenance and repair of said drainage canal.
(emphasis added).
When an easement is susceptible to only one reasonable, definite interpretation after applying established rules of contract construction, we are obligated to construe it as a matter of law even if the parties offer different interpretations of the easement's terms. Marcus Cable, 90 S.W.3d at 703.
Under the terms of the easement, the District has the right to construct, operate, maintain, repair, and re-construct the drainage canal and system. Moreover, the District may abate any obstructions that may interfere with the operation, maintenance, and repair of its drainage canal. A "culvert" is part of the drainage or canal system. See City of Tyler v. Fowler Furniture Co., Inc., 831 S.W.2d 399, 402 (Tex. App.-Tyler, 1992, writ denied) (construing "drainage system" to include culverts). The District contends that the placement of the bridge covering on its culvert constitutes an obstruction that may interfere with the operation of its drainage canal. For its part, Lily Gardens asserts that it, as fee owner, may engage in activities on the easement so long as such activities do not interfere with the District's reasonable use and enjoyment of the easement. See Still v. Eastman Chem. Co., 170 S.W.3d 851, 854 (Tex. App.-Texarkana 2005, no pet.). Lily Gardens asserts that the bridge structure does not interfere with the District's easement rights because it does not impede the flow of water within the drainage ditch.
To support its claim, Lily Gardens presented the trial court photographic evidence establishing that no portion of the bridge covering rests below the banks of the ditch. Lily Gardens interprets these photographs to mean that the bridge covering is not in any position to impede water from flowing between the two culverts buried several feet beneath the bridge covering, and thus, the bridge covering does not interfere with the District's ability to reasonably enjoy its easement rights. Lily Gardens also presented the trial court with the affidavit testimony of several neighbors familiar with rainfall in the area in an attempt to establish the lack of obstruction or interference with the drainage waters. Finally, Lily Gardens offered the engineering report and affidavit of Steven Wilson, former Waller County Engineer, who concluded "[t]he bridge covering will have no real effect on flooding or the drainage of waters . . . "
Again, the scope of the easement holder's rights under the easement is determined by the express terms of the grant. Marcus Cable, 90 S.W.3d at 701; DeWitt County Elec. Co-op., 1 S.W.3d at 103. While it may be the case that the bridge covering is not currently interfering with the flow of the drainage waters within the District's easement, this is not the test for determining whether the structure constitutes an encroachment on the District's easement rights. Rather, the easement language should be read broadly and in light of the circumstances and purposes of the easement to actually allow the District what is granted therein; namely, the rights and benefits necessary or convenient for the full enjoyment and use of the rights granted by the easement. Mobile Pipe Line Co. v. Smith, 860 S.W.2d 157, 159 (Tex. App.-El Paso 1993, writ dism'd w.o.j.)
To this end, the District presented summary judgment evidence that the presence of the bridge covering attached to the culvert impedes the District's exercise of its right to abate obstructions upon the canal right of way that may interfere with the operation of the drainage canal. Raymond Dollins, President of the District, stated in his affidavit:
The District in exercising its legislative authority and discretion, to serve its public interest, may elect at some future time to maintain or work on its easements, or to relocate, maintain, remove and/or replace its culverts from its easements, during its work in this important drain-way. This legislative authority is impeded by the Defendants' covered bridge and concrete installed on the District's culverts.
Dollins's statements concerning the District's interest in the continued maintenance and operation of its drainage system illustrates the impediment the bridge covering may present to such operation. Additionally, we perceive no difficulty in construing the plain terms of the easement to grant to the District the authority to remove any obstruction upon its canal right of way that may interfere with the operation of its drainage canal now or in the future. See Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, 601 (Tex. Civ. App.-El Paso 1959, writ ref'd n.r.e.) (observing similar easement language contemplated contingencies of future needs consistent with underlying purpose of easement, which may depend upon future use of easement by easement holder.)
Lily Gardens also contends that so long as the bridge covering is not obstructing the flow of waters within the District's drainage easement, this controversy is not ripe for adjudication, and this court may not properly decide it. We disagree. Ripeness analysis focuses on whether a case involves uncertain or contingent future events that may not occur as anticipated or may not occur at all. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853 (Tex. 2000). However, as we previously stated, interpretation of easements involve principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700. The creation of an easement involves looking forward by those participating in its creation to a future use by the dominant tenant that is not inconsistent with or repugnant to the creating instrument. City Pub. Serv. Bd. of San Antonio v. Karp, 585 S.W.2d 838, 841-42 (Tex. Civ. App.-San Antonio 1979, no writ). As the District correctly notes, this "forward-looking" feature of easements has been consistently acknowledged by Texas courts. See Karp, 585 S.W.2d at 841; Cent. Power Light Co. v. Holloway, 431 S.W.2d 436, 440 (Tex. Civ. App.-Corpus Christi 1968, no writ); Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, 601 (Tex. Civ. App.-El Paso 1959, writ ref'd n.r.e.).
We also find Sheppard v. City and County of Dallas Levee Imp. Dist., 112 S.W.2d 253, 255 (Tex. Civ. App.-Dallas 1937, no writ), instructive in the instant case. There, the Levee Improvement District of Dallas County was granted an easement under which it was provided the "'free and uninterrupted use, liberty, privilege, easement and right of way, for the purpose of building and maintaining levees . . . over, across, and through" land owned by Sheppard. Id. at 255. Sheppard built two iron buildings and a fence over the easement, and filled in the levee with dirt and gravel. Id. A jury found that the improvements did not interfere with the District's free and uninterrupted use of the land for the purpose of repairing and maintaining the levee. Id. On motion, the trial court disregarded the findings of the jury and compelled Sheppard to remove his improvements from the land. Id.
In affirming the trial court's decision, the appellate court wrote, "[t]he grant of the exclusive use of the land for levee purposes, extending to any and all other uses and purposes which are or may be necessary or desirable in the building and maintaining of the levee, is, in practical effect, an estate in fee to the easement owner. The owners of the fee, Mrs. Sheppard and her husband, have no right to use the land, as against the objection of the easement owner. The easement owner is the dominant tenant and is entitled to the free and undisturbed use of its property for the purposes of the easement." Id. at 255.
Similarly, the District is the dominant tenant with regard to the drainage easement and has the right, pursuant to the express terms of the grant, to use the easement for the maintenance and operation of the District's drainage canal. Accord Peterson v. Barron, 401 S.W.2d 680, 686 (Tex. Civ. App.-Dallas 1966, no writ) (construing similar easement language granting City right to employ area covered by easement for drainage facility). Under the language of the granting instrument, this includes the right to abate any obstruction that may interfere with the drainage canal.
Based on our construction of the easement language, we hold that Lily Gardens failed to establish that there are no genuine issues of material fact to be decided and that it is entitled to judgment as a matter of law. Lear Siegler, 819 S.W.2d at 471. Moreover, the District has raised a genuine issue of material fact as to the elements of encroachment upon its easement rights. See Tex. R. Civ. P. 166a(i). Thus, we sustain the District's first and second issues and hold that the trial court erred in granting summary judgment in favor of Lily Gardens on the District's claims. Additionally, Lily Gardens's request for attorney's fees is overruled, as there is no judgment left to support such request.
III. Conclusion
Having sustained all of the District's issues, we reverse the judgment and remand the cause to the trial court for further proceedings. Additionally, we overrule all pending motions in this appeal.