Summary
In Fagan, the majority pulled up woefully short of the analysis we had traditionally conducted for the right of access cases.
Summary of this case from Montange v. HagelsteinOpinion
No. 10-04-00042-CV
Opinion delivered and filed February 23, 2005.
Appeal from the 220th District Court, Bosque County, Texas, Trial Court # 02-10-33702-Bccv.
Affirmed.
Eric C. Farrar and Rex Davis, Sheehy, Lovelace Mayfield, P.C., Waco, TX, for appellant/relator.
Steven Robertson and Phil Robertson, Robertson, Robertson Silas, L.L.P., Clifton, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
The Crittendens filed a lawsuit alleging that the Fagans' land was burdened with an easement by virtue of implication, estoppel, necessity, or prescription, and asking for a declaration of the validity of the easement, a permanent injunction to protect their rights in the easement, and attorney's fees. Judgment was entered in favor of the Crittendens. The judgment declares the existence of an easement and enjoins the Fagans from obstructing the easement. The Fagans argue on appeal that the trial court erred in declaring an easement because the evidence is legally and factually insufficient to support a finding of an easement by implication, estoppel, necessity, or prescription. They also argue that the court erred in finding a dedication of a public road and in awarding attorney's fees.
BACKGROUND
This dispute concerns a road that crosses the Fagans' property and connects the Crittendens' property to a county road. The Crittendens' purchased their property in 2000, and the Fagans' purchased theirs in 2001. In 2002, the Fagans informed Mr. Crittenden that they considered the road their property and instructed him to stay off of it. The Crittendens' property does not touch any county road.
The trial court declared that the Crittendens have an easement across the Fagans' property and issued findings of fact and conclusions of law. The Fagans challenge the legal and factual sufficiency of those findings and conclusions. When the party complaining of legal sufficiency did not have the burden of proof at trial, we conduct our review by considering only the evidence and inferences that support the finding, and we disregard contrary evidence and inferences. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). When an appellant raises a factual sufficiency issue, we review all of the evidence to determine if the weight of the evidence in the record supports the trial court findings. Koch Oil v. Wilber, 895 S.W.2d 854, 861 (Tex.App.-Beaumont 1995, writ denied). Conclusions of law are reviewed de novo as legal questions. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).
Easement by Implication
An implied easement attaches to the dominant estate when it is severed from the servient estate if the use of the servient estate is apparent and necessary to the use of the dominant estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1963); Johnson v. Dale, 835 S.W.2d 216, 219 (Tex.App.-Waco 1992, no writ). Use of the servient estate by the dominant estate must be (1) apparent and existing at the time of severance of the two estates, (2) continuous enough that the parties must have intended its use to pass with the dominant estate; and (3) reasonably necessary to the comfortable enjoyment of the dominant estate. Id.
In 1884, Wash and George Hudson purchased the tract that was the parent tract of the Crittenden homestead. In 1889, Wash Hudson purchased the tract which was the parent tract of the Fagan tract. Wash Hudson then was the common owner of both tracts when he sold the land containing the Crittenden tract to George Hudson in 1890. George Lain, who was the Crittendens' predecessor on the homestead, testified that he has known the property and the road for most of his sixty-six years. He testified to the road's history as a wagon road and testified that his father traveled the road early in the 1900s. He testified that when he bought the land in 1988 he knew of no other access to the property, and there was no other access to the property when he sold the tract to the Crittendens. Clyde Mears, age 63, lived on the property from the time he was born until he went to school. He testified that the only access to the property was by the roadway in question. Robert Simmons testified that from 1935 to 1939 the people who lived on the farm used the road to come and go every day. Richard Williams, age 67, testified that he has been acquainted with the road his entire life, that it has always been an open lane to the Crittenden property, and that there was never any other access to the property.
The Fagans argue that the evidence is insufficient to show that the road existed and was used in 1890 at the time of severance. None of the witnesses could testify directly to the road's existence and use in 1890. However, the court may consider reputation concerning a matter of public interest, when the reputation is of a past generation. Seaway Co. v. Attorney Gen., 375 S.W.2d 923, 939 (Tex.Civ.App.-Houston [1st Dist.] 1964, writ ref'd n.r.e.). The trial judge heard testimony as to the road's reputation of having existed and been used at that time and was in a position to evaluate the credibility of that testimony. The history of the road supports its existence back to the time when it was under common ownership. The evidence supports a long history of continuous use which was necessary for the enjoyment of the Crittenden homestead and its parent tract.
The evidence is legally and factually sufficient to support the trial court's finding that at the time the unity of ownership was terminated, the road was reasonably necessary for the use and enjoyment of the property by the Crittenden's predecessors in title and was in apparent and continuous use. Finding the evidence sufficient to support an implied easement, we overrule this issue.
Easement by Estoppel, Prescription, and Necessity, and Dedication of a Public Road
In addition to finding an implied easement, the trial court also found an easement by estoppel, prescription, and necessity in favor of the Crittendens, and found an implied dedication of a public road. The Fagans challenge each of these findings. However, because we have found the evidence sufficient to uphold the trial court's finding of an implied easement, we need not reach these issues. Nor do we reach the Crittendens' cross-point that the judgment could be supported on the basis of an implied dedication of a public road.
Attorney's Fees
The Fagans argue that the trial court erred in awarding the Crittendens attorney's fees under the Texas Uniform Declaratory Judgments Act. TEX. CIV. PRAC. REM. CODE ANN. § 37.009 (Vernon 1997). The Declaratory Judgments Act allows a court to award reasonable and necessary attorney's fees as long as the award is equitable and just. Id. The Act entrusts attorney's fees 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). The trial court abuses this discretion if it acts "arbitrarily, unreasonably, or without regard to guiding legal principles." Id. The Fagans argue that the award is neither equitable nor just, because they had a good faith basis for the legal claims they were pursuing. However, we find no abuse of discretion on the part of the trial court and overrule this issue.
CONCLUSION
Having overruled the issues, we affirm the judgment.