Opinion
04-21-00193-CV
06-15-2022
Lucas GILLIAM, Appellant v. Irma DE LEON, Bryan Whipkey and Chelsey Whipkey, Appellees
From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 34244 Honorable Enrique Fernandez, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
This dispute concerns appellees' use of a road to access their homes. Appellant asserts the road is a private road owned by him; appellees assert the road is a county road the public may freely use. Appellant further contends that even if it were once a county road, the county's failure to maintain the road resulted in its reversion of ownership to appellant. After a bench trial, the trial court declared the road to be a public road, prohibited appellant from denying access to the road, and determined appellant failed to meet his burden to show the county has failed to maintain the road. We reverse and render a take nothing judgment in favor of appellant.
Background
In 2017, appellant purchased a 132.299-acre tract of land in Val Verde County near the City of Del Rio, Texas, on the Rio Grande River. At the time of his purchase, appellant's land was inaccessible by public road. To remedy his access issue, on March 1, 2018, appellant purchased an adjoining 4.82-acre tract that had historically been part of a railroad right-of-way.
On March 2, 2018, appellee Irma De Leon purchased two adjoining lots located to the south of appellant's 4.82-acre tract and east of his 132.299-acre tract. On June 15, 2018, appellees Chelsea Whipkey and Bryan Whipkey received by gift deed property located across the street from De Leon's property and immediately adjacent to appellant's 132.299-acre tract. Appellees' properties are located in the Arroyo De La Noria Subdivision. While many of the residents in the subdivision access their property by Rio Vista Drive, appellees' homesteads are located on the opposite side of a creek running through the subdivision. The creek renders appellees' properties inaccessible by Rio Vista Drive. Since acquiring their properties, appellees have accessed them by crossing a bridge-the "Nixon Bridge"-and using a small segment of dirt road located on appellant's property. The essence of the parties' dispute is whether the segment of dirt road and the Nixon Bridge are either (1) a county road, as appellees contend, or (2) a private road, as appellant contends.
It is not disputed that appellees have the legal right to access their properties by (1) Vega Verde Road until shortly before the creek where the Nixon Bridge is located; (2) an eighty foot right of way crossing the creek; and (3) Escondido Drive (a fifty foot right-of-way dedicated in a Dedication of Easement and Right-of-Way by Ben Jones Woodson in 1981) on the opposite side of the creek. The parties dispute whether the road appellees use aligns with this legal right of access. Relying only on a 2012 county road map filed in the real property records, appellees contend the entire length of their legal access is Vega Verde Road-a county road.
Appellant asserts the Nixon Bridge appellees use to access their properties is a private road located on his property immediately adjacent to the public rights-of-way. As support, appellant introduced into evidence a February 28, 2018 plat filed in the real property records. The plat was admitted without objection, and it is uncontested that the plat accurately depicts the area around the Nixon Bridge. At trial, the county surveyor offered undisputed testimony that there "used to be a small bridge on that portion of the 80-feet right-of-way." But because no bridge presently exists across the eighty-foot right-of-way, appellant contends appellees divert onto his adjoining private property to use the Nixon Bridge. The parties adduced no evidence suggesting the Nixon Bridge was built or maintained by the county; however, appellant's undisputed testimony reflects appellant repaired the bridge in 2018 after a large brush fire destroyed it.
On April 27, 2018, appellant sent a letter to neighboring landowners advising them he had purchased the 4.82-acre tract-including the Nixon Bridge-and that he planned to fence the land in the near future. Appellant attached a survey showing (1) the Nixon Bridge is located on his 4.82-acre tract and (2) his 4.82-acre tract is adjacent to the eighty-foot right-of-way. Although appellant's letter invited appellees to "discuss this matter with you at your convenience," appellees did not take him up on his offer. Instead, appellant learned appellees had acquired a temporary restraining order against him and he had been sued. The parties thereafter agreed to a temporary injunction to maintain the status quo while proceedings continued in the trial court. After a bench trial, the trial court entered a declaratory judgment (1) declaring the road designated as Vega Verde Road, in its entirety, to be a public road and (2) prohibiting appellant from closing off, blocking, or hampering the legal use of Vega Verde Road "from its inception to its termination at the northern bank of the Rio Grande River in the Arroyo De La Norio Subdivision, as depicted in Plaintiff's Exhibit 12 [the 2012 county road map]." After appellant's timely request, the trial court entered findings and fact and conclusions of law. This appeal followed.
Legal Sufficiency
In his first issue, appellant asserts the trial court's judgment must be reversed because there is legally insufficient evidence to support appellees' claim that Vega Verde Road, as described on the county road map, crosses appellant's property.
Standard of Review
When the trial court enters a declaratory judgment after a bench trial, we apply a sufficiency of the evidence review to the trial court's factual findings and review its conclusions of law de novo. Van Dam v. Lewis, 307 S.W.3d 336, 339 (Tex. App.-San Antonio 2009, no pet.). As the parties seeking relief, appellees bore the burden to prove each element of their cause of action by a preponderance of the evidence. See Saba Zi Exploration, L.P. v. Vaughn, 448 S.W.3d 123, 129 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ("A party who asserts an affirmative claim for relief generally has the burden of persuading the factfinder as to each element of his cause of action.").
We only sustain a challenge to the legal sufficiency of the evidence in four circumstances: (1) where there is a complete absence of evidence of a vital fact; (2) where the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) where the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) where the evidence establishes conclusively the opposite of the vital fact. Dallas Nat'l Ins. Co. v. De La Cruz, 470 S.W.3d 56, 57 (Tex. 2015). We credit evidence that supports the judgment if a reasonable factfinder could have done so and disregard contrary evidence unless a reasonable factfinder could not have done so. Id. "[I]f evidence may be legally sufficient in one context but insufficient in another, the context cannot be disregarded even if that means rendering judgment contrary to the [finding]." City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex. 2005).
"When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Suarez v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015) (quoting Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 & n.3 (Tex. 1993)). "An inference is not reasonable if it is susceptible to multiple, equally probable inferences, requiring the factfinder to guess in order to reach a conclusion." Id.; see also Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 265 (Tex. 2014). In other words, a factfinder "may not reasonably infer an ultimate fact from 'meager circumstantial evidence which could give rise to any number of inferences, none more probable than another.'" Hancock v. Variyam, 400 S.W.3d 59, 70-71 (Tex. 2013).
Application
Appellee's sole evidence that Vega Verde Drive crosses appellant's property (i.e., the Nixon Bridge is part of Vega Verde Drive) is the 2012 county road map. The question presented in our legal sufficiency review is whether the county road map constitutes no more than a mere scintilla of evidence offered to prove a vital fact. See Dallas Nat'l Ins. Co., 470 S.W.3d at 57.
Essential to our analysis, the scale of the county road map (1 inch equal to 2, 000 feet) demonstrates the map shows a wide, "zoomed out" view of the area:
The pictures included in this opinion depict only the portions of the exhibits depicting the relevant area.
(Image Omitted)
By comparison, the 2018 plat appellant offered into evidence is scaled at 1 inch equal to 50 feet:
(Image Omitted)
The survey appellant attached to his 2018 letter to neighboring landowners is scaled at 1 inch equal to 200 feet:
(Image Omitted)
Appellees stipulated to the admission of the plat and survey, and it was uncontested at trial that the plat and survey both accurately depict-in greater detail-the same roads depicted on the county road map. Unlike the plat and survey, the county road map does not show property divisions from which a factfinder could assess the relative location of Vega Verde Road to appellant's property. See City of Keller, 168 S.W.3d at 812 (context cannot be disregarded even if it means rendering judgment contrary to the finding).
Appellees argue the county road map conclusively evidences the public's right to use Vega Verde Road, which crosses appellant's property. As the only evidence from which the factfinder could infer Vega Verde Road crosses appellant's property, appellees rely on the thickness of the line on the county road map that illustrates Vega Verde Road. We agree that the county road map evidences the existence of Vega Verde Road and the public's right to use it; however, we hold the county road map is legally insufficient to establish Vega Verde Road crosses appellant's property.
The county road map's scale, lack of property boundaries, and the thickness of the line comprising Vega Verde Road renders the county road map susceptible to multiple, equally probable inferences: (1) that Vega Verde Road crosses appellant's property or (2) that Vega Verde Road is adjacent to appellant's property. Given these qualities of the county road map, both inferences are equally probable. See Suarez, 465 S.W.3d at 634. Absent accompanying evidence to clarify what is shown by the county road map, the equal inference rule renders the county road map "so weak as to do no more than create a mere surmise or suspicion" that Vega Verde Road crosses appellant's property, rendering the county map, in legal effect, as no evidence of that vital fact. See id.
The county road map constitutes no evidence of the vital fact that Vega Verde Road crosses appellant's property. If the county road does not cross appellant's property-and there is no legally sufficient evidence that it does-then appellees cannot cross appellant's property on the theory that they have a right to use the county road. We sustain appellant's first issue. We need not reach appellant's remaining issues. See Tex. R. App. P. 47.1.
Appellees' brief additionally raises the issue of mootness based on appellant's testimony that he intends to plat a subdivision over his land for future development with access to the subdivision provided by the complained-over segment of road. We reject appellees' mootness argument because appellant's future development plans in no way results in an end to the controversy between these parties. See Hays St. Bridge Restoration Group v. City of San Antonio, 570 S.W.3d 697, 702-03 (Tex. 2019) ("A case is moot when either no 'live' controversy exists between the parties, or the parties have no legally cognizable interest in the outcome. 'Put simply, a case is moot when the court's action on the merits cannot affect the parties' rights or interests.'").
Conclusion
Because there is no legally sufficient evidence that Vega Verde Road crosses appellant's property, we reverse the judgment of the trial court and render a take nothing judgment in favor of appellant.