Opinion
No. 12-04-00315-CV
Opinion delivered August 24, 2005.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
MEMORANDUM OPINION
Helen Thompson appeals from a declaratory judgment in a bench trial establishing an easement on her property in favor of James L. Houk and wife, Katherine L. Houk. In two issues, Thompson contends the evidence was insufficient to establish either an easement by prescription or an easement by estoppel. We affirm.
FACTUAL BACKGROUND
Helen Thompson was born in 1922 and grew up in Henderson County. In 1945, she began working for the Department of the Navy in Washington, D.C. and remained employed there for thirty-five years. In 1952, she purchased land, the subject of this controversy, upon which she built a brick home for her mother. After her mother's death in 1974, Thompson began using the 3.547 acres on which her mother's former house was located as rental property.
The record shows that Thompson purchased ten acres in 1952, but that at the time of trial only 3.547 acres remained. The record is silent as to how and when this prior conveyance occurred.
In 1980, Thompson hired Joe Barron as caretaker for the property and its improvements.
During the 1960s, Cedar Creek Lake (the "Lake") was built next to the 3.547 acres (the "Thompson tract"). In 1973, T.R. Francis and wife, Erma L. Francis, purchased a peninsula of 2.32 acres surrounded on three sides by the Lake and connected to land only by the Thompson tract. Eugenia Gabelsberger had lived near the Thompson tract since 1970. She testified that the Francises used what had been a trail (the "access road") to go through the northwest corner of the Thompson tract to reach their 2.32 acre peninsula. The Francises built a retaining wall on their 2.32 acres, and trucks bringing in construction materials traveled this road to and from the Francises' property.
In March of 1992, the Francises sold the 2.32 acre peninsula to the Houks. The Houks moved a mobile home onto the 2.32 acres and began living there permanently in May of 1992. At that time, the Houks removed a cable strung across the access road where it connected with County Road 1708 ("CR 1708") at the northwest corner of the Thompson tract. The Houks placed a mailbox next to the access road where it connected with CR 1708 and also placed a "Private Drive" sign next to the access road. The Houks testified that they had purchased gravel in 1993 and 1998 to improve the twenty-foot access road. Further, they stated that in 2000, they placed their garbage bin where the access road connected with CR 1708.
The Houks testified that they exchanged pleasantries with Barron on a number of occasions. Barron testified that during these visits he never told the Houks they could not use the access road to their property. In fact, he testified that the Houks would not be able to reach their land except by helicopter or boat without this easement. Barron also testified that the Houks never told him they were claiming the access road as their exclusive property or that he could not use it. He testified that he used the road whenever he wished. The Houks confirmed that Barron was never denied use of the road.
In September of 2002, Katherine Houk contacted Thompson to ask if she would sell them an easement over the twenty-foot access road. Thompson replied that none of her land was for sale. The Houks filed suit seeking an easement in the twenty-foot access road in March of 2003. Following a bench trial, the trial court entered a declaratory judgment granting the Houks an easement over the access road. The trial court filed findings of fact and conclusions of law. This appeal followed.
In her testimony, Thompson stated that the 3.547 acres would be bequeathed to the heirs of her four deceased siblings.
ISSUES
In her first issue, Thompson contends that the Houks did not produce sufficient evidence to establish a prescriptive easement by adverse or hostile possession of the roadway. In her second issue, she contends that an easement by estoppel was not created because no representation was made by Thompson or her agent and that, therefore, the Houks did not have a representation upon which they relied to their detriment. We will consider Thompson's second issue first.
STANDARD OF REVIEW
Findings of fact in a bench trial have the same force and dignity as a jury verdict and are reviewable for legal and factual sufficiency of the evidence by the same standards as applied in reviewing a jury's findings. Anderson v. City of Seven Points , 806 S.W.2d 791, 794 (Tex. 1991). In reviewing legal sufficiency, we consider only the evidence and reasonable inferences supporting the finding. Minnesota Mining and Mfg. Co. v. Nishika Ltd. , 953 S.W.2d 733, 738 (Tex. 1997). Anything more than a scintilla of evidence is legally sufficient to support the finding. Continental Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 450 (Tex. 1996). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995)). When considering a factual sufficiency challenge, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 406-07 (Tex. 1998). We can set aside the verdict only if it is so contrary to the great weight and preponderance of the evidence that the verdict is clearly wrong and unjust. Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996).
The standard of review for conclusions of law is whether they are correct. Dickerson v. DeBarbieris , 964 S.W.2d 680, 683 (Tex.App.-Houston [14th Dist.] 1998, no pet.). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Material P'ships, Inc. v. Ventura , 102 S.W.3d 252, 257 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Thus, incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.
EASEMENT BY ESTOPPEL
Applicable Law
Three elements are necessary to the creation of an easement by estoppel: (1) a representation was communicated, either by word or action, to the promisee; (2) the communication was believed; and (3) the promisee relied on the communication. Holden v. Weidenfeller , 929 S.W.2d 124, 131 (Tex.App.-San Antonio 1996, writ denied). The doctrine of easement by estoppel (sometimes referred to as estoppel in pais) has not been applied with the same strictness and conclusiveness as easements by implication. Mack v. Landry , 22 S.W.3d 524, 528 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The exact nature and extent of the doctrine of estoppel in pais have not been clearly defined. Drye v. Eagle Rock Ranch, Inc. , 364 S.W.2d 196, 209 (Tex. 1962). The tacit agreement or acquiescing behavior by the owner of a servient estate (such as Thompson) when no objection is made to the use by the owner of a dominant estate (such as the Houcks) may create an easement by estoppel. See Wallace v. McKinzie , 869 S.W.2d 592, 596 (Tex.App.-Amarillo 1993, writ denied). Equitable estoppel in the context of an easement arises when one is not permitted to disavow her conduct that induces another to act detrimentally in reliance upon it. See id. at 595.
Analysis
Barron, as Thompson's representative and agent, was aware that the Francises and then the Houks could not reach their 2.32 acres located on the peninsula in the Lake without the twenty-foot access road on Thompson's property. The record also established that the twenty-foot access road over the northwest corner of the Thompson tract was gradually improved over the twenty years from 1980 to 2003. When the Houks purchased the 2.32 acre peninsula in 1992, they moved a mobile home onto the property and began living there permanently. The record shows nothing but permissive and acquiescing behavior by Barron on Thompson's behalf to the use of the twenty-foot access road by the Houks and their predecessors, the Francises. See id. at 596. Evidence of this behavior constitutes legally and factually sufficient evidence that the Francises and the Houks used the access road over this twenty-year period with approval and without conflict. This evidence also supports the trial court's conclusion that equity would grant the Houks an easement on the twenty-foot access road over the northwest portion of the Thompson tract. We hold that an easement by estoppel was created by the actions of Barron, on Thompson's behalf, and the belief and reliance upon those actions by the Francises and the Houks. Thompson's second issue is overruled.
CONCLUSION
Having held that an easement by estoppel was created by Barron's actions on Thompson's behalf and the belief and reliance by the Francises and the Houks upon those actions, we need not address Thompson's first issue. Accordingly, we affirm the judgment of the trial court.