Dennis Davis, Individually and D/B/A Aqua Tech Marine Industries Debbie Desmond, Individually and D/B/A Aqua Tech Marine Industries And Aqua Tech Marine Industries, Inc. v. Steven L. Johnston, Maria Estella Arguinde-Johnston, Stephen H. Gay and Carilynne Yaffe Gay

• Court: Court of Appeals of Texas
• Decided: June 28, 2012
• Docket: 03-10-00712-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00712-CV

Dennis Davis, Individually and d/b/a Aqua Tech Marine Industries; Debbie Desmond, Individually and d/b/a Aqua Tech Marine Industries; and Aqua Tech Marine Industries, Inc., Appellants

v.

Steven L. Johnston, Maria Estella Arguinde-Johnston, Stephen H. Gay and Carilynne Yaffe Gay, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-06-00403, HONORABLE RHONDA HURLEY, JUDGE PRESIDING

MEMORANDUM OPINION

This appeal arises from a dispute concerning the existence and scope of easements

that were alleged to burden two waterfront lots on Lake Travis. One of the lots is owned by

appellant Dennis Davis and the other by appellant Debbie Desmond. Davis and Desmond are jointly

engaged in a business known as Aqua Tech Marine Industries, which had conducted its operations

on the lots since 2004. Following a bench trial, the district court rendered judgment declaring that

the Davis and Desmond lots are burdened by easements appurtenant permitting two married couples

who each own residential lots in the area—the Johnstons and Gays, appellees—to traverse the Davis

and Desmond lots to access the lake waters, attach boats and floating docks to the lots, and linger

upon and use the lots for various recreational activities. The judgment further declared that the

two waterfront lots are burdened by a “negative implied restrictive covenant” prohibiting commercial use, in effect outlawing Aqua Tech’s operations there. The district court subsequently made findings

of fact and conclusions of law that the positive easement burdening the Davis and Desmond lots

existed by virtue of express grant, estoppel, implication, and prescription.

Davis, Desmond, and Aqua Tech appealed, challenging primarily the legal and factual

sufficiency of the evidence supporting each easement theory on which the district court relied. While

we affirm, under a prescription theory, the district court’s declaration that a positive easement

burdens the properties, we will reverse its declaration that a “negative implied restrictive covenant”

bars the lots’ commercial use and remand the cause to the district court for further proceedings made

necessary by these holdings.

BACKGROUND

Some geography

All of the properties at issue are located on the Graveyard Point peninsula on

Lake Travis, not far from the present-day City of Lakeway. The geographic relationship of these

properties and others described herein is best understood by referring to Appendix A, a 2003 map

prepared by Travis Central Appraisal District that was in evidence at trial.

At relevant times, the Gays and Johnstons have owned adjacent groups of lots

bordering Oak Hurst Road, whose path is depicted as an inverted “U” traversing the lower left corner

of Appendix A. These lots are each situated below or to the south of Oak Hurst and a short distance

to the right or east of the apex of the street’s inverted “U.”1 Since 1999, the Gays have owned the

three lots labeled in Appendix A with their names, one of .325 acres and the other two are

1 A directional arrow is provided in the margin of Appendix A.

2 each roughly half that size. To the immediate lower right or southeast of the Gays’ .325-acre lot is

a lot labeled “Todd & Ann Kimbriel.” Below or to the south of the “Kimbriel” lot are five lots of

varying sizes and shapes, bordered to the right (east) by Oak Hurst, to the lower left (southwest) by

Rabbit Run Circle, and to the bottom (south) by Max Drive. These five lots were all acquired by the

Johnstons between 2001 and 2002. Subsequent to the date Appendix A was prepared, in 2006, the

Johnstons purchased the “Kimbriel” lot as well.

The lots now owned by appellants Davis and Desmond are located along the eastern

Lake Travis shoreline depicted in the lower center of Appendix A. In 2005, Davis would purchase

the roughly 1-acre lot labeled “Annie Stewart Estate,” which encompasses a portion of shoreline

that bends to the west and then southeastward around a cove, then turns northward. In 2006,

Desmond would acquire the .16-acre lot, labeled “Thelma Stewart,” that is immediately adjacent to

the Davis lot as the shoreline continues northward. With evident reference to the configuration of

these properties’ boundaries or the Lake Travis shoreline within them, the parties and witnesses have

termed the Davis property “the Point” and Desmond’s “the Notch,” and we will do the same.

Some history

Some historical background concerning the ownership and development of these and

other Graveyard Point properties is helpful in understanding and analyzing the issues on appeal.

Most if not all of the land comprising the present-day Graveyard Point once was owned by the late

Annie Stewart (the same person whose estate had owned the Point until Davis purchased it in 2005)

and her late husband, A.K. The couple and other members of the Stewart family had farmed and

ranched along the Colorado River for decades before the construction of the Marshall Ford dam

3 downstream formed Lake Travis—and created the peninsula now known as Graveyard Point—in the

early 1940s. In fact, an old Stewart family cabin predating Lake Travis still stands on what is now

a residential lot situated at the north or top side of the intersection of Chipmonk and Hurst View.

That lot and cabin, coincidentally, were acquired by appellant Desmond in 1998, and the record

reflects that she and appellant Davis resided there through time of trial.

In connection with Lake Travis’s formation, large portions of the Stewarts’ acreage

were burdened with overflow easements in favor of the Lower Colorado River Authority (LCRA)

up to, originally, the elevation contour of 670 feet above mean sea level (m.s.l.), and later up to

715 feet m.s.l. Although these changes greatly limited the Stewarts’ agricultural use of their land

(at least if one assumes the lake remains anywhere close to the 681 feet m.s.l. elevation at which it

is considered “full”), they also had the salutary effect of transforming the Stewarts’ remaining

acreage into “lakefront” property suitable for residential or recreational development.

The couple began subdividing and selling residential lots on Graveyard Point in 1943.

As lots were being developed, the Stewarts retained ownership of adjacent strips of land over

which private roads were cut to provide access. The first lots conveyed by the Stewarts in 1943 and

through mid-1944 were generally of precisely one acre in size, rectangular in shape, with long sides

oriented perpendicularly to the eastern shore of Graveyard Point, and located between the paths

of present-day Chipmonk and Oak Hurst as those roads continue southward and below the area

depicted in Appendix A. The eastern or lakeside boundaries of these lots, as well as this portion of

Chipmonk, corresponded roughly to the 715 m.s.l. contour that marked the upper limits of the

LCRA’s overflow easement. In these early conveyances, the Stewarts typically granted the lot

owners an easement appurtenant permitting use of the “roadway now open on the East of the

4 land herein conveyed”—the road now known as Chipmonk. The Stewarts also typically granted an

easement across the land they continued to own between the lot’s eastern boundary and the 670 m.s.l.

contour “for the purpose of ingress and egress from the tract of land herein conveyed to Lake Travis

and to the property owned by the Lower Colorado River Authority.”

In September 1944, the Stewarts conveyed title to four additional rectangular lots

located between portions of present-day Chipmonk and Oak Hurst that are situated roughly north and

northwest of the eventual site of appellees’ lots, with long sides oriented roughly perpendicularly

with the northern shore of Graveyard Point. Similar to the earlier conveyances, the Stewarts granted

easements permitting lot owners use of “the roadway now open on the North” (the road now known

as Chipmonk) and use of the Stewart-owned property lying to the north for “ingress and egress”

to Lake Travis down to the 670 m.s.l. contour. During the decades ahead, disputes concerning the

scope of these easements between successors to the Stewarts and the original grantees would

spawn at least three appeals to this Court, including two we decided very recently. See Harbor

Ventures, Inc. v. Dalton, No. 03–10–00690–CV, 2012 WL 1810205 (Tex. App.—Austin May 18,

2012, no pet. h.) (mem. op.); Dee v. Crosswater Yacht Club, LP, No. 03–10–00796–CV, 2012 WL

1810213 (Tex. App.—Austin May 18, 2012, no pet. h.) (mem. op.); Schlapper v. Forest,

No. 03–06–00315–CV, 2010 WL 3370289 (Tex. App.—Austin Aug. 24, 2010, pet. denied)

(mem. op.).

In early 1945, A.K. Stewart died, and Annie, on her own behalf and as executor

of A.K.’s estate, continued developing the couple’s Graveyard Point property. In April 1945, a

surveyor named O.P. Schoolfield surveyed the subdivision of fourteen residential lots located farther

to the peninsula’s interior than those the Stewarts had previously conveyed. These included six lots

5 of roughly .325 acres each situated to the south of the road now known as Oak Hurst, near the apex

of that road’s inverted “U.” Four of these six lots are in appellees’ chains of title, and include the

entirety of the property later acquired by the Gays and the northernmost two of the lots later acquired

by the Johnstons.

The Schoolfield survey was certified in May 1945. On May 23, 1945, Annie

conveyed two of the lots to predecessors in title of the Johnstons—the lot designated in Appendix A

as the “Kimbriel” lot to Louis Dolan and Herbert Rehfield, and the lot immediately adjacent on the

south to Fred and Margaret Sassman. A few days later, on May 29, Annie conveyed the lot on the

opposite side of the Dolan lot—the lot that is now the larger, .325-acre owned by the Gays—to

Aubrey and Estelle Frazer. During the following month, Annie conveyed the third lot to the west

of the Frazer lot, which is not in appellees’ chains of title, to Milas and Erna Dyer. Annie would not

convey the remaining two lots situated between the Frazer lot and the Dyer lot until the following

year. In April 1946, Annie conveyed the lot adjacent to the Dyer lot, which is not in appellees’

chains of title, to Floyd and Myrtle Gibson. In May 1946, Annie conveyed the remaining lot,

situated between the Gibson lot and the Frazer lot, to Leslie and Chester Ross, predecessors in title

to the Gays. The grantees of the Ross lot or their successors would later subdivide it into the

two smaller lots the Gays now own. To aid in distinguishing these and subsequent conveyances

from Annie Stewart or her estate to appellees’ predecessors in title, we will hereinafter identify

each of the lots in appellees’ chains of title by the name of its original grantee and have prepared a

modified version of Appendix A, Appendix B, on which we have labeled each lot with the original

grantee’s name.

6 As is apparent from both Appendix A and B, the six lots to the south of present-day

Oak Hurst that were subdivided by the 1945 Schoolfield survey, unlike those previously conveyed

by the Stewarts, were partially land-locked by property that the Stewarts had already conveyed

to third parties. In contrast to the Stewarts’ prior easements granting “ingress and egress to

Lake Travis” directly over intervening Stewart-owned land, Annie’s 1945 deeds to the Sassman,

Dolan, Frazer, and Dyer lots each granted an easement appurtenant permitting “ingress and egress to

Lake Travis” via a “roadway now open.” Specifically, in the deed to the Sassman lot later acquired

by the Johnstons, Annie granted the following express easement:

It is hereby agreed and understood that the roadway now open on the East of the land herein conveyed shall always be open and shall never be closed by any party, and grantee shall have the right to use this roadway for the purpose of ingress and egress to Lake Travis.

On the same day, Annie granted what the parties agree is a materially identical easement in her deed

to the Dolan lot later acquired by the Johnstons.2 Similarly, in her May 29, 1945 deed to the Frazer

lot later acquired by the Gays, Annie granted an easement identical to that in the Sassman deed,

except for the directional language:

It is hereby agreed and understood that the roadway now open on the Northeast of the land herein conveyed shall always be open and shall never be closed by any party,

2 The Dolan easement provided:

It is hereby agreed and understood that the roadway now open on the East of the land herein conveyed shall always be open and shall never be closed by any party, and grantees, their heirs and assigns, shall have the right to use this roadway for the purpose of ingress and egress to Lake Travis.

7 and grantees, their heirs and assigns, shall have the right to use this roadway for the purpose of ingress and egress to Lake Travis.

(Emphasis added.) And, in her Dyer deed the following month, Annie granted the same easement

with a third variant in the directional language:

It is hereby agreed and understood that the roadway now open on the North of the land herein conveyed shall always be open and shall never be closed by any party, and grantees, their heirs and assigns, shall have the right to use this roadway for the purpose of ingress and egress to Lake Travis.

(Emphasis added.) However, in her subsequent deed to the Gibson lot in April 1946, as well as

her May 1946 deed to the Ross lot in the Gays’ chain of title, Annie did not grant any easement

permitting use of roads or access to Lake Travis.

Between 1947 and 1950, Annie subdivided and conveyed the next three lots along

present-day Oak Hurst that lie to the south of the Sassman lot, all of which were later acquired by

the Johnstons—identified in Appendix B, with reference to the names of the original grantees, as the

“Menn,” “Offutt No. 1,” and “McClanahan” lots. In each of these deeds, Annie granted an easement

appurtenant permitting use of “the roadway now open on the East of the land herein conveyed” or

“the roadway situated East of this land herein conveyed,” but did not explicitly state that these

easements were for the purposes of providing access to Lake Travis.

Meanwhile, Annie also conveyed substantial portions of her property among her and

A.K.’s seven children. These included eight lots on the north and east side of present-day Oak Hurst

that, along with the six lots previously discussed, had been subdivided by the 1945 Schoolfield

survey. The Stewart family cabin was encompassed within one of these lots, which Annie conveyed

8 by gift deed to her son, Arthur, reserving a life estate for herself. As it appears in the Schoolfield

survey and was conveyed to Arthur, the boundaries of this lot encompassed not only the entirety of

the present-day lot containing the cabin that was later acquired by Desmond, but also the path of

present-day Hurst View that now runs adjacent to the Desmond lot and a portion of the present-day

lot on the opposite side of Hurst View. Later, in 1949, Annie conveyed to each of her children, via

gift deed, his or her own tract of roughly two acres of relatively low-lying land along the northern

and eastern shoreline of Graveyard Point. The seven tracts encompassed an area extending from

the peninsula’s northern tip to immediately north of, but not including, the areas that later became

known as the Point and Notch. During the ensuing decades, some of the children, but not all, would

subdivide their respective tracts into smaller residential lots. Moreover, Emmet Stewart, to

whom Annie had gifted the tract immediately north of the Point and Notch area, would operate a

marina and rental cabins on his property beginning by at least the 1960s. The business remained in

operation until a July 1970 tornado destroyed it.

Annie and A.K.’s development of their Graveyard Point property brought physical

changes to the peninsula, including new roads, that were reflected in aerial photographs in evidence

at trial. In the earliest photograph, dated 1940, the Stewart family cabin is visible, as is a road

running northward from that area along roughly the path of present-day Blue Cat. Another road is

also seen, running roughly north-south across what is now the western portion of the Graveyard

Point peninsula. As demonstrated by other evidence, this latter road was Hurst Creek Road, a

public road predating the construction of Mansfield Dam. Hurst Creek Road originally continued

northward past what became the peninsula’s northern shore into areas that were later inundated by

Lake Travis. Also discernable in the 1940 photograph is a portion of the path of the road now known

9 as Chipmonk, running from its intersection with Hurst Creek Road eastward to the cabin area. But

by the date of the next oldest aerial photograph, dated 1951, a number of additional roads are

discernable, including the continuations of Chipmonk southward from the cabin site and the roads

now known as Oak Hurst and Hurst View.

A road is also visible running eastward from the general area in which the Hurst View

and Chipmonk routes intersected. This road continues into the vicinity of the Point’s northern

boundary before curving northeastward following a route roughly parallel to the shoreline. Also

visible in the photograph is a circular road or path, which we will term the “lake access loop,” that

branches southward off from the aforementioned road just before it makes its northeastward curve.

The loop descends into the area of the Point property, eventually running along the shoreline on the

eastern side toward the shore at the property’s southeastern corner, then following the shoreline’s

westward bend for a short distance before looping upward to intersect the other road again. As

confirmed by other evidence, including the testimony Mary Stewart Hicks, a granddaughter of A.K.

and Annie Stewart, the photograph demonstrated the existence of (1) a caliche or dirt road that ran

into and across the northern area of the Point before curving northward onto Emmet Stewart’s

adjacent tract, and (2) another unpaved road—the lake-access loop—that reaches the Point’s shore.

In 1952, Annie Stewart died, leaving the undeveloped portions of the Graveyard Point

property, including the Point and Notch area, to her children. Her estate, through son Arthur as

executor, continued subdividing and selling residential lots from the remaining property. In 1961,

Arthur and the other heirs filed a plat for an “Annie Stewart Subdivision” encompassing most of

the remaining undeveloped land still owned by Annie’s estate. The plat depicted both the property

being newly subdivided, which was identified as numbered lots, and several of the lots previously

10 conveyed, including those previously conveyed to appellees’ predecessors, which were not numbered

but instead labeled with the names of their then-current owners. The plat did not depict or include

the Point and Notch area. The dedication “adopt[ed] the numbered tracts shown hereon, which are

part of the Annie Stewart Estate not heretofore disposed of, as a subdivision of such property . . . and

d[id] hereby grant a private easement over the roads, shown hereon, for use of the present and future

owners of the tracts abutting such roads, their heirs and assigns,” reserving fee title in the roads to

the Annie Stewart estate. Soon thereafter, the subdivision lots were distributed among the heirs.

Contained in each of these deeds was the grant of an express easement “permitting ingress and egress

over existing roadways to the waters of Lake Travis.”

In 1962, the estate conveyed the tract that became known as the Notch—.16 acres of

the northernmost shoreline of what had previously been a single tract also encompassing the

Point—to Emmet Stewart, who was operating the marina on his adjacent tract to the north around

this time. This deed, similar to the deeds to the new Annie Stewart subdivision lots, contained an

express easement stating that “the grantee . . . his heirs and assigns, are hereby granted the privilege

of the use of the existing roadways leading to and from this property and to Lake Travis.” There was

evidence that the only road leading toward the Notch was the caliche or dirt road across the northern

portion of the Point, although the road curved northeastward before reaching the Notch itself, and

that the lake-access loop over the Point ran alongside and near the Notch’s western boundary before

reaching the shoreline south of the Notch.

In 1965, the estate also conveyed, from land that had not been part of the

Annie Stewart Subdivision, the two remaining lots in the Johnstons’ chain of title (“Offutt Nos. 2

and 3”) to Douglas Offutt, the original grantee of the Johnstons’ Offutt No. 1 lot in 1949, and who

11 in the meantime had also acquired the Sassman, Menn, and McClanahan lots in the Johnstons’ chain

of title. Similar to the dedication in the subdivision plat and the express easement in the estate’s

deed of the Notch to Emmet Stewart, the deed to the Offutt Nos. 2 and 3 lots granted an express

easement appurtenant providing “the right of ingress and egress to and from said property and to and

from the waters of Lake Travis over the existing roadways.”

A 1964 aerial photograph of Graveyard Point—the next oldest in evidence after

the 1951 photo—reflects the continued existence of the roads visible in the 1951 photo, as well

as the lake-access loop over the Point. The same is true of aerial photographs from 1973, 1980,

1988, and 1995.

Use of the Point and Notch 1940s-1990s

Although Annie Stewart and later her estate had sold much of her and A.K.’s

Graveyard Point property by the mid-1960s, still remaining under her estate’s ownership at the time,

and for several decades thereafter, was the Point, as well as some narrow strips of low-lying lakeside

property that were burdened by the direct lake-access easements that Annie and A.K. had granted

in their early conveyances. According to Mary Stewart Hicks, members of the Stewart extended

family had used the Point and Notch area for lake access and recreation “probably from the time

I was a baby” in the early 1940s.3 Hicks elaborated that the family used the property as “our access

to the water” and for picnicking, fishing, and “just walking down there and looking around,

whatever.” She described the frequency of the family’s use of the property as “20 years definitely

we used it. After that, off an[d] on.”

3 Hicks indicated that she was born around 1940.

12 There was also evidence that during the years in which the Emmet Stewart marina

was operating, the Point and Notch served as a parking area for patrons. But following the marina’s

demise, according to a longtime Graveyard Point resident, Theodore Staub, the Point and Notch area

became overgrown and had come to resemble a “community dump” by the 2000s.

Whatever the property’s aesthetic appeal might have been, there was evidence that

beginning in the early 1950s, and continuing for decades thereafter, some third parties who owned

property on Graveyard Point, including some of appellants’ predecessors in title, used the Point

and Notch as their primary access route to Lake Travis. These individuals would drive or walk from

their lots on the road now known as Oak Hurst eastward over the road now known as Hurst View,

continue a short distance southward on the road now known as Chipmonk to reach a road that ran

eastward toward the Point, later known as Hurst Creek Circle. The route of Hurst Creek Circle, in

turn, eventually continued into the previously described caliche or dirt road that ran across the

northern portion of the Point. Once at the Point, the evidence reflected that these individuals would

park on the Point or Notch, traverse these properties via the lake-access loop or otherwise to

reach the lake waters, picnic or engage in other recreational activities on the shoreline, and even

maintain boats and boat docks there. In addition to witness accounts, evidence of such historical

uses included several sets of family photographs depicting property owners and their guests boating,

swimming, and engaging in other recreational activities at the Point or Notch, or on or around boat

docks offshore. Likewise, the aerial photographs from 1964, 1973, 1980, 1988, and 1995 each show

one or more boat docks moored off of the Point or Notch.

Appellants ultimately stipulated to several facts regarding the manner in which

appellees’ predecessors accessed and used the Point and Notch:

13 • “[Appellees’] predecessors in title, Offutt [a predecessor to the Johnstons, as previously indicated] and Peterson [as explained below, the immediate predecessor to the Gays] used Hurst View and [appellants’] properties and maintained boat docks and boats at [appellants’] properties during the time they owned [appellees’] tracts.”

• “Mr. Peterson used Hurst View and [appellants’] properties to access Lake Travis and maintained a boat dock and boat at the properties [appellants] consider the Point from at least 1991 through 1999 when he sold the property to the Gays.”

• “Mr. Offutt used Hurst View and [appellants’] properties to access Lake Travis and maintained a boat dock and boat at the properties [appellants] consider the Point from at least 1958 through 1985.”

• “The Rogers [who would later acquire the Sassman, Offutt No. 1, and Menn lots from an Offutt heir following Offutt’s death, and who would convey the lots to the Johnstons in June 2001] used Hurst View and [appellants’] properties to access Lake Travis during the time they owned the Johnstons’ tracts.”

While acknowledging that these third-party uses of the Point and Notch area dated back to at least

the 1950s, Mary Stewart Hicks insisted that they began with a grant of permission from her uncle

Arthur Stewart, the executor of Annie Stewart’s estate. She indicated that, in fact, the lake-access

loop or a portion of it had been construed thereafter by “the people that used our property,” an

endeavor that, she added, had entailed moving large rocks and clearing holes in a line of trees.

However, when confronted with the 1951 aerial photograph during cross-examination, Hicks

acknowledged that the entire lake-access loop was already visible by that time—a time at which

Annie was still alive and still owned the Point and Notch.

Appellees use the Point and Notch, too

Beginning as early as the mid-1980s through the following decade, the Gays, although

not yet themselves owners of Graveyard Point realty, had maintained a boat and smaller children’s

watercraft as guests on a floating dock owned by Tim Arnold, who owned a residential lot on

14 Hurst View. Arnold, according to Stephen Gay, kept his dock attached to the Point or Notch, and

Stephen estimated that three or four other dock owners did the same during this period. In evidence

were several photographs of the Gays and their children sailing, swimming, and enjoying other

recreational activities on the dock and in the waters nearby.

In 1999, the Gays purchased their three lots on Oak Hurst from the

Bob Peterson family, who had owned them since the early 1990s. With the realty—which included

what Stephen Gay described as a “little cubby 1950s fishing cabin”—the Petersons also conveyed

a boat dock and boat that they had originally acquired from their lots’ prior owner. According to

Stephen Gay, this boat dock had been moored at the Point and Notch for as long as he had

been visiting there.

The Johnstons purchased the Sassman, Offutt No. 1, and Menn lots from the Rosses

in June 2001. According to Steven Johnston, his family had owned a motorboat, enjoyed skiing and

other recreational activities on the water, and had deliberately sought out residential property with

access to Lake Travis. Initially, however, the Johnstons did not own or maintain a boat dock at the

Point or Notch, nor is there any indication that the Rosses did during the years they owned the lots.

Following their respective purchases of lots on Oak Hurst, there is no dispute that

both the Gays and Johnstons, like their predecessors, traveled over Hurst View, Chipmonk, and

Hurst Creek Circle to the Point, walked or drove over the lake-access loop, parked on and traversed

the Point or Notch, and engaged in recreational use of the properties. These uses included the

Gays’ continued use of the boat dock they had acquired from the Petersons, along with watercraft

they kept there.

15 However, in September 2001, an attorney acting on behalf of the Stewart heirs

contacted both the Gays and Johnstons demanding that they remove any boats and docks from the

Point and Notch and requesting proof of any rights they had to use the properties. A fence with a

gate and “No Trespassing” sign was erected blocking the road to the Point. In response, the Gays

and Johnstons each provided the heirs’ attorney copies of express easements in their respective

chains of title, expressing the view that these instruments granted them the right to access and use

the property as they previously had. The fence was removed, and appellees heard no more on the

matter from the heirs or their attorney for several months. Professing the belief that the absence of

a response confirmed the validity of their easement claim, in early 2002 the Johnstons purchased a

boat dock as well as a fishing boat, and moored the dock with their boats at the Point. Subsequently,

in May 2002, the Johnstons acquired the McClanahan lot from Michael and Tracy Good, who had

acquired it from heirs of Douglas Offutt. Similarly, the Gays claimed that some of the Stewart heirs

had assured them that the Gays could continue crossing the property and using their dock and boats,

and explained that their family was merely seeking to restrict access to their property by persons

unauthorized to be there.

However, during the latter half of 2002, the Stewart heirs’ attorney left notices on

the Gays’ and Johnstons’ docks ordering that the docks and boats be removed. Again, the couples

provided the attorney copies of their deeds and heard nothing further thereafter from the heirs or their

attorney. Thereafter, the Gays and Johnstons continued accessing and using the Point and Notch

as before. Furthermore, the Gays would also purchase a new boat and dock thereafter, and the

Johnstons would purchase additional lots—the Offutt Nos. 2 and 3 lots in 2001 and 2002 and, in

2006, the Dolan lot from the Kimbriels.

16 Appellants come to the neighborhood

Meanwhile, in 1997, appellee Desmond had purchased acreage on the northern tip

of Graveyard Point that had been part of one of the tracts that Annie Stewart had gifted to her

children in 1949. The original grantee of this tract, son Ernest Stewart, had subsequently subdivided

the tract’s interior into residential lots while retaining the portion of the tract lying between those lots

and the lake. Somewhat similar to his parents’ earliest conveyances on Graveyard Point, Ernest

granted the lot purchasers express easements allowing ingress and egress to the lake over his

intervening property down to the 670 m.s.l. contour. The property that Desmond acquired in 1997

included one of the residential lots and, subject to the aforementioned easements, Ernest’s former

shoreline property.

Desmond and Davis began conducting Aqua Tech’s business operations at the site,

constructing boat docks. This prompted owners of the neighboring residential lots to initiate what

the parties have termed the “Mabry” litigation against Desmond, Davis, and Aqua Tech (i.e., the

same parties who are now appellants here).4 The Mabry plaintiffs sought declaratory and injunctive

relief to restrain alleged interference with their express easement rights and to enforce an express

restrictive covenant barring commercial use of Desmond’s residential lot. Additionally, although

no express restrictive covenant barred commercial use of the shoreline property, the plaintiffs

asserted that this property was nonetheless subject to a negative implied restrictive covenant barring

such use. Following a bench trial, the district court rendered judgment in favor of the plaintiffs and,

in part, barred appellants from using either the residential lot or shoreline property for commercial

4 Over appellants’ objection, a copy of the Mabry judgment and findings of fact and conclusions of law were admitted into evidence below.

17 use. Appellants filed a notice of appeal from the Mabry judgment, but this Court would ultimately

dismiss their appeal for want of prosecution in January 2005.5

Instead, appellants responded to the Mabry judgment chiefly by attempting to relocate

Aqua Tech’s operations to a different location on Graveyard Point where there were no legal

restrictions against them. It happened that around the same time, the Annie Stewart heirs, through

Mary Stewart Hicks, were attempting to sell the Point and some narrow strips of property near the

670 m.s.l. contour that ran along the peninsula’s shore to the south. Although A.K., Annie, or her

estate had typically imposed express restrictive covenants on the residential lots they had developed

on Graveyard Point, no such restrictions had ever been applied to the Point. (The same was also true

of the Notch). In 2004, Davis began leasing the Point property from the Stewart heirs through Hicks.

In January 2005—and on the same date on which appellants’ appeal in Mabry was dismissed—Davis

purchased the Point from the heirs, with the lakeside strips of property thrown in, via a deed without

warranties. The deed did not contain any express provision barring commercial use of the property.

Prior to the conveyance, a survey of the property was prepared by a George Sanders,

who would later testify on appellants’ behalf at trial. A copy of relevant portions of Sanders’s survey

appears in Appendix C, which was admitted into evidence at trial. The survey reflected the ongoing

existence of the road through the northern portion of the Point—in the form of an “asphalt drive”

that extended from Hurst Creek Circle eastward from that street’s intersection with Graveyard Point

5 See Debbie Desmond, Dennis Davis, Individually and d/b/a Aqua Tech Marine; and Aqua Tech Marine Indus., Inc. v. Wanda Mabry, Roy Mabry, Marquette Mabry, and Mary Sue Wheeler, No. 03–04–00316–CV, slip op. ¶ 1 (Tex. App.—Austin Jan. 28, 2005, pet. denied) (mem. op.), available at http://www.3rdcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=13451.

18 Road, then became a “dirt drive” before curving northeastward onto the adjacent property—and a

“dirt path” corresponding roughly to the route of the lake-access loop.

The dispute

Although there was evidence that Davis and appellees initially attempted to be

somewhat accommodating to one another—for example, appellees acceded to a request from

Davis that they relocate their docks along the Point shoreline to make room for Aqua Tech’s

operations—Davis ultimately began requesting, and later demanding, that appellees pay him rentals

if they wished to use his property. By late 2005, matters escalated to the point that appellees accused

Davis and Desmond of threatening behavior, of making petty or vexatious complaints to authorities,

and of twice cutting cables attaching their boats and docks to the land and allowing them to float

dangerously around Lake Travis.

On February 2, 2006, appellees sued appellants seeking declaratory, injunctive, and

monetary relief predicated on allegations that appellees each owned easements permitting them to

access and use the Point for recreation, including maintaining docks and boats there, and that

a negative implied restrictive covenant barred commercial activity on the property.6 Insisting that

appellees had no rights in the property and that there were no applicable restrictions against

commercial use, appellants countered with their own claims for declaratory, injunctive, and monetary

relief to remedy alleged slander of title, trespass, and nuisance, and to quiet title. Appellees obtained

a temporary restraining order prohibiting Davis and Desmond from damaging or interfering with the

6 To be precise, only the Johnstons and Steven Gay were originally plaintiffs, but Carilynne Gay joined in these claims after appellees named her as a defendant to their claims, along with the three original plaintiffs.

19 Gays’ and Johnstons’ personal property or ability to access the roadway on the Point, although the

court denied appellees’ request to enjoin commercial use of the properties.

Later that year, while the lawsuit was still pending, Desmond acquired the Notch

property. The district court would later find that Desmond, ostensibly under color of a claim that

she was not bound by the TRO because she owned a property other than the Point, continued efforts

to obstruct appellees’ access and use of the properties.

The parties’ claims were tried to the bench, which heard evidence over the course

of four days. Following trial, the district court rendered judgment declaring that appellees owned

easements appurtenant to each of their lots granting them “[t]he right to unobstructed use of the

roadway connecting Oak Hurst Road with the Davis Parcel” (i.e., proceeding over Hurst View, down

Chipmonk to Hurst Creek Circle, and eastward over Hurst Creek Circle to the entrance to the Point)

“by foot, bicycle, and/or by vehicle,” as well as the following easements granting the right to use the

Point and Notch themselves:

Roadway on the Davis Tract: The right to the unobstructed use of The Roadway on the Davis Tract [defined to include both the road over the northern portion of the Point, as well as a route tracking the lake access loop] for the purposes of ingress and egress to and from the waters of Lake Travis and its shore areas, including the right of passage over, upon, and across such roadway by foot, bicycle, and by vehicle. The right to use The Roadway on the Davis Tract includes the right to remove obstructions, including trimming overhanging branches of trees. It also includes the right, but not the obligation, to repair, pave, grade, or maintain the roadway, or generally to perform any act necessary to render The Roadway on the Davis Tract suitable for passage. It includes the right to place and to maintain survey markers showing the location and limits of The Roadway on the Davis Tract.

20 From Roadway to Waters of Lake Travis: The right of unobstructed passage over, upon, and across the Davis Tract and/or the Desmond Tract by foot, bicycle, or by vehicle from The Roadway on the Davis Tract to the waters of Lake Travis, at whatever level they may be.

Boat Docks: The right to maintain and use a boat dock, its anchors, cables, associated walkways, and other appurtenances, and boats, and/or other recreational floatation devices, on or over those portions of the Davis Tract and/or the Desmond Tract subject to inundation by the waters of Lake Travis, whether floating or resting on the Shore of Lake Travis.

Recreation: The right to linger within and to use for all recreational purposes those portions of the Davis Tract and the Desmond Tract (a) lying within the Roadway on the Davis Tract, (b) lying within the Shore of Lake Travis, or (c) inundated by the waters of Lake Travis.

The district court also declared that a “negative implied restrictive covenant” prohibited use of the

Point or Notch for commercial purposes.

In addition to the foregoing declaratory relief, the judgment also permanently enjoined

Davis and Desmond “from ever doing any and all of the following”:

1. Taking any action that interferes with or obstructs Plaintiffs from using their easement rights as declared herein.

2. Operating any commercial enterprise whatsoever at the Davis Tract or the Desmond Tract.

3. Taking any action that obstructs and/or interferes with Plaintiffs’ or Plaintiffs’ invitees’ recreational use and enjoyment of Lake Travis or restricts their engaging in reasonable recreational uses of the Roadway on the Davis Tract, the Davis Tract or the Desmond Tract.

4 Blocking or obstructing in any way Plaintiffs’ or Plaintiffs’ invitees’ vehicular and/or pedestrian access to the Roadway on the Davis Tract and/or the Desmond Tract, Hurst View Road and/or the Roadway to the Davis Parcel as defined above.

21 5. Altering the land at the Davis Tract or the Desmond Tract in any way that is inconsistent with Plaintiffs’ easement rights.

6. Altering the location of the Roadway on the Davis Tract unless by written agreement of Plaintiffs and Defendants.

7. Taking any action that creates a hazard on the Davis Tract or the Desmond Tract[.]

8 Taking any action that creates a hazard in the waters surrounding Plaintiffs’ boat docks, boats, and/or other floatation devices.

9. Touching or doing any damage to Plaintiffs’ boat docks, boats, anchors, and/or other personal property or directing others to do so.

10. Taking any action that threatens or harasses Plaintiffs or their invitees.

Finally, the district court rendered judgment that appellants should take nothing on their

counterclaims and awarded attorney’s fees to appellees as permitted by the Uniform Declaratory

Judgments Act.7

The district court subsequently made findings of fact and conclusions of law. Among

other holdings, the court concluded that appellees’ positive easement permitting use of the Point and

Notch existed by express grant in appellees’ deeds, as well as theories of estoppel, implication, and

prescription.

This appeal ensued.

ANALYSIS

Appellants bring seven issues on appeal. The first five challenge the district court’s

judgment declaring that appellees own the above-described positive easements to use the Point and

7 See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011 (West 2008).

22 Notch for recreational purposes. Specifically, in their first issue, appellants challenge the legal and

factual sufficiency of the evidence underlying the district court’s legal conclusions that appellees

hold express easements that burden the Point or Notch. In their second issue, appellants urge that

the district court erred in holding that the express easements in appellees respective chains of title,

which purport to grant no more than a right of “ingress and egress” to and from Lake Travis,

confer the rights to maintain boats and boat docks and engage in the other recreational uses it

declared in the judgment. In their third, fourth, and fifth issues, appellants challenge the legal and

factual sufficiency of the evidence underlying the district court’s legal conclusions that the positive

easements existed under theories of, respectively, estoppel, implication, or prescription.

In their sixth issue, appellants attack the district court’s judgment that a

“negative implied restrictive covenant” bars commercial use of the Point and Notch. Finally, in their

seventh issue, appellants urge that to the extent we sustain their other issues, we should reverse the

district court’s judgment, render judgment for them on their declaratory-judgment counterclaims,

and remand their accompanying counterclaim for attorney’s fees for reconsideration in light of the

change in prevailing parties.

Standard of review

Each of the appellants’ issues on appeal turns at least in part on whether the evidence

is legally or factually sufficient to support the district court’s judgment. In an appeal from a

judgment rendered after a bench trial, the trial court’s findings of fact serve the same function as

the verdict of a jury. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When a party is

challenging the legal sufficiency of the evidence supporting an adverse finding on an issue on which

23 an opposing party has the burden of proof, it prevails if the record shows any one of the following:

(1) there is no evidence supporting a vital fact, (2) the evidence offered to prove a vital fact is no

more than a mere scintilla, (3) the evidence conclusively establishes the opposite of the vital fact,

or (4) the court is barred by law or the rules of evidence from considering the only evidence offered

to prove the vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). More than

a scintilla of evidence exists when 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. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Transportation Ins. Co. v. Moriel,

879 S.W.2d 10, 25 (Tex. 1994). If the evidence is so weak as to do no more than create a

mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone

v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995). Conversely, evidence conclusively

establishes a vital fact when the evidence is such that reasonable people could not disagree in their

conclusions. See City of Keller, 168 S.W.3d at 814–17.

When addressing a legal-sufficiency challenge, we are to view the evidence in the

light most favorable to the district court’s findings, “crediting favorable evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not.” Id. at 807. Moreover,

we must indulge every reasonable inference that would support the district court’s findings. Id.

at 822. The ultimate test for legal sufficiency is whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. See id. at 827.

When a party challenges the factual sufficiency of the evidence supporting an adverse

finding on which the opposing party had the burden of proof, we should set aside the finding only

if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust. See

24 Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must consider, weigh, and examine all of the

evidence in the record, both supporting and against the finding, to decide whether the finding should

be set aside. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Express grant?

In support of its judgment declaring that appellees owned the aforesaid positive

easements permitting their recreational use of the Point and Notch, the district court made legal

conclusions that Annie Stewart, or her estate, had expressly granted those very easements when

initially conveying every one of appellees’ lots to its original grantee. Underlying these conclusions,

however, were somewhat narrower findings (or, in substance, conclusions) that centered primarily

on the meaning and application of the specific easement language Annie used in her May 1945 deeds

to the Gays’ Frazer lot and the Johnstons’ Sassman and Dolan lots. In these deeds, as previously

noted, Annie had granted an easement appurtenant permitting use of “the roadway now open on the

Northeast of the land herein conveyed” (in the Frazer deed) and “the roadway now open on the East

of the land herein conveyed” (in the Sassman and Dolan deeds) “for the purpose of ingress and

egress to Lake Travis.” With evident reference to this language, the district court found or concluded

that “[a]t the time of the conveyances, the roadway now open to the East of the Sassman Parcel, the

Dolan Parcel . . . and Northeast of the Frazer Parcel providing ingress and egress to the public waters

of Lake Travis is the roadway now known collectively as Hurst View, the roadway to the Point (the

25 Davis tract) and the roadway on the Point.”8 In other words, the district court held that “the roadway

now open” contemplated by these 1945 express easements corresponded precisely to the route of the

easement declared in the district court’s judgment. Rejecting alternative theories advanced by

appellants at trial, the district court further found or concluded that “[t]he roadway located East of

the Johnston Tracts and Northeast of the Gay Tracts” was not any of the roadways later named Oak

Hurst, Hurst Creek Road, Blue Cat Lane, or Chipmonk Road. The district court also made findings

tracking the language of the easement in the 1965 deed to the Offutt Nos. 2 and 3 lots now owned

As for the scope of appellees’ easements, the district court found or concluded that

the easements were “unqualified” and permitted not only “ingress and egress to the waters of

Lake Travis,” but also the “recreational activities in the waters of Lake Travis and on the Shore of

Lake Travis, as the Court declared in its Final Judgment.”

In their first issue, appellants assert that the district court made two chief errors in

finding or concluding that these express easements burdened the Point and Notch. First, appellants

8 This finding or conclusion also referenced the Menn, Offutt No. 1, and McClanahan deeds in the Johnstons’ chains of title, but this appears predicated on erroneous findings that the language of these easements tracked the easement in the Sassman deed. As previously explained, those three deeds, unlike the Sassman and Dolan deeds, did not purport to grant any right of access to Lake Travis. The substance of the court’s finding or conclusion thus corresponds more precisely to the language of the Sassman and perhaps the Dolan deed, and the Johnstons have primarily emphasized the Sassman deed on appeal.

Similarly, although the district court’s legal conclusions state that the Gays have express easements in the chains of title to all three of their properties, it made no underlying findings that Annie granted such an easement in the Ross deed, and the evidence conclusively negates such an assertion. As previously noted, Annie did not grant any easement in the Ross deed or, for that matter, in the Gibson deed she executed around the same time in 1946. Consequently, as the Gays seem to acknowledge, they must rely solely on the express easement contained in the Frazer deed.

26 urge that the district court misconstrued or ignored the easements’ directional language. They insist

that the unambiguous language, applied to conclusive evidence of the geographic relationship

between the relevant lots and roads, compels the conclusion that the road now known as Oak Hurst,

not the easement route declared by the district court, was the sole “roadway now open on the

Northeast” of the Frazer lot and “on the East” of the Sassman and Dolan lots. Second, appellants

maintain that the court’s construction was not viable in any event because the evidence was legally

and factually insufficient to establish that the first portion of the “roadway” and easement route it

declared—the road now known as Hurst View—was “now open” as of the dates of the relevant

conveyances. In their second issue, appellants urge that even if the district court correctly

determined the easements’ location, it misconstrued the scope of uses authorized in the instruments

and awarded appellees rights far exceeding “ingress and egress to Lake Travis.”

An easement is a nonpossessory interest in land that authorizes its holder to use

the property for specified purposes only. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700

(Tex. 2002) (citing Restatement (Third) of Property (Servitudes) § 1.2 cmt. d (2000)). Nothing

passes by implication “except what is reasonably necessary” to fairly enjoy the rights expressly

granted. Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974). Use of the easement to pursue a

purpose not provided for in the grant is not permitted. Marcus Cable, 90 S.W.3d at 701; Coleman,

514 S.W.2d at 903.

An easement’s express terms, interpreted according to their generally accepted

meaning, delineate the purposes for which the easement holder may use the property. Marcus Cable,

90 S.W.3d at 701 (citing DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999)).

We apply basic principles of contract construction and interpretation. See DeWitt, 1 S.W.3d at 100.

27 Construction of an unambiguous contract presents a question of law that we review de novo. See

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); City of El Paso v. Public Util. Comm’n,

344 S.W.3d 609, 619 (Tex. App.—Austin 2011, no pet.). Under these principles, our primary

concern is to ascertain the true intentions of the parties as expressed in the instrument. See Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Ordinarily this is a function of the text

the parties have chosen because it is the objective, not subjective, intent that controls. Matagorda

Cnty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per curiam); see Harbor Ventures,

Inc., 2012 WL 1810205, at *17. When the easement’s terms are not specifically defined, they are

given their plain, ordinary, and generally accepted meaning. See Marcus Cable, 90 S.W.3d at 702;

see also Restatement (Third) of Property (Servitudes) § 4.1 cmt. d (“[Easement] language should be

interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of

the parcels of land involved. Searching for a particular meaning adopted by the creating parties is

generally inappropriate because the creating parties intended to bind and benefit successors for

whom the written record will provide the primary evidence of the servitude’s meaning.”). Adhering

to an easement’s express terms serves important public policies by promoting certainty in land

transactions and allowing potential purchasers to safely rely upon granting language. Marcus Cable,

90 S.W.3d at 702. “Similarly, those who grant easements should be assured that their conveyances

will not be construed to undermine private-property rights—like the rights to ‘exclude others’ or

to ‘obtain a profit’—any more than what was intended in the grant.” Id.; see id. at 700 (“A property

owner’s right to exclude others from his or her property is recognized as ‘one of the most essential

sticks in the bundle of rights that are commonly characterized as property.’” (quoting Dolan

28 v. City of Tigard, 512 U.S. 374, 384 (1994) (quoting Kaiser Aetna v. United States, 444 U.S. 164,

176 (1979))).

As with contract construction generally, evidence of the context and circumstances

surrounding the execution of an express easement may in some instances be relevant in determining

the meaning of the words the parties have chosen. See Houston Exploration Co. v. Wellington

Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011) (noting that, subject to parol

evidence rule, court may consider surrounding circumstances that inform the meaning of contract

text); Marcus Cable, 90 S.W.3d at 701 (acknowledging that “the circumstances surrounding the

creation of the servitude” may inform the easement’s meaning) (quoting Restatement (Third) of

Property (Servitudes) § 4.1; Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d

587, 589 (Tex. 1996); see also Harbor Ventures, 2012 WL 1810205, at *8 (“We construe contracts

from a utilitarian standpoint, bearing in mind the particular activity sought to be served.”) (citing

Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005)). But only if the

words the parties used, considered in context, are susceptible to more than one reasonable

construction—i.e., ambiguous—may we look to extrinsic evidence of the parties’ subjective intent.

See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968) (“It is

the general rule of the law of contracts that where an unambiguous writing has been entered

into between the parties, the Courts will give effect to the intention of the parties as expressed or

as is apparent in the writing. In the usual case, the instrument alone will be deemed to express

the intention of the parties for it is objective, not subjective, intent that controls.”); see also

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (noting that if court can give

contract definite or certain legal meaning, it is unambiguous and court must construe it as a matter

29 of law). The threshold question of whether an easement is ambiguous or not, as with questions of

contract construction generally, is a question of law. See City of El Paso, 344 S.W.3d at 619 (citing

J.M. Davidson, 128 S.W.3d at 229).

Scope of easements

We begin with appellants’ second issue, concerning the scope of the express

easements at issue, because our resolution of it is both straightforward and ultimately helpful in

informing our analysis of appellants’ first issue. To the extent any of the easements appellees own

purports to grant any right of access to Lake Travis, they explicitly afford only a right to “ingress

and egress.” It happens that this Court very recently had occasion to construe a materially identical

easement in one of A.K. and Annie Stewart’s 1944 deeds to lots on the north side of present-day

Oak Hurst. See Harbor Ventures, 2012 WL 1810205, at *1. In Harbor Ventures, we held that

“ingress and egress . . . to Lake Travis” unambiguously denotes only those activities reasonably

necessary to come and go to the stated destination, and did not confer rights to install boat docks or

engage in other broader “recreational purposes.” Id. at *11. In so doing, we relied on an established

line of precedents—including several of our own—for the proposition that rights of “ingress and

egress” do not “impliedly grant the right to use the property for general recreational purposes

‘normally associated with the use and enjoyment of lakefront property.’” See id. (citing Coleman,

514 S.W.2d at 903 (easement for “ingress and egress” does not grant “right to linger for recreational

purposes, or to exercise waterfront privileges”); Cummins v. Travis Cnty. Water Control &

Improvement Dist. No. 17, 175 S.W.3d 34, 52 (Tex. App.—Austin 2005, pet. denied) (mooring boat

dock on land over which one has easement for purposes of ingress and egress to lake not reasonably

30 necessary to achieve rights expressly granted); Lakeside Launches, Inc. v. Austin Yacht Club, Inc.,

750 S.W.2d 868, 869 (Tex. App.—Austin 1988, writ denied) (easement for purpose of ingress and

egress does not convey right to anchor and float commercial boat dock); Wall v. Lower Colo. River

Auth., 536 S.W.2d 688, 691 (Tex. Civ. App.—Austin 1976, writ ref’d n.r.e.) (right of ingress and

egress across land retained by grantor does not grant implied right to build or maintain structures

appropriate to lakefront property)).

Relying on this same line of authority, we sustain appellants’ second issue. We hold

that the express easements granted in appellees’ chains of title, wherever they might be located

and whatever property they burden, afford appellees only the right to engage in activities

reasonably necessary to serve the purpose of coming and going to and from Lake Travis—not, as the

district court held, the right to maintain boats or docks, or engage in the array of other recreational

activities it identified.

Location of the Gays’ easement

We now turn to the district court’s findings and conclusions concerning

whether appellees’ ingress-egress easements burden the Point and Notch. It is helpful to consider

the easements in the Gays’ versus the Johnstons’ chains of title separately.

Under the unambiguous text of the easement granted in the Frazer deed, each of the

following must be true of the easement’s location or route:

• The route must have been “open” as of May 29, 1945, the date of the Frazer deed.

• As of that date, the route must have been a singular “roadway” within the meaning of the easement. As appellees have emphasized throughout this litigation, the phrase “the roadway

31 now open. . .” denotes a single roadway rather than a series of different roads or segments of roads.

• the route or “roadway” must be “on the Northeast of the land herein conveyed,” the Frazer lot.

(Emphasis added.) The third requirement is dispositive.

The ordinary meaning of the preposition “on,” within the phrase “on the Northeast

of the land herein conveyed,” denotes that, at a minimum, the “roadway” must be located in a

northeasterly direction from or relative to the Frazer lot.9 Also, as appellants further emphasize, “on”

is often used to denote abutting or adjacent land.10 Under either meaning, the easement route

declared by the district court, which begins at present-day Hurst View and continues eastward

onto the Point, cannot, as a matter of law, be considered “on the Northeast” of the Frazer lot. As

demonstrated in Appendices A and B, the court’s easement route instead begins at a point to the

southeast of the Frazer lot. Nor is the route abutting or adjacent to the Frazer lot, but is instead

separated from it by the width of Oak Hurst and a portion of the Dolan lot. And, as Appendix A

also shows, the only “roadway . . . on the Northeast” of the Frazer lot, under either definition, is

Oak Hurst.

9 See Webster’s Third New Int’l Dictionary 1574 (2002) (defining “on” as a word used to indicate “contiguity” or a “position with regard to place, direction, or time”). 10 See Fort Worth & N.O. Ry. Co., 18 S.W. 206, 208 (Tex. 1891) (noting that “in” denotes “nearness” or “proximity” more definitely than “at” does); Blackert v. Dugosh, 145 N.E.2d 606, 607 (Ill. 1957) (holding that preposition “on” was “strongly indicative on an intent to convey” abutting land in deed under consideration); see also Webster’s at 1574 (emphasizing contiguity definition of “on” as “location closely adjoining something . . . or location very near some point of a narrowly extended area”).

32 The Gays have not seriously disputed that, geographically speaking, the court’s

easement route is not “on the Northeast” of the Frazer lot. They have likewise acknowledged that

the road now known as Oak Hurst was “now open” as of May 1945 and that, all other things

being equal, that road would have fit the description of a “roadway now open on the Northeast”

of the Frazer lot. Nonetheless, the Gays successfully persuaded the district court to disregard the

easement’s literal text in the view that (1) the easement was explicitly intended “for the purpose of

ingress and egress to Lake Travis,” and (2) an easement over Oak Hurst would thwart, rather than

achieve, this purpose because this “roadway” did not in itself reach Lake Travis, but ran in an

inverted “U” shape within the interior of the Graveyard Point peninsula.11 The Gays also advanced

a broader theory that the Stewarts collectively intended to pursue a common development “plan or

scheme” in which lot owners were to have broad rights to access and enjoy the lake, and to that end

reserved the Point and Notch for the use of owners who, like appellees, lacked lakeside frontage.

The district court made several findings to this effect. Neither theory is a valid basis for deviating

from the text that Annie Stewart actually used.

It is true that our reliance on the plain meaning of contractual text must in some

instances be qualified when that construction would yield a result that the parties manifestly

could not have intended. See Lane v. Travelers Indem. Co., 391 S.W.2d 399, 402 (Tex. 1965)

(refusing to construe contract in manner that would lead to absurd results); Avasthi & Assocs., Inc.

v. Banik, 343 S.W.3d 260, 264 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (declining to

11 In support of this theory, the district court found that the 1951 aerial photograph in evidence “depicts the roadway now named Oak Hurst as an inverted “U” shaped road that does not provide an access route to Lake Travis.”

33 accept construction of contract that would produce absurd results because there was construction that

would not produce absurd result); see also Harbor Ventures, 2012 WL 1810205, at * 8 (contracts

are construed with an eye to the “particular activity sought to be served”) (citing Frost Nat’l Bank,

165 S.W.3d at 312). That is the essence of the Gays’ arguments regarding Oak Hurst and their

emphasis on the fact that the street does not, in itself, reach Lake Travis. Appellants concede that

Oak Hurst does not itself reach Lake Travis. However, this does not mean, as the Gays suggest, that

an easement over Oak Hurst would fail to effectuate Annie Stewart’s manifest “purpose of ingress

and egress to Lake Travis.”

As demonstrated by undisputed and conclusive evidence that includes Appendix A,

aerial photographs, and testimony, the road now known as Oak Hurst terminates at its western end

at Hurst Creek Road, which runs in a roughly north-south direction along what is now the western

side of the Graveyard Point peninsula. It is likewise undisputed that Hurst Creek Road predates

the construction of Mansfield Dam and has been a public road at all relevant times. The dam’s

construction caused the northern portions of Hurst Creek Road to be inundated off of what became

the northwestern shore of Graveyard Point, leaving the remaining portions of the road leading from

the Oak Hurst terminus as a means of access to the lake waters. Consequently, the owner of the

Frazer lot could have accessed the lake by traveling from the lot westward on Oak Hurst to

its terminus at Hurst Creek Road, then northward to the shore. While appellees insist that this

arrangement would have been inconsistent with the easement’s reference to a singular “roadway,”

only an easement over the Oak Hurst portion of the route was necessary to secure “the purpose of

ingress and egress to Lake Travis”—once a lot owner traversed the still-private, Stewart-owned

34 Oak Hurst to the road’s western end, he or she could travel over a public roadway, which required

no easement to use, to reach the lake waters.

That an easement over Oak Hurst would satisfy the parties’ manifest “purpose of

ingress and egress to Lake Travis” is further demonstrated by considering, again, the nature and

scope of the “ingress and egress” right that Annie Stewart granted. As we held above, it is merely

a right to pass to and from Lake Travis and engage in a limited range of activities reasonably related

thereto—not, as the Gays have assumed, and the district court held, a right to engage in a broader

range of recreational activities on the lake’s shore and in the adjacent waters. This limited right

would be effectuated by an easement to traverse the private road of Oak Hurst in order to reach a

public road leading to the lake waters.

In short, this is not a case where our plain-meaning construction of easement language

yields a result that the parties could not have intended. See Lane, 391 S.W.2d at 402; Avasthi,

343 S.W.3d at 264. As for the Gays’ broader “common plan or scheme of development” theory, it

amounts to an invitation to improperly consider extrinsic or parol evidence of the parties’

intent in derogation of the unambiguous text they actually used. See Sun Oil Co. (Del.) v. Madeley,

626 S.W.2d 726, 731 (Tex. 1981) (“‘It is the general rule of law of contracts that where an

unambiguous writing has been entered into between the parties, the courts will give effect to the

intention of the parties as expressed or as is apparent in the writing. In the usual case, the instrument

alone will be deemed to express the intention of the parties for it is objective, not subjective, intent

that controls.’” (quoting City of Pinehurst, 432 S.W.2d at 518)). In any event, we observe that

appellees’ evidence of this supposed “plan or scheme” actually tends to undermine, rather than

35 support, any notion of a common plan in which interior lot owners on Oak Hurst were given access

to the lake via the Point and Notch.

In support of this and other theories at trial, appellees presented considerable evidence

regarding the history of the development of A.K. and Annie Stewart’s Graveyard Point property

by the couple and Annie’s heirs. This evidence included a summary of abstract prepared by

Kent McMillian, a surveyor, reflecting dozens of conveyances by the couple and Annie’s estate,

lake-access and road easements they granted, and any express restrictions imposed against

commercial use of the properties being conveyed. The summary reflects that in June 1945, within

a month after executing the Frazer, Sassman, and Dolan deeds, Annie executed the Dyer deed and

granted an express easement identical to those in the three prior deeds except for the directional

language—it granted a right of “ingress and egress to Lake Travis” over “the roadway now open to

the North of the land herein conveyed.” As Appendices A and B demonstrate, the easement route

declared by the district court cannot conceivably be considered a “roadway to the North of the

land herein conveyed” of the Dyer lot. Only the road now known as Oak Hurst would fit that

description. The same is also true of a 1951 Annie Stewart conveyance of a lot on Oak Hurst located

near the street’s western terminus with Hurst Creek Road, the Monaghan lot—she granted an

easement over “the roadway now open on the West of the land herein conveyed . . . for the purpose

of ingress and egress to Lake Travis.” Again, the road now known as Oak Hurst lay “on the West”

of this lot, and the easement route declared by the district court was situated in completely the

opposite direction. In short, if there is a “common plan or scheme” of development suggested by

this evidence, it is that Annie Stewart consistently intended that the owners of interior lots along the

36 road now known as Oak Hurst would have easements permitting them to access Lake Travis via

Oak Hurst and then Hurst Creek Road.

Giving effect to the plain and ordinary meaning of the easement, we hold that the

evidence shows conclusively that “the road now open on the Northeast of the land herein conveyed”

in the Frazer deed refers to the road that is, in fact, “on the Northeast” of that lot—the road

now known as Oak Hurst, not the easement route that the district court declared. See Marcus Cable,

90 S.W.3d at 702. In other words, the Gays own no express easement granting them a right to use

the Point or Notch. We sustain appellants’ first issue with respect to the Gays.12

Location of the Johnstons’ easements

We now consider whether the district court erred in holding that any of the easements

in the Johnstons’ chain of title burden the Point or Notch. Given that the text of the Sassman and

Dolan easements are parallel to the easement granted in the Frazer deed, differing only with respect

to the directional reference, the parties have relied largely on the same arguments, evidence, and

findings with respect to all three. And given the similarities between these two sets of easements

(not to mention also the Dyer and Monaghan easements), our above analysis concerning the

Frazer easement would arguably apply to the Sassman and Dolan easements as well—“the roadway

12 At trial, appellees also advanced a theory that the dedication of roadways in the 1961 plat of the Annie Stewart Subdivision had independently granted both the Gays and Johnstons an easement over the roadways to and over the Point and Notch. Appellees do not appear to rely on this theory on appeal, although they reference the dedication as support for their estoppel theory. Similarly, while the district court’s finding of fact and conclusion of law referenced the 1961 dedication in regard to appellees’ estoppel theory, the court did not appear to rely on the dedication to support its conclusions regarding an express-easement theory. To the extent that the court’s conclusions or judgment did rest upon an express-easement theory predicated on the 1961 dedication, it would be in error. Among other things, the dedication does not depict the Point or Notch or any roads there.

37 now open on the East of the land herein conveyed” in the Sassman or Dolan easements would,

in the same way, refer to the road now known as Oak Hurst and not the easement route declared

in the judgment.

On the other hand, if one considers the Sassman or Dolan easement independently

from the foregoing analysis, the meaning and application of the directional language becomes less

clear. Unlike the situation with the Frazer deed, application of the directional language reveals a

potential ambiguity—not only Oak Hurst but Hurst View and the remainder of the court’s easement

route could reasonably be said to be “on the East” of the Sassman and Dolan lots. However, this

potential ambiguity would exist only if the road now known as Hurst View had in fact been opened

by the time of the Sassman and Dolan conveyances in May 1945. Consequently, that issue becomes

of paramount importance with respect to the Johnstons’ rights, and the parties devote much of their

appellate briefing to disputing whether or not sufficient evidence supports the district court’s

findings that Hurst View had been opened by May 1945.

We need not reach these contentions, however, because our review of the

district court’s findings of fact and conclusions of law reveals that an essentially unchallenged

alternative theory supports the judgment that the Johnstons own an express easement permitting

ingress and egress to Lake Travis via the Point and Notch. As previously noted, the district court

made legal conclusions that the Johnstons had acquired a “perpetual express easement appurtenant”

that ran with each of their seven lots. These lots included “Offutt Parcels Nos. 2 and 3.” The

express easement that Annie Stewart’s estate granted with those two lots, the court further found,

and the evidence conclusively establishes, affords “the Grantees, their heirs and assigns, the right

of ingress and egress to and from said property and to and from the waters of Lake Travis over the

38 existing roadways.” By the date of this deed, 1965, it is established by other unchallenged findings

and undisputed evidence that Hurst View had been opened,13 and that the remainder of “the roadway

connecting Oak Hurst Road with the Davis Parcel,” as well as the “roadway on the Davis Tract,”

including the lake-access loop, had existed since the early 1950s. Consequently, an easement over

“the existing roadways” on Graveyard Point circa 1965 would have encompassed the entirety of the

easement route declared by the district court.14 Accordingly, we overrule appellants’ first issue with

respect to the Johnstons.

However, we emphasize again that, per our disposition of appellants’ second issue,

the express easement granted in the 1965 deed to the Offutt Nos. 2 and 3 lots is limited solely to a

right of “ingress and egress to Lake Travis,” not the right to maintain boats and boat docks and

engage in broader recreational activities. If the Johnstons possess any broader rights to use the Point

or Notch, they, like the Gays, must look to legal sources outside of any express easements they own.

13 Although they hotly disputed whether the road now known as Hurst View had been opened by the time of Annie’s earlier conveyances, appellants acknowledge that it was open by 1951. Consequently, it is beyond dispute that Hurst View was an “existing roadway” thereafter. 14 To the extent it might be debatable whether the lake-access loop on the Point would be considered a “roadway” within the meaning of the easement, that issue would be obviated by application of the following principle: Where an express easement is described generally, without indicating its location (e.g., precisely where or how one was to obtain “ingress and egress to and from the waters of Lake Travis over the existing roadways”) and the grantor does not specify its location, the grantee’s use of the easement, with the grantor’s consent or acquiescence, is sufficient to establish the easement’s location. See Vinson v. Brown, 80 S.W.3d 221, 228 (Tex. App.—Austin 2002, no pet.). At trial, as previously noted, the parties stipulated that Douglas Offutt, the original grantee of Offutt parcels 1, 2, and 3, and who had also acquired several other lots in in the Johnstons’ chains of title, “used Hurst View and [appellants’] properties to access Lake Travis . . . from at least 1958 through 1985,” and unchallenged findings reflect that Offutt and other predecessors in title “have used Hurst View, the Notch, and the Point, including the entire circular access roadway on the Point to access . . . the lake continuously since as early as 1958.” The findings, stipulations, and evidence would have served to fix the location of the easement as the path of the lake-access loop and any intervening portions of the Point or Notch between the loop and the water.

39 Prescription?

In their fifth issue, appellants challenge the legal and factual sufficiency of the

evidence supporting the district court’s findings and conclusions that appellees had acquired the

positive easements declared in the judgment under a prescription theory. A prescriptive easement

may arise from a property owner’s knowing acquiescence (whether actual or constructive) in a

claimant’s adverse use of the property under a claim of right continuously for ten years or more. See

Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App.—Austin 1998, pet. denied); Wiegand v. Riojas,

547 S.W.2d 287, 290 (Tex. Civ. App.—Austin 1977, no writ). The ten-year requirement may be

established by tacking successive interests if there is “‘privity of estate between each holder and his

successor.’” Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 756 (Tex. App.—El Paso

2010, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 16.023 (West 2002) for proposition that

tacking allowed for establishing prescriptive easement); Kleckner v. McClure, 524 S.W.2d 608, 611

(Tex. Civ. App.—Fort Worth 1975, no writ) (noting that successive periods of adverse possession

by those in privity can be tacked or added together to satisfy 10-year limitations period). Likewise,

once a prescriptive easement is established, it can be passed on to successors. See First Nat’l Bank

v. Beavers, 602 S.W.2d 327, 329 (Tex. Civ. App.—Texarkana 1980, no writ) (citing Martin v. Burr,

228 S.W. 543 (Tex. 1921)).

The “adverse” use that can give rise to prescription is the same required to prove

adverse possession. See Scott, 959 S.W.2d at 722. It requires that the claimant have acted under a

“claim of right”—with intent to use the property in a particular way permanently, as a matter of

right, as distinguished from merely trespassing or using the property with or subject to the rightful

owner’s permission. See Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987); Ellis v. Jansing,

40 620 S.W.2d 569, 571–72 (Tex. 1981). Relatedly, the claim of right must be inconsistent with the

landowner’s legal rights to use the property, see Scott, 959 S.W.2d at 722, although this “does not

require an intention to dispossess the rightful owner, or even know there is one,” see Tran v. Macha,

213 S.W.3d 913, 915 (Tex. 2006) (per curiam).

The adverse use must also have been “open,” i.e., not made in secret or stealthily, and

“notorious,” either known to the property owner or so widely known in the area that the property

owner would reasonably be expected to know of it. See Cambridge Holdings, Ltd. v. Cambridge

Condos. Council of Owners, No. 03–08–00353–CV, 2010 WL 2330356, at *10 (Tex. App.—Austin

June 11, 2010, no pet.) (mem. op.) (citing Restatement (Third) of Property (Servitudes) § 2.17 cmt.

h). Similarly, the claim of right must have been “hostile,” or having outward manifestations of such

nature and character as to notify the property’s true owner that the claimant is asserting such a claim

and is not merely acting with or subject to the owner’s permission. See Scott, 959 S.W.2d at 722;

City of Austin v. Hall, 48 S.W. 53, 55–56 (Tex. Civ. App.—Austin 1898, no writ). “As this Court

has stated, there must be a distinct and positive assertion of a right which is brought to the servient

owner’s attention and which is hostile to the owner’s rights.” Scott, 959 S.W.2d at 722 (citing

Wiegand, 547 S.W.2d at 289). Such an assertion may come in the form of a direct verbal assertion

of a claim or be established by the character of the use of the property and surrounding

circumstances. See Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 787 (Tex. 1954) (“Claim of

right must be manifested by declaration or by open or visible act. If there is no oral assertion of

claim to the land brought to the knowledge of the landowner, the adverse possession must be so open

and notorious and manifested by such open or visible act or acts that knowledge on the part of the

owner will be presumed.”).

41 For the use of property in itself to constitute the requisite “distinct and positive

assertion” of a right in the property hostile to the owner’s rights, the claimant’s use of the property

must be “exclusive” of the owner’s use—i.e., the claimant has excluded or attempted to exclude

the property owner from using the same property for the same purpose. See Brooks v. Jones,

578 S.W.2d 669, 674 (Tex. 1979) (“While other jurisdictions do not require the prescriptive use to

be exclusive [of] use by the owner of the land, this rule of property has long been the established

rule in Texas.”). It follows—and is equally well established—that proof merely of a joint use of the

property with the owner cannot establish a prescriptive easement because it does not signal an

adverse claim of right but is consistent with permissive use. See id. at 673–74; Scott, 959 S.W.2d

at 721–22. However, this Court has previously held that proof of joint rather than exclusive use is

not necessarily fatal to a prescriptive-easement claim if the claimant makes some form of “distinct

and positive assertion” of a hostile claim of right that is separate and apart from the claimant’s joint

use of the property. See Scott, 959 S.W.2d at 721–23.

“[C]reation of an easement by prescription is not favored in the law.” Wiegand,

547 S.W.2d at 289. Evidence of a prescriptive easement “must be clear and positive, and should be

strictly construed.” Callan v. Walters, 190 S.W. 829, 832 (Tex. Civ. App.—Austin 1916, no writ).

Before courts will take the “severe step” of “taking real estate from a record owner without express

consent or compensation . . . the law reasonably requires that the parties’ intentions be very clear.”

Tran, 213 S.W.3d at 915.

The district court made the following findings that are material to a

prescription theory:

42 • [Appellees] and their predecessors in title . . . have used and enjoyed the Notch (the Desmond Tract) and the Point (the Davis Tract), including Hurst View, Hurst Creek Circle, and the circular access roadway on the Point, to access and engage in the recreational use and enjoyment of Lake Travis, including lingering on the shore line and water’s edge and maintaining boats and boat docks, in a manner that was open, notorious, continuous, and exclusive, and in a hostile and adverse manner for [a] period of more than 10 years prior to February 2, 2006.

• The use of the Notch (the Desmond Tract) and the Point (the Davis Tract), including Hurst View, Hurst Creek Circle, and the circular access roadway on the Point, by the Johnstons and the Gays, and the predecessors in title to the Johnston Tracts and the Gay Tracts, to access and engage in the recreational use and enjoyment of [] Lake Travis, including lingering and the shore line and water’s edge and maintaining boats and boat docks, was of such a nature and character as to notify the title owners of the Notch and the Point of a hostile claim.

• There were distinct and positive assertions by the Johnstons and the Gays, and the predecessors in title to the Johnston Tracts and the Gay Tracts, of a right to use the Notch (the Desmond Tract) and the Point (the Davis Tract), including Hurst View, Hurst Creek Circle, and the circular access roadway on the Point, to access and engage in the recreational use and enjoyment of [] Lake Travis, including lingering at the shore line and water’s edge and maintaining boats and boat docks, that were brought to the attention of the title owners of the Notch and Point and such assertions were hostile to the owner’s rights.

• There was privity of estate between each holder of this prescriptive easement right and their successor.

• For a period of well over 10 years prior to February 2, 2006, the owners of the Johnston Tracts and the Gay Tracts, their guest[s], family members, and invitees have used Hurst View, the Notch and the Point, including the portion of Hurst Creek Circle and circular access roadway on the Point, to access and engage in the recreational use and enjoyment of [] Lake Travis, including maintaining of boats and boat docks, swimming, fishing, picnicking, sunbathing, use of umbrellas or other sunshades, barbequ[e]ing, recreational games, nighttime use, boat launching, automobile and other vehicle parking while engaging in recreational activities, and automobile and boat trailer parking while boating or fishing, and all other similar lawful uses of shoreline at the water’s edge fronting the Notch and the Point.

Appellants do not challenge the district court’s findings regarding the nature of the

uses of the Point and Notch by appellees and their predecessors or that such uses met the

requirements of being “open,” “notorious,” and “continuous” for ten years or more; indeed, they

43 stipulated to many of these facts at trial. See Brooks, 578 S.W.2d at 673; Scott, 959 S.W.2d at 721.

They focus instead on the court’s findings regarding the adversity, hostility, and exclusivity

of the uses.

Appellants contend that the evidence was legally insufficient to support the

district court’s findings of adversity and hostility because the evidence is conclusive that the uses,

including the mooring of boat docks, began with a grant of permission from Arthur Stewart, the

executor of Annie Stewart’s estate. They rely on the testimony to this effect from Mary Stewart

Hicks, to which we alluded previously, and invoke the well-established rule that continuous use of

an easement by permission of the servient estate owner, “no matter of what period of time, cannot

subsequently ripen into a prescriptive right.” See Wiegand, 547 S.W.2d at 290. Under this rule,

moreover, it is presumed that any use of the property following the grant of permission continues

to be permissive rather than adverse. Id. To rebut this presumption and “transform permissive use

of an easement into an adverse use, there must be a distinct and positive assertion of a right which

is brought to the servient owner’s attention and which is hostile to the owner’s rights.” Id.

Appellants urge that any uses of the Point and Notch by appellees’ predecessors thus originated as

permissive use and that the earliest “distinct and positive assertion[s] of a right . . . hostile to the

owner’s rights” capable of rebutting the presumption of continued permissive use were appellees’

September 2001 claims to the Stewart heirs’ counsel invoking the express easements in their deeds.

Although appellants acknowledge that appellees’ continued use of the Point and Notch would likely

have been considered adverse and hostile from that point forward, they emphasize, and it is

undisputed, that their acquiescence in the use thereafter ended well short of the ten-year period

required for prescription.

44 Although adversity can be inferred from the nature and circumstances of the use,

see Scott, 959 S.W.2d at 721–22, there is no evidence that directly controverts Hicks’s assertion that

third-party use of the Point and Notch began with a grant of permission from Arthur Stewart.

Consequently, if Hicks’s testimony to that fact is credited, it would negate, as a matter of law, any

inference that subsequent uses were adverse until there occurred a “distinct and positive assertion

of a right which is brought to the servient owner’s attention and which is hostile to the owner’s

rights” beyond the mere continuation of the use that originated with permission. See Wiegand,

547 S.W.2d at 290. Appellants urge that the district court was bound to credit Hicks’s testimony

on this point because it was uncontroverted and, in their view, conclusive. See City of Keller,

168 S.W.3d at 815 (explaining that conclusive evidence of a fact cannot be disregarded). Evidence

is conclusive “only if reasonable people could not differ in their conclusions, a matter that depends

upon the facts of each case.” See id. at 816. In other words, Hicks’s testimony that her uncle Arthur

gave permission to use the Point and Notch property would be conclusive, and legally binding on

the district court, if a reasonable fact-finder could logically infer only that it was true and could

not logically infer that it was false or inaccurate. See id. Uncontradicted witness testimony is said

to be conclusive when it is clear, direct, positive, free from contradictions, inconsistencies,

and circumstances tending to cast suspicion on it. See Ragsdale v. Progressive Voters League,

801 S.W.2d 880, 882 (Tex. 1990) (“‘[W]here the testimony of an interested witness is not

contradicted by any other witness, or attendant circumstances, and the same is clear, direct and

positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion

thereon, it is taken as true, as a matter of law.’” (quoting Cochran v. Wool Growers Cent. Storage

Co., 166 S.W.2d 904, 908 (Tex. 1942)).

45 Although “[i]t is impossible to define precisely when undisputed evidence becomes

conclusive,” see City of Keller, 168 S.W.3d at 815, we are persuaded that Hicks’s testimony falls

short of being incapable of being disbelieved by a reasonable fact-finder. The entirety of Hicks’s

testimony regarding the permission issue consists of the following exchange:

Q. [by appellants’ counsel]: Did someone in your family that you are aware of give permission to people to use that property?

A. Yes.[15]

....

Q. And who would that be?

A. My uncle, Arthur Stewart.

Q. And do you know who he gave permission to or what kind of permission he gave?

A. I know that he gave permission to people to—they could put their boat docks down there.

Hicks did not elaborate on the basis for her knowledge of this purported grant of “permission”

beyond indicating that decades later, in the mid-2000s, she became involved in managing the

property still owned by Annie Stewart’s estate; there is no indication as to whether or how Hicks

would have obtained first-hand or contemporaneous knowledge of that fact. The district court

also could have considered Hicks’s young age at the time this grant of permission supposedly

occurred—during her childhood or preteen years—and that Hicks displayed some misunderstanding

15 Appellees’ counsel attempted to object to the question on grounds of speculation, but Hicks intoned the answer before counsel could assert it.

46 and confusion when testifying to various other facts from this era. These included facts relating to

conveyances by her grandparents and her assertion, belied by the 1951 aerial photograph, that all

or part of the lake-access loop had been constructed by persons to whom Arthur had granted

“permission” to use the Point and Notch. Finally, there are portions of Hicks’s testimony that a

reasonable fact-finder could have found somewhat dubious, including her insistence during cross-

examination that, notwithstanding the survey that Sanders prepared showing the lake-access loop

and the fact that the heirs sold the property without warranties, she had “no idea” that the Point had

been burdened by any easements before she sold it to Davis. We are to defer to the district court’s

first-hand assessments of Hicks’s credibility and demeanor, and those assessments rationally

could have informed the court’s view of her other testimony. See City of Keller, 168 S.W.3d at 819;

Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000) (“Because the trier of fact has the

ability to examine the witness’s demeanor, we must defer to its credibility determinations.”). In light

of these circumstances, we conclude that the district court could have reasonably either believed

or disbelieved Hicks’s assertion that third-party use of the Point and Notch began with a grant of

permission from Arthur Stewart, and it acted within its discretion in doing the latter. See City of

Keller, 168 S.W.3d at 815–16. And, the district court having disregarded Hicks’s testimony to that

fact, the testimony does not negate the adversity of the use of the properties by appellees’

predecessors in title.

Appellants next argue that the evidence is legally or factually sufficient to support

the district court’s findings of the requisite “exclusivity” of use by appellees’ predecessors. As

appellants emphasize, there is no evidence that third-party use of the Point and Notch was ever

fully exclusive of the property’s use by the Stewart family. Hicks described the family’s use of the

47 property as “our access to the water” and for picnicking, fishing, and “just walking down there and

looking around, whatever,” although she indicated such use by the family had become “off an[d] on”

by the 1960s or 1970s. There was also evidence that the Point and Notch functioned as a parking

area for patrons and invitees of Emmet Stewart’s nearby marina during its years of operation.

Consequently, evidence merely that appellees’ predecessors continuously used the Point and Notch

in the same way cannot give rise to prescription as to those common uses. See Brooks, 578 S.W.2d

at 673–74; Scott, 959 S.W.2d at 721–22.

As appellees appear to recognize, they must instead rely on some “distinct and

positive assertion” of a hostile claim of right that is separate and apart from their predecessors’

continuous use of the property in common with the Stewarts. See Scott, 959 S.W.2d at 721–23.

Appellants urge that there is no evidence, or factually insufficient evidence, to support the

district court’s findings of “distinct and positive assertions by the Johnstons and the Gays, and the

predecessors in title . . . of a right to use the Notch (the Desmond Tract) and the Point (the Davis

Tract), including Hurst View, Hurst Creek Circle, and the circular access roadway on the Point, to

access and engage in the recreational use and enjoyment of [] Lake Travis, including lingering at the

shore line and water’s edge and maintaining boats and boat docks, that were brought to the attention

of the title owners of the Notch and Point [that] . . . were hostile to the owner’s rights.” We disagree.

While we would reach a different result if appellees were relying solely on proof that

their predecessors used the Point and Notch for lake access and recreation in a manner similar to the

Stewarts, we think that the predecessors’ decades-long uses far greater in scope—their maintenance

of boat docks at the Point and Notch—amount to the sort of “distinct and positive assertion” that can

distinguish an adverse and hostile claim of right from joint (and presumptively permissive) use.

48 There is no contention that the Stewarts ever maintained a boat dock at the Point or Notch;

consequently, that use of the property is not a joint use in common with the Stewarts’ use. Also,

while the right to maintain a boat dock is analyzed under the rubric of a “use” of property and thus

easement law rather than the doctrine of adverse possession,16 such a use is possessory in nature, akin

to locating a mobile home or other structure on the property. A boat dock of this type floats on the

water near shore, but it must be physically attached or anchored to the dry land to keep it from

drifting and it must be close enough to the land for access, which access often includes a ramp of

some sort that is also attached to the land. It is also exclusive in nature—in fact, there was evidence

that at least some of the boat docks at the Point and Notch had “no trespassing” signs, and there is

no evidence that the Stewarts ever used the boat docks. In these ways, this type of “use” is more

closely analogous to the construction of the garage and driveway referenced in Tran—i.e., “We agree

that building a structure on property may be sufficient evidence of adverse possession.” Tran, 213

S.W.3d at 915—than it is to the mere use of the garage and driveway. See id. It is a use that is

uniquely adverse or hostile to the servient estate and it is a possessory-type use in that it requires

some form of continuing, physical possession, albeit small, of the real property.

As for whether or when the maintenance of boat docks was ever brought to the

Stewarts’ attention, see Wiegand, 547 S.W.2d at 290, the district court was within its discretion to

credit Hicks’s acknowledgment that the family was aware of those activities from their inception.

For these reasons, we conclude that there is legally and factually sufficient evidence of the requisite

16 See, e.g., Werchan v. Lakewood Estates Ass’n, No. 03–08–00417–CV, 2009 WL 2567937, at *4–9 (Tex. App.—Austin Aug. 21, 2009, pet. denied) (mem. op.) (analyzing existence of prescriptive easement allegedly established by mooring a floating dock on alleged servient estate).

49 adversity and hostility in the uses of the Point and Notch by appellees’ predecessors, notwithstanding

the more limited range of joint uses they shared in common with the Stewarts.17

Appellants also suggest that the requisite adversity and hostility are lacking because

it is undisputed that appellees’ predecessors’ use of the Point and Notch was not exclusive of

other third parties. Appellants assert that the predecessors’ use “did not differ materially from

contemporaneous recreational use by the public generally.” See Fannin v. Somervell Cnty.,

450 S.W.2d 933, 935 (Tex. Civ. App.—Waco 1970, no writ) (holding that prescriptive easement

could not arise on unenclosed waterfront property used by general public solely for recreation and

pleasure). As an initial observation, the evidence, contrary to appellants’ assertions, supported the

reasonable inferences that (1) only a relatively limited number of third parties maintained boat docks

at the Point and Notch during the relevant period—witness estimates indicated 4-5 total at most, and

the aerial photographs showed as few as two—and (2) these third parties consisted of fellow

owners of lots on Graveyard Point. Relatedly, while we have sometimes stated imprecisely that a

prescriptive easement claimant’s use of property must be “exclusive” not only of the property owner,

17 Hicks’s testimony that “the people that used our property” had constructed all or part of the lake-access loop, including moving large rocks and felling trees, was also evidence of the sort of distinct and positive assertion of a hostile claim of right that could distinguish adverse use notwithstanding joint use. See Reid Estates Civic Club v. Boyer, Inc., No. 01–09–00282–CV, 2011 WL 6938513, at *6 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) (involving acts extending and improving roadway); Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 766 (Tex. App.—El Paso 2010, no pet.) (involving acts enclosing road with fence on one side and gate on one end); Terrill v. Tuckness, 985 S.W.2d 97, 108 (Tex. App.—San Antonio 1998, no pet.) (building fence around tract). However, the evidence falls short of permitting a reasonable inference as to whether any of appellees’ predecessors, as opposed to other third-party users of the property, were involved in the construction. See Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (declining to find possession hostile despite existence of improvements because evidence only showed who used driveway and garage, but not who built them).

50 but “of all other persons,”18 this is plainly not the case literally. See Reid Estates Civic Club

v. Boyer, Inc., No. 01–09–00282–CV, 2011 WL 6938513, at *12 (Tex. App.—Houston [1st Dist.]

Dec. 29, 2011, no pet.) (mem. op.). For example, we have recognized that parallel prescriptive

easements can ripen simultaneously in favor of more than one claimant based upon acts that manifest

independent adverse and hostile claims of right. Nickels v. Casburg, No. 03–05–00027–CV,

2009 WL 1708830, at *16 (Tex. App.—Austin June 18, 2009, pet. denied) (mem. op.) (holding that

sufficient evidence supported findings that over twenty-five property owners in subdivision had

acquired prescriptive easements over waterfront property through collective longstanding use by

themselves and their predecessors). More broadly, the role of the “exclusivity” inquiry, again, is to

distinguish adverse and hostile third-party uses from those that are equally consistent with uses

subject to permission. See Brooks, 578 S.W.2d at 673–74; Scott, 959 S.W.2d at 721–22. While uses

in common with members of the general public are considered consistent with permissive use,

see Othen v. Rosier, 226 S.W.2d 622, 627 (Tex. 1950) (citing Weber v. Chaney, 5 S.W.2d 213, 214

(Tex. Civ. App.—San Antonio 1928, writ ref’d)); Fannin, 450 S.W.2d at 935, there is proof of more

than that here.

Finally, appellants argue that to the extent any appellees hold an express easement

permitting “ingress and egress” over the Point and Notch, it could not be enlarged by prescription.

See McNally v. Guevara, 989 S.W.2d 380, 383 (Tex. App.—Austin 1999), rev’d on other grounds,

52 S.W.3d 195 (Tex. 2001) (relying on Kearney & Son v. Fancher, 401 S.W.2d 897, 903–05

(Tex. Civ. App.—Fort Worth 1966, writ ref’d n.r.e.), to hold that holder of express easement

18 See Werchan, 2009 WL 2567937, at *5.

51 permitting ingress and egress “cannot enlarge that right to include parking by prescription”). This

argument is applicable solely to the Johnstons because we have held that only they, not the Gays,

hold an express easement permitting ingress and egress over the Point and Notch. Nevertheless, we

disagree that these cases establish a categorical rule that the holder of an express easement cannot

obtain a prescriptive easement.

First, Kearney did not hold that a “a grant of a specific easement may not be enlarged

by prescription,” see McNally, 989 S.W.2d at 383; rather, in construing the text of the express

easement, it relied on the general rules regarding contract construction to hold that because the terms

of the grant were specific—i.e., “to use the railroad switch track and grounds”—“the limits of the

use may not be enlarged” to include a general right to use the property as a driveway after the

property was no longer being used for railroad purposes. See Kearney, 401 S.W.2d at 903. And in

addressing the possibility of an enlargement through prescription, the Kearney court relied not on

the above expressed rule regarding expansion of an express easement, but on the fact that the party

asserting such a claim had signed an agreement that any use of the easement in excess of the

express grant “will be permissive only, and shall not be the basis of any prescriptive right or rights.”

Id. Thus, Kearney does not control our decision here. As to McNally, which relies solely and

completely on Kearney for the proposition that a specific easement may not be enlarged by

prescription, it is distinguishable because it did not involve the distinct and positive assertion of a

right that is completely outside the scope of the express easement—i.e., hostile to the owner’s rights.

In contrast, as discussed above, the facts of this case show that appellees’ use of appellants’ property

to moor their boats was a distinct and positive assertion of a right that was hostile to appellants’

rights without regard to their express easement for ingress and egress to Lake Austin.

52 We overrule appellants’ fifth issue challenging the district court’s findings and

conclusions supporting a prescription theory. Because this theory independently supports the

positive easements declared in the district court’s judgment, we need not reach appellants’ challenges

regarding the alternative estoppel and implication theories on which the court relied. See Tex. R.

App. P. 47.1.

Negative implied restrictive covenant

In their sixth issue, appellants contend that the evidence was legally and factually

insufficient to support the district court’s judgment that a negative implied reciprocal restrictive

covenant bars commercial use of the Point and Notch. We agree.

As previously noted, it is undisputed that neither the Point nor the Notch is burdened

with any express restriction prohibiting their commercial use. In holding that a commercial-use

restriction existed nonetheless, the district court relied on what is known as the implied reciprocal

negative easement (or, more generally, equitable servitude) doctrine. The Texas Supreme Court has

articulated the following “reasonably accurate general statement of the doctrine”:

[W]here a common grantor develops a tract of land for sale in lots and pursues a course of conduct which indicates that he intends to inaugurate a general scheme or plan of development for the benefit of himself and the purchasers of the various lots, and by numerous conveyances inserts in the deeds substantially uniform restrictions, conditions and covenants against the use of the property, the grantees acquire by implication an equitable right, variously referred to as an implied reciprocal negative easement or an equitable servitude, to enforce similar restrictions against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants.

53 Evans v. Pollock, 765 S.W.2d 465, 466 (Tex. 1990) (quoting Minner v. City of Lynchburg,

129 S.W.2d 673, 679 (Va. 1963)) (citations omitted). In order to impose a restrictive covenant by

implication on property retained by the original grantor, there must be evidence that (1) the grantor

intended to adopt a scheme or plan of development that encompassed both the property conveyed

and the property retained, and (2) the grantor subdivided the property into lots and included in the

deeds of the properties conveyed substantially uniform restrictions designed to further the scheme

or plan. See id. Under these circumstances, the burden the grantor has placed on the land conveyed

is considered to be imposed, by operation of law, on the land he retained. See Saccomanno v. Farb,

492 S.W.2d 709, 713 (Tex. Civ. App.—Waco 1973, writ ref’d n.r.e.) (citing 20 Am. Jur. 2d

Covenants, Conditions and Restrictions § 733 (1965)). When seeking to impose the restrictive

covenant on property retained initially by the grantor but subsequently sold to a third party, there

must also be evidence that the subsequent purchaser had actual or constructive notice of the

existence of those restrictions on the other properties included in the scheme or plan of development.

See Evans, 792 S.W.2d at 466.

As this Court recently emphasized in rejecting two similar attempts to impose a

negative implied restrictive covenant on other Graveyard Point tracts based on a supposed “common

scheme or plan of development” intended by A.K. and Annie Stewart, “‘the doctrine should

be used and applied with extreme caution, for it involves difficulty and lodges discretionary

power in a court of equity to deprive a man of his property, to a degree, by imposing a servitude

by implication,’ . . . a practice consistent with ‘the settled rule in Texas that alleged restrictive

clauses in instruments concerning real estate must be construed strictly, and all doubts . . . resolved

54 in favor of the free and unrestricted use of the property.’” Harbor Ventures, 2012 WL 1810205,

at *3 (quoting Saccomanno, 492 S.W.2d at 713); accord Crosswater Yacht Club, 2012 WL 1810213,

at *3.

In support of its legal conclusion that “[t]he Notch and the Point are subject to a

negative implied restrictive covenant that no commercial enterprises can ever be operated on the

property,” the district court found that “[a] common grantor developed the area surrounding the

Notch and the Point for sale in lots and pursued a course of conduct indicating a general plan or

scheme of development that purchasers of these lots would be (1) restricted from engaging in

commercial enterprises and (2) granted express easements to access and engage in the recreational

use and enjoyment of Lake Travis over a specified roadway ending at the Notch and the Point.” In

support of the court’s finding that the required “general plan or scheme of development” existed

were two sets of underlying findings. First, the court relied on findings that “[t]he substantial

number of deeds from A.K. and Annie Stewart, and later their heirs, used to convey the lots

surrounding the Notch and Point to grantees, other than heirs of A.K. and Annie Stewart, contain a

substantially uniform restrictive covenant preventing the operation of commercial enterprises on the

lots and tracts,” which in turn “indicates the common grantors had a general plan or scheme of

development that the area later known as the Notch and the Point would be restricted from

commercial use.” Second, the court relied on a finding that:

A.K. and Annie Stewart’s plan and scheme of development must have been that the Notch and the Point would not be used for commercial enterprises because it would have been nonsensical to provide that no commercial enterprises could ever be operated on any of the tracts immediately inland and then allow a commercial enterprise on the area reserved and burdened by the unqualified and perpetual express

55 easements appurtenant granting the right to access and engage in the recreational use and enjoyment of Lake Travis at this location.

Neither set of findings can support the existence of the required common development plan

or scheme.

As we held in connection with appellants’ first and second issues, the premise that

the Stewarts pursued a common, uniform scheme or plan under which they granted “unqualified and

perpetual express easements appurtenant granting the right to access and engage in the recreational

use” of the Point and Notch is contrary to the unambiguous text of the easements Annie Stewart

granted in her deeds to appellees’ lots, not to mention her deeds to other lots along Oak Hurst. And

absent any support for that erroneous premise regarding positive easements, the sole basis reflected

in the findings for inferring the existence of a common scheme or plan entailing commercial-use

prohibitions is that “a substantial number of deeds” from A.K. and Annie Stewart, and later their

heirs,” imposed “a substantially uniform restrictive covenant preventing the operation of commercial

enterprises on the lots and tracts.” This is not enough to establish a negative implied restrictive

covenant. As we held in both Harbor Ventures and Crosswater Yacht Club, “[t]he fact that the

original grantor inserts substantially similar restrictions in deeds of property conveyed, standing

alone, is no evidence of a scheme or plan of development that could justify a similar implied

restriction on property the grantor retained.” See Harbor Ventures, 2012 WL 1810205, at *5;

accord Crosswater Yacht Club, 2012 WL 1810213, at *4. Consequently, as was true in those cases,

the district court erred in concluding from those findings that the Point and Notch are burdened by

a negative implied restrictive easement prohibiting commercial use. In any event, the evidentiary

record in this case leads us to echo the same observation we made in Harbor Ventures: “even if it

56 could be inferred that A.K. and Annie Stewart did have some sort of general plan or scheme of

noncommercial development, the record suggests that any such plan encompassed only the

landlocked properties . . . and did not include lakefront tracts” where commercial use restrictions

were typically not imposed in their conveyances of those properties and a family member

even operated a marina on one of those tracts for several years. Harbor Ventures, 2012 WL

1810205, at *6.19

For similar reasons, we also hold that the district court erred in making an additional

legal conclusion that appellants were collaterally estopped from relitigating “the enforceability of

the negative implied restrictive covenant against engaging in commercial enterprises on the Notch

or the Point” by virtue of the Mabry judgment. Collateral estoppel, or issue preclusion, is designed

to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent

judgments by precluding the relitigation of issues. A party seeking to assert the bar of collateral

estoppel must establish that (1) the same facts sought to be litigated in the second action were fully

and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action;

and (3) the party against whom the doctrine is asserted was a party or in privity with a party in the

first action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801–02 (Tex. 1994). Collateral

estoppel “is more narrow than res judicata in that it only precludes the relitigation of identical issues

of facts or law that were actually litigated and essential to the judgment in a prior suit.” Van Dyke

19 Of course, Harbor Ventures and Crosswater Yacht Club, founded as they are on the unique “findings, conclusions, and judgments of other trial courts . . . involving different parties, facts, and arguments,” do not dictate or control the result in this case. See Crosswater Yacht Club, 2012 WL 1810213, at *5. Our analysis is instead based upon the governing legal principles applied to the record here.

57 v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985). As appellants observe,

the Mabry litigation concerned one of the large shoreline tracts that Annie Stewart gifted among her

seven children—all without commercial use restrictions—in 1949 and the manner in which the

grantee, Ernest Stewart, subdivided and developed the tract thereafter. The pivotal finding on which

the trial court’s judgment turned was “[t]he fact that every tract which was sold by Ernest C. Stewart

contained the same restrictive covenant indicates that Ernest C. Stewart had the general plan that

the block of land on the tip of the peninsula would be restricted from commercial use.” These are

not the same facts that were at issue in regard to the implied negative restrictive covenant theory in

this case. Collateral estoppel did not bar appellants from litigating those facts here. See Van Dyke,

697 S.W.2d at 384.

We sustain appellants’ sixth issue.

Counterclaims

In their seventh and final issue, appellants request that, to the extent we reverse

the district court’s judgment awarding relief to appellees, we likewise render judgment on their

declaratory counterclaims and remand the attorney’s fee award. We will do so. See Tex. Civ. Prac.

& Rem. Code Ann. § 37.009; Roberson v. City of Austin, 157 S.W.3d 130, 137 (Tex. App.—Austin

2005, pet. denied).20 On remand, the district court should similarly revisit its permanent injunction

to the extent this relief was predicated on its erroneous declaration that a negative implied restrictive

covenant barred commercial use of the Point or Notch. Coleman, 514 S.W.2d at 903 (use incident

20 Appellants also complain that the district court improperly awarded appellate attorney’s fees to appellees conditioned on appellants’ failure to be “successful in completely reversing this judgment.” (Emphasis added.) The district court should also address this issue on remand.

58 to easement is limited to that “reasonably necessary and convenient and as little burdensome as

possible to the servient owner”); see also State v. Brownlow, 319 S.W.3d 649, 656 (Tex. 2010)

(“[T]he rights reasonably necessary for full enjoyment of an easement are limited. They do not

encompass rights foreign to the purpose for which the easement is granted. The servient estate

holder retains these rights.”). We sustain appellants’ seventh issue.

CONCLUSION

Based on a prescription theory, we affirm the district court’s judgment declaring that a

positive easement permits appellees to use the Point and Notch for access to Lake Travis, to maintain

boat docks and boats, and engage in various recreational activities there. However, we reverse its

judgment that the properties are burdened by a negative implied restrictive covenant prohibiting

commercial use and render judgment that they are not. We remand the parties’ attorney’s fee claims

and appellees’ claims for injunctive relief for reconsideration in light of our holdings.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed in part; Reversed and Remanded in part

Filed: June 28, 2012