Ferrara v. Moore

318 S.W.3d 487, 2010 WL 2925927
CourtCourt of Appeals of Texas
DecidedAugust 24, 2010
Docket06-10-00006-CV
StatusPublished
Cited by19 cases

This text of 318 S.W.3d 487 (Ferrara v. Moore) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferrara v. Moore, 318 S.W.3d 487, 2010 WL 2925927 (Tex. Ct. App. 2010).

Opinions

OPINION

Opinion by

Justice CARTER.

Finding that Michael L. Moore and Deborah J. Moore owned an express easement for ingress and egress to their property, the trial court enjoined Joseph Ferrara from restricting use of the easement and granted attorney’s fees. Ferrara’s appeal complains that the evidence does not support the trial court’s findings of fact, injunction, and attorney’s fee award. We find no reversible error and affirm the judgment of the trial court.

I. Facts and Procedural Background

Brian Hays owned an eleven-acre tract of land abutting a county road, which he subdivided into five lots. Each deed contained an easement for a “non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed.” Each of the deeds referenced an attachment in which the particular easement was specifically described by metes and bounds. In 2005, Ferrara purchased tract #2 by warranty deed in which he also was granted such an easement and the tract was subject to all valid easements which allowed northern property owners, including owners of otherwise landlocked tract # 5, access to their property from a county road. Ferrara installed a fence and a gate around the easement in February 2006 and began to block the road. He justified this action by claiming he “researched it and that piece of property north of me did not have legal access to use that [easement]. It was a privilege.”

Hays was notified by Roy Gay, another owner of property north of tract # 2, that he was “allowed to enter the gate for a couple of times and then Mr. Ferrara would not let them enter any longer.” To no avail, Hays spoke with Ferrara “several times about the easement” and clarified that Ferrara was not allowed to block it. Thereafter, “Ferrara came out and ... cut trees [and laid them] all across the easement where it wasn’t passable,” despite being directed to open the gate. Finally, to avoid conflict, Hays used a bulldozer to create a road on someone else’s property to allow the other tracts to access the county road.

In May 2009, the Moores purchased tract # 5 and discovered that Ferrara was blocking access and use of their easement. The Moores asked Ferrara “once again could we settle this amicably ... and [Fer-rara] said no, that [he’d] have to be taken to court.” So, the Moores filed suit. In their petition, they asked the court to order Ferrara to remove the gates to the easement, issue an injunction enjoining him from “erecting any other impediment to the free and unrestricted use of the easement,” and sought damages and attorney’s fees. Ferrara’s pro se answer alleged that the “[f]ence and gate” had been in place for three and one-half years and the easement had not been used for that time and was therefore abandoned.

After a bench trial, which Ferrara attended pro se and called no witnesses other than himself, the trial court issued judgment declaring that the Moores had an express easement for means of ingress and egress onto their property. It permanently enjoined Ferrara from “erecting or placing gates, fences, posts, barriers, wires, chains, locks, logs, rocks, or any other impediment or obstacle” that would “inter-fer[e] in any manner with [the Moores’] free and unrestricted use and enjoyment of the Easement.” The existing gates were to be removed, and Ferrara was ordered [490]*490to pay damages and $4,500.00 in attorney’s fees. After judgment was entered, Fer-rara retained counsel, who promptly requested findings of fact and conclusions of law from the court. A motion for new trial apprised the court of Ferrara’s complaints that insufficient evidence supported: (1) the court’s permanent injunction; (2) the finding that Ferrara erected or placed impediments or obstacles on the easement; (3) the conclusion that the Moores were entitled to free and unrestricted use and enjoyment of the easement; and (4) the damage award. In addition, the motion complained that the trial court was without authority to order removal of the gates and that insufficient evidence supported the allegedly excessive award of $4,500.00 in attorney’s fees. The trial court denied the motion and issued findings of fact and conclusions of law.

On appeal, Ferrara argues that the trial court erred: (1) as a matter of law “in extending the terms of the nonexclusive easement beyond the written terms of the easement”; (2) in granting the Moores free and uninterrupted access over the easement; (3) in granting a permanent injunction forbidding Ferrara from placing gates on the easement to prevent unauthorized access and vandalism;1 (4) in entering judgment based on findings of fact and conclusions of law which are challenged for sufficiency of the evidence; (5) in awarding nonsegregated attorney’s fees; and (6) in limiting Ferrara’s cross-examination.

II. The Trial Court Had Authority to Order Ferrara to Remove Obstructions From the Easement

An easement is a nonpossessory interest that authorizes its holder to use the property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). Ferrara argues that the court misinterpreted the easement terms and erred in ordering him to remove gates and other obstacles on the easement. Interpretation of contracts granting easements are reviewed de novo. Barrow v. Pickett, No. 01-06-00664-CV, 2007 WL 3293712 (Tex.App.-Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem.op.).

A servient estate cannot interfere with the right of the dominant estate to use an easement for the purpose for which it was granted or sought. McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex.App.-Fort Worth 1994, no writ) (citing Bicker v. Bickler, 403 S.W.2d 354, 359 (Tex.1966)). Likewise, the easement owner must make reasonable use of the right and not unreasonably interfere with property rights of the owner of the servient estate. San Jacinto Sand Co. v. Sw. Bell Tel. Co., 426 S.W.2d 338, 345 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.). Any use by others that interferes with the exercise of superior easement rights must yield. Taylor Foundry Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 770 (Tex.App.-Fort Worth 2001, no pet.); McDaniel, 875 S.W.2d at 485 (citing Pittman v. City of Amarillo, 598 S.W.2d 941, 944 (Tex.App.-Amarillo 1980, writ ref'd n.r.e.)). The Moores’ easement originated from an express grant with a specific description. Their rights are paramount to the extent of the grant. Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399, 403 (1953).

The basic principles of contract construction and interpretation are applied when considering an express easement’s terms. Marcus Cable, 90 S.W.3d at 700. The contracting parties’ intentions, as expressed in the grant, determine the scope [491]*491of the easement. Id. at 701 (quoting Restatement (ThiRd) of Property (Servi-tudes) § 4.1 (2000)) (providing that an easement “should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created”).

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Ferrara v. Moore
318 S.W.3d 487 (Court of Appeals of Texas, 2010)

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Bluebook (online)
318 S.W.3d 487, 2010 WL 2925927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrara-v-moore-texapp-2010.