COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JOHN P. BOERSCHIG, ' No. 08-09-00071-CV Appellant, ' Appeal from the v. ' 394th District Court ' SOUTHWESTERN HOLDINGS, INC., ' of Presidio County, Texas Appellee. ' (TC# 6599)
OPINION
John Boerschig appeals the trial court=s judgment in favor of Southwestern Holdings, Inc.
(SHI), stemming from his suit for trespass, injunctive, and declaratory relief. We affirm in part
and reverse in part.
BACKGROUND
In the early 1900s, John A. Poole owned a sizeable ranch named La Cienega. 1 The
northern portion of that ranch, now known as the McCracken Ranch, was later sold to the
McCrackens in 1930. In 1950, Poole=s son, Hart Greenwood, purchased La Morita, a western
property adjacent to La Cienega.
1 As a map may be helpful to understanding the properties and roads involved, we have attached one for convenience. Forty years later, SHI bought the Cibolo Creek Ranch, which abutted the northwest area
of the McCracken Ranch, and developed the property into a resort. And in 1992, SHI bought La
Morita and La Cienega, and renovated those properties into resorts, as well. Frances Harper,
Greenwood=s daughter, retained a portion of the original Poole ranch located to the east of La
Cienega, and SHI later purchased a portion of that property as well in 2000, known as the Harper
Ranch.2
Meanwhile, ownership of the McCracken Ranch vested to McClurg and Kelly, and in
1999, they sold the ranch to Wolverine Ventures, who transferred the ranch to John Boerschig
the following year. Boerschig now operates the ranch for cattle ranching and hunting. He later
sued SHI over the use of two roads, namely, the Tinaja-China Road and the Morita Road, which
as explained below, cross the parties=s respective ranches.
The Tinaja-China Road
From Highway 67, access to the McCracken Ranch and Cienega Ranch is had by the
Tinaja-China Road, which first crosses the eastern part of the Cibolo Creek Ranch and then a
portion of the McCracken Ranch. Prior to Ventures= purchase of the McCracken Ranch, SHI
attempted to have the Presidio County Commissioners Court declare the Tinaja-China Road a
public road, but the Commissioners Court declined, recommending that the private parties, that
is, SHI and the owners of the McCracken Ranch, McClurg and Kelly, resolve the issue among
themselves. Accordingly, in October 1993, the parties executed the following reciprocal
easement:
2 The Harpers retained ownership of Rancho Quemado, an adjacent ranch located to the east of Harper Ranch.
2 For adequate consideration, the receipt and sufficiency of which is acknowledged and confessed, Southwestern hereby Grants and Conveys to McCracken, their heirs, successors and assigns, and McCracken hereby Grants and Conveys to Southwestern, its successors and assigns, an easement 30 feet in width for the purpose of ingress and egress to and from McCracken Tinaja China Ranch and Cibolo Creek-Cienega Ranch, respectively, over, across and upon the New Road described in this Agreement for its full length as described herein. Such easement shall be appurtenant to the McCracken Tinaja China Ranch and to the Cibolo Creek-Cienega Ranch, each such ranch being more particularly described on the attached Exhibit AA@.
Following the agreement, McClurg and Kelly never objected to SHI=s or its guests= use of the
road to access its resort at Cienega.
The Morita Road and Fence
The Morita Road runs from an old fort located on La Cienega Ranch to another fort on La
Morita Ranch. As the road passes through the Morita Canyon, the road crosses onto the
McCracken Ranch for 2,200 feet. Prior to a survey completed in 2001, Boerschig simply
assumed the entire road belonged to SHI as did all prior property owners in the area. Indeed,
from 1950 to 1992, the road was not open to the public but used on a regular basis and
exclusively by the Greenwoods, who also exclusively improved and maintained the road.
Similarly, SHI used and maintained the road exclusively since it purchased the Cienega and
Morita ranches, and Boerschig, prior to obtaining the survey, only used the road with SHI=s
permission.
The survey also concluded that a small portion of a fence that SHI erected in 1992 near
the renovated buildings on La Morita was actually on the McCracken property.
The Suit
Boerschig sued SHI, alleging, among other things, that: (1) SHI trespassed by using a
3 portion of the Morita Road that was on his property; (2) SHI violated the express easement by
using it for its invitees to access a resort rather than a ranch, and to access nonappurtenant
properties; and (3) SHI trespassed by erecting a fence on the Morita Road. Boerschig moved for
injunctive and declaratory relief, asking the court to declare that portion of the Morita Road his,
to enjoin SHI=s trespasses, and to determine the scope of the express easement. Boerschig
further moved for damages based on permanent and temporary injuries, and exemplary damages.
SHI generally denied the allegations, claimed it had an easement by estoppel, implication, or
prescription on the Morita Road, alleged that Boerschig=s fence claims were barred by standing
and limitations, and also moved for declaratory relief concerning the language in the express
easement.
Boerschig=s Summary Judgment
SHI later counterclaimed that it had an implied easement by existing use or necessity
across the Tinaja-China Road and that the express easement had been impliedly dedicated to the
public. Boerschig moved for summary judgment on SHI=s most recent counterclaims,
contending that SHI failed to show any evidence that met the elements for an implied easement
by existing use or necessity, that any implied easement terminated when the express easement
was entered into, and that there was no evidence that the easement was impliedly dedicated to the
public. Boerschig also filed a motion to dismiss SHI=s counterclaim for implied public
dedication, arguing that SHI lacked standing to bring such an action. In response, SHI asserted
that there were genuine issues of material fact concerning whether: (1) there was an implied
easement before the express easement issued; (2) the implied easement ended when the express
easement was signed; and (3) there was an implied public dedication of the easement in question.
4 The trial court granted Boerschig=s motion for summary judgment.
SHI=s Summary Judgment on Declaratory Action for Express Easement
SHI moved for summary judgment as to the declarations of the rights of the parties
concerning the express easement. SHI=s motion asserted that the express easement was: (1) an
easement appurtenant; (2) a general easement for ingress and egress; (3) an easement not limited
as to the purposes of such ingress and egress; and (4) an easement that included the right of the
parties= guests, invitees, and licensees to use the easement. Boerschig stipulated that the
easement was an easement appurtenant from the McCraken Ranch to the Cibolo Creek Ranch
and Cienega Ranch, but contested whether the easement was appurtenant to access any of SHI=s
other properties. He also asserted that the easement was not a general easement that could be
enlarged by changes in the use or character of SHI=s property; rather, Boerschig alleged that the
easement was limited by the intentions of the parties at the time the easement was entered into
and that what is expressly not included in the easement is prohibited. The trial court granted
SHI=s motion for summary judgment and declared the express easement an easement appurtenant
that is reciprocal in nature and grants each party a general right of ingress and egress, which
extends to the parties= guests, invitees, and licensees. The trial court reserved all other rulings
on the express easement, including Boerschig=s requests for injunctive relief, for trial.
SHI=s Traditional Motion for Summary Judgment on Morita Road
SHI also partially moved for traditional summary judgement, asserting that it had an
easement by prescription on the Morita Road and that any fence trespass was barred by
limitations. Boerschig responded that SHI=s possession lacked any intention to appropriate and
therefore, SHI was not entitled to an easement by prescription. Further, Boerschig retorted that
5 his action is not barred by limitations as the discovery rule applied. The trial court denied SHI=s
motion for summary judgment.
SHI=s No-Evidence Motion for Summary Judgment on Morita Road
SHI also partially moved for a no-evidence summary judgment on grounds that Boerschig
lacked standing to address the Morita Road and that he failed to show any damages. Boerschig
objected to the limitations and standing arguments, and withdrew his claims for lost rental
values, mental anguish damages, and actual damages resulting from walking. However,
Boerschig claimed he was entitled to actual damages for driving on his land, nominal damages
for walking trespasses, and exemplary damages for malicious trespasses. The trial court granted
the summary judgment in part with regards to claims for lost rental values, mental anguish
damages, and actual damages for any alleged walking or driving on Boerschig=s property. The
remaining claims went to trial.
Bench Trial
At the conclusion of trial, the court found that SHI had a prescriptive easement on the
Morita Road, ruled that Boerschig bought the fence when he bought the property, and determined
that Boerschig was not entitled to injunctive relief on the express easement. However, the trial
court ordered SHI to pay $1 in nominal damages for trespass by foot and $100 in nominal
damages for trespass by equipment on Boerschig=s property.3 The trial court further ordered that
judgment be entered for SHI, that all relief requested and not expressly granted is denied, and
that SHI recover its attorney=s fees. The trial court=s findings of fact and conclusions of law
3 The trial court found that on two occasions, SHI=s equipment traveled on the McCracken Ranch outside the boundary of the express easement, and that on another occasion, John Poindexter, the owner of SHI, walked across a portion of the McCracken Ranch to view the Lake Ranch. Neither party appeals these rulings.
6 declared that Boerschig lacked standing to sue for a trespass caused by the Morita fence and that
his claim was barred by limitations, that Boerschig only presented a theoretical injury as to
whether SHI used the express easement to access nonappurtenant properties, that SHI had an
easement by prescription across the Morita Road, and that SHI could recover attorney=s fees in
the amount of $49,320.
SCOPE OF EXPRESS EASEMENT
We begin with a discussion of Boerschig=s second issue, which attacks SHI=s use of the
express easement to access its commercial resort at Cienega Ranch, a use that Boerschig asserts
was not contemplated at the time the easement was entered into. In this regard, Boerschig
claims that the trial court erred by failing to grant a declaratory judgment in his favor. Because
the trial court granted SHI=s motion for summary judgment and declared that the easement
provided for a general right of ingress and egress that extended to SHI=s invitees, we interpret
Boerschig=s argument as a challenge to the trial court=s summary judgment.
Standard of Review
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). Summary judgment is proper only when a movant establishes that there
is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c). In reviewing a summary judgment, we indulge every reasonable
inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and
resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.
Applicable Law
An easement is a nonpossessory interest in another=s property that authorizes its holder
7 to use that property for a particular purpose. Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697,
700 (Tex. 2002). AA grant or reservation of an easement in general terms implies a grant of
unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome
as possible to the servient owner.@ Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974).
When considering the terms of an express easement, we apply basic principles of contract
construction and interpretation. Marcus Cable, 90 S.W.3d at 700. The contracting parties=
intentions, as expressed in the grant, determine the scope of the interest conveyed. Id. at 700-01.
We read the terms of an easement as a whole to reach an adequate interpretation of the parties
intentions and to carry out the purpose for which the easement was created. DeWitt County
Elec. Coop. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). Any doubts about the parties= intent are
resolved against the grantor, or servient, estate, and we adopt the interpretation that is the least
onerous to the grantee, or dominant, estate in order to confer on the grantee the greatest estate
permissible under the instrument. See Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 665
(Tex. 1964); CenterPoint Energy Houston Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381,
388-89 (Tex. App. B Houston [1st Dist.] 2008, pet. denied).
Application
Citing Marcus Cable, Boerschig asserts that the easement may only be used as
contemplated by the parties at the time the easement was entered into, that is, to access a ranch,
not a commercial resort. In Marcus Cable, the Supreme Court construed an easement that
granted an electrical utility permission to construct and maintain Aan electric transmission or
distribution line or system@ over private real property. Marcus Cable, 90 S.W.3d at 699. Later,
Marcus Cable obtained permission from the electrical utility to attach cable lines and wiring to
8 the utility=s poles. Id. The private property owners sued, claiming that the cable company did
not have a valid easement and that they had not consented to the placement of the cable lines
across their property. Id. After determining that settled law had interpreted the terms Aelectric
transmission@ and Aelectric distribution@ as referring exclusively to conveyances of electricity, the
Supreme Court, relying on the specific language in the grant, held that the grant expressed in the
easement encompassed only an Aelectric transmission or distribution line or system,@ not a use for
cable television transmission. Id. at 703-04, 706. Thus, the Court concluded that the utility
easement was limited to the purpose of conveying electricity and declined to permit a use by
Marcus Cable that went beyond conveying electricity. Id. at 704.
Boerschig asserts that since the easement refers to the AMcCracken Tinaja China Ranch,@
the ACibolo Creek-Cienega Ranch,@ and the road as a Aranch road,@ the easement may only be
used to access ranches, that is, a farm or establishment for rearing cattle and other stock, not to
access commercial resorts. We disagree. The easement provides for a general right of ingress
and egress. It does not provide that either party may only use the easement to access property
that may only be used for those ranching purposes as claimed by Boerschig. Indeed, simply
because the word Aranch@ is contained in the title of a property does not mean that property is
limited to such a use.4 Thus, the holding in Marcus Cable, which concluded that language in the
4 As SHI notes in its brief, several properties include the term Aranch@ in their title when, in fact, no ranching operations take place on the property:
AFish Creek Ranch@ is a commercial resort. Seidler v. Morgan, 277 S.W.3d 549 (Tex. App. B Texarkana 2009). AGhost Mountain Ranch@ and AR-Ranch@ are commercial resorts. Neeley v. Martin, 2007 WL 853969 (Cal. App. 3 Dist. March 22, 2007); McCall v. Couture, 666 S.E.2d 637 (Ga. App. 2008). AFantasy Ranch@ is a sexually oriented business with nude dancers. Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 556 (5th Cir. 2006). ARio Ranch@ is a restaurant. Sieker v. State, 1994 WL 599451 (Tex. App. B Houston [1st Dist.] November 03, 1994). ATexas Boys Ranch@ was Aa home for boys who had been having problems with the law.@ Richardson v.
9 easement limiting its use solely to Aelectric transmission@ is inapplicable.
Further, although the properties may be labeled ranches or the road a Aranch road,@ those
names are not sufficient by themselves to limit the easement=s use to access only ranch
properties, that is, to limit what the owners of the respective estates can do with their property.
Indeed, an easement granted for general purposes of ingress and egress includes not only the use
required at the time of the grant, but also the right to use the easement for any purpose connected
to the use of the property. See Shipp v. Stoker, 923 S.W.2d 100, 103 (Tex. App. B Texarkana
1996, writ denied) (finding dominant estate could be used for both residential and business
purposes when general easement contained no restrictions on its use). Absent any expressed
language limiting or negating what the owners may do on their properties, we decline to hold that
simply labeling the properties ranches or the road a ranch road is sufficient by itself to limit the
properties to ranching operations only. See Bradshaw v. Lower Colorado River Auth., 573
S.W.2d 880, 883-84 (Tex. Civ. App. B Beaumont 1978, no writ) (easement that granted Aright of
ingress and egress across said land . . . [to] reach the water=s edge@ was not limited solely to cattle
grazing but also included the right to use the water for recreational purposes); San Antonio Indep.
Sch. Dist. v. City of San Antonio ex rel. San Antonio Water System, 2004 WL 2450919, at *5
(Tex. App. B San Antonio Nov. 3, 2004, pet. denied) (mem. op., not designated for publication)
(easement that provided Aright of ingress and egress shall also be for the purpose of using said
State, 879 S.W.2d 874 (Tex. Cr. App. 1993). And, ALaurel Canyon Ranch,@ ARiver Mountain Ranch@ and ARiata Ranch@ are just a few examples of the numerous residential subdivisions called Aranches@ throughout Texas. See Edberg v. Laurel Canyon Ranch Architectural Review Committee, 2009 WL 1089432 (Tex. App. B San Antonio, April 22, 2009); In re Fallis, 2009 WL 262119 (Tex. App. B San Antonio, February 04, 2009); Cypress Northwest Associates, Ltd. v. Wayne Duddlesten, Ltd., 2008 WL 457847 (Tex. App. B Houston [1 Dist.], February 21, 2008).
10 land to access adjoining property currently owned by San Antonio Water System@ was not
limited only to the construction, maintenance, and other activities related to the water systems
and facilities).
Finally, the evidence presented at trial demonstrated that the McCrackens were aware of
SHI=s intentions to use the properties as resorts prior to entering into the reciprocal easement.5
The easement was executed on October 15, 1993. In 1990, SHI renovated the Favor fort ruins at
Del Cibolo, and in 1992, it began similar renovations at Cienega and Morita. By the fall of
5 Although we recognize that such evidence was not on file at the time the trial court entered its summary judgment, see Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 374 (Tex. App. B San Antonio 1999, pet. denied); Hussong v. Schwan=s Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex. App. B Houston [1st Dist.] 1995, no writ) (trial court may only consider the evidence on file at the time of the summary judgment hearing or filed thereafter and before judgment with permission of the court), we may consider the evidence adduced at trial if a trial court reconsiders its previous ruling or prematurely grants summary judgment, which can be rendered harmless by subsequent events. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (concluding that any error committed by granting summary judgment on insurance bad-faith and extra-contractual claims was harmless because jury=s finding in subsequent proceeding negated coverage, which was prerequisite for asserting bad-faith and extra-contractual claims); Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (holding that trial court rendered any error arising from its failure to give notice of submission date for motion for summary judgment harmless when it considered nonmovant=s response and reconfirmed its prior ruling on the motion); McAlester Fuel Co. v. Smith Intern., Inc., 257 S.W.3d 732, 736-37 (Tex. App. B Houston [1st Dist.] 2007, pet. denied) (holding that any error in trial court=s grant of partial summary judgment on claims of breach of contract, negligence, negligent misrepresentation, and DTPA claims was harmless when the issue of whether defendant was shielded from liability under the terms and conditions contained on the backside of the job tickets was fully litigated at trial). Here, the trial court reserved any issues enjoining SHI=s use of the easement for trial. After hearing the trial evidence, the court denied the injunction and seemingly reaffirmed its prior summary-judgment order:
With respect to the other road, to the Tinaja-China Road, the Court finds that way back before Mr. Boerschig came along, Mr. Poindexter and his company got in there. They began their operations. The same objection that was made by Mr. Boerschig was made at that time by the McCracken Ranch people about the use of the road. They got into some kind [of] dispute. They went through whatever procedure they went through, and I am not going to get into the details of that. But as a result of that, they eventually worked out an expressed agreement to be able to use that road where I am assuming those B that the Court finds, for the increased usage that, in fact, that he wanted to use it for. And so it=s a bargained-for thing. And I am not going to grant any injunction against him using the Tinaja-China Road.
Therefore, we may consider the evidence adduced at trial in determining whether the trial court=s premature grant of summary judgment was harmless.
11 1993, the Cibolo resort was substantially complete, and SHI was Alate in the process@ at Cienega
and Morita. Meanwhile, McClurg and Kelly disagreed with SHI over the use of the
Tinaja-China Road, and that dispute went to the Presidio County Commissioner=s Court in
August 1993. With the owners of the McCracken Ranch present, SHI explained its need for
access to the Cienega Ranch, which it had developed into a Aguest facility.@ The parties later
entered into an easement agreement in October. Thus, the easement was entered into with
knowledge that SHI would use its properties as commercial resorts. Marcus Cable, 90 S.W.3d
at 701 (A[A]n 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.=@) (quoting
Restatement (Third) of Property (Servitudes) ' 4.1).
Based on our discussion, we find no reversible error in the trial court=s order granting
summary judgment in favor of SHI. Accordingly, Issue Two is overruled.
ACCESS TO OTHER PROPERTIES
Boerschig=s first issue complains of the trial court=s determination that SHI did not use or
allow others to use the express easement to access nonappurtenant properties. The trial court
determined that there was not a real and concrete dispute about use of the express easement to
access other properties and ruled that Boerschig was not entitled to a declaratory judgment on
this ground, having only presented a theoretical injury.
A declaratory judgment is available only if a justiciable controversy exists as to the rights
and status of the parties and the controversy will be resolved by the declaration sought. Bonham
12 State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). ATo constitute a justiciable
controversy, there must exist a real and substantial controversy involving genuine conflict of
tangible interests and not merely a theoretical dispute.@ Id. (quoting Bexar-Medina-Atascosa
Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Protection Ass=n, 640
S.W.2d 778, 779-80 (Tex. App. B San Antonio 1982, writ ref=d n.r.e.). Although a justiciable
controversy need not be a fully ripened cause of action, the fact situation must manifest the
ripening seeds of a controversy to confer jurisdiction. Tex. Dep=t of Pub. Safety v. Moore, 985
S.W.2d 149, 153-54 (Tex. App. B Austin 1998, no pet.) (citing Ainsworth v. Oil City Brass
Works, 271 S.W.2d 754, 761 (Tex. Civ. App. B Beaumont 1954, no writ)). Ripening seeds of a
controversy Aappear where the claims of several parties are present and indicative of threatened
litigation in the immediate future which seems unavoidable, even though the differences between
such parties as to their legal rights have not reached the state of an actual controversy.@
Ainsworth, 271 S.W.2d at 761. However, a declaratory judgment action does not vest a court
with the power to pass upon hypothetical or contingent situations, or to determine questions not
then essential to the decision of an actual controversy, although such questions may in the future
require adjudication. Empire Life Ins. Co. v. Moody, 584 S.W.2d 855, 858 (Tex. 1979); Tex.
Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App. B Austin
2002, pet. denied). Otherwise, the judgment amounts to no more than an advisory opinion,
which the district court does not have power to render. Tex. Health Care, 94 S.W.3d at 846.
Boerschig first alleges that SHI attempted to allow others to use the easement to access
nonappurtenant properties. In this regard, Boerschig claims that SHI allowed the Harpers to use
13 the road to access Rancho Quemado, but nothing in the record shows that the Harpers used the
easement, and in fact, when the Harpers sold a portion of their ranch to SHI, the deed did not
include any use of the easement, and the trial court found that SHI did not grant or give
permission to the Harpers to use the easement. Boerschig also contends that SHI engaged the
Texas Department of Parks and Wildlife (TDPW) for access to properties it owned south of
Cienega Ranch by way of the easement if SHI succeeded in purchasing a portion of those
properties; however, those talks fell through, and the trial court, after considering that evidence,
determined that SHI did not provide or attempt to provide TDPW with employee or public access
across the McCracken Ranch. In short, Boerschig appears to base his arguments on the
possibility that, sometime in the future, SHI may allow others to use the easement to access
nonappurtenant properties. These, however, are hypothetical situations that are not ripe for
consideration in a declaratory-judgment action. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex.
2000) (because the plaintiffs were released from jail, they could not seek a declaratory judgment
for a religious-education program at the Tarrant County Jail); City of Anson v. Harper, 216
S.W.3d 384, 394-95 (Tex. App. B Eastland 2006, no pet.) (because City had not received a
requisite permit, plaintiff=s declaratory judgment action was not ripe to the extent it sought an
adjudication of the parties= rights if a permit was granted and the City proceeded with its landfill
plans); Hill v. Sportsman=s World Recreational Ass=n, Inc., No. 11-08-00189-CV, 2010 WL
428555, at *2 (Tex. App. B Eastland Feb. 4, 2010, no pet.) (mem. op., not designated for
publication) (whether, sometime in the future, a multi-family development may be constructed in
the plaintiffs= subdivision and that the owners of such living units will not be charged any
assessment, thereby placing a disproportionate burden on the owners of the other lots, addresses a
14 hypothetical situation and, thus, is not ripe for consideration in a declaratory judgment action of
levying assessments against each residential lot).
Nevertheless, Boerschig also claims that SHI used the easement to access the Harper
Ranch, a nonappurtenant property. Indeed, Poindexter expressly testified that he uses the
express easement to travel from Cibolo Creek Ranch to the Harper Ranch. But a grantee may
not use an easement to access nonappurtenant properties that he owns, that is, to access
properties adjacent to the dominant estate but not adjacent to the servient estate. Storms v. Tuck,
579 S.W.2d 447, 451 (Tex. 1979); see also Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex. 1966)
(AWhere, in connection with a transfer of property, an easement is granted for the benefit of that
property over lands of the grantor, the easement is presumed to be appurtenant to the granted
premises, and in the absence of words creating a more extended right the grantee or his successor
in interest is not entitled to use the easement for the benefit of other premises owned by himself
or another.@). Thus, SHI may not use the easement to access nonappurtenant properties. And
logically, if SHI cannot use the easement in this way, neither can its invitees. The trial court
should have entered a declaratory judgment in favor of Boerschig on this ground. Accordingly,
Issue One is sustained.
PRESCRIPTIVE EASEMENT
In his third issue, Boerschig challenges the sufficiency of the evidence to support the trial
court=s determination that SHI obtained a prescriptive easement over the disputed section of the
Morita Road located on his property. After reviewing the evidence, we find sufficient evidence
to support the trial court=s ruling.
15 A trial court=s findings of fact in a bench trial Ahave the same force and dignity as a jury=s
verdict upon questions.@ Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991);
Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App. B Dallas 1997, writ denied) (en banc).
Because legal and factual sufficiency of the evidence standards of review govern appeals of
non-jury trials on the merits, it is incumbent upon the appealing party to attack the findings by
appropriate legal and factual sufficiency points of error. Carrasco v. Stewart, 224 S.W.3d 363,
366-67 (Tex. App. B El Paso 2006, no pet.). AWhen a party appeals from a non-jury trial, it must
complain of specific findings and conclusions of the trial court, because a general complaint
against the trial court=s judgment does not present a justiciable question.@ Id. at 367.
In conducting a legal-sufficiency review, we consider evidence in the light most favorable
to the trial court=s findings and indulge every reasonable inference that would support them.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a
reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could
not. Id. at 827. However, in a factual-sufficiency review, we consider and weigh all of the
evidence and will Aset aside the verdict only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust.@ Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
In conducting our reviews, we are mindful that the trier of fact is the sole judge of the credibility
of the witnesses and the weight to give their testimony, and that it is within his exclusive
province to resolve any conflicts in the evidence. City of Keller, 168 S.W.3d at 819; Precision
Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex. App. B Houston [14th Dist.] 1984, writ ref=d
n.r.e.).
16 An easement by prescription rests on the claimant=s adverse actions under color of right.
Allen v. Allen, 280 S.W.3d 366, 377 (Tex. App. B Amarillo 2008, pet. denied); Scott v. Cannon,
959 S.W.2d 712, 721 (Tex. App. B Austin 1998, pet. denied). A person acquires a prescriptive
easement by the open, notorious, continuous, exclusive, and adverse use of someone else=s land
for ten years or more. See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979). The party
claiming the existence of a prescriptive easement has the burden of proof to establish each
element by a preponderance of the evidence. Tiller v. Lake Alexander Properties, Ltd., 96
S.W.3d 617, 624 (Tex. App. B Texarkana 2002, no pet.) (citing Brooks, 578 S.W.2d at 674).
Here, Boerschig only contests the open, exclusive, adverse, and ten-year period elements, and
thus, we restrict our review to those elements only.
Openness
In challenging the openness element, Boerschig attacks the trial court=s finding that the
Greenwoods used the road from the 1950s until March of 1992. According to Boerschig, the
use could not have been open because the land was wild, unenclosed, unimproved, and vacant.
But whether the area was desolate does not equate to a finding that the use of the road itself was
not open. Indeed, our focus is on whether the Aevidence established a long-standing, open,
unmolested, and continuous use of the roadway@ in excess of the ten years necessary to acquire a
prescriptive easement. Johnson v. Dale, 835 S.W.2d 216, 219 (Tex. App. B Waco 1992, no pet.)
(emphasis added).
In Johnson, the court found open and continuous use when the evidence showed that the
dominant estate=s owners, nesters in the area, and the public used the road without permission to
reach a public highway from the 1930s until 1989. Id. at 218-19. We find similar open use
17 here. The Greenwoods openly and continuously used the road from the 1950s until their
property was sold to SHI in 1992, using the road to haul salt and feed by iron wheel wagon and
later by pickup truck. After selling the property to SHI, SHI=s employees daily used the road
until 2002. Moreover, during this period of use, the Greenwoods and SHI maintained and
improved the road. We believe that is sufficient evidence to support the trial court=s finding that
the use of the Morita Road was open.
Exclusive
Boerschig next challenges the exclusivity element, contending that the claimants= mere
subjective beliefs that they owned the road was insufficient to establish exclusive use. However,
an adverse possessor=s claim cannot be defeated by lack of knowledge of the deficiency in record
title or a realization that there may be other claimants to the land when his possession and use is
actual, visible, and exclusive. Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976); Julien v.
Baker, 758 S.W.2d 873, 877 (Tex. App. B Houston [14th Dist.] 1988, writ denied) (appellee=s
claim of right is not defeated by her lack of knowledge of the error in the survey when her
possession and use was actual and visible); Boyle v. Burk, 749 S.W.2d 264, 267 (Tex. App. B
Fort Worth 1988, writ denied) (by entering the lot with the intent to claim it as his own and by
maintaining the lot openly, possessor=s claim of right not defeated even though the disputed strip
of land was not part of his property). Thus, whether the Greenwoods or SHI actually owned the
disputed area is inapplicable where, as more fully discussed below, they used and maintained the
road to the exclusion of others.
Boerschig argues that the use was not exclusive, noting that Ted Harper, Frances=
husband, testified that others used the Morita Road, that anybody who needed to use the road
18 would have been able to use it, and that the road was too remote to notice whether anyone else
was using the road. However, other testimony established that only the Greenwood family used
the road from 1950 to 1992, and that SHI used the road exclusively from 1992 until 2002. Prior
to SHI=s purchase, if anyone else used the road without their permission, the Greenwoods would
Ahalt them and question them and ask them why and put them off of it . . . .@ And after SHI
purchased the property, Boerschig asked for permission to use the road. The trial court, in
considering all the evidence, was free to resolve any conflicts and choose which witnesses to
believe. City of Keller, 168 S.W.3d at 819-20. By choosing to disbelieve that portion of
Harper=s testimony and to believe other evidence presented in the record, we defer to the trial
court=s determination of credibility and the resolution of conflicting evidence, and therefore, we
cannot say, based on the evidence presented, that insufficient evidence supports the trial court=s
finding of exclusive use.
Adverse
In challenging the adversity element, Boerschig argues that there was no evidence that the
claimant=s usage put the true owner on notice that a hostile claim was asserted, nor was there any
evidence of adverse usage. AThe hostile and adverse character of the use necessary to establish
an easement by prescription is the same as that which is necessary to establish title by adverse
possession.@ Mack v. Landry, 22 S.W.3d 524, 531 (Tex. App. B Houston [14th Dist.] 2000, no
pet.) (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining
whether a claim is hostile, we consider Awhether the adverse possessor=s use, occupancy, and
possession of the land is of such nature and character as to notify the true owner that the claimant
is asserting a hostile claim to the land.@ Mack, 22 S.W.3d at 531. Hostile use, however, Adoes
19 not require an intention to dispossess the rightful owner, or even know that there is one.@ Tran
v. Macha, 213 S.W.3d 913, 915 (Tex. 2006).
The testimony established that parts of the Morita Road were visible from several vantage
points from the McCracken Ranch. After the Greenwoods bought the ranch in the 1950s, only
the Greenwood family used the Morita Road because Ano one else dared to come in there@ unless
they first received the Greenwood=s permission. Further, the road was not only maintained
exclusively by the Greenwoods, but they also enclosed the road with a fence on one side and a
gate on one end. If anyone appeared on the road without permission, the Greenwoods would
stop and remove them from the road. After SHI bought the ranch, SHI exclusively improved
and maintained the road. This was sufficient evidence for the trial court to conclude that the use
was adverse. See Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 818 (Tex. App. B
Texarkana 2004, pet. denied); Nickels v. Casburg, No. 03-05-00027-CV, 2009 WL 1708830, at
*15-16 (Tex. App. B Austin June 18, 2009, pet. denied) (mem. op., not designated for
publication) (cases finding sufficient evidence to support prescriptive easement when claimants
consistently used and maintained disputed area such that owner=s predecessor should have
noticed that a hostile claim was being asserted).
20 Ten Years
Finally, Boerschig contests the requisite limitations period. According to Boerschig,
because he filed the suit three days prior to SHI=s ownership of the property for ten years, SHI
failed to meet the requisite ten-year limitations requirement. However, adverse possession does
not have to continue in the same person to satisfy the requisite limitations period. Masonic
Bldg. Ass=n of Houston, Inc. v. McWhorter, 177 S.W.3d 465, 472 (Tex. App. B Houston [1st
Dist.] 2005, no pet.); Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex. App. B Houston [1st Dist.]
1992, writ denied). Rather, the ten-year requirement may be established by tacking successive
interests if there is Aprivity of estate between each holder and his successor.@ TEX. CIV. PRAC. &
REM. CODE ANN. ' 16.023 (Vernon 2002); First Nat. Bank of Marshall v. Beavers, 602 S.W.2d
327, 329 (Tex. Civ. App. B Texarkana 1980, no writ) (permitting tacking for establishing a
prescriptive easement). As noted previously, the Greenwoods adversely used the road from the
1950s until SHI purchased the ranch in 1992. Thus, SHI was entitled to tack the Greenwoods=
claim onto its usage to satisfy the requisite limitations period. Beavers, 602 S.W.2d at 329.
The trial court=s findings that SHI met the ten-year period is sufficiently satisfied by the record.
Having concluded that there was legally and factually sufficient evidence presented to
establish the open, exclusive, and adverse use of the Morita Road for more than ten years, SHI
obtained a prescriptive easement across the disputed area of the road. Accordingly, Issue Three
is overruled.
FENCE TRESPASS
Boerschig=s fourth issue contends that the trial court erred by failing to enjoin the fence
from trespassing onto his land. The trial court found that: (1) the fence was already on the
21 McCracken Ranch when Boerschig purchased the ranch and had been on the ranch for well more
than four years; (2) the fence had not caused any new injury to Boerschig since his purchase; (3)
Boerschig did not have standing to assert a trespass claim; and (4) any trespass claim is barred by
limitations. We address standing first.
Texas courts have held that A[w]here injury to land results . . . the right of action for all
the damages resulting from the injury accrues to the owner of the land at the time the thing that
causes the injury commences to affect the land.@6 Vann v. Bowie Sewerage Co., 127 Tex. 97, 90
S.W.2d 561, 562 (1936); Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex. App. B Eastland 2001,
pet. denied). AThe right to sue for the injury is a personal right that belongs to the person who
owns the property at the time of the injury.@ Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex. App.
B Tyler 2002, pet. denied); Senn, 55 S.W.3d at 225-26; Lay v. Aetna Ins. Co., 599 S.W.2d 684,
686 (Tex. Civ. App. B Austin 1980, writ ref=d n.r.e.); City of Dallas v. Winans, 262 S.W.2d 256,
259 (Tex. Civ. App. B Dallas 1953, no writ); Williams v. State, 177 S.W.2d 106, 109 (Tex. Civ.
App. B Waco 1943, writ ref=d).
Here, Boerschig was not the owner of the property when the fence was installed;
however, he relies on the discovery rule to confer standing. The discovery rule is a narrow
exception applicable only to defeat the requisite statute of limitations, that is, the rule operates to
toll the limitations period when an injury is both inherently undiscoverable and objectively
verifiable. Schneider Nat=l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004). The
6 Trespass is an injury to land caused by one not rightfully in possession. See R.C. Bowen Estate v . Continental Trailways, Inc.,152 Tex. 260, 256 S.W.2d 71, 72 (1953); Hexamer v. Topographic Land Surveyors, No. 05-97-00108-CV, 1999 WL 114390, at *2 (Tex. App. B Dallas Mar. 4, 1999, no pet.) (op., not designated for publication).
22 discovery rule is not applicable in cases where the subsequent property owner lacks standing to
sue for an injury to land that occurred prior to passage of title. Senn, 55 S.W.3d at 225. Absent
any evidence showing Boerschig bargained for an assignment of the prior owner=s possible
causes of action for injuries to the land that occurred before his purchase, he cannot rely on the
discovery rule to defeat his lack of standing. Id.; Vann, 90 S.W.2d at 562. Because Boerschig
did not own the property when the injury occurred, he lacks standing, and the trial court did not
err by failing to enjoin the fence from encroaching on Boerschig=s land. Issue Four is overruled.
ATTORNEY=S FEES
Boerschig=s final issue contests the award of attorney=s fees in the amount of $49,320.
According to Boerschig, counsel only testified to $37,403.71 in fees, and therefore, Boerschig
concludes that the trial court=s award is not supported by sufficient evidence. Boerschig also
contends that should he prevail on any issues before this Court, we should reverse the award for
reconsideration in light of our opinion.
The Texas Uniform Declaratory Judgments Act allows the trial court discretion to award
reasonable and necessary attorney=s fees that are equitable and just. See TEX. CIV. PRAC. & REM.
CODE ANN. ' 37.009 (Vernon 2008); Elijah Ragira/VIP Lodging Group, Inc. v. VIP Lodging,
Inc./Elijah Ragira, 301 S.W.3d 747, 757 (Tex. App. B El Paso 2009, pet. denied); Murphy v.
Long, 170 S.W.3d 621, 622-23 (Tex. App. B El Paso 2005, pet. denied). Whether the fees are
reasonable and necessary are questions of fact, whereas whether the fees are equitable and just
are questions of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Further, the award
is not dependent on a finding that a party prevailed in the action. Id. at 20; Barshop v. Medina
23 County Underground Water Conservation District, 925 S.W.2d 618, 638 (Tex. 1996).
We review a trial court=s decision to grant or deny attorney=s fees for an abuse of
discretion. See Bocquet, 972 S.W.2d at 21; EMC Mortgage Corp. v. Davis, 167 S.W.3d 406,
418 (Tex. App. B Austin 2005, pet. denied). In so doing, we view the evidence in the light most
favorable to the trial court=s ruling and indulge every presumption in its favor. Aquaduct, L.L.C.
v. McElhenie, 116 S.W.3d 438, 444 (Tex. App. B Houston [14th Dist.] 2003, no pet.); Phillips &
Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App. B Houston [1st Dist.] 1996, no writ).
We will only find an abuse of discretion when the trial court=s decision is arbitrary, unreasonable,
and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.
1997).
Here, counsel testified that his total fees incurred in the case was $65,084.27. Of that
amount, 40 percent, or $26,033.71, was incurred in pursuing and defending the express easement
for declaratory judgment. Approximately $37,900 was incurred for trial expenses after summary
judgments were granted and denied. And of that amount, 40 percent, or $15,160, was spent
prosecuting the prescriptive easement, and thirty percent, or $11,370, was spent prosecuting
access to other properties across the express easement for declaratory judgment. On
cross-examination, counsel, somewhat confused, stated that he was asking the court for $26,033
and $11,370 for trial expenses but then indicated that a total of $37,012.21 was incorrect. The
court recognized counsel=s fallacy and allowed counsel the opportunity to examine his records.
Counsel then disclosed that there was an additional $28,000 that was billed but had not been
disclosed.
24 Recognizing that the trial court may resolve conflicting testimony on fees, we discern no
abuse of discretion in awarding $49,320, which was less than the total of what the evidence
allowed as $37,403.71 related to prosecuting and defending the declaratory judgment actions on
the express easement, and $15,160 was spent prosecuting the prescriptive easement. See Estate
of Degley v. Vega, 797 S.W.2d 299, 304 (Tex. App. B Corpus Christi 1990, no writ); Texas Mut.
Ins. Co. v. Durst, No. 04-07-00862-CV, 2009 WL 490056, at *6 (Tex. App. B San Antonio Feb.
25, 2009, no pet.) (mem. op., not designated for publication) (when presented with conflicting
evidence, trial judge, as the fact finder, was within his discretion in awarding the attorneys= fees
in the manner and amount in which he did). Therefore, we conclude sufficient evidence
supports the trial court=s award of attorney=s fees.
Nevertheless, Boerschig contends we should remand the case for reconsideration of
attorney=s fees in light of our disposition under Issue One. Although a party need not prevail to
recover attorney=s fees under the Act, see Bocquet, 972 S.W.2d at 20, after a declaratory
judgment is reversed on appeal, an award of attorney=s fees may no longer be equitable and just.
See Sava gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304,
323 (Tex. App. B Dallas 2004, no pet.); Fitzgerald v. Antoine Nat=l Bank, 980 S.W.2d 228, 232
(Tex. App. B Houston [14th Dist.] 1998, no pet.). Given our disposition of Issue One, we
remand the award of attorney=s fees to the trial court for its reconsideration in light of our
opinion.7
7 Given the wide discretion afforded to the trial court in awarding attorney=s fees under the Act, there would certainly be no abuse of discretion if the trial court, on remand, refused any award of attorney=s fees to Boerschig and instead, decided to award SHI the same amount in attorney=s fees even though SHI did not prevail on the declaratory judgment action as set out in this opinion. See Bocquet, 972 S.W.2d at 20.
25 CONCLUSION
Having sustained Boerschig=s first issue, we reverse the trial court=s order refusing a
declaratory judgment on Boerschig=s claim concerning SHI=s use of the easement to access
nonappurtenant properties and render a declaratory judgment proscribing such use. In addition,
we remand the case to the trial court to reconsider the award of attorney=s fees in light of our
decision. We affirm the trial court=s judgment in all other respects.
GUADALUPE RIVERA, Justice
August 11, 2010
Before Chew, C.J., McClure, and Rivera, JJ.
26 27