OPINION
PATRICK A. PIRTLE, Justice.
Appellant, Stephen E. Martin, appeals from a judgment rendered in favor of Ap-pellee, Gene Oliver “Buddy” Cockrell,- following a jury trial of Cockrell’s declaratory judgment action seeking to establish an equitable easement by estoppel across Martin’s property. By seven issues, Martin contends (1) the evidence is legally insufficient, (2) the evidence is factually insufficient to support a finding of an easement in the pasture road across his property, (3) Cockrell failed to submit or request jury questions on one or more essential elements of his easement by estop-pel claim, (4) the Court’s charge failed to properly instruct the jury on the nature and scope of the easement claimed, (5) the trial court improperly expanded the scope of the easement, (6) the jury erred in failing to award him damages for Cock-rell’s trespass, and (7) the trial court erred in failing to award him recovery of attorney’s fees. We reverse and render in part and affirm in part.
Background
At issue in this appeal is a pasture road located in Gray County, Texas, that begins-at the southern tip of County Road 24 and traverses Martin’s property south through Sections 113 and 84, Block M-2 of the BS & F Survey (Survey) to the northern middle section of Cockrell’s property, Sections 114 and 83, Block M-2 of the Survey. Following a jury trial, the trial court issued a judgment awarding Cockrell, his heirs, successors and assigns, a permanent equitable easement of ingress and egress over Martin’s property for agricultural purposes.
The Joneses and Ingrums
At trial, Paul Jones testified his family built the pasture road on Sections 113 and 84 of Block M-2 of the Survey (the “Jones property”) from a cow trail in the late 1930s or early 1940s. The Jones family used the pasture road to tend to their cattle. In 1941, the Ingrums purchased Sections 114 and 83 of Block M-2 of the Survey (the “Ingram property”). The northern border of the Ingram property abutted the southern border of the Jones property.
From the early 1940s, Larry Ingram testified the Ingrums usually used the pasture road on the Jones property to exit their property and travel north to County Road 24. They placed cattle in the pasture nearest to the Jones property so they wouldn’t have to ride two pastures. The Ingrums would typically enter their property from the west side, come down through the middle tending their cattle and then exit their property using the pasture road on the Jones property. At some indeterminate time, the Ingrums built some cattle pens and a couple of windmills in the middle pasture and used the pasture road on the Jones property to service the windmills.
Ingram testified there was a gentlemen’s agreement between his family and the Joneses permitting the Ingrums to enter and exit their property over the pasture road on the Jones property. There was no written agreement or contract. The Ingrums used the pasture road on the Jones property “by friendly neighb-ourly permission” — “[bjoth sides just did what they did.” Ingram further testified they “never claimed to have a legal right to use the road” and agreed that their right to use the road was “consistent with friendly permission.”
Jones testified his family didn’t have “a problem with [the Ingrams] using the
road,” the two families were “just friends” — “friendly use of the road.” He testified “[njobody ever asked permission to use the road and permission was never given.” Jones testified that on two different occasions, one of Ingrum’s hands pulled off the road onto the pasture and damaged his grass. He testified he told the Ingrums he wanted it stopped and it stopped. He also testified his family “never gave anyone an easement to use the road.”
The Martins and Cockrells
In 2000, Alice Ingram Gray inherited the Ingram property. She had two sons, Gene Oliver “Buddy” Cockrell and Lee Cockrell, Alice’s guardian. Also, in 2000, Martin purchased the Jones property from Paul Jones.
From 2001 to 2006, Martin leased the Ingram property from May to October of each year for grazing purposes. During the lease periods, between 2003 and 2006, Martin’s wife, Susan, cared for their cattle on the Ingram property approximately three times a week. Because the Martins were not living on the Martin property at the time, Susan would enter and exit the Ingram property via Gray County Road 22 off Highway 152, or she would cross the Ingram property and exit on County Road 26. She testified it was unnecessary for her to use the pasture road in dispute to care for their cattle on the Ingram property. When accessing the north middle pasture on the Ingrum’s property, the difference between using the disputed pasture road and Ingrum’s entry roads was simply a matter of convenience, rather than necessity. The distance required to travel to access the north middle of the Ingram property from Ingrum’s road was approximately eight miles, whereas access via the disputed pasture road was approximately five miles.
Susan also testified the Ingram roads were “perfectly good” and provided access to the Ingram windmills and caliche pit. If the Ingram roads were graded, she testified they could drive large water testing trucks or windmill service tracks over the roads. While caring for the cattle on the Ingram property, Susan drove a one-ton pickup truck with a sixteen foot goose-neck trailer.
Between 2000 and 2002, Martin did not observe anyone, or evidence of anyone, traveling over the disputed pasture road. In 2002, however, Martin gave Gray County permission to use the pasture road to haul caliche dug from a pit on the Ingram property.
Gray County Commissioner Joe Wheeley testified Martin gave the county permission to haul caliche across the pasture road via a “gentlemen’s agreement,” not a formal easement.
In order to use the pasture road year-round to haul caliche, with Martin’s permission, the county applied caliche to the road.
For their convenience, the county also installed a culvert or cattle guard where the Ingram property adjoined the Martin property and, to protect the county’s caliche, Martin installed a combination lock at the point of entry to the Ingram property from the pasture road in 2002. When the county ceased hauling caliche in 2006, the county removed the culvert or cattle guard, removed the caliche from a portion of the pasture road, and plowed
and seeded the roadway to return the pasture road to its original condition per Martin’s request.
In November 2006, Cockrell asked Martin for the combination to the locked gate between the Ingrum and Martin properties in order to check the windmills located in Ingrum’s middle pasture. Martin gave Cockrell the combination. Thirée days later, Marshall Hopkins began parking heavy equipment on Martin’s property intending to haul caliche out of the Ingrum pit to satisfy his requirements for a local job for Teja Feeders. When Martin questioned Hopkins’s use of the pasture road, Hopkins told Martin that Cockrell had given him permission to haul the caliche over the pasture road. Martin refused to allow Hopkins use of the road and Hopkins removed his equipment. Days later, Martin installed a combination lock on the gate located at the juncture of County Road 24 and the pasture road on his property. He did not give this combination to Cockrell.
In April 2007, Cockrell agreed to settle his mother’s estate with his brother. As a result of the settlement, Cockrell received the Ingrum Property.
Shortly thereafter, Cockrell informed Martin that he would not lease his pasture to Martin because he was giving his middle pasture a rest.
Later, Cockrell called Martin and asked for the combination to the lock on the gate where County Road 24 met the pasture road on Martin’s property. Martin agreed to meet Cockrell at the gate and let him in and out. Cockrell responded that the arrangement was unworkable. In June or July 2007, Cockrell again approached Martin in order to obtain the combination to the locked gate and Martin refused to give Cockrell the combination.
Shortly thereafter, Cockrell filed suit, to obtain use of the pasture road.
Court Proceedings
On August 17, 2007, Cockrell filed a petition seeking a temporary injunction restraining Martin from denying him access to the Cockrell property over the pasture road on Martin’s property. After a hearing on September 14, 2007, the trial court granted a temporary injunction enjoining Martin from restricting Cockrell’s use of the pasture road for agricultural purposes.
After the temporary restraining order, Martin gave Cockrell the combination to the lock installed on Martin’s gate between County Road 24 and the pasture road. Thereafter, Cockrell and Hopkins traversed the pasture road with heavy equipment to remove caliche from the pit to shore up a windmill on the Cockrell property. In the process, they drove off the pasture road into Martin’s pasture.
On January 16, 2008, Martin counterclaimed against Cockrell for possession of
the pasture road, an order barring Cock-rell from using the pasture road, trespass, and damages to repair his pasture. On January 31, 2008, Cockrell filed his first amended petition asserting a permanent equitable easement or easement by estop-pel permitting him to use the pasture road on Martin’s property. On February 11, 2008, Cockrell also filed a supplemental petition requesting that the trial court declare him an equitable easement over the pasture road pursuant to the Texas Declaratory Judgment Act and award him recovery of reasonable attorney’s fees.
Following a two-day trial, the jury found that Cockrell had an equitable easement to use the pasture road, Cockrell trespassed on Martin’s property when Hopkins’s equipment was driven outside the pasture road, Cockrell’s use of a passageway alongside the pasture road was not privileged, and Martin was entitled to no damages for Cockrell’s trespass. On June 12, 2008, the trial court entered judgment granting Cockrell a permanent easement of ingress and egress over the pasture road on Martin’s property for agricultural purposes and that Martin take nothing as to his counterclaim. Martin gave timely notice of appeal.
Discussion
I. Legal Sufficiency
A. Standard of Review
In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the challenged finding, indulge every reasonable inference to support it;
City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex.2005), and credit favorable evidence if reasonable jurors could while disregarding contrary evidence unless reasonable jurors could not.
Id.
at 827. A challenge to legal sufficiency will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla.
Id.
at 810. In addition, so long as the evidence falls within the zone of reasonable disagreement, we may not invade the fact-finding role of the jurors, who alone determine the credibility of witnesses, the weight to be given their testimony, and whether to accept or reject all or part of their testimony.
Wilson,
168 S.W.3d at 822. Generally, if an appellate court sustains a “no evidence” or “legal sufficiency” issue, the appellate court must reverse and also render judgment.
See In re State ex rel. K.D.C.,
78 S.W.3d 543, 551 (Tex.App.-Amarillo 2002, no pet.) (citing
Vista Chevrolet, Inc. v. Lewis,
709 S.W.2d 176, 176 (Tex.1986)).
B. Easement by Estoppel
The doctrine of equitable estop-pel or estoppel in
pais
is an exception to the statute of frauds;
Cleaver v. Cundiff,
203 S.W.3d 373, 375 (Tex.App.-Eastland 2006, no pet.), and, “[bjeing a creature of equity, it seeks to prevent injustice and to protect innocent parties from fraud.”
Storms v. Tuck,
579 S.W.2d 447, 451 (Tex.1979). Under this doctrine, a landowner
may be estopped from denying the existence of an easement created by “representations” upon which another has detrimentally relied.
Cleaver,
203 S.W.3d at 375. The doctrine was first discussed in Texas jurisprudence more than 125 years ago when the Supreme Court articulated the rationale for the doctrine of easement by estoppel:
The owner of land may create an easement by a parol agreement or representation which has been so acted on by others as to create an estoppel
en pais.
As where he has by parol agreement granted a right to such easement in his land, upon the faith of which the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked, equity has enjoined the owner of the first estate from preventing the use of it.
F.J. Harrison & Co. v. Boring & Kennard,
44 Tex. 255, 267-68 (1875).
Essentially, estoppel
in pais
holds that the owner of a servient estate may be estopped to deny the existence of an easement
by making representations that have been acted upon by the owner of the dominant estate to his detriment;
Storms,
579 S.W.2d at 451, and “is grounded on the condition that justice forbids one to gainsay his own acts or assertions.”
Wallace v. McKinzie,
869 S.W.2d 592, 595 (Tex.App.-Amarillo 1993, writ denied). Each case in which equitable estoppel is sought to be applied must rest upon its own facts.
Vrazel v. Skrabanek,
725 S.W.2d 709, 711 (Tex.1987).
The gravity of a judicial means of acquiring an interest in •■land of another solely by parol requires that equitable es-toppel be strictly applied;
Allen v. Allen,
280 S.W.3d 366, 381 (Tex.App.-Amarillo 2008, pet. denied) (citing
Moore County v. Bergner,
526 S.W.2d 702, 706 (Tex.Civ.App.-Amarillo 1975, no writ)), and the es-toppel “should be certain, precise and clear.”
Id.
(citing
McAnally v. Friends of WCC, Inc.,
113 S.W.3d 875, 879 (Tex.App.Dallas 2003, no pet.)).
Three elements are necessary to create an easement by estoppel: (1) a representation of the easement communicated, either by words or action, to the promisee; (2) the communication was believed; and (3) the promisee detrimentally relied on the communication.
Storms,
579 S.W.2d at 452.
See Allen,
280 S.W.3d at 381;
McKinzie,
869 S.W.2d at 595.
Further, once created, an easement by estop-
pel is binding on the successors in title to the servient estate if reliance upon the existing easement continues.
Cleaver,
203 S.W.3d at 375;
Holden v. Weidenfeller,
929 S.W.2d 124, 131 (Tex.App.-San Antonio 1996, writ denied).
To establish the first element, Cockrell relies upon the legal fiction of representation by silence. “The principle of estoppel by silence arises where a person is under a duty to another to speak, but refrains from doing so and thereby leads the other to act in reliance on a mistaken understanding of the facts. The duty to speak does not arise until the silent party is himself aware of the facts.”
Storms,
579 S.W.2d at 452.
C. The Pasture Road
At trial, Cockrell asserted
the Ing-rums obtained an easement by estoppel over the pasture road due to Jones’s silence and acquiescence in the Ingrums’ use of the pasture road for approximately fifty-five years.
And, after Jones transferred the property to Martin and Cockrell came to own the Ingrum property, he asserted that he succeeded to the Ingrum easement by estoppel and/or, in the alternative, obtained an easement by estoppel over the pasture road via Martin’s silence and acquiescence in his subsequent use of the pasture road.
1. Ingrum and Jones
Because Cockrell relies on the silence and acquiescence of the Jones family in establishing an easement by estoppel in favor of his predecessors in title, the Ing-rums, we will first consider whether Cock-rell adduced any evidence that the Joneses had a duty to speak. That is, did the Joneses owe a duty to advise the Ingrums that they were permissive users of the pasture road? We will then consider whether there is any evidence the Joneses made any representation of an easement to the Ingrums that was believed and acted on by the Ingrums to their detriment.
Having reviewed the entire record, we find no evidence to establish that the Joneses had any duty to make such a representation to the Ingrums. Rather, all of the evidence adduced at trial indicates that both the Ingrums and the Joneses understood that the Ingrums’ use of the pasture road was by “friendly neighbourly permission.”
Neither is there any evidence of extenuating circumstances that would establish such a duty on behalf of the Joneses. The record is devoid of any evidence establishing the Ingrums expended any money or effort on the construction or upkeep of the pasture road
or, relying on the pasture road, made any substantial or permanent improvements to their property of which the Joneses were aware.
Fur
thermore, distinguishing this case from other cases involving landlocked tracts,
here there were alternative means of ingress and egress to the Ingram or Cock-rell property without use of the disputed pasture road.
In short, there is no evidence that the Joneses were aware of any facts that would give rise to a duty to advise the Ingrams that they were permissive users of the pasture road in order to avoid the imposition of an easement by estoppel.
Moreover, even if the Joneses had a duty to speak and their silence or acquiescence constituted a representation, there is no evidence the Ingrams “believed” such a representation. To the contrary, Ingram’s testimony establishes he “believed” his family used the pasture road with the “neighbourly permission” of the Joneses. Neither is there any evidence that the Ingrams relied to their detriment on any representation, silent or spoken, by the Joneses.
Cockrell contends that the
McKinzie
case stands for the proposition that the doctrine of equitable estoppel requires no more than mere silence when one who, by his silence, induces another to act in a particular manner and then attempts to adopt an inconsistent position that would cause loss or injury to the relying party. Cockrell’s reliance on the
McKinzie
case is, however, misplaced. In
McKinzie,
there was some evidence that the relying party “believed” the landowner’s silence was a representation of an easement, i.e., McKinzie filed an affidavit in the deed records of Kent County claiming an easement over the roads on Wallace’s property for the purpose of ingress and egress to his landlocked property. 869 S.W.2d at 595. In addition, McKinzie testified that, after a conversation with Wallace, he believed he had an easement and in reliance thereon maintained the access road and made improvements to his property.
Id.
Here, all the evidence is to the contrary, i.e., the Ingrums believed their use was permissive, did not construct or maintain the disputed pasture road and Cockrell adduced no evidence that the Ingrums relied on use of the road to make any substantial or permanent improvements to their property.
Accordingly, considering the evidence in the light most favorable to the jury’s finding of an easement by estoppel while indulging every reasonable inference to support it, we find the evidence offered in support of an easement by estoppel by virtue of the relationship between the Joneses and the Ingrums, does not exceed a scintilla.
2. Cockrell and Martin
Cockrell’s evidence in support of an easement by estoppel due to any relationship between Cockrell and Martin is even more tenuous. Martin purchased the Jones property in 2000. From that point, Cockrell contends two fact scenarios gave rise to an easement by estoppel. One, from 2001 to 2006, Martin entered into a series of grazing leases with Lee Cockrell as Alice Ingram Gray’s guardian, where he used the disputed pasture road to access the Ingram property and, two, from 2002 to 2006, Martin gave Gray County permission to haul caliche from the Cockrell property over the pasture road to County Road 24.
That Martin may have used a pasture road on his own property to care for his cattle grazing on the Ingram property pursuant to a lease is of no moment. “[0]ne cannot be said to have an easement in lands, the fee simple to which is in himself.”
Othen v. Rosier,
148 Tex. 485, 226 S.W.2d 622, 625 (1950).
A landlord/tenant relationship does not create a vendor/vendee relationship.
See Roberts v. Allison,
836 S.W.2d 185, 188 (Tex.App.Tyler 1992, writ denied) (“[s]ince there was no prior common ownership of the tracts, no vendor/vendee relationship existed between the parties”). Furthermore, with respect to Gray County’s use of the pasture road, Martin had a “gentlemen’s agreement” with Gray County Commissioner Wheeley permitting the county to use the pasture road for a specific purpose. Martin’s agreement with Wheeley could not have created an easement in favor of Cockrell. Therefore, neither of these two
scenarios gave rise to an easement by estoppel.
In 2006, Cockrell received the combination to the lock between the Ingram and Martin properties for the purpose of checking on his windmills. However, three days later, when Marshal Hopkins began parking his heavy equipment on Martin’s property in anticipation of using the pasture road to haul caliche from the Ingram property, Martin denied Hopkins use of the pasture road and days later installed a combination lock on the gate where County Road 24 met the pasture road at the entrance of his property. Further, in June or July 2007, after Cockrell obtained title to the Ingram property, Martin refused to give Cockrell the combination to the lock.
Under the circumstances, Martin had no duty to speak and made no representation to Cockrell. Giving Cockrell the combination to the locked gate between the Ingram and Martin properties was more in the nature of giving a license in real estate
rather than creating an easement.
See Machala v. Weems,
56 S.W.3d 748, 760 (Tex.App.-Texarkana 2001, no pet.). Martin could have changed combinations at any time. In addition, there is no evidence Martin had made any representation to Cockrell that would have required him to give Cockrell a new combination to the gate. Rather, the evidence shows that, only days later, Martin denied entry to Hopkins when he requested use of the pasture road to haul caliche from the pit located on the Cockrell’s property and thereafter refused to give Cockrell the combination to the locked gate at the entrance of the pasture road off County Road 24.
In addition, like the relationship between the Joneses and the Ingrams, there was no evidence of common ownership of the tracts, no vendor/vendee relationship and no probative evidence of fraud, actual or constructive, perpetrated upon Cockrell. Neither was there any evidence of misrepresentations or overreaching conduct by Martin.
Accordingly, we sustain Martin’s first issue. Because our finding pretermits issues two through five, we will next consider issues six and seven.
II. Nominal Damages
The jury found that Cockrell trespassed on Martin’s property when Hopkins drove his equipment outside the pasture road, proxiinately causing damages to Martin’s property. The jury further found the use of a passageway alongside the pasture road was not privileged. Nonetheless, in response to the question as to what sum of money, if paid now in cash, would fairly and reasonably compensate Martin for his damages, the jury answered: In accordance with the jury’s verdict, the trial judge ordered that Martin “take nothing” by virtue of his counterclaim against Cockrell.
Martin contends that because the jury found a trespass, and no privilege, he is entitled to “nominal damages” as a matter of law. Martin relies solely upon the case of
General Mills Restaurants, Inc. v. Texas Wings, Inc.,
12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.), as support for his proposition of law. His reliance upon this authority is misplaced because
General Mills
arises in the procedural context of a no-evidence motion for summary judgment. There, the appellate court found that the trial court erred when it granted
the appellee’s no-evidence summary judgment based upon an absence of evidence of damages on appellee’s claim.
Here, Martin’s claim is essentially a contention that the jury’s finding is not supported by the evidence, or is against the great weight and preponderance of the evidence. A review of the record, however, reveals that it is devoid of any evidence establishing that Martin expended any money or effort repairing any damages caused by Cockrell’s vehicles or equipment being driven outside the pasture road. Although there was testimony concerning the efforts necessary to restore the pasture road to its original condition after Gray County ceased using the road, no similar evidence was ever presented which would have allowed a jury to attach a monetary figure to any efforts to restore the adjacent passageway after Cockrell’s usage. The jury was the sole judge of the evidence and it alone was entitled to make credibility determinations as to the weight and sufficiency of the evidence. Based upon the record before us, we cannot say that the jury’s decision to deny recovery of damages for this trespass was so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Martin simply failed to carry his burden of proof. Accordingly, his sixth issue is overruled.
III. Attorney’s Fees
In his Original Verified Petition filed August 17, 2007, Cockrell asserted he was entitled to an easement by prescription over the pasture road because of past use that' was “open, notorious, continuous, exclusive and adverse.” On January 31, 2008, Cockrell amended his petition, in part, eliminating his assertion of an easement by prescription. Martin asserts that he is entitled to reasonable and necessary attorney’s fees in defending against Cock-rell’s claim of easement by prescription pursuant to Section 16.034 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 16.034 (Vernon 2002).
Because the award of attorney’s fees rests in the sound discretion of the trial court, the judgment will not be reversed on appeal without a clear showing of abuse of discretion.
Ridge Oil Co., Inc. v. Guinn Invs., Inc.,
148 S.W.3d 143, 163 (Tex.2004).
See Smith v. McCarthy,
195 S.W.3d 301, 303 (Tex.App.-Fort Worth 2006, pet. denied) (section 16.034 provides for a discretionary award of attorney’s fees). A trial court abuses its discretion when it acts arbitrarily and unreasonably, or without reference to guiding rules and principles.
City of Amarillo v. Glick,
991 S.W.2d 14, 17 (Tex.App.-Amarillo 1997, no pet.) (citing
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex.1985), ce
rt. denied,
476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)).
B. Section 16.034
Section 16.034 states, in pertinent part, as follows:
In a suit for the possession of real- property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of
the property from a person unlawfully in actual possession, the court may award costs and reasonable attorney’s fees to the prevailing party.
Section 16.034(a).
The pleadings make clear that at no point did this case involve a claim by Cockrell for adverse possession and there was no adjudication that either party was unlawfully in actual possession of the other’s property. While Martin seeks to equate Cockrell’s claim of prescriptive easement to an adverse possession claim there is a fundamental difference between the two, i.e., an adverse possession claim asserts a right to ownership of land while a claim of prescriptive easement asserts a privilege of using the land. Although the elements of the two claims may be quite similar;
Othen,
226 S.W.2d at 626-27, their practical effect is significantly different. Because Cockrell made no claim of adverse possession, section 16.034 is inapplicable and the trial court did not abuse its discretion by denying Martin’s request for attorney’s fees.
Martin’s seventh issue is overruled.
CONCLUSION
We reverse that portion of the trial court’s judgment awarding a permanent equitable easement and render judgment that Cockrell take nothing as to his claims against Martin; we affirm that portion of the trial court’s judgment decreeing that Martin take nothing as to his counterclaim against Cockrell and, in light thereof, we also reverse the trial court’s assessment of costs against Martin and render judgment against Cockrell for all costs of court.