COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-441-CV
WILLIAM DOYLE MAGEE APPELLANT
V.
JOHN J. HAMBLETON AND APPELLEES LISA M. WARNER
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
This is a deed construction case in which Appellees John J. Hambleton
and Lisa M. Warner sought to establish that they have an easement over land
owned by Appellant William Doyle Magee. In three points, William appeals the
trial court’s summary judgment in favor of Appellees. We will affirm.
1 … See Tex. R. App. P. 47.4. II. F ACTUAL B ACKGROUND
A. The Original Property
In 1972, William and Karen Kay Magee, who were married at the time,
purchased a 5.29-acre tract of land (the “Original Property”) located in Denton
County. Wood Hollow Road runs north and south along the eastern boundary
of the Original Property.
B. Karen Conveys Her Interest in Part of the Original Property to William
William and Karen divorced in 1993. Pursuant to the terms of the
divorce, Karen conveyed to William her one-half interest in the eastern 2.75
acres of the Original Property (the “Eastern Tract”) pursuant to a warranty deed
executed on July 16, 1993 (the “1993 Deed”). The 1993 Deed created two
tracts of land out of the Original Property, with William as the sole owner of the
Eastern Tract and Karen and William as co-owners of the remaining western
2.50 acres (the “Western Tract”).
The 1993 Deed describes the Eastern Tract by metes and bounds and,
following that description, includes the following language: “SAVING AND
EXCEPTING a 20 foot ingress-egress easement along the entire North line of the
above describe[d] tract.” 2 Without this twenty-foot ingress-egress easement,
2 … The 1993 Deed also contains a paragraph entitled “Reservations from and Exceptions to Conveyance and Warranty,” which generally describes
2 which provided access to Wood Hollow Road via the Eastern Tract, the Western
Tract was landlocked.
C. William Conveys His Interest in the Western Tract to Karen
On January 26, 1998, William conveyed his one-half interest in the
Western Tract to Karen pursuant to a warranty deed (the “1998 Deed”). Thus,
Karen became the sole owner of the Western Tract, and William continued to
be the sole owner of the Eastern Tract.
The 1998 Deed states, “This conveyance is made and accepted subject
to any and all easements, reservations, restrictions, conditions, and matters of
record as same may affect the herein described property.” The 1998 Deed
contains no other reservations or reference to any easements.
D. Karen Conveys the Western Tract to Morris
On May 1, 2003, Karen conveyed the Western Tract to Lanita Angel
Morris. The deed from Karen to Morris conveyed all of Karen’s interest in
“Tract 1” and “Tract 2.” The deed describes Tract 1 as the metes and bounds
“[e]asements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded . . . reservations, covenants, conditions, . . . and other instruments, other than liens and conveyances, that affect the property.”
3 description of the Western Tract and Tract 2 as the twenty-foot ingress-egress
easement along the north line of the Eastern Tract.3
E. Morris Conveys the Western Tract to Appellees
On July 7, 2003, Morris conveyed the Western Tract to Appellees.4
Appellees also own a 5.24-acre tract that adjoins the Western Tract’s southern
boundary line and that provides Appellees access to Wood Hollow Road via its
eastern boundary.
3 … Specifically, the deed describes Tract 2 as follows:
Twenty (20) foot ingress-egress easement along the entire north line of that certain (called) 2.500 acre tract of land described in Warranty Deed dated July 16, 1993 [the Eastern Tract], executed by Karen Kay Magee to W illiam Doyle Magee, recorded under County Clerk File No. 93-R0047749 in the Real Property Records of Denton County, Texas. 4 … Morris originally conveyed only one acre out of the Western Tract to Appellees but later executed a correction warranty deed to convey the entire Western Tract to Appellees. The correction warranty deed does not include any reference to the easement across the Eastern Tract. However, Morris subsequently executed a second correction warranty deed to include the easement in the description of the property conveyed to Appellees.
Appellees included as summary judgment evidence copies of the original, correction, and second correction deeds from Morris to Appellees. William objected to the admissibility of the second correction warranty deed, and the trial court overruled his objection. Although William complains in his third point that the trial court erred by overruling his objection, as set forth hereinafter, we need not reach the merits of this complaint.
4 F. The Easement Dispute
In 2004, William informed Appellees that he was installing a gate on the
Eastern Tract to prevent Appellees from accessing Wood Hollow Road via the
easement across the Eastern Tract. William told Appellees that he would allow
them to use the Eastern Tract to access the Western Tract only upon
reasonable notice and with his permission.
Appellees filed suit against William and Morris after William constructed
the fence. 5 Appellees claimed that William unlawfully prevented them from
using the easement across his property and requested a declaration that
William’s obstruction of the easement constitutes an encroachment upon
Appellee’s property without justification. Appellees also brought claims against
William for trespass to try title and trespass to real property, asserting that they
had an express easement, an implied easement, an easement by necessity, and
an easement by estoppel over the Eastern Tract.
G. Summary Judgment
The parties filed cross-motions for summary judgment. The trial court
denied William’s motion and granted Appellees’ motion “only to the extent that
the Warranty Deed (dated July 16, 1993) . . . reserves an express ingress-
5 … Morris is not a party to this appeal.
5 egress easement in favor of the real property described in (a) the Warranty
Deed (dated January 26, 1998) . . . and (b) the Warranty Deed (dated May 1,
2003) [the Western Tract].” 6 The trial court expressly denied all other relief
requested by Appellees and rendered final judgment in favor of Appellees.
William filed this appeal.
III. S TANDARD OF R EVIEW
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). The burden of proof is on the movant, and all doubts about
the existence of a genuine issue of material fact are resolved against the
movant. Sw. Elec. Power Co., 73 S.W.3d at 215.
When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
6 … Thus, the trial court’s final judgment awarded Appellees superior title in the easement, meaning William would be required to stop blocking the easement. The trial court did not grant Appellees’ request for attorneys’ fees and costs.
6 Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s
position will not be considered unless it is uncontroverted. Great Am. Reserve
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
But we must consider whether reasonable and fair-minded jurors could differ in
their conclusions in light of all of the evidence presented. See Wal-Mart Stores,
Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168
S.W.3d 802, 822–24 (Tex. 2005).
The summary judgment will be affirmed only if the record establishes that
the movant has conclusively proved all essential elements of the movant’s
cause of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d
at 678. When reviewing a summary judgment granted on specific grounds, the
summary judgment can be affirmed only if the ground on which the trial court
granted relief is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623,
625–26 (Tex. 1996).
IV. S UMMARY J UDGMENT FOR A PPELLEES WAS P ROPER
In his first point, William argues that the trial court erred by granting
summary judgment in favor of Appellees on the sole ground that the 1993 Deed
“reserves an express ingress-egress easement” in favor of the Western Tract.
Specifically, William argues that the trial court misinterpreted the words “saving
and excepting” used in the 1993 Deed’s description of the property as a
7 “reservation” of an easement in favor of the Western Tract. According to
William, “saving and excepting” language cannot create an easement under
Texas law, only “reservation” language can. Appellees, on the other hand,
contend that we must give effect to the parties’ objective intent, as expressed
by and apparent from the 1993 Deed, and that the parties’ intent was to
establish an easement as described in that deed.
A. General Rules of Deed Construction
A warranty deed will pass all of the estate owned by the grantor at the
time of the conveyance unless reservations or exceptions reduce the estate
conveyed. Monroe v. Scott, 707 S.W.2d 132, 133 (Tex. App.—Corpus Christi
1986, writ ref’d n.r.e.) (citing Cockrell v. Tex. Gulf Sulphur Co., 157 Tex. 10,
15, 299 S.W.2d 672, 675 (1956)). The primary duty of the court in
interpreting what estate a deed conveys is to ascertain the intent of the parties.
Alford v. Krum, 671 S.W.2d 870, 872 (Tex. 1984), overruled on other grounds
by Luckel v. White, 819 S.W.2d 459 (Tex. 1991). We look to the intent that
is expressed by the instrument, not the intent that the parties may have had but
failed to express in the instrument. Alford, 671 S.W.2d at 872; Pierson v.
Sanger, 93 Tex. 160, 163, 53 S.W. 1012, 1013 (1899).
In seeking to ascertain the intention of the parties, the court must attempt
to harmonize all parts of a deed because the parties to an instrument intend
8 every clause to have some effect. Woods v. Sims, 154 Tex. 59, 64, 273
S.W.2d 617, 620 (1954); see Associated Oil Co. v. Hart, 277 S.W. 1043,
1044 (Tex. Comm’n App. 1925, holding approved) (providing that courts “will
never strike down any portion [of a deed] except [when] there is an
irreconcilable conflict wherein one part of the instrument destroys in effect
another part”). In determining the legal effect of a deed, whether as to grant,
exception, reservation, consideration, or other feature, the inquiry is not to be
determined alone from a single word, clause, or part but from every word,
clause, and part that is pertinent. Zephyr Oil Co. v. Cunningham, 265 S.W.2d
169, 174 (Tex. Civ. App.—Fort Worth 1954, writ ref’d n.r.e.) (citing Reynolds
v. McMan Oil & Gas Co., 11 S.W.2d 778, 781 (Tex. Comm’n App. 1928,
holding approved)); see Hart, 277 S.W. at 1044.
B. General Rules Regarding Reservations and Exceptions
The extent of the estate conveyed to the grantee may be dependent on
an exception or reservation in the deed, and the construction and operation of
both the grant and the exception or reservation must be determined from the
instrument, taking into consideration the object and purpose of the instrument.
Reynolds, 11 S.W.2d at 781. The words “exception” and “reservation” are
often used interchangeably, but each has its own separate meaning. Klein v.
9 Humble Oil & Refining Co., 67 S.W.2d 911, 915 (Tex. Civ. App.—Beaumont
1934), aff’d, 126 Tex. 450, 86 S.W.2d 1077 (1935).
A reservation is the creation of a new right in favor of the grantor.
Patrick v. Barrett, 734 S.W.2d 646, 647 (Tex. 1987); Bagby v. Bredthauer,
627 S.W.2d 190, 195 (Tex. App.—Austin 1981, no writ). On the other hand,
an exception does not pass title itself; instead, it operates to prevent the
excepted interest from passing at all. Patrick, 734 S.W.2d at 647. Title to the
interest excepted remains in the grantor by virtue of his original title. Id.
An owner who wishes to reserve a right or easement from conveying
with the conveyed property must make the reservation by clear language.
Holmstrom v. Lee, 26 S.W.3d 526, 531 (Tex. App.—Austin 2000, no pet.)
(citing Graham v. Kuzmich, 876 S.W.2d 446, 449 (Tex. App.—Corpus Christi
1994, no writ) (noting that reservations and exceptions are strongly construed
against grantors and for grantees)); Reeves v. Towery, 621 S.W.2d 209, 212
(Tex. Civ. App.—Corpus Christi 1981, writ ref’d n.r.e.). However, even if an
easement clause is vague, indefinite, or uncertain, a court is not authorized to
completely ignore the valuable right thereby granted. Hubert v. Davis, 170
S.W.3d 706, 711 (Tex. App.—Tyler 2005, no pet.).
Sometimes what purports to be a reservation in a deed has the force of
an exception. Donnell v. Otts, 230 S.W. 864, 865 (Tex. Civ. App.—Fort Worth
10 1921, no writ). Courts will not attribute to one the meaning of the other unless
from the face of the instrument it is apparent that by the use of one word the
other was intended. Klein, 67 S.W.2d at 915.
C. The “Saving and Excepting” Language in the 1993 Deed
In this case, the 1993 Deed effectively severed the larger 5.29-acre tract
into two separate tracts and caused the Western Tract to be landlocked.
Consequently, Karen included language “SAVING AND EXCEPTING a 20 foot
ingress-egress easement along the entire North line” of the Eastern Tract for her
to access the road to the east of the Eastern Tract from the Western Tract.7
William essentially asks us to ignore in toto the “SAVING AND
EXCEPTING” clause in the 1993 Deed, claiming that the use of the term
“saving and excepting” instead of “reserving” renders the clause a nullity. But
applying the rules of construction to determine the legal effect of the 1993
Deed, the inquiry is not to be determined alone from the single “SAVING AND
EXCEPTING” phrase; instead, we must look at every word, clause, and part
7 … Because an easement is the right to use the property of another and fee simple title includes the right to use all of the property, Karen could not have had and would not have needed an easement over any portion of the Original Property until after she conveyed her interest in a portion of the Original Property to William. See Black’s Law Dictionary 509 (6th ed. 1990) (defining an easement as the right to use property owed by another person); Cecola v. Ruley, 12 S.W.3d 848, 852 (Tex. App.—Texarkana 2000, no pet.) (noting that one who owns fee simple title does not need an easement across his property).
11 that is pertinent. See Zephyr Oil Co., 265 S.W.2d at 174; Hart, 277 S.W. at
1044; see also Mitchell v. Castellaw, 151 Tex. 56, 63–64, 246 S.W.2d 163,
166–67 (1952) (“[N]either words of inheritance nor other words of art are
essential to the valid reservation of an appurtenant easement of even unlimited
duration.”); cf. Watkins v. Tucker, 84 Tex. 428, 431, 19 S.W. 570, 570
(1892) (holding that use of the word “reserved” instead of “excepted” did not
change the effect of the instrument when it was clear that an exception was
intended). The 1993 Deed specifically uses the words “ingress-egress
easement” to describe the resulting interest, and it is clear that, by this
language, the grantor—Karen—intended to establish the easement for a specific
purpose: accessing the road to the east of the Eastern Tract from the Western
Tract. See Mitchell, 151 Tex. at 63–64, 246 S.W.2d at 166–67; Watkins, 84
Tex. at 431, 19 S.W. at 570; Houston Oil Co. of Tex. v. Williams, 57 S.W.2d
380, 385 (Tex. App.—Texarkana 1933, writ ref’d) (holding that exception in
deed “sufficiently indicates an intention on [grantor’s] part to reserve and hold
the graveyard in trust by him”); Donnell, 230 S.W. at 865 (“While the term
used was ‘reserved,’ instead of ‘excepted,’ it is manifest from the provision as
a whole that the minerals in the land were to be ‘held,’ and were property in
esse, not some new right . . . .”).
12 In support of his contention that the 1993 Deed’s “saving and excepting”
language is a nullity, William relies on Coyne v. Butler, 396 S.W.2d 474 (Tex.
Civ. App.—Corpus Christi 1965, no writ). In Coyne, Butler deeded property to
Coyne but reserved a one-half mineral interest. Id. at 475. The deed to Coyne
included the following language: “EXCEPTING THEREFROM an undivided 1/2
of the Oil, Gas and other Minerals . . . which are hereby expressly reserved to
the Grantors.” Id. (emphasis added). Coyne later reconveyed the same
property to Butler. Id. The return deed to Butler contained the following
language: “EXCEPTING THEREFROM an undivided1/2 of the oil, gas and other
minerals”; it did not include language of reservation. Id. The Corpus Christi
court held that the first deed from Butler to Coyne reserved to Butler a one-half
mineral interest but that Coyne’s return deed to Butler “was clearly only an
exception of a one-half mineral interest”; that is, Coyne’s return deed excepted
from the conveyance to Butler the interest Butler previously had reserved to
himself in his initial conveyance to Coyne rather than reserved a one-half
mineral interest to Coyne. Id.
Coyne is distinguishable from the present case. Coyne dealt with a deed
(from Coyne back to Butler) in which the exception (a one-half mineral interest
excepted from Coyne’s conveyance back to Butler) could not be construed as
a reservation of minerals to Coyne because Butler previously had reserved a
13 one-half mineral interest. See id. at 476; Klein, 67 S.W.2d at 913–15; see also
Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 506–07, 144 S.W.2d 878,
879–80 (1940) (holding that reservation of mineral interest is ineffective when
both grant and reservation could not operate because balance of mineral
interest previously had been conveyed). Here, unlike in Coyne, the easement
interest reserved in the 1993 Deed did not reduce the fractional interest in the
Eastern Tract that was conveyed to William; it established only certain rights
of ingress and egress over the Eastern Tract that burden the Eastern Tract.8
See, e.g., Milligan v. Niebuhr, 990 S.W.2d 823, 825–26 (Tex. App.—Austin
1999, no pet.) (“[O]wnership of the easement does not confer any additional
interest in the dominant estate because a fee simple owner already possesses
the fullest interest possible in that estate.”).
8 … Likewise, William’s reliance on Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777 (1955), is misplaced. Haines holds that a deed that conveys land and then excepts from such conveyance a previously-existing easement over the land conveyed conveys the fee to the entire tract (including the portion burdened by the easement) and that the exception merely renders the conveyance subject to the easement. Id. at 281, 276 S.W.2d at 782. Here, the parties do not dispute that William acquired fee title to the entire Eastern Tract by virtue of the 1993 Deed. What is at issue in this case is whether the 1993 Deed created a right in the owner of the Western Tract access the Western tract via a twenty-foot strip of land across the North line of the Eastern Tract.
14 Giving effect to, and harmonizing, every part of the 1993 Deed, we hold
that the 1993 Deed reserved an easement across the Eastern Tract for the
benefit of the Western Tract.9 See Mitchell, 151 Tex. at 63–64, 246 S.W.2d
at 166–67; Watkins, 84 Tex. at 431, 19 S.W. at 570; Williams, 57 S.W.2d at
385; Donnell, 230 S.W. at 865; see also Moctezuma v. Upton, No. 14-94-
00009-CV, 1995 WL 681294, at *2 (Tex. App.—Houston [14th Dist.] Nov.
16, 1995, writ denied) (op. on reh’g) (not designated for publication) (looking
to parties’ intent to hold that deed conveying property “subject to” road
easement established existence of easement encumbering grantor’s interest).
Moreover, the easement, which was established for the benefit of the Western
Tract and which, therefore, is classified as an easement appurtenant, passed
9 … We limit our holding to the unique facts presented in which one undivided one-half interest owner of the larger tract conveyed her interest in a portion of the larger tract to the other undivided one-half interest owner and excepted an easement across the portion conveyed. Although one cotenant generally cannot convey an interest, such as an easement, in common property without express authority or ratification of the remaining cotenants, see Elliott v. Elliott, 597 S.W.2d 795, 802 (Tex. Civ. App.—Corpus Christi 1980, no writ), the conveyance at issue in this case did not involve third parties. And to the extent that William suffered any prejudice as the owner of the smaller tract burdened by the easement, he acquiesced in or ratified Karen’s creation of this easement by accepting the 1993 Deed. See generally Home Owners’ Loan Corp. v. Cilley, 125 S.W.2d 313, 316 (Tex. Civ. App.—Amarillo 1939, writ ref’d) (explaining general rule that the acceptance by one cotenant of the benefit of a cotenant’s act with knowledge of the material facts will constitute ratification of the act).
15 to the subsequent owners of the Western Tract regardless of whether the
conveyance to them specifically included language conveying the easement
interest. See, e.g., Holmstrom, 26 S.W.3d at 531; McDaniel v. Calvert, 875
S.W.2d 482, 484 (Tex. App.—Fort Worth 1994, no writ) (holding that
easement appurtenant automatically transferred to current owners of property
when previous owner assigned his interest to them); First Nat’l Bank of Amarillo
v. Amarillo Nat’l Bank, 531 S.W.2d 905, 906 (Tex. Civ. App.—Amarillo 1975,
no writ) (“An easement appurtenant is an easement interest which attaches to
the land and passes with it.”). Thus, Appellees, as the current owners of the
Western Tract, are also the current holders of the easement.
Consequently, we hold that the trial court did not err by granting
Appellees’ motion for summary judgment on the ground that the 1993 Deed
reserved an express ingress-egress easement in favor of the Western Tract
owned by Appellees. We overrule William’s first point.
V. C ONCLUSION
In his second point, William claims that the trial court erred by denying
his motion for summary judgment. Having overruled William’s first point and
having held that the trial court did not err by granting summary judgment for
Appellees, we need not address William’s second point. See Tex. R. App. P.
47.1. In his third point, he argues that the trial court erred by overruling his
16 objection to Exhibit J to Appellee’s summary judgment evidence. We have not
considered Exhibit J in our analysis of whether the trial court correctly granted
summary judgment for Appellees on the ground that the 1993 Deed reserved
an express ingress-egress easement in favor of the Western Tract owned by
Appellees. Accordingly, we need not address Williams’s third point. See id.
We affirm the trial court’s judgment.
SUE WALKER JUSTICE
PANEL: LIVINGSTON, WALKER, and MEIER, JJ.
DELIVERED: August 25, 2009