Cooke v. Morrison, 404 S.W.3d 100

Background

Cooke, as trustee of The Brett T. Cooke Revocable Living Trust, sued Morrisons to adjudicate title to a 0.2‑foot strip west of Lot 2 and to determine an easement for roof eaves and a sewer line crossing Morrisons' Lot 1.
Morrisons counterclaimed for enforcement of restrictive covenants and filed third‑party claims against Cooke individually; they sought declaratory relief, removal of encroachments, and attorney’s fees.
The trial court found the boundary as depicted by the Weisser Survey, held the eaves and sewer line encroached, ordered removal, and awarded costs and $2,500 in attorney’s fees to Morrisons, with Trust taking nothing; judgment included a Mother Hubbard clause.
Lot 1 is Morrisons’ residence; Lot 2 is Cooke’s; no recorded easements for eaves or sewer line; the Lot 2 residence’ southwest wall overhangs Morrisons’ property by 1.5 feet.
Weisser Survey shows Lot 2 house is 0.2 feet northeast of the boundary; survey relied upon by trial court; Cooke claimed title to the 0.2‑foot strip and sought to preserve easements via prescription.
On appeal, the court reverses in part, rendering new determinations: Trust holds title to the 0.2‑foot strip, has prescriptive easement for the sewer line and overhanging eaves, and an easement by necessity; Morrisons take nothing; case remanded for scope/location of easements.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the 0.2‑foot strip belong to the Trust?	Cooke asserts the Trust holds the strip as adjacent land by the Weisser Survey.	Morrisons argue boundary places the strip within Lot 1/line; no title shown for the strip.	Trust owns the 0.2‑foot strip.
Do the eaves and sewer line establish a prescriptive easement or adverse possession?	Trust contends long‑standing use created a prescriptive easement (and possibly adverse possession).	Morrisons contend no enforceable easement was proven and that encroachments violate covenants.	Prescriptive easement for both eaves and sewer line established.
Is there an easement by necessity for maintenance of the Trust’s home and sewer line?	Trust argues necessity due to proximity and lack of alternative access.	Morrisons challenge necessity as a basis for cross‑property access.	Easement by necessity established.
Do the restrictive covenants prohibit the eaves/sewer line encroachments or does the prescriptive easement defeat enforcement?	Trust claims covenants do not bar prescriptive rights; sections interpreted to allow adjustments.	Morrisons rely on covenants to bar encroachments; limitations defenses argued.	Covenants not violated; prescriptive rights defeat enforcement.
Was the injunction/declaratory relief and attorney’s fees properly awarded to Morrisons)	Trust argues reversal is warranted due to prevailing on some claims; fee/relief distribution contested.	Morrisons prevailed on declaratory relief and sought fees; trial court awarded fees.	Reversed; Morrisons’ relief and fees appropriately not awarded; remanded for scope of easements.

Key Cases Cited

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal‑sufficiency standard requires basis in record evidence)
Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standards for reviewing legal sufficiency and burdens)
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (conclusions of law reviewed de novo; proper judgment if any theory supports)
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) (interpretation of unambiguous deeds and four‑corners rule)
CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425 (Tex. App.—Houston [1st Dist.] 2005) (de novo construction of deed restrictions when unambiguous)
Owens v. Ousey, 241 S.W.3d 124 (Tex. App.—Austin 2007) (restrictive covenants interpretation; ambiguity determination)
Toal v. Smith, 54 S.W.3d 431 (Tex. App.—Waco 2001) (elements of prescriptive easement (open, adverse, exclusive, continuous, 10 years))
Wiegand v. Riojas, 547 S.W.2d 287 (Tex. Civ. App.—Austin 1977) (start of prescriptive period when servient owner on notice)