Seber v. Union Pacific Railroad, 350 S.W.3d 640

Landlocked Sebers property originally included a 1.5-acre tract with a private crossing over Union Pacific's railroad right-of-way to reach Hufsmith-Kuykendahl Road.
In 1902, Union Pacific's predecessor condemned a portion of the right-of-way and the adjoining 1.5-acre tract for railroad purposes, including access via a crossing.
The 1.5-acre tract was severed and passed through multiple owners until the Sebers acquired it in 1992; the crossing remained in use.
In May 2008, Union Pacific notified the Sebers the crossing would be permanently closed, and the crossing was closed.
The Sebers sued October 30, 2008 claiming wrongful crossing removal and sought declaratory, injunctive, and monetary relief; Union Pacific moved for traditional summary judgment in December 2009; the trial court granted it January 26, 2010; the appeal followed.
The court affirmed some grounds, reversed others, and remanded for further proceedings; the majority and a dissenter analyzed rights by deed, implied easements, and preemption.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the crossing is an appurtenance conveyed by deed or an implied easement.	Seber: crossing is an appurtenance; implied easement by prior use supports right to cross.	Union Pacific: no appurtenance; implied easement depends on necessity or prior use.	Implied easement by prior use survives summary judgment; appurtenance theory rejected.
Whether Union Pacific could exclude use of the crossing from its right-of-way.	Sebers: exclusion violates implied easement/right to use the crossing.	Union Pacific may exclude activities inconsistent with railroad purpose.	Issue re: exclusion not dispositive; dispositive grounds precluded full relief on this basis.
Whether federal ICCTA preempts the Sebers' claims.	ICCTA does not preempt routine crossing disputes.	Federal law preempts state-law claims.	ICCTA does not preempt the Sebers' claims; preemption not shown.
Whether there was malice to support exemplary damages.	Union Pacific acted with malice by closing crossing despite harm.	No specific intent to cause substantial injury; actions were not malicious.	Summary judgment on exemplary damages affirmed; no genuine malice.
Whether the Sebers were entitled to a declaratory judgment via partial summary judgment on entitlement to use the crossing.	Deed conveyed right to crossing as appurtenance; estoppel by deed.	No express conveyance of an appurtenance; no estoppel.	Partial summary judgment denied on basis of analysis above; grounds insufficient.

Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962) (implied easements; prior use and necessity framework)
Cox v. Campbell, 143 S.W.2d 361 (Tex.1940) (centerline/ownership under railroad right-of-way; conveyance of land beneath)
Moore v. Energy States, Inc., 71 S.W.3d 796 (Tex.App.-Eastland 2002) (interpretation of appurtenances in conveyances)
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001) (finality of summary judgment when claims resolved)