Daniel v. Fox
917 S.W.2d 106
Tex. App.
1996
Check Treatment

*3 STONE, CANTU, Before DUNCAN and complaints appellant’s as We treat JJ. sufficiency challenges and review all factual Plas-Tex, Inc. v. U.S. Steel evidence. (Tex.1989). 442, 445 Corp., 772 Un

OPINION evidence, whole, clearly as a insuf less the CANTU, Justice,1 by Sitting ANTONIO G. wrong, points and must be over ficient Assignment. Bain, 709 ruled. Cain v. appeal judgment (Tex.1986). an a award- This is from necessity” ing “implied by an fol-

lowing a trial to the court without interven- FACTS jury. a tion of question in was at one All the land Kothmann, Ly- by Adolph D. Sr. the Uniform Declar- owned

The suit arises under Act, Kothmann, grandparents of Sophie atory Judgments dia Tex.Civ.PRAC. & Rem. (Vernon as 37.001, 1986), well seq. appellant appellees, § et both Code Ann. below, op- brothers, non-appealing and was by defendants was initiated two Malcolm ranch, Fox, in Harvey against various erated as unified ranchland. J. Fox and D. east and relatives, separate County, owning interest in Mason was bounded all by land, by neighbors’ on the south U.S. County, parcels realty Mason west by the Llano Only on the north Highway 81 and which derive from common source. below, Daniel, flows south north Beaver Creek defendant Geraldine River. one into the through the middle the ranch appealed entered River. trial court. We affirm. Llano 74.003(b) (Vernon 1988). § Assigned this case the Chief Justice of the Code Ann. Supreme pursuant Court of Texas TexGov’t Adolph erty year, appellees after the death D. and sometime that same Kothmann, Sr., Silas, spouse, Lydia uncle surviving property leased their to their Sophie, pursuant of her who the terms hus- had remained the homestead as will, partitioned band’s ranch into five rancher. of the other defendants re- None tracts, had, fact, containing each acres. sided 154.82 Divi- on the also parallel sion was made Llano River leased Silas. so their tracts Uncle Thereaf- ter, health, Beaver would all the due to turned over the Creek flow bad Silas Following lottery drawing by ranching including operations, tracts. each the leased child, tracts, Kothmann, prepared granting nonap- deeds were owner- son Eldon son, Kothmann, ship pealing to the Silas and to defendant below. Sometime around June, Lydia daughters, expiration the four D. Kothmann after the of the lease *4 Fuchs, Hausler, Silas, appellees appellees Nellie Kothmann Lillie between and elect- lease, Wisseman, sought Kothmann ed not to renew the but instead and Huida Kothmann Lydia to lease their northernmost tract to individu- Pluenneke. D. Kothmann Fuchs (Fox), hunting purposes. als for appellees, the mother of received the River, along northernmost tract Llano the 30, 1991, Kothmann, On Eldon October mother, appellant’s and Kothmann Huida attorney, appel- demanded that Pluenneke, received the southernmost tract lees, [hunters], as as their well tenants dis- interior land. The tracts deeded to were finally both continue use of roads and erected two appellant aunts and one uncle of both locking prevent entry a fence with a device to appellees. and by 14, 1992, appellees. appellees On March parties owning sent all an letters to interest appellees’ Beaver divides Creek tract with in requesting the tracts other written affir- approximately one-third of the land on the roadways mation of two the easements. west side and two-thirds on the east side. receiving response requests, After no their history Beaver Creek has a of substantial appellees, on June filed their suit occurring rises and floods at times of various declaratory seeking judgment relief. year, permanent the and no vehicular cross- ings pro- have ever been which established trial, Prior to Nellie Kothmann Hausler vide access between the western and eastern voluntarily granted appellees an easement portions of the tracts. property along across her both sides of Bea- ver Creek she was and dismissed as defen- During history ranch, the prior the and trial, During dant. all defendants acknowl- partition, there existed at least two ranch edged roads, appellees an in easement favor one each on the west and east side of the west of Beaver and side Creek such was Creek, essentially Beaver ran from longer no an at issue trial. At conclusion Highway U.S. 87 to the Llano River. The trial, hearing testimony of the after and main ancestral homestead was located on the witnesses, of seven the trial court awarded west side of Beaver Creek but certain ranch- “implied by necessity” an easement favor ing operations were performed at one time appellees all across tracts on the east side on the Among east side the creek. these Only of Beaver Creek. the owner of the operations sheep pen pecan were and a appealed. tract has southernmost grove close to the river. Access to all east tracts, unified, they side when were The trial court’s final reads in by exiting made portion western of the pertinent part: and, Highway ranch onto U.S. after cross- implied “The further that an Court finds ing bridge Creek, highway over Beaver re- along easement of exists entering highway from the onto eastern Eastern of the the sub- portion through gate following a locked and suit, ject being portion that this out of ran dirt road which to the northernmost Survey Abstract No. 963 of the No. portion fronting the Llano River. County, William Grant in Mason Wells July On Lydia originally partitioned D. Kothmann which was sons, Kothmann, Fuchs tract appellees Adolph deeded her to her from D. the Estate Sr., appellee ux, Lydia herein. prop- Sophie, grandparents Neither lived et ref'd). (1897, Plaintiffs, Defendants, by writ We are concerned and owned type. continuous, herein with latter being apparent, such easement parti- at the time of and existence grantor of parcel The owned Court, therefore, ORDERS, tion. The is called the servient estate easement express an ease- AFFIRMS GRANTS is the easement parcel benefitted appurtenant over servient ment estates Babb, called the dominant estate. Miller v. Defendants, of the etc. ...” (Tex.Comm’n App.1924, S.W. judgm’t seeking estab adopted). party A Appellant urges that it is unclear whether implied lish of an easement the existence implied granted trial court an easement2 (1) unity must there was of owner show by necessity an because the or ship dominant and servient estates of the “implied found the existence of Court (2) (3) apparent, in existence the use was necessity.” inquiry should (5) (4) permanent, grant, time of the upon the easement not center whether (6) continuous, reasonably necessary necessity, upon or rather but granted. enjoyment premises of the by implication whether the easement arose (Tex. Bickler, 354, 357 Bickler v. 403 S.W.2d by the dominant as a result of reservation 207; 1966); Drye, Book v. grant by way to the dominant estate *5 258, (Tex.Civ. Ferguson, 260 255 S.W.2d necessary as a to ensure estate means n.r.e.); 1953, App. writ ref'd Worth — Ft. enjoyment estate one was nei- of the where (Tex. Bodenheim, 693, v. 193 S.W. 696 Miles granted.3 expressly ther reserved nor ref'd). 1917,writ Civ.App. — Texarkana by begin recognizing that an We validity of an ease In liberty, privilege, advantage or easement is a depends on it is by implication ment whether person, profit granted either without grant by If the by reservation. created ownership by virtue of his of personally or by grantor, dominant estate is retained land, parcel parcel of to use another specified an easement is said have been implied purposes. Ease of land for some limited reserved, if is con but the dominant estate personal in are ments which the benefits is have veyed, implied an easement said to regard for owner an individual without George Phillips, v. 642 granted. been parcel 1982, land are “ease ship specified 275, of a of (Tex.App. 277 S.W.2d — Texarkana in gross”, writ). by which involving ments whereas easements no easements cases specified parcel of for a land “implied grant,” the benefits are it if the ease is sufficient necessary regardless identity reasonably of the owner are question of the ment in Drye Eagle enjoyment v. appurtenant.” “easements convenient and comfortable (Tex. Inc., 196, Ranch, 207 364 as when the sever Rock S.W.2d of the it existed 1962). Schaded, otherwise, right v. 420 of en ance made. Fender Stated 1967, 468, (Tex.Civ.App. Tyler generally is 472 from an estate S.W.2d trance and exit — n.r.e.); Haby, Kruegel v. 408 S.W.2d v. writ ref'd Teich appurtenant easement. an 1966, 562, 641, Antonio Nitschmann, (Tex.Civ.App. 40 Tex.Civ.App. S.W. 566 15 — San 17, 1995, appellant in- February filed an Property does not distin- On 2. The Restatement of Exception Bill of strument titled “Defendants' by guish necessity from easements easements No. 1.” by implication. It forms of rather created other contain Certificates latter two instruments by together implica- all easements created treats delivery attor- indicating to different of Service tion. stages neys representing appellees at various appeal. and on signed judgment was that the 3. The record shows however, complaint, been made No 1994, 1, appellant timely on November appeal regarding to com trial court's failure Findings Request of Facts Conclu- filed For ply requirements of Tex.R.Civ.P. 296 with the Thereafter, 18, on November sions Law by assigned v. MacDon 297 error. See Cameron 1994, 16, appellant filed her notice on December nell, 911, (Tex.App. Corpus S.W.2d 912 659 — Findings Nevertheless, past 1983, hist.). and Conclusions of due Fact no writ Christi respond by filing did The trial court find law. recitation of trial court's contains addressing the any ings Findings Facts and Conclusions Law we have considered proffered points of error. required.

HI n.r.e.). n.r.e.); Gillette, 1974, writ ref'd Barrick 187 Antonio writ App. v. ref'd — San 683, (Tex.Civ.App. Merely showing expensive S.W.2d 687 that it be would — Eastland 1945, w.o.m.); Scarborough v. generally writ ref'd outlet obtain another is not suffi Co., 305, Anderson Bros. necessity. Const. 90 S.W.2d cient establish 629, (Tex.Civ.App. 310 writ Kuykendall, Paso 630 Williams v. 151 S.W. — El dism’d). writ). parties The situation of the at the (Tex.Civ.App. no — Austin conveyances [partitions] time of the consti apparent It ease is that whether an operative support tutes facts to the claim “way necessity” ment is denominated a Hoak, grant by implication. of a 255 S.W.2d [Grobe, 487]; by at an 224 S.W.2d “easement at 260. Hess, necessity” v. 183 996 [Latimer S.W.2d However, where the easement cre is )]; (Tex.Civ.App. writ ref'd — Texarkana reservation, by implied ated a more burden Rash, necessity’ [Jordan an “easement of v. applies some and strict must test 1988, no (Tex.App. 745 S.W.2d 549 — Waco 208; Drye, be shown. 364 S.W.2d Mitch writ) ]; necessity” “implied an Castellaw, ell v. Tex. 246 [Koonce, 451]; “implied 663 S.W.2d at an (1952). Texas law establishes that when by necessity” an reservation of grantor conveys part of a tract of land Parker, 399]; [Bains v. or an retaining remaining while acreage, “implied grant necessity”; of a [Per right reservation Russell, (Tex.App.— v. sons 625 S.W.2d 387 conveyed over land if exists writ); Hickman, Tyler no Richter there no other access to the land. Koonce (Tex.Civ.App. 243 S.W.2d — Galveston Estate, (Tex. v. Brite writ)]; 1951, no the elements of each are 1984). case, being identical. In each what is alluded *6 by necessity regardless to an of is easement by To an establish easement necessi way impliedly by whether it also arises of (1) ty, party unity a must establish of owner grant. reservation or ship of the dominant and servient estates (2) severance, prior necessity to a of In the instant and case dominant (3) roadway, necessity that the at existed servient estates were created at time of Koonce, time estates were severed. partition and the children took their tracts 452; 663 Waggoner S.W.2d at Estate v. of by any existing at the burdened easement (Tex.1964). 47, Gleghorn, 378 S.W.2d 48 partition, taking by implied of time some Thus, is requiring it seen that the rule a grant subject and others to such showing that apparent, permanent the use be Mills, grant of easement. v. 616 Beck and continuous apply way does not to a of 353, (Tex.Civ.App. S.W.2d 355 — Houston Bains, 569, necessity. v. Parker ref'd). 1981, writ is [14th Dist.] This rule 1946, (Tex.Civ.App. 577 writ ref'd — Galveston undoubtedly roadway existing about true n.r.e.). tracts, portion on the of western the various longer no formed an issue before the necessity of be must persuaded court. are that the trial We For, more than one of if the convenience. court, by language, its intended and awarded way, owner of the can land use another he by necessity arising by implica an easement by implication pass cannot claim to over land by accordingly grant, tion of will and we get of another to to his own. v. Mat Duff guidelines the evidence under the con review thews, 333, 158 Tex 311 640 S.W.2d trolling rights of such of the establishment (1958); Parker, Bains v. 143 Tex. 182 way. Ottmers, (1944); S.W.2d 399 Grobe v. (Tex.Civ.App.—San recognized, 224 to S.W.2d 488 heretofore the evidence As An n.r.e.). However, way finding unity ownership nio support writ ref'd a a of of must necessity may though prior be created it is dominant and estates to even servient severance, dependent connecting through roadway a person. property a third Parshall the existence of such at the time (Tex.Civ. Koonce, Crabtree, 663 the estates were severed. sisters, properties of their includ- 452. There no conten- across the is serious to ing appellant’s property, get not at one mother’s to tion that all of the tracts were partition single entity portion until the time of located Beaver Creek. his east however, contended, occurred, partition It in June of 1955. when the she roadway eastern tracts was that on the from Antonio occasional- recalled cousins San rarely strictly necessary ly using roadway. either used not the eastern appellees’ to eastern tract. for access Fox, years Appellee, Malcolm old that, Appellant reasons because travelling partition. the time of He recalled appellees are to reach their western able roadway many down the east occasions easement, portion the conceded west According get to the river. recollec- they necessi are entitled tion, always roadway remained es- portion to ty running across her eastern sentially the a car same. He never saw It is reach the eastern of their tract. make remembers it across creek and may appellees that not be well established In his seeing get trying stuck do so. some right their the offer of deprived of crossing, capable of opinion, the vehicle Parker, 194 S.W.2d at 577. Nor another. season, during dry is a four-wheel drive vehi- voluntarily they surrender should have high profile. cle with a He was certain right way upon suggestion established roadway in continuous since has been use much they use another one. There is ad- Upon cross-examination he before 1955. roadway running through that the evidence that, money, bridge enough mitted with portions of the tracts was the eastern various Creek, it but could built across Beaver be many years prior to 1955 in existence for $300,000 build an all-weather would cost partition occurred. when the $150,000 bridge good-weather to build a bridge, the value of Fuchs, figures that could exceed Lydia daughter Dessie Kothmann itself. Lydia and the Adolph and Kothmann appellees, years age at time mother overwhelming evidence that We find trial, partition was effect- recalled that the controversy roadway in was in existence of her a manner that all mother’s ed such being necessity prior to and subse- used running have children would Beaver Creek appellant that quent argued by 1955. It is *7 to through property and have access their that necessity falls short of degree the of ranch at that water because the was Ap- necessity. required for an easement ranching. remem- to cattle She dedicated 637; pellant Duff, 311 cites us to S.W.2d roadways on the ranch when she bers two Rosier, Mitchell, 163; v. 246 Othen S.W.2d child, of on the west side Beaver one (1950); 485, 622, 226 625 148 Tex. S.W.2d was located Creek where the homestead subsequent pronouncements commit- other other road- running to the Llano River. The of necessi- ting to the doctrine “strict Texas “good old way, she described as a appellant misplaced ty.” Reliance is because road”, lying the ranch ranch ran over be- recognize the to distinction has failed beginning gate at a off of Beaver Creek east implied reser- arising from tween easements 87, Highway 9. then known as Highway U.S. grants degree of and the vations and sheep operating a her father She recalled to necessity ascribed each. portion of ranch and pen the eastern pro necessity The of strict by returning doctrine having obtain to access upon an a burden imposition hibits the crossing bridge over Beaver highway and mere convenience another deep estate for the to cross other- because it was too Creek otherwise, that may it said seasons, be estate. Stated during dry she recalled wise. Even necessity required is one economical is on what inability to cross Beaver Creek merely an the land and not physical use of portion of ranch because appellees’ now Payne v. advantageous of the land. See River use emptied into the Llano Beaver Creek 793, Edmonson, (Tex.App.— 712 796 steepest embank- S.W.2d provided the there and n.r.e.). 1986, writ ref'd [1st Dist.] Houston point. that further recalled ments at She bur appellees have met their hold that always having to travel We her brother Silas

H3 Mills, showing only reported in v. required den of not “rea case and the facts Beck 616 at 353. necessity”, S.W.2d sonable but have further shown option opened when them is points Appellant’s of error are all over- prohibitive expense], it [that considered judgment of the trial court is ruled and the necessity clear that shown them is affirmed. more than for their mere convenience. Moreover, Supreme DUNCAN, Justice, our recog dissenting. Court has necessity” nized that the term “strict is not law, party may have a Under Texas hopelessly application inelastic for sensible to way legal he when has another Mitchell, varying sets of 246 facts. property. means of Bickler v. access at 168. Bickler, 354, (Tex.1966); 357 403 Matthews, 333, v. 158 Tex. 311 S.W.2d Duff jurisdictions recognized Other have 637, (1958); Rosier, v. 148 Tex. 642-43 Othen flexibility necessary application to a sensible 485, (1950). 622, Accord- 226 S.W.2d 625-26 doctrine contemporary under condi ingly, indisputably legal since Foxes have Laurie, 317, Condry tions. v. 184 Md. 41 access on the to their road (1945) Denn, A.2d 66 and Rose v. 188 Or. Creek, respectfully I west of Beaver dissent. (1950), 213 810 P.2d easements of upon showing were sustained cost Facts of construction of a over land as one’s states, majority opinion Koth- As the highway require means access to a would partitioned man Ranch 1955 into five expense proportion out of to the value of the passed Lydia tracts. northern tract The Thien, land. also 279 See Wiese Mo. Fox, appel- Kothman Fuchs the mother of (1919) cost); 214 (disproportionate S.W. 853 lees, Harvey and Malcolm Fox. The south- Schmitz, Ill.App.3d Miller v. 36 Ill. passed ern Huida Kothman tract (1980) Dec. (dispropor N.E.2d 488 Pluehnke, appellant, the mother of Geraldine expense); effect and tionate Beeson v. Phil remaining passed Daniel. The three tracts (1985) lips, Wash.App. P.2d Kothman, Hausler, to Silas Nellie Kothman (cost prohibitive); Wedding, Liles v. 84 Or. and Lillie Kothman Wisseman. Beaver (1987)(exorbitant App. 733 P.2d 952 cost each Creek crosses the center of building permanent bridge). the four northern tracts. correctly The trial court awarded an im trial, By layout the time and owner- plied by necessity as a result of the ship changed. tracts had north- implied grant arising partition. at the time of passed Harvey ern tract had to Malcolm and 208; Drye, Corp. 364 S.W.2d at Exxon v. Fox, tract passed while the southern had Schutzmaier, (Tex. 284-85 only rarely Geraldine Daniel. The Foxes *8 1976, writ); Civ.App. no Fender land, preferring used their instead lease it — Beaumont Schaded, 472; George, Daniels, hand, 642 to a hunter. The the other unnecessary at 278. find it We building had a home on retired were appellant’s remaining points address of error their tract not far from the road to the east seeking to make a distinction that is not maps Beaver Creek. The below show disposition to the general material we make. layout property, We of the as the well necessary simply parti- deem it ownership state there of the tracts after the 1955 is no material difference between the instant tion and at the of trial. only property dispute ing appeal since she is majority, a arose

As stated re- who has Eldon Kothman and Foxes east of Beaver Creek between owner garding the Foxes and their hunter’s use voluntarily granted an easement. east west of Beaver the roads suit, Ultimately, Foxes filed Creek. Discussion seeking permitting their use easements law, grantor if a seeks an Under Texas Hausler, trial, then roads. Before Ms. both part by necessity of the land over Foxes eighties, granted easements her of necessi conveyed, seeks she she During her on both roads. If, on the other ty by reservation. trial, remaining Mr. Kothman —the owner hand, grantee neces seeks an easement fa- acknowledged an the west— by a common sity over lands once owned on the road the west vor of Foxes conveyed parties, he to third grantor but Therefore, by the time the Beaver Creek. grant. necessity by implied seeks submitted, the sole issue before case Inc., Ranch, See, e.g.,Drye v. Rock Eagle recognize court whether to *9 (Tex.1962). majority 196, 205-09 The S.W.2d necessity by implied grant the road to the on requirements these two the for holds that of Beaver Creek. east disagree. I ways necessity of differ. types of judgment final concluded The court’s recognized supreme In court Drye, necessity” “implied of exist- that way necessity for a of requirements that to the east of Beaver Creek ed on the road by implied reservation are three-fold: continuous, “apparent, was because road in been existence 1. use must have The partition.” of the in existence at and grant; apparent the time of at and notes, only Mrs. majority Daniel As the at been continuous note, 2. use must have The majority fails to appealed. What it can grant such that of the however, the time only Mrs. Daniel has stand- is that

115 (way necessity parties Duff, be inferred that at of intended 311 S.W.2d 642-43 pass by grant; precluded plain- that its use and road” the “lower because property necessary legal tiffs had access to their via the 3. must The use be to the use “upper though upper even of road” road did the dominant estate. provide not to the vehicular access lakefront Drye, respect 364 S.W.2d 208-09. With plaintiffs’ because of an of the lots prong, the third the court its ear reaffirmed bluff). intervening Curiously, while ma- Matthews, holdings lier in v. 158 Tex. Duff jority recognizes principle this even cites (1958), 311 637 S.W.2d Othen v. Parker, Bickler, Duff, complete- it Drye, Rosier, (1950), 148 Tex. 226 622 S.W.2d ly disregards it in applying law to the that Texas follows the “strict doctrine neces undisputed material facts us. before sity” in involving ways necessity by cases of However, implied reservation. because the proposed Drye failed to meet Conclusion prerequisites, Drye other Court stated ease, In Duff, this as in evidence con- question it need not decide the of wheth clusively Foxes establishes that the have necessity er strict required was in cases legal property means of access to their —the volving ways necessity by implied grant. of road west of to the Beaver Creek. As

Drye, question 364 208-09. This law, therefore, they matter of cannot show finally not resolved until Bickler v. Bick degree necessity way for a required of of ler, (Tex.1966), and then necessity by implied grant on the road to the Bickler, implicitly. See 403 S.W.2d at Accordingly, east of I Beaver Creek. would Othen, (distinguishing the lead Duff reverse the trial court’s and render ing way necessity by of implied reservation judgment declaring that the Foxes are not cases, on they their facts and because not way entitled to a the road to ways implied involved reser the east of Beaver Creek. vation, grant). rather than event, any regardless par of whether a ticular involves way necessity by case by implied grant, reservation or one

principle crystal party clear: If a has a

legal means of access to property, his he is necessity. Bickler, entitled to (because Ralph S.W.2d at 359 Bickler did legal not have a means access to HARTMAN, Spock Appellant, Allen property, an easement Max over Bidder’s (distin “still necessary”); id. Texas, Appellee. STATE guishing proof because the demonstrat Duff ed that plaintiff had “another No. 04-94-00180-CR. plaintiffs legal right lot he had a use”);2 Appeals Court (distinguishing id. Othen because the plaintiff San Antonio. “to discharge failed his burden of proving access”); had no he other Feb. 1996. Bains, (Tex. Parker v. Rehearing Overruled Feb. 1996. n.r.e.) Civ.App. ref'd writ — Galveston (reversing grant ways trial court’s of two 1,May Discretionary Review Granted if, necessity). This is true even because of barriers, legal natural existing means of provide

access does not vehicular access to parts

all property. the landowner’s See *10 tions, however, appears It involved court held that Duff by implied grant as to and a Pfeiffer precluded existing legal necessity by implied reservation to Matthews. upper along access road. Id. Duff, See In both situa- 641-43.