Joseph FERRARA, Appellant, v. Michael L. MOORE and Deborah J. Moore, Appellees.
No. 06-10-00006-CV
Court of Appeals of Texas, Texarkana.
Decided July 28, 2010.
Rehearing Overruled Aug. 24, 2010.
Submitted July 6, 2010.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice CARTER.
Finding that Michael L. Moore and Deborah J. Moore owned an express easement for ingress and egress to their property, the trial court enjoined Joseph Ferrara from restricting use of the easement and granted attorney‘s fees. Ferrara‘s appeal complains that the evidence does not support the trial court‘s findings of fact, injunction, and attorney‘s fee award. We find no reversible error and affirm the judgment of the trial court.
I. Facts and Procedural Background
Brian Hays owned an eleven-acre tract of land abutting a county road, which he subdivided into five lots. Each deed contained an easement for a “non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed.” Each of the deeds referenced an attachment in which the particular easement was specifically described by metes and bounds. In 2005, Ferrara purchased tract #2 by warranty deed in which he also was granted such an easement and the tract was subject to all valid easements which allowed northern property owners, including owners of otherwise landlocked tract #5, access to their property from a county road. Ferrara installed a fence and a gate around the easement in February 2006 and began to block the road. He justified this action by claiming he “researched it and that piece of property north of me did not have legal access to use that [easement]. It was a privilege.”
Hays was notified by Roy Gay, another owner of property north of tract #2, that he was “allowed to enter the gate for a couple of times and then Mr. Ferrara would not let them enter any longer.” To no avail, Hays spoke with Ferrara “several times about the easement” and clarified that Ferrara was not allowed to block it. Thereafter, “Ferrara came out and ... cut trees [and laid them] all across the easement where it wasn‘t passable,” despite being directed to open the gate. Finally, to avoid conflict, Hays used a bulldozer to create a road on someone else‘s property to allow the other tracts to access the county road.
In May 2009, the Moores purchased tract #5 and discovered that Ferrara was blocking access and use of their easement. The Moores asked Ferrara “once again could we settle this amicably ... and [Ferrara] said no, that [he‘d] have to be taken to court.” So, the Moores filed suit. In their petition, they asked the court to order Ferrara to remove the gates to the easement, issue an injunction enjoining him from “erecting any other impediment to the free and unrestricted use of the easement,” and sought damages and attorney‘s fees. Ferrara‘s pro se answer alleged that the “[f]ence and gate” had been in place for three and one-half years and the easement had not been used for that time and was therefore abandoned.
After a bench trial, which Ferrara attended pro se and called no witnesses other than himself, the trial court issued judgment declaring that the Moores had an express easement for means of ingress and egress onto their property. It permanently enjoined Ferrara from “erecting or placing gates, fences, posts, barriers, wires, chains, locks, logs, rocks, or any other impediment or obstacle” that would “interfer[e] in any manner with [the Moores‘] free and unrestricted use and enjoyment of the Easement.” The existing gates were to be removed, and Ferrara was ordered
On appeal, Ferrara argues that the trial court erred: (1) as a matter of law “in extending the terms of the nonexclusive easement beyond the written terms of the easement“; (2) in granting the Moores free and uninterrupted access over the easement; (3) in granting a permanent injunction forbidding Ferrara from placing gates on the easement to prevent unauthorized access and vandalism;1 (4) in entering judgment based on findings of fact and conclusions of law which are challenged for sufficiency of the evidence; (5) in awarding nonsegregated attorney‘s fees; and (6) in limiting Ferrara‘s cross-examination.
II. The Trial Court Had Authority to Order Ferrara to Remove Obstructions From the Easement
An easement is a nonpossessory interest that authorizes its holder to use the property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). Ferrara argues that the court misinterpreted the easement terms and erred in ordering him to remove gates and other obstacles on the easement. Interpretation of contracts granting easements are reviewed de novo. Barrow v. Pickett, No. 01-06-00664-CV, 2007 WL 3293712 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.).
A servient estate cannot interfere with the right of the dominant estate to use an easement for the purpose for which it was granted or sought. McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex. App.—Fort Worth 1994, no writ) (citing Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex. 1966)). Likewise, the easement owner must make reasonable use of the right and not unreasonably interfere with property rights of the owner of the servient estate. San Jacinto Sand Co. v. Sw. Bell Tel. Co., 426 S.W.2d 338, 345 (Tex. Civ. App.—Houston [14th Dist.] 1968, writ ref‘d n.r.e.). Any use by others that interferes with the exercise of superior easement rights must yield. Taylor Foundry Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 770 (Tex. App.—Fort Worth 2001, no pet.); McDaniel, 875 S.W.2d at 485 (citing Pittman v. City of Amarillo, 598 S.W.2d 941, 944 (Tex. App.—Amarillo 1980, writ ref‘d n.r.e.)). The Moores’ easement originated from an express grant with a specific description. Their rights are paramount to the extent of the grant. Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399, 403 (1953).
The basic principles of contract construction and interpretation are applied when considering an express easement‘s terms. Marcus Cable, 90 S.W.3d at 700. The contracting parties’ intentions, as expressed in the grant, determine the scope
We first look to the grant and its purpose. In this case, all five tracts were borne from a single acquisition of 111 acres. Because all tracts north of tract #2 did not have access to a public roadway, they were granted “a non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed and described herein.” Additionally, the easement provided that the grantor and his assigns “shall have the non-exclusive right to use any portion of this easement that lies within the tract conveyed herein.” (Emphasis added.) Because the gates and fences were built on specifically described easement property, grantees were improperly barred from using these portions of the easement.2 Ferrara‘s actions in building a barbed wire fence on one end of the easement, a gate on another end of the easement which remained locked, in felling logs across the easement to make it impassable, and in denying access to grantees of the easement for a period of three years, could certainly be considered as contrary to the purpose of the easement as expressed within the grant. At trial, Ferrara appeared to believe the Moores had no right to an easement and only “IP [International Paper Company] had legal access on deed for that easement.” Ferrara did not attempt to show that the Moores’ use of the easement would impair or interfere with his use of the property.
We will also consider the nature and situation of the property as it sheds light on the intention of the parties as expressed in the deed. When the easement was granted, no gates, fences, or other obstacles were placed across the roadway. It was openly used for ingress and egress from 1985 until Ferrara‘s obstacles were built in 2006. There is nothing in the record to suggest that there are uses for the easement property other than to provide access to landlocked property owners. Where, as here, an easement is granted to provide abutting landowners access to a roadway, and no gates existed prior to the grant of the easement, “it is evident access to the roadway was to be unobstructed.” Calvert, 875 S.W.2d at 485 (finding made in absence of deed language specifying dominant estate had free and unrestricted access);2 Hilburn v. Providian Holdings, Inc., No. 01-06-00961-CV, 2008 WL 4836840, at **1, 4 (Tex. App.—Houston [1st Dist.] Nov. 6, 2008, no pet.) (mem. op.) (holding servient estate had no right to close or lock gate which existed prior to
Michael Moore testified that he cannot travel down the easement to his property without running over Ferrara‘s gate, jumping over stumps, and finally breaking through a six-foot barbed wire fence wired to a post. We find that the trial court did not err as a matter of law in its interpretation of the deed and the parties’ intent. Contrary to the motion for new trial alleging the court was “without legal authority” to do so, the trial court could enjoin Ferrara from “erecting or placing gates, fences, posts, barriers, wires, chains, locks, logs, or any other impediments or obstacles ... on the Easement.”4 Ferrara‘s first two points of error are overruled.5
III. Challenge to the Court‘s Findings of Fact and Conclusions of Law
A. Standard of Review
Findings of fact entered in a case tried to the bench “are of the same force and dignity as a jury‘s answers to jury questions.” .39 Acres v. State, 247 S.W.3d 384, 387 (Tex. App.—Texarkana 2008, pet. denied) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)). We review the findings of fact by the same
The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will credit evidence favorable to the Moores if a reasonable judge acting as a fact-finder could, and will disregard contrary evidence unless a reasonable judge could not when making this determination. Id.; Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 625 (Tex. App.—Texarkana 2008, pet. denied). As long as the evidence falls within the zone of reasonable disagreement, we will not substitute our judgment for the judgment of the trial judge. Ramsay, 254 S.W.3d at 625 (citing Wilson, 168 S.W.3d at 822). In this case, the court is the sole judge of the credibility of the witnesses and weight given to their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
When considering a factual sufficiency challenge to a jury‘s verdict, we must consider and weigh all of the evidence, not just that evidence which supports the trial court‘s judgment. Id. (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998)). We will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Id. (citing Ellis, 971 S.W.2d at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). Because we are not a fact-finder, we will not pass on the witnesses’ credibility or substitute our judgment for the judge‘s, even if the evidence would clearly support a different result. Id. (citing Ellis, 971 S.W.2d at 407).
B. Assessment of the Findings of Fact
Ferrara first challenges the finding that he locked the gate and failed to provide others with a key or means of access to the property. He cites to his own testimony that the lock belonged to IP, who owned adjoining property. The trial court heard testimony from Hays, Michael Moore, and neighbor Ray Littlejohn that Ferrara was the person denying access to the property. Hays also contacted Mary Kay Jones at IP who said Ferrara allowed her to put a lock on the gate, but that the lock was not on the gate when she next visited the property. At the time of trial, there was still a lock on the gate to which the Moores did not have a key. The trial court, as trier of fact and sole judge of Ferrara‘s credibility, could have determined either that the lock currently on the gate belonged to Ferrara, or that Ferrara had the key to the lock placed by IP and had failed to provide a copy to the Moores, thereby blocking their access to the easement.
The next challenged finding is that Ferrara “felled large pine trees and pine logs across the access road, as shown in Plaintiff‘s Exhibit 10, making it impossible to travel across the easement.” Hays testified that Ferrara cut trees on his property and left them strewn across the easement. Moore stated, “The easement still has all this fallen lumber on it.” A picture included as evidence demonstrates that the easement could not be traversed by car after the act. Ferrara confirmed the trial court‘s finding during his following cross-examination of Hays:
Q. [By Ferrara] ... Was those trees on my property?
A. They were on—probably were, probably on the easement. They were on the easement property. Now whether they were property line trees between the [neighbor] and your easement road, I really can‘t say one way or the other....
Q. Well, it would be discourteous to clear my property fence line and throw it on someone else‘s property. Would you agree to that?
A. I would agree to that.
Q. Okay. So it would be proper to clear my fence line with my debris and put it on my property instead of someone else‘s property. Would you agree to that?
Ferrara‘s questioning insinuated that he cut down the trees and placed them across the easement, and was attempting to seek Hays’ approval that it was the right thing to do, as opposed to placing his trees on his neighbor‘s property. We find the trial court‘s finding was supported by legally and factually sufficient evidence.
Another challenged finding is that Ferrara “erected a barbed wire fence (not a gate) across the northern end of the access road as shown in Exhibit 9. This fence also made the easement impassable, even if a key had been provided to the gate on the south end.” Exhibit 9 depicts five wooden posts placed across the easement connected with barbed wire. Hays testified this “gate” could not be opened, and Moore stated “it‘s a six foot tall barbed wire fence wired to the post. So that is a barrier” and clarified the wire was “stapled to the fence post.” Ferrara did not contradict these statements.
Taking the above findings into consideration, the judge entered the following complained-of findings: “Ferrara by his actions completely closed off access to the easement by adjoining landowners,” and “[f]ollowing its construction, Defendant Ferrara locked the gate and kept it locked at all times.” As explained above, the trial court‘s finding that Ferrara restricted access to adjoining neighbors by locking the gate was based on sufficient evidence. Because Ferrara built the gate in 2006, and argued that no one else had accessed the easement since that time when claiming the easement had been abandoned, the trial court was free to find that the gate was locked “at all times.”
Next, the trial record contains a letter written to Ferrara asking him to remove barriers to the easement. Ferrara challenges the court‘s finding that he refused to remove the obstructions following receipt of the May 2009 letter. The trial court‘s findings were supported by testimony from Hays and Michael Moore that the easement was still being blocked by gates, fences, and felled trees.
Ferrara also challenges the finding that the Moores expended $4,500.00 in attorney‘s fees, and that the fees were reasonable and necessary. The Moores’ counsel testified he charged “a fair and reasonable rate” of $300.00 per hour and spent twenty hours on the case, yielding a $6,000.00 fee. It appears that the trial court reduced the attorney‘s fees to $4,500.00 after discounting for time spent in “pursuit of tortuous [sic] damages.” We find that the trial court‘s fee award was supported by legally and factually sufficient evidence.
The finding that it would cost $800.00 to clear the easement of felled trees and other obstructions is also challenged. This finding was based on Hays’ testimony that he would have to perform work with a bulldozer at the rate of $100.00 per hour for eight hours in order to clear the easement. This finding remains uncontrovert-
While there is no error contained in the above findings because they are supported by legally and factually sufficient evidence, a few of the court‘s findings are technically incorrect. First, the court found that the Moores met with Ferrara on numerous occasions, orally requested that he remove obstructions from the road and allow them access to their properties, and that Ferrara refused on each occasion. Michael Moore testified he pleaded with Ferrara twice to allow him access to the easement. Ferrara‘s contention on appeal is that “[t]wo times is twice, not ‘numerous times.‘” Although the evidence shows Hays talked to Ferrara “five or six times” to tell him he could not deny access, the finding that Michael Moore talked to Ferrara on numerous occasions is not supported by the evidence.
Also, Ferrara challenged the finding that the Moores sent a demand letter to Ferrara threatening suit unless the obstructions were removed. Exhibit 13 in the trial court‘s record contains a letter from Jeff W. Mays written on May 22, 2009, that was sent to Ferrara. The letter informs Ferrara of the nature of the easement and obstructions, and threatens suit unless access to the easement is allowed. However, the letter clarifies that Hays, rather than the Moores, hired the attorney that sent the demand letter. Thus, the trial court‘s finding is in error.
Ferrara failed to brief the issue of harm. It is axiomatic that we may not reverse the trial court‘s judgment based on these two technically incorrect findings of fact unless we can determine the errors “probably caused the rendition of an improper judgment.”
IV. The Issue of Attorney Fee Segregation Was Not Preserved
Ferrara complains in his appellate brief that Moore‘s counsel “did not segregate the time that he spent on unspecified tort claims, time spent on injunction issues or time spent on unpled declaratory damage issues.” We find that he has failed to preserve this point of error.
Judicial economy requires that a trial court have the opportunity to correct an error before an appeal proceeds. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999). “As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion.”
It is apparent that the road will have to be cleared of the trees and three years’ worth of debris that has accumulated on the easement.
In Canales, our sister court ruled that it was not necessary to object to the issue of segregation to the trial court in order to preserve the issue on appeal where the pleadings did not clearly refer to the Act and counsel was not aware that entitlement under the Act was being sought.7 Canales, 773 S.W.2d at 662.
In our case, the following exchange occurred at trial:
THE COURT: All right. Mr. Davis, you have made a request for attorney‘s fees. Can you quote me to a statutory or common law basis for the award of attorney‘s fees in a case of this nature?
MR. DAVIS: Yes, sir. Judge, I believe that would fall under the Declaratory Judgment [sic] Act,
Civil Practice and Remedies Code 37.009 . A case that is pretty well on point would be Canalas [Canales] vs. Zapatero, 773 S.W.2d 659.
No objection to attorney‘s fees was made during trial by Ferrara.
A motion for new trial was filed after the award was issued. In the motion, Ferrara complained that the attorney‘s fees were not reasonable or necessary, but made no complaint that the pleadings contained causes of action that did not support attorney‘s fees, raising notice for a need to segregate attorney‘s fees. Ferrara had an opportunity to complain of failure to segregate attorney‘s fees, but did not take advantage of such opportunity. We find he failed to preserve this error for our review.
Ferrara‘s objection by the motion for new trial that the attorney‘s fees awarded were not reasonable or necessary is not the same as that urged on appeal and therefore presents nothing for review. Holland v. Hayden, 901 S.W.2d 763, 765 (Tex. App.—Houston [14th Dist.] 1995, writ denied); Haryanto v. Saeed, 860 S.W.2d 913, 921 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (en banc). Complaints and arguments on appeal must correspond with the complaint made at the trial court level. Century 21 Real Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 124 (Tex. App.—Texarkana 1994, writ denied). Ferrara‘s point of error on appeal does not comport with the complaint presented to the trial court in the motion for new trial, supporting our conclusion that it was not preserved.
V. Issue of Limiting Ferrara‘s Re-Cross Examination
During the second re-cross examination of Michael Moore, the following exchange occurred:
Q. (By Ferrara) You went to your property sometime before and after that to look at your property, correct?
MR. DAVIS: Objection.
THE COURT: I‘ll sustain the objection.
MR. FERRARA: Okay.
THE COURT: The scope of redirect means the only thing he asked him was about this instrument. So actually the only thing you can cross examine is about this instrument. You‘ve already had an opportunity to cross examine so this is called recross examination.
Q. [by Mr. Ferrara] That instrument states a well-maintained road, and are you saying that that road that you went on to look at your land was well maintained?
MR. DAVIS: Objection. Exceeds the scope.
THE COURT: Sustained.
For the first time on appeal, Ferrara argues that the trial court improperly limited Ferrara‘s cross-examination because Rule 611(b) of the Texas Rules of Evidence states that a witness may be cross-examined on any relevant matter.
VI. Conclusion
We affirm the trial court‘s judgment.
Concurring and Partial Dissenting Opinion by Justice MOSELEY.
BAILEY C. MOSELEY, Justice, concurring and partial dissenting.
I concur in part and dissent in part with the majority opinion. My dissent is restricted to the finding that Ferrara does not possess the right to erect a gate or gates across the easement itself.8
Each of these conveyances followed the same format. Each makes reference to an “Exhibit A” for the description of the property to be conveyed. These deeds each also recite,
[T]here is also conveyed to Grantee, its successors and assigns, a non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed and described herein. This access easement is more particularly described in Exhibit “B” which is attached hereto and made a part hereof for all purposes.
Within each of those exhibit Bs, after the description of the easement being conveyed, they continue by stating—seemingly almost as an afterthought—that the tract being conveyed is “subject to the following described easement” followed by a metes and bounds description of the portion of the conveyed tract which is subject to an easement. No purpose for the easement is recited and no further description of the rights granted or retained is contained in the documents.10
An easement is an interest in real estate that authorizes the holder of the dominant estate to use property for a particular purpose. Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing Marcus Cable, 90 S.W.3d at 700). The meanings of easements are interpreted in the same fashion and under the same basic principles that are applied to the construction of a contract. Marcus Cable, 90 S.W.3d at 700; DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999); Koelsch, 132 S.W.3d at 497. “When a contract is not ambiguous, the construction of the written instrument is a question of law for the court.” MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). “The primary con-
Any grant of an easement necessarily carries with it the right to do such things as are reasonably necessary for the full enjoyment of the easement granted. Harris v. Phillips Pipe Line Co., 517 S.W.2d 361 (Tex. Civ. App.—Austin 1974, writ ref‘d n.r.e.). We must take into account that [e]very easement carries with it the right of doing whatever is reasonably necessary for the full enjoyment of the easement itself. Extent of such incidental rights depends upon the purpose and extent of the grant itself. Such right is limited and must be exercised in such a reasonable manner as not injuriously to increase the burden upon the owner of the fee. Nothing passes by implication as incidental to a grant except what is reasonably necessary to its fair enjoyment. What is reasonably necessary for the full enjoyment of the easement will be determined by a construction of the language of the express grant, considered in the light of the surrounding circumstances. Bland Lake Fishing & Hunting Club v. Fisher, 311 S.W.2d 710, 715-16 (Tex. Civ. App.—Beaumont 1958, no writ) (emphasis added).
How could the prohibition against gates being installed at the entrance and exit of the roadway across Ferrara‘s land increase the burden on the subservient estate? The tract imposed with the easement (i.e., the subservient estate) here is not a small residential building lot but is, rather, rural acreage. One would expect that one of the uses to which people could be commonly expected to place such acreage tracts is the pasturage of livestock. Should Ferrara (or some subsequent owner of the tract) desire to raise livestock but is prohibited from erecting gates where the easement enters and exits his property, he may well be required to either fence off the entire easement property from the balance of the tract (which would effectively deny the owner of the subservient estate from the reasonable use of the portion of the tract subject to the easement) or go to the expense of installing and maintaining cattle guards on the roadway easement. Given the paucity of direction in the wording of the easement itself, such a requirement would unreasonably burden the own-
The Moores rely on (and the majority cites) Gerstner v. Wilhelm, 584 S.W.2d 955, 957 (Tex. Civ. App.—Austin 1979, writ dism‘d), for the proposition that the trial court had the authority to enjoin Ferrara from putting gates across the easement as it enters and exits his property. However, in contrast to the easement the Moores claim here, the easement in Gerstner called for “the free and uninterrupted use, liberty and easement of passing in and along a certain passageway or road across the said premises ... and being 40 feet in width and to use such passageway or road at all times in common with the Grantee....” Id. This case is distinguishable from Gerstner in two respects: (1) in this case, there was no such expansive or delineated grant of rights in the easement as in Gerstner, and (2) unlike this case, Gerstner dealt with an ambiguous grant of easement. In Gerstner, the trial judge provided an instruction to the jury (not quoted in the opinion) as to the meaning of “free and uninterrupted.” The opinion in Gerstner does recite that, “Because of the language of the easement and the factual circumstances surrounding the grant, the court properly entered judgment that Gerstner remove the fences and gates.” Id. at 959 (emphasis added). Since the issue of the easement was submitted to the jury in the Gerstner case to make factual determinations, it must have been deemed to have been an ambiguous grant because juries have no role in ruling on issues of law. In the circumstance in which there is an ambiguity, any such ambiguity is to be resolved against the grantor. Dwyer, 374 S.W.2d at 665. Further, where an instrument is capable of two reasonable constructions, it will be strictly construed against the author. Harris, 517 S.W.2d at 364. Here, the Moores stand in the shoes of Hayes, et al., the drafter of the easement.
One should point out that in the case at bar here, neither side alleges that any ambiguity exists in the grant of the easement. Under contract law (which, as pointed out above, applies as to easements), if ambiguity of the instrument is not pled, then its construction is solely a question of law and not of fact; questions of law are reviewed de novo. Eastman Software, Inc. v. Tex. Commerce Bank, Nat‘l Ass‘n, 28 S.W.3d 79, 84 (Tex. App.—Texarkana 2000, pet. denied).
Because the grant is in general terms, the grantees’ dominant estate is entitled only to rights sufficient to effect the purpose of the easement. See Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974). As to implication of easement rights not specifically granted by the instrument creating the easement, a court can “imply
The Moores brought this suit and it was their burden to provide evidence to support each portion of their claim. Although they fully established their right to an easement, they failed to provide evidence that fully-accessible gates could not be erected across it. To imply that the easement which the Moores own dictates that there be a prohibition against gates (to which the Moores would have full access) erected across it is to violate the constraint against imposing a greater burden than is reasonably necessary to effect the ingress and egress purposes of the easement.
The easement here does not specifically grant the dominant estate the right to an easement “free and uninterrupted” by gates. The grant provides only for ingress and egress to the dominant estate. To find a grant of unrestricted passage, therefore, it would be necessary to read terms into the four corners of the document which do not exist (i.e., the right to drive a car the length of the easement without having to get out and open a gate); this cannot be done under the circumstances of this case. See id.; Marcus Cable Assocs., 90 S.W.3d at 700; Koelsch, 132 S.W.3d at 498.
Accordingly, I believe the trial court erred in enjoining Ferrara from erecting gates on the easement so long as the owner of the Moores’ tract were given access rights through those gates.
MERRILL LYNCH & CO., INC. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Appellants, v. METROPCS WIRELESS and Metropcs Communications, Inc., Appellees
In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
No. 05-09-00113-CV.
Court of Appeals of Texas, Dallas.
July 29, 2010.
Charles A. Gall, Joel Randall Sharp, Eric R. Hail, Hunton & Williams LLP, Dallas, for Appellants.
Lewis T. LeClair, Robert E. Goodfriend, McKool & Smith, Deborah G. Hankinson, Rick Thompson, Hankinson Levinger LLP, Dallas, for Appellees.
Before Justices MORRIS, BRIDGES, and MURPHY.
OPINION
Opinion By Justice BRIDGES.
Appellants’ motion to dismiss this appeal and original proceeding is GRANTED,