Ortiz v. Spann, 671 S.W.2d 909

Ortiz v. Spann

671 S.W.2d 909

Tex. App.

1984

Check Treatment

*2 upon appellants’ property. NYE, C.J., Before BISSETT and YOUNG, JJ. The movant for He has the

ment has an onerous burden. genuine showing there is no burden OPINION he of material fact and that NYE, Chief Justice. a matter of law. Town Broaddus, 569 National Bank v. summary judg- from a North This is (Tex.1978); Gibbs v. General granted appellees, ment in favor of Bob J. wife, Dorothy Corp., 450 S.W.2d 827 Spann Spann. Motors

9H Inc., Bar, Manges Astra use easement was (Tex.Civ.App. Corpus Christi continuous so intended All elements of cause of action by grant; pass its use to must conclusively proven defense as a (4) that the easement must be reason- matter of law. Houston v. Clear ably necessary enjoyment the use and Authority, Creek Basin of the dominant estate. *3 (Tex.1979). In summary judgment, a un Bickler, 354, Bickler v. 403 S.W.2d 357 merits, ordinary like an on the (Tex.1966); Drye Eagle Ranch, v. Rock Court must of the view all evidence Inc., 196, 364 S.W.2d 207-208 non-movingparty. deciding favor of 663, Wright, Westbrook v. 477 S.W.2d 665-66 or disputed whether not there is a ( Tex.Civ.App. [14th Dist.] — Houston precluding summary judgment, evi 1972, writ). no The requirements for the dence will favorable the non-movant such by establishment of an easement im taken true. v. St. Mary’s Wilcox Uni plication strictly must be adhered to. Exx Antonio, versity San 531 S.W.2d 589 of Schutzmaier, Corp. on v. 537 S.W.2d 282 (Tex.1975). Every reasonable inference 1976, (Tex.Civ.App. writ); no indulged must be in favor of the non-mov- — Beaumont Wright, Westbrook v. 477 at 665- ant and doubts resolved in their favor. 66; Faulk, 144, Johnson v. 470 S.W.2d 148 Mary’s Wilcox v. St. University San of 1971, (Tex.Civ.App. Tyler no Antonio, 531 S.W.2d at 592-593. — Appellees’ summary judgment proof con- noteWe at the outset that the trial of sisted various affidavits and recorded not specify alleged did whether the plats) which, instruments deeds and by implication, easement was created which according appellees, a show as matter of may by grant reservation, arise law that an easement exists in favor of prescription.1 While the have ad property continued existence theories, appellants’ dressed both of denial growth limbs, and of the overhanging foli- an easement in of appellees favor focuses age and oak three trees. on the elements for the establishment of an summary judgment proof The established implied easement reservation. the first of four essential elements of an i.e., implied appurtenant, easement establish an Insorder originally unity there was a ownership appurtenant, easement meaning an ease of the estate dominant and the servient ment interest which attaches to the land estate. admitted in their an- passes it, and with upon it was incumbent swer have a the appellees as party claiming such common title source of and that no material prove following easement all of the es Appel- issues of fact exist as to this issue. sential elements: motion, supported lees’ (1) originally unity That a copies warranty the attached deeds ownership of the dominant estate and the ownership.2 a established source estate; servient apparent Appellees use was at the time stated the London Estate grant; conveyed property 16, on November by prescription acquired by 1976, 1. An (Tex.Civ.App. writ — Amarillo notorious, open n.r.e.). use edge knowl or with refd acquiescence part of the owners tenant, 2. “In October of F.E. London and wife together of the servient adverse, exclusive, with a use that is wife, acquired Montgomery from W.R. Lots uninterrupted and continu (1), (3), period Thirty- Two One and Three years. ous for a than Block more ten Elliott (34), Addition, Elliott, acquired v. Four Del (Tex.Civ.App. Corpus Mar from — 1980, writ); Corgey Corpus Christi A.D. Lot Four 10.91 feet Christi and East Krause, (5), (34). (Tex.Civ.App. Corpus Thirty-Four Lot Five Block Within a writ); Carriker, that, days Davis v. few F.E. London and wife con- wife, Marga- also included the Joseph J. Schultz and affidavits of However, Faseler, ret. no deed or other recorded Klag- Laura Frances Cooke James regarding particular er, instrument con- Spann. appellee, J. In her Bob ap- veyance was included the record affidavit, Faseler, Laura Frances Cooke peal as such and not be considered daughter wife, of L.P. Nellie Cooke Ap- proper summary judgment evidence. that, Cooke, Alva at testified the time her pellees’ summary judgment proof did es- acquired property father at 510 Del Joseph J. and wife tablish that Schultz London, Mar from the three trees were 502 Del conveyed property known as growing hanging on London’s Mar, Christi, Corpus April testified, over on Cooke’s She Appellants acquired 1976. Cooke personal upon knowledge, based her Mar, Corpus known as 510 Del up until time the sold estate Christi, January property, her parents recognized *4 summary judg- trees part overhanging property Included as were the line Henry ment evidence was the affidavit and they that them continue wanted Faseler, L.P. E. Cooke. the son-in-law growing naturally. affidavit, testified, that by he be- Faseler Klager by James affidavit that testified 1947; in gan manage the Cooke Farms grew he up neighborhood. in the Del Mar the and when built and moved into Cooke Klager seeing testified he remembered that Mar, by now owned

property at 510 Del planting the of the oak trees around yard help appellants, he did the work with Del Mar in 1941. house at 502 sometime that, at from the farm hands. He stated Klager presently concluded that trees began the time he to take care his fa- are standing between 502 and 510 Del Mar property, there were some oak ther-in-law’s planted he same trees he saw when along edge of London that trees lot boy. was a boundary line onto were Spann by also testified affidavit property. the Cooke Faseler testified that Bob J. agreement testimony party. Spann’s told him of an with Lon- as Cooke an interested (defendants’) that would to maintain don all that be done primarily rebutted line would property those trees on the allegations. simply cut too low to the limbs that were Hand, contend Appellants, on the other further testi- get under to mow. Faseler Judg- by Summary for way of their Motion care of the fied that he continued to take they ment are that property from 1947 until Cooke died Cooke law because failed matter of that, and, his mother-in-

in 1967 recognizable of action. We state a cause Cooke, law, property until the Nellie Alva (defendants’) disagree. Appellants’ motion in 1978. ex- appellants sold to He negated appellees’ (plain- affirmatively they continued to follow the plained that tiffs’) the lack by alleging of action practice concerning the trees same appel- on behalf of of an easement period involving the throughout this time in their attached lees. claim Finally, Faseler testified owners. various Dr. by facts Ortiz statement of made personally he was not aware of that, period at during it is the time clear oak dispute complaint over the trees has been issue, growth of the trees property. he maintained the Cooke while appellants by permissive in nature trees, opinion, the said in his He Summarizing ap- in title. predecessor their maintained, and beneficial to are valuable their ar- pellants’ contentions residences. both boundary (3), creating thereby Lot veyed Lot and the East Three to L.P. Cooke Four days appel- present a few later residences of the feet Lot Five line between 10.91 portion conveyed West to L.P. Cooke the appellants.” lees and 14.4 retained the East feet Lot Three gument the maximum by competent interest that must establish evidence all of could by appellees be claimed the elements of an appur property is a license which has effec- been tenant elements of a prescriptive tively by appellants. Ortiz, revoked easement, Dr. right whichever justify. the facts appellant, ways testified to the various in Appellants’ first of error is sustained. which the extending branches over two, of error number appel property

above the deprive appellants line lants contend that the trial court erred the full use enjoyment prop- of their finding that the trees appel- located on erty. Dr. pointed Ortiz also the vari- out lees’ constituted a nuisance as to ous instances in encroaching which the appellants. appellants Both allegedly damage their admit in respective exceptions, opposi- Numerous motions ment stipulation evidence that a eliminat specific tion and denials were filed ing damages claims for was filed on March parties. The trial court ruled on some of stated in their Motion most, them. At swearing was a parties agreed the issues facts, match on most of the the result of “rights would be confined to the and claim which would be best determined a trial of the Plaintiffs that their trees ex jury. though Even tend over the line and the claims have failed to out specific to us asserted the Defendants to questions allegedly which exist on prevent limit or the extension of limbs or *5 issues that are material to this cause of portions of the trees over the action required by 418, Rule Tex.R. lines.” denied these additional Civ.P.;3 appellees did not meet their bur- Answer, allegations in their stating further den of demonstrating genuine a lack of a stipulation speaks that “such for itself.” and, therefore, issue of material fact all stipulation The brought was not forward in doubts are against resolved them. City of appeal. hold, however, the record on We Houston v. Clear Creek Authority, Basin parties apparently agreed because the 589 S.W.2d at 678. While the summary on the submission of one issue to the trial judgment evidence indicates that the “use specific court property rights apparent at the time of the grant,” the movants) claimed ruling and its evidence is not clear parties’ as to the in- issue constituted the basis of the tent that the use be continuous and that granting of the easement, the use maintained, is ment, appellants precluded are urging reasonably necessary appellees’ enjoy- to i.e., presented, the issue not ment of their These are fact private trees constitute a nuisance as to issues that presented must be fact appellants. City Houston v. Clear finder as provides. the law so 671, Creek Basin Authority, 589 S.W.2d Reading summary judgment (Tex.1979). Appellants’ point second proof light of both of the stan error is overruled. out, dard previously set we hold that there points is a fact issue as to whether exists an error numbers three and four, appurtenant, implied prescrip appellants contend that the trial court tive, in appellees’ property applying favor of for the erred not the common law to continued of the three encroachment facts of the case in order to find that trees onto property. Appellees right had an absolute to trim the (Tex.Civ. n.r.e.); Dallas, Ray, 3. See Garcia v. Republic 556 S.W.2d 870 Cotten v. Nat'l Bank of App.—Corpus dism’d); writ Dan (Tex.Civ.App.—Dallas 395 S.W.2d 930 writ Foods, Inc., Shop iels v. Rite n.r.e.). ref'd (Tex.Civ.App.—Corpus Christi writ ref'd ap- encroaching regard, In this these rules suffice branches. will in the interest of pellants rely arguments justice,” of a nui- found er complain sance forth in of error number ror to as set of the trial court’s action asserting two” the limitation of appellees’ summary judgment be right of their common- cause to trim violative did not as a mat establish property rights. law the affidavit of While of law appurtenant, ter that an easement Ortiz, appellant, Dr. does out prescriptive, either exists in fa damages appellants’ property, issue of appellees’ vor continued right an trim issue of absolute upon appellants’ encroachment over and encroaching never clear- branches has been property. See Grant Utility Road Public ly presented to the trial court and will Coulson, (Tex. District S.W.2d appeal. be considered on See App. [1st Dist.] — Houston Authority, Basin Houston v. Clear Creek Next, appellees contend on mo Appellants’ at third rehearing tion absent points fourth of error are overruled. error, appellants point of are not re- judgment The of the trial court is rely generally upon ground of insuffi versed, for a trial and the cause remanded summary proof support cient temporary injunction on the merits. The summary judgment. This contention is trial previously granted by the merit. It without is well settled shall affirmed Court question appeal, as well as in the judgment on remain in effect until a final court, is not whether the merits obtained. proof raises issues with ref REMANDED. REVERSED AND plain to the essential of a erence elements action, is whether the tiff’s but proof establishes as a OPINION ON MOTION FOR genuine matter of there is law REHEARING more of the of fact as one or 15, 1984, On this Court entered *6 plaintiffs’ elements of the cause essential reversing judgment order the trial the of Cory., action. v. General Motors of Gibbs court trial on remanding the for (Tex.1970). The for S.W.2d 827 motion 450 response the This in merits. order was summary fall judgment will stand or on summary judgment from a specifically in set forth the mo grounds (in granted part) appellees. in of favor tion(s). for The movant showing that he is ment has the burden Rehearing, Motion On as a matter of law. judgment initially should judgment contend that the Broaddus, Town North National Bank be affirmed failed because (Tex.1978); v. St. 569 Wilcox point specifically, by out to this Court Antonio, 531 Mary’s University San spe error, questions fact which exist (Tex.1975). not done 589 This-was S.W.2d case, pursuant cific issues material to this in case. not Appellants did to TEX.R.CIV.P. 418. additionally that it contend error complain in their specifically duty judg- this Court to sustain court’s action number one of the trial any ground sup- ment of trial court on summary granting appellees’ motion judgment record ported However, con judgment. properly general and below was since sidered their of error because recovery. Appel- not arguments the atten sufficiently directed variety on a approached the upon. lees tion of the Court error relied to the theories, at- recognized easement 418(d). TEX.R. of Since under TEX.R.CIV.P. persuade this Court that compliance tempted with CIV.P. “a substantial record is to support sufficient the trial any

court’s or all these POPKOWSI, Appellant, v. Michael various easement theories.1 GRAMZA, Appellee. Dale recognize

We general principle appellate that an court should affirm the No. 01-83-0552-CV. judgment of the if can be trial court it Texas, Court of upheld legal theory sup that finds (1st Dist.). Houston port in the evidence. Co. v. Land Gulf Co., Refining Atlantic Soliz, Miller v. writ); (Tex.App. Corpus Christi Walsh, (Tex.App.— Ross v. However, Dist.],

Houston [14th inclined, required,

we are not nor are we by process

review elimination

many presented ap- easement theories

pellees which supported are not record. evidence

This case must be reversed and the cause jury. Regard-

remanded for a trial to the

less of which theory appellees easement on,

may proceed remains, among issues,