*1 theft, conviction, pellant, a “with the intent commit of the evidence to intentionally knowingly reviewing enter[ed] court must consider all evidence and State, jury passenger compartment of a vehicle owned considered. Johnson (quoting Beall without his effective con- (Tex.Crim.App.1993) Richard State, jury The was free to disbelieve Paulo Thomas v. sent.” appellant was in fact with Crim.App.1988)). and conclude that burglarized. truck was Paulo when Beall’s facts enunciated with addition to the goods and the tools used to com- The stolen point of respect appellant’s second appellant’s ear. mit the crime were found evening following occurred on the events light Viewing evidence in the most favor- p.m. on the appellant’s arrest. At 7:45 verdict, a rational able to the we hold that arrest, evening Richard appellant’s same fact, beyond a rea- trier of could have found girlfriend parked Beall’s truck Beall and his appellant Beall’s sonable doubt entered Spohn Hospital parking lot off Shore- goods subsequently truck and found stole Beall testified that he locked the line Drive. Vuong, at 933. in his car trunk. truck, hospital en- looked back Appellant’s point of error is overruled. third trance, one near his truck. and saw no girlfriend returned to his When Beall and his Appellant’s first of error will not be 8:15, they truck was truck at found necessary it is not for the addressed because Tex.R.App.P. unlocked and that several items were miss- appeal. disposition of this ing, including Beall’s radar detector and his 90(a). of the trial court is garment bag purse. girlfriend’s proceed- REVERSED and REMANDED ings opinion. consistent with this Gonzalez, friend, appellant’s Paulo testified appellant’s appellant that he and were at Ray High apartment behind School
father’s question. evening
on the of the incident appellant’s car from 7:30
Gonzalez borrowed appellant going p.m. told he was
to 7:45 He store, really purchase
to the intended Holiday Inn cocaine at a house near the
some Gonzalez testified that on Shoreline Drive. WALLACE, King Lee Leola Susan way passed Spohn Hospital he Wallace, Wallace, Joe house, Beall’s truck and decided friend’s saw Wallace, Appellants, Bert Carol burglarize Using gloves it. the brown subsequently grips the officers found vice ear, appellant’s broke into Beall’s Gonzalez McKINZIE and Velma bag purse, truck. He took a radar McKinzie, Appellees. process He testified that the whole detector. No. 07-93-0046-CV. him minutes. Gonzalez tes- took about three appel- put goods stolen tified that he Texas, Appeals Court trunk, key appellant’s trunk took the lant’s Amarillo. key ring, put pocket. it in his He off its cocaine, that, get going said instead Dec. appellant’s apartment father’s he returned to Rehearing Denied Jan. already gone ten to he had been got back to minutes. He said he fifteen apartment approxi-
appellant’s father’s
mately p.m. Appellant and Gonzalez 8:15 coliseum, and the events
then went appellant’s point of
associated with second
error occurred. burglary jury appellant of convicted charged ap- indictment
a vehicle. His *2 over the (1 2) leading to Section because & factually
the evidence is insufficient jury’s finding that the McKin- zies have an easement. Alterna- *3 tively, any supports equitable if evidence (3) finding, the Wallaces contend easement evidence, findings, judgment fail and the to describe the easement with sufficient cer- located, tainty allowing the easement to be (4) plead the McKinzies failed to permanent to a were entitled any unity of title between the and without the easement McKinzies and the Wallaces gross, an awarded should be easement law, permanent matter of and not a ease- ment. 29, 30, 31, 32, own Sections
43, 45, 46,
and the south one-half
Section
L,
Company
in Block H. T.C. Railroad
&
County,
Survey, Kent
Texas. The McKinzies
the north one-half of Section 44. This
own
prop-
property is landlocked
the Wallaces’
north,
erty
Section 31 to
43 to
—Section
east,
44 to
the south one-half of Section
south,
45 to the west.
and Section
road,
and considered
A
maintained
time,
county
road for some
Wallaces as
from a farm-to-market
extends northwest
properties. The
road located east of the
passes through
31 and
road
Section
32 into Section
southwest corner
Section
Wolfe,
Carr, Fouts, Hunt, Craig, Terrill &
in the west half of
43 and ends at a windmill
L.L.P.,
Hunt,
Bellair,
Gary M.
Donald M.
road,
Along
about one-forth
Section
Lubbock,
appellants.
for
way through
a turn-off
Section
Black,
Boone,
Scarborough,
Tarpley &
road,
yards
length,
approximately 400
Abilene,
appellees.
Scarborough,
Charles
into
44. This is and has
heads south
providing
access to Sec-
been the
REYNOLDS, C.J., and DODSON
Before
purchased
the McKinzies
tion
since
POFF,
JJ.
of that section
north one-half
niece, Cornelia
A.D. McKinzie and his
DODSON, Justice.
in the
Cheyne, executed and filed an affidavit
King
and her
Appellants, Leola
Wallace
County, claiming an
deed records of Kent
children,
Wallace, Bilby
Susan Lee
Joe Wal-
the roads on
prescription
over
(the Wallaces),
lace, and Bert Carol Wallace
purpose
ingress
property for the
judgment granting
appeal from a
egress
44. The
dis-
to Section
ingress
equitable easement of
nent
initiated this suit to
covered the affidavit and
ap-
property in favor of
egress across their
resulting
cancel the affidavit
remove
wife,
and his
Velma
pellees, A.D. McKinzie
property.
cloud on their title
(the McKinzies).
affirm.
McKinzie
We
by affirmatively plead-
responded
among
things, that
were enti-
ing,
assert
other
points
In four
by estoppel.
awarding the
tled to an easement
trial court erred in
three,
accompanying
Question number
by es-
theory
of easement
To
instruction,
jury’s answer read:
detrimental
toppel,
McKinzies claimed
First,
representations.
A.D.
reliance on two
[the
Defendants
you
Do
find that
that he had a conversation
McKinzie testified
have an
McKinzies]
Wallace, and
roadway with Bert
about the
to Section 44?”
over the “road
was told. After this
that he believed what he
or “No”
Answer “Yes”
brush,
conversation,
cut
tried
A.D. McKinzie
10-2
Yes
ANSWER:
running
keep
water from
down
improvements
and made
ques-
In connection with
Instruction:
Second,
he
explained
McKinzie
in order to
you
instructed that
are
reached an
easement, Defen-
establish
place
in the road at
double locks
*4
following
must
each
dants
establish
boundary
43.
the eastern
line of Section
(1)
predeces-
or a
the landowner
elements:
arrangement
parties ac-
This
allowed both
makes a
sor to his interest
agree-
reaching
After
this
cess to the road.
adjacent
predecessor
or a
to the
landowner
ment,
to clear
A.D. McKinzie continued
adjacent
landowner’s interest
to the
leading to
and work the road
Section
brush
landowner’s
rights exist to use the
certain
(2)
adjacent
be-
property;
landowner
jury found that the McKinzies had
true;
representation to
lieves such
be
leading to
equitable easement over the road
(3)
adjacent
relies
landowner
finding,
on this
the trial
Based
representation.
such
permanent
granted
court
the McKinzies a
Here,
neither concerned with
we are
to
equitable easement of “sufficient width
equitable
of
of the definition
correctness
enjoyment
permit
possession,
full
use
of
application
trial court’s
easement nor the
44.” The
now chal-
of said Section
judgment.
in the
existence,
lenge
description,
challenged in
not
Those matters are
the easement.
nence of
proba-
only inquiry is whether
Court. Our
error,
By
points
first and second
of
their
jury’s finding on
supports the
tive evidence
is
claim the evidence
representation and reliance.
elements
jury’s
factually
support
insufficient
question
answer to
number three because
estoppel or
The doctrine
any representation
“no evidence exists
estoppel
pais
grounded
is
on the condition
to the McKinzies or that
made
justice
gainsay
his own
forbids one
disagree.
relied to their detriment.” We
Pirtle,
Campbell v.
See
acts or assertions.
372,
(Tex.App.
— Amarillo
insufficiency
reviewing
legal
In
a
denied).
1990,
stated
As the court
writ
light
point,
at the record in the
we must look
equitable estoppel or
Campbell,
formal
“the
any
finding to
if
most favorable to the
see
pais
when one is
estoppel
in —arises
probative
any reasonable infer
evidence or
in
permitted
his conduct which
to disavow
support
finding,
at
ences therefrom
while
detrimentally in reliance
another to act
duced
disregarding all evidence or
the same time
In Brown v. Federal Land
upon it.” Id.
inferences therefrom to the con
reasonable
Houston,
647, 652
Bank
Co., 619
trary.
v. Texas Gen. Indem.
Glover
1944, writ
ref'd
Civ.App.
Worth
— Fort
(Tex.1981).
reviewing
S.W.2d
w.o.m.), the court stated:
insufficiency point, we must look
factual
ways
estop-
many
in which
probative
if
There are so
to determine
the entire record
arise, they
may
need not be defined
finding.
pel
If it
evidence exists
here,
broadly speaking,
general
does,
the evi
we must determine whether
laid down
17 Tex.Jur.
contrary
rule seems to be
or the answer so
dence is so weak
idea or
this is said: “The
sec. where
overwhelming weight of the evidence
‘estoppel’
in the word
manifestly unjust
notion which inheres
clearly wrong and
as to be
Alviar,
one,
speech or
by his
conduct
is that
who
finding. Garza v.
(Tex.1965).
particular
another to act in
has induced
manner,
permitted
into an
Wal-
ought not
to be
entered
place
lace to
double locks
where
adopt
position, attitude or
an inconsistent
the road intersects with the eastern bound-
thereby cause loss
course
conduct and
ary
testimony
line of Section 43. Further
(Emphasis
injury
or
to such other.”
add-
that,
conversations,
revealed
after those
ed).
brush, worked the
McKinzie cleared
Further,
in
“one who
conduct has
improvements
and made
to the McKinzie
particular
manner
duced another to act
circumstances,
property. Under these
we
adopt
permitted
not be
an inconsis
should
answer was not
conclude
thereby
injury
or
position
tent
cause loss
clearly wrong manifestly unjust. Points
Corman,
Fabrique,
other.”
Inc. v.
one and two are overruled.
1990),
(Tex.App.
— Dallas
third
curiam,
per
unit denied
judgment then makes reference to an at McKinzies, us, the In the case before map. map displays tached The roads the an pleadings, sought to establish their judgment mentioned in the and identifies for equitable easement which had used survey. each of the relevant sections of the seventy years. They acknowledge than more Consequently, judg we conclude that the property was landlocked that their ment, along map, the attached describe with allege property. The Wallaces’ certainty grant with sufficient the easement brought to establish this action to ed the McKinzies. Point three is over had no easement over the that the McKinzies ruled. egress, in a ingress property point The fourth reads: error purchase of the effort to effectuate a McKin- Alternatively, any supports if evidence Wallaces, than property, by the at a less zie equitable finding, easement then price.1 The thrust of the market value rendering judgment court in district erred pleadings perma is to establish a McKinzies’ awarding “per- the MeKinzie defendants prevent it property their nent easement to manent” easement on the Wal- ingress and being landlocked without lace ranch because the McKinzies failed to egress. plead that were entitled to a Also, that the McKinzies’failure to pled and se- we note nent easement and instead “permanent” in connection with finding equitable estoppel, but use the word cured a by estoppel is not fatal. unity existing pleading easement any of title ever without Allen, Wallaces; 810 Roark v. between the McKinzies and the See (Tex.1982) malprac- hence, (concluding, in a medical any in is property any subsequent other than prevail owner of the If the Wallaces in their contention that gross appurtenant, in and not the easement is Wallaces. property will be MeKinzie forever landlocked 598 appurtenant. construed be McWhorter involving the manner which
tice action Jacksonville, child, City that the failure to doctor delivered writ); “negligent” connection (Tex.App. Tyler use word no Ginther — specifically (Tex.Civ. delivery Bammel, or otherwise indicate ordinary 1960, writ); the doctor failed exercise App. Stuart v. Larra — Waco action). pleaded fatal to the bee, care was not (Tex.Civ.App . —Beau instance, fair no- received ref'd). 1929,writ The Wallaces’ fourth mont claiming per- tice that the McKinzies were point is overruled. egress ingress and manent easement for Accordingly, judgment trial is court’s landlocked See their otherwise affirmed. 47(a) and 90. The Wallaces’ Tex.R.Civ.P. challenge pleading is overruled. REYNOLDS, C.J., dissenting. error, point fourth the Wal-
Under the the McKinzies’ laces further contend Justice, REYNOLDS, dissenting. Chief gross, equitable easement is an easement law, unity there is no as a matter of Deducing that there is no more than a and the MeKin- jury’s of title between Wallaces scintilla of evidence position, To respect- zies. finding I of an rely on a statement from Forister v. Cole fully I sustain the Wallaces’ dissent. would man, (Tex.Civ.App.— point of re- properly preserved first curiam, 1967), per n.r.e. Austin writ judgment, render trial court’s verse the ref'd (Tex.1968) that, to the effect when nothing by judgment take that the McKinzies by estoppel, the an easement is established their action. legally attached to the “easement can become decreeing McKinzies’ person has the same dominant .estate if founded equitable easement is unity the easement and the title both to the submitted third 10 to answer added). (Emphasis dominant estate.” majority reproduced question, which is is regard, must out that there we repeated not be here. opinion and need unity of title between the easement after, patterned apparently was submission estate is the dominant estate. The dominant with, conformity complete owned north one-half of Section *7 applied estoppel pais in to doctrine of McKinzies, and, by judgment, the McKin- Drye Eagle in v. involving land easements ownership ease granted of the zies were (Tex.1962). Ranch, Inc., Rock ment. estop operates to a Generally, the doctrine essence, seem to In the Wallaces an denying the existence of landowner from unity of title that there must be contend made property when he has easement on his estate and the ser- between the dominant confirming the representation granting, or a an impress the court can vient estate before of, who to another existence an easement (i.e. by estop- equitable easement upon it and relied representation believed Nevertheless, not cite us to pel). do 209, 211; v. Storms to his detriment. Id. have authority support position, nor to (Tex.1979). Tuck, 447, 451-52 such a any authority which makes we found theory of easement of the imposition of an limitation on the that he had estoppel, testified A.D. McKinzie types opposed to other of ease easement as Wallace, the Wal- conversation with Bert a ments, implied as an easement. See such road- (Tex. grandfather, children’s about 354, lace Bickler, v. Bickler but, in by using a motion limine way; Winters, 603, 1966); Haskins n.r.e.). objections, prevent- timely the Wallaces trial ref'd (Tex.App. writ — Dallas hearing the words of jury from Moreover, ed not favor easements the law does candidly which, the McKinzies conversation will never be gross, in and an easement concede, hearsay.1 acknowl- McKinzie fairly be were gross if it can presumed to be in the record. place tion is shown nor the of the conversa- 1. Neither the time Mr. Bert edged you told.2 have a conversation with that he believed what he was did brush, roadway? conversation, about the After the McKinzie cut keep running tried water from down to n n ‡ n n : n : improvements proper- and made to his McKinzie) (by AD. Yes. A ty. undesignated place, he At some time and conversation, And Q Okay. after that also an Wal- reached you do did then? what lace, father, to inter- the Wallace children’s Well, my chores A I went ahead with placed on lock locks across two keep water and tried to and cut brush boundary county at the eastern of sec- running right down the road. “they have to use it and we have to use it.” n n n n : n # time, right. following Now Q All Using points first of their of error four your you improvements make did also evidence insuffi- contend the was property? finding cient to affirmative A Yes. assert an any representation no evidence exists n n n n n ¾: McKinzies, made to the Well, you by Q whatever was said presenting relied their detriment. mind, your not the words Mr. Wallace recognize it is point, the Wallaces said, you was told but did believe what only if the sustainable evidence and reason- you? answer, supporting able inferences A Yes. light, viewed in its most amounts to favorable Admittedly, testimony illuminates no other nothing more than a scintilla. Stafford between A.D. McKinzie the conversation (Tex.1987). Stafford, 726 S.W.2d Evi- Bert Wallace. prove dence offered vital fact amounts scintilla, legal no than a effect is more parol representation At least since evidence, merely when it is so that it pais weak creating by estoppel an easement suspicion creates a mere surmise or grant right of a to such ease requires the proved. fact sought existence of the to be v. Bor ment in the owner’s land. Harrison Con/Chem, (1875). However, Inc., ing, Kindred v. 44 Tex. 267-68 (Tex.1983). cause, representation, present different viz., to use the “that certain exist course, estop- proving Of the burden of an property,” was submitted landowner’s pel essential elements thereof is and, objection the form of jury absent it, asserting the party failure to submission, binds prove any one or more of the elements is parties. Insur Allen v. American National Compa fatal. v. Howard M. Smith Barfield Company, 380 ance *8 Amarillo, ny of 1964). Thus, is representation the submitted 1968). testimony of fur AD. McKinzie subjected to the conten no evidence the one representa nishes the evidence of the tion. tion estoppel element of submitted Nevertheless, the bare “conversation testimony jury. His references the of and roadway” neither Mr. Bert about the Wallace recorded, except representation were produces legitimate inference evidences nor intervening objections, rulings, a reit the rights exist use the landown- “that certain questions question, erated and unreferenced property” so as create an er’s answers, in this order: 400-yard in the road. Without counsel) Now, more, unexplained “con- Q (by the McKinzies’ substance of the the roadway,” rather asking you spoken, the ... about the I’m not words versation sustained, testimony. by jury disregard objection the Wallaces was instruct An not, to, requested was not and did but the court easement, conduct; rather, being grant alleged acquiescing than of the the claim was reasonably jury, could as ap- have been the condition submitted to the and defended on road, Or, aspect peal, theory of the or some of it. more on the of a reasonably, the conversation about the road certain exist to use Wallaces’ way per could have concerned the continued Moreover, without more than a “conversa- missive use of the road the McKinzies. roadway,” ... about the the conduct of interpretation That reasonable of the conver the Wallaces before and after the conversa- sation at least has some the rec tion cannot aid the McKinzies their claim ord, for Bert Carol Wallace testified most, by representation. of an easement At road is used to check on merely Wallaces’ conduct shows fences, by hunters he has allowed roadway permis- McKinzies’ use of the there, McKinzies, people sive, license, thereby constituting only a working they for them and hunters to whom ripen which could not and did not into an said, given permission. had He “The use has Rosier, equitable easement. Othen v. permissive years,” been all these but he was (1950). Thus, Tex. willing give the McKinzies an ease the failure of the McKinzies to show more Conformably, ment. A.D. McKinzie testified suspicion represen- than a surmise that both he and the Wallaces used the they rely tation of an easement which is and his use was not hostile to the Wallaces. fatal to of action. their cause Barfield course, roadway by Of use of the the McKin- Company, Howard M. Smith estop zies their invitees does not deny alleged Wallaces to existence Consequently, I would sustain the Wallac- Winters, easement. Haskins v. judgment, es’ first reverse the (Tex.App. writ ref'd — Dallas take-nothing judgment, and render a n.r.e.). the trial court should have ren- Obviously, foregoing as the discussion il- 80(b)(3). Tex.R.App.P. disposi- This dered. lustrates, testimony of the “conversation appeal pretermit tion of the would the ad- roadway” with Mr. Bert about the dressing remaining three suspi- does more than raise a surmise or 90(a). points.3 Tex.R.App.P. cion of the substance of the conversation. As such, cited, previously under the authorities is, legal
it contemplation, no evidence of a
grant rights in roadway of certain by estoppel.
would constitute policy permit
The wise of the law does not deprived property upon citizen to be Baylis B HARRISS and & H Aircraft Irvine, suspicion. Sales, Inc., Corporation, mere surmise or Joske v. a Texas d/b/a (1898). Aviation, Appellants, 91 Tex. S.W. Brauntex jury’s finding equita- To sustain the of an majority ble relies most heavi- DBN David B. NORSWORTHY and ly “permissive acquiesc- Investments, Inc., Appellees. i.e.,
ing objected never behavior” — No. 04-93-00412-CV. seventy the McKinzies’ use of the road for Texas, years, Appeals told Court of never the McKinzies Antonio. could not use the road —as San sufficient jury’s finding evidence to *9 Jan. the Wallaces made a certain exist use the However, the McKin- zies’ claim of an easement neither sub- jury, appeal,
mitted to the nor defended on theory permissive of the Wallaces’ necessary taken 3. Because it should not be to address this dissent is not to be remaining points, majority's disposition the lack of their address in with the of them.