John T. Unger and Kathy J. Welch v. Francis Landry and Wife, Tamarra Landry

Opinion issued January 06, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01331-CV

JOHN T. UNGER AND KATHY J. WELCH, Appellants

V.

FRANCIS LANDRY AND WIFE, TAMARRA LANDRY, Appellees

On Appeal from the 335th District Court

Burleson County, Texas

Trial Court Cause No. 23,581

MEMORANDUM OPINION

This is a real property dispute concerning the scope and use of an easement.

The holders of the dominant estate, appellees, Francis and Tamarra Landry, brought

suit against the holders of the servient estate, appellants, John Unger and Kathy J.

Welch (“Unger”). The parties filed cross motions for summary judgment, and the

trial court granted summary judgment in favor of the Landrys.

In three issues, Unger contends that the trial court erred in granting the

Landrys’ motion for summary judgment and in denying Unger’s motion for summary

judgment. Specifically, Unger contends that the trial court erred (1) in finding that

the Landrys were entitled to free and uninterrupted use of the entire width of the

easement, (2) in finding that improvements constructed by Unger must be removed,

and (3) in awarding attorney’s fees to the Landrys rather than to Unger.

We affirm. BACKGROUND This dispute concerns a 286-acre tract in Burleson County on County Road

205. In 1961, Garwood Gerdes acquired the tract and subdivided it into smaller

parcels. Only one parcel had direct access to the county road—96 acres known as the

Royal C. Fisher parcel (“Fisher”). The other parcels were interior to Fisher and could

only access the county road over Fisher.

In 1962, Gerdes executed a warranty deed in favor of the Veterans Land Board

(“VLB”) in which he set out a 30-foot wide easement appurtenant along the eastern

edge of the Fisher parcel. In 1986, the VLB executed a grant titled, “Conveyance of

Easement” (“Conveyance”), in favor of Caldwell National Bank, as a supplement to

the 1962 easement. It is the language in the Conveyance that is the subject of this

suit.

In 1993, the Landrys acquired one of the interior parcels and an interest in the

easement.

In 2001, Unger purchased the Fisher tract and constructed approximately 1900

feet of perimeter fence along and within the edge of the easement—encroaching

approximately 13 to 17 feet into the easement. In addition, Unger relocated a

drainage culvert and posted a “No Trespassing” sign within the easement.

The Landrys brought suit to enjoin Unger’s interference with the easement.

The Landrys moved for partial summary judgment on the ground that, as a matter of

law, the Landrys are entitled to “free and uninterrupted use” of the entire 30-foot

easement, as expressed by the metes and bounds description in the Conveyance.

Subsequently, Unger moved for summary judgment on the grounds that the

express terms of the easement limit the Landrys’ use to a certain roadway within the

metes and bounds description. Further, Unger asserted that the improvements did not

interfere with the Landrys’ permitted use of the easement for ingress and egress.

The trial court found that, as a matter of law, the Landrys have free and

uninterrupted use of the entire 30-foot easement and granted partial summary

judgment to the Landrys. After a hearing, the trial court ordered Unger to remove the

fence, culvert, and sign within 60 days of the final judgment. In addition, the court

permanently enjoined Unger from making any further improvements within the

easement. Further, attorney’s fees were awarded to the Landrys. Standard of Review We review a trial court’s granting of a summary judgment de novo . FM Props.

Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000). A summary

judgment is properly granted only when a movant establishes that there are no

genuine issues of material fact and he is entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. , 690 S.W.2d 546, 548 (Tex. 1985). A

defendant moving for summary judgment must either (1) disprove at least one

element of the plaintiff’s cause of action or (2) plead and conclusively establish each

essential element of an affirmative defense to rebut the plaintiff’s cause. Cathey v.

Booth , 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a disputed

material fact precluding summary judgment, every reasonable inference must be

indulged in favor of the non-movant and any doubts resolved in its favor. Tex. R.

Civ. P. 166a; Nixon , 690 S.W.2d at 549 . The usual presumption that the judgment is

correct does not apply to summary judgments. See Montgomery v. Kennedy , 669

S.W.2d 309, 311 (Tex. 1984).

When, as here, both parties have moved for summary judgment and the trial

court grants one and denies the other, we review all the evidence, determine all

questions presented, and render the judgment the trial court should have rendered.

FM Props. , 22 S.W.3d at 872 ; Koelsch v. Indus. Gas Supply Corp. , 132 S.W.3d 494,

497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

The issue presented here is whether an express easement described by metes

and bounds defines the boundaries of an easement over the less specific description,

“in and along a certain roadway now across a certain tract of land.” This is a question

of law, not fact. See Koelsch , 132 S.W.2d at 497. Thus, we determine whether the

trial court properly rendered summary judgment as a matter of law. See id. ; Tex. R.

Civ. P. 166a(c) .

Scope and Use of the Easement

In his first and second issues, Unger contends that the trial court failed to

properly limit the Landrys’ use of the easement to the roadway and failed to properly

allow Unger’s use of the easement because his improvements are not inconsistent

with and do not unreasonably interfere with the Landrys’ permitted use of the

roadway.

A. The Scope of the Easement

The Conveyance granted

free and uninterrupted use, liberty, privilege and easement of passing in

and along a certain roadway now across a certain tract of land . . . said

easement being perpetual and over and across the following described

tract of land, to wit:

[metes and bounds description of a 30-foot easement across

Fisher]

together with free ingress, egress, regress to and for [the Landrys’

predecessors in interest], its successors and assigns, for such use as shall

be necessary or convenient at all times and seasons forever, in, along,

upon and out of said way, in common with the said Grantors [Unger’s

predecessors in interest], their heirs, successors and assigns.

(Emphasis added.) At issue are the words, “in and along a certain roadway now

across a certain tract of land.” Unger asserts that this language indicates that the

easement is limited to the roadway as it existed when the easement was granted on

May 28, 1986. Unger contends that the trial court erroneously expanded the easement

beyond its intended scope when it granted the Landrys the use of the entire 30-foot

easement as described by the metes and bounds. In essence, Unger contends that the

metes and bounds description was not the intended grant; rather, the roadway was the

intended grant, and the metes and bounds description was intended merely as an aid

in locating the roadway.

In determining the scope of the Landrys’ easement, it must be remembered that

their rights do not solely arise from necessity or convenience; rather, they arise from

an express grant in a recorded instrument. See Williams v. Thompson , 256 S.W.2d

399, 403 (Tex. 1953). When considering the terms of an express easement, we apply

basic principles of contract construction and interpretation. Marcus Cable Assoc.,

L.P. v. Krohn , 90 S.W.3d 697, 700 (Tex. 2002). The intent expressed in the grant by

the contracting parties determines the scope of the easement. Id. at 700-01 . The

express terms in the easement are given their generally accepted meaning. Id. at 701 .

“Nothing passes by implication ‘except what is reasonably necessary’ to fairly enjoy

the rights expressly granted.” Id. (quoting Coleman v. Forister , 514 S.W.2d 899,

903 (Tex. 1974)). In carrying out the purpose for which the easement was created,

we read the terms of the easement as a whole. Koelsch , 132 S.W.3d at 498 . Unless

the language is ambiguous, we rely solely on the written instrument. Id.

Neither party argues that the descriptive provision of the Convenyance is

ambiguous; rather, they disagree over its construction and interpretation. When a

contract is not ambiguous, its construction is a question of law for the court. MCI

Telecomm. Corp. v. Tex. Utils. Elec. Co. , 995 S.W.2d 647, 650 (Tex. 1999). Both

parties urge us to determine the scope of the easement as a matter of law. See

Marcus , 90 S.W.3d at 703 .

Here, the express terms of the grant give the Landrys the full right to use the

entire width of a metes and bounds description encompassing 30 feet of the eastern

edge of the servient estate. There are no words in the grant specifically limiting the

Landrys’ use to a specific roadway then in use or to that part of the easement which

may be necessary or convenient. See Williams , 256 S.W.2d at 400, 405 (finding no

such limitation in similar deed language that allowed use of “the streets, alleys and

roads running through said property . . . more carefully described as [metes and

bounds]”). Indeed, the grant provides “free ingress, egress, regress to and for . . .

such use as shall be necessary or convenient at all times and seasons forever, in,

along, upon and out of said way.” (Emphasis added.) When, after applying

established rules of contract construction, an easement is open to only a single,

reasonable and definite interpretation, we must construe it as a matter of law even

though the parties offer different interpretations of the easement’s terms. See Marcus ,

90 S.W.3d at 703 .

The Texas Supreme Court has held that the rights of the dominant estate are

paramount, to the extent of the grant, to the rights of the servient estate. See

Williams , 256 S.W.2d at 403 (citing Murray v. Dickson , 123 S.W.2d 179 (Tex. Civ.

App.—Dallas 1909, no writ), for the proposition that “the owner of a way, whose

limits are defined in the grant, has not only the right of free passage over the traveled

part but also over such portions of the way as he thinks proper or necessary”). In

Williams , the court held that the holder of the dominant estate had the right to use the

entire 30 feet described in the grant for a roadway because “it follows logically, in the

absence of restrictive words in the grant, that the grantee can fit the entire width for

use.” Id. at 404-05 (quoting Rotch v. Livingston , 40 A. 426, 427 (Me. 1898)). As far

as width is concerned, an easement holder’s “right to make a road is as wide as his

right to a road.” Id . at 404 (quoting Rotch , 40 A. at 432 ).

In sum, the language in the easement, properly construed, does not permit an

indefinite road description to govern. Where a grantor specifically conveys by metes

and bounds, “there can be no controversy over what land is specifically conveyed.”

Southern Pine Lumber Co. v. Hart , 340 S.W.2d 775, 780 (Tex. 1960). A more

general description will not control. Id. We cannot disregard the express metes and

bounds description. Because the easement here can be given a definite meaning, we

interpret it as a matter of law to encompass the boundaries set in the metes and

bounds description of the easement. See Marcus , 90 S.W.3d at 703 .

2. Use of the Easement by the Servient Estate

Unger contends that he should be allowed to use the land within the easement

for any purpose not inconsistent with the Landrys’ use. Unger contends that the

construction of the fence, the re-location of culvert pipe and drainage ditches, and the

erection of a “No Trespassing” sign in no way impede the Landrys’ use of the

roadway; thus, the improvements should be allowed. Unger contends that the trial

court failed to consider whether he has unreasonably interfered with the Landrys’

present use of the roadway. However, where a use does not serve the express purpose

of an easement, it is an unauthorized presence—a trespass—whether or not it results

in any noticeable burden on the servient estate. See id.

Moreover, the evidence shows that the fence, buried culvert pipe, and re-routed

drainage ditch are permanent in nature and encroach on the easement. See

Pagenstecher v. Biasiolli , 267 S.W.2d 576, 577 (Tex. App.—San Antonio 1954, no

writ). These encroachments could be made the basis of an impairment of the

easement by prescription. Id. Under such circumstances, a suit for injunction will lie

without a showing of actual interference. See id.

We overrule appellant’s first and second issues.

Attorney’s Fees

In his third issue, Unger contends that the trial court erred in awarding

attorney’s fees to the Landrys rather than to Unger.

Section 37.009 of the Texas Civil Practice and Remedies Code provides that,

in a declaratory action, the trial court has discretion to award costs and reasonable and

necessary attorney’s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code

Ann . § 37.009 (Vernon 1997). We will not reverse the award absent a clear showing

of an abuse of that discretion. Knighton v. Int’l Bus. Mach. Corp. , 856 S.W.2d 206,

210 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Unger does not contend that

the fees awarded to the Landrys were inequitable or that the amount awarded was not

supported by the evidence; rather, Unger contends that the Landrys simply should not

have prevailed, so they should not have been awarded attorney’s fees.

Because the Landrys have prevailed upon their declaratory cause of action and

have provided evidence of reasonable and necessary attorney’s fees, we hold that the

trial court properly awarded attorney’s fees to the Landrys.

We overrule appellants’ third issue.

CONCLUSION

As no issue of material fact remains, we find that summary judgment was

properly granted as a matter of law. We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.