Opinion

Opinion issued December 15, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01002-CV

———————————

Mike Boulanger, Trustee, On behalf of Westlum Trust , Appellant

V.

Waste

Management of Texas, Inc., Waste Management, Inc., and USA Waste Landfill

Operations and Transfer, Inc. , Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Case No. 2010-28400

MEMORANDUM OPINION

Appellant, Mike Boulanger, as Trustee

on behalf of the Westlum Trust, and appellees, Waste

Management of Texas, Inc., Waste Management, Inc., and USA Waste Landfill

Operations and Transfer, Inc. (collectively, Waste Management), each claim fee title

to an abandoned railroad right-of-way through separate deeds. The trial court granted summary judgment in

favor of Waste Management and against Boulanger. In five issues on appeal, Boulanger contends

the summary judgment should be reversed because the trial court looked beyond

the four corners of the deed to ascertain the parties’ intent, considered the

rules for deed construction and extrinsic evidence in the absence of any

pleading or finding of ambiguity, and failed to recognize the existence of a

fact issue as to the ownership of the right-of-way.

We affirm the trial court’s summary

judgment.

Background

The Sam Houston Recycling

Center sits at the southwest corner of Westview Drive and Lumpkin Road in

Houston, Texas. The property consists of

two tracts of land: (1) the “Main Tract”

of approximately 3.6406 acres and (2) the “Panhandle Tract” of approximately

2.117 acres. Running in a north-south

direction between the Main Tract and the Panhandle Tract is the forty-foot-wide

railroad right-of-way that is the subject of this appeal.

The

Main Tract and the Panhandle Tract originally were part of a larger, 142 acre tract

of land owned by C.P. Lumpkin. Lumpkin

split the 142 acres into various parcels.

The Main Tract and the Panhandle Tract were included in one parcel,

which consisted of 14.177 acres. In

1955, Lumpkin conveyed 13.697 acres of the parcel, including the Main and

Panhandle Tracts, by deed to Cramerus Realty Company (the

Cramerus Deed).

The Cramerus Deed identified the property

conveyed by metes and bounds description and stated that it was “LESS the

following tract of land reserved for railroad right-of-way:”

BEGINNING

at a point in the North line of Tract “F” above from which the Northwest corner

of tract “F” bears N. 88 deg. 38’ 23” W. 681.93 feet;

THENCE

S. 88 deg. 38’ 23” E., along the North line of Tract “F”, 40.01 feet to a

point;

THENCE

S. 88 deg. 38’ 33: W. along the South line of Tract “F” 40.01 ft. to a point;

THENCE North 522.70 feet to the place of beginning, and containing 0.480

acres of land.

The

parties dispute whether this language conveyed fee title to the right-of-way

along with the Main and Panhandle Tracts.

Waste Management alleges that it did and that, through a series of

subsequent conveyances, Waste Management acquired the right-of-way. Specifically,

in 1991, separate grantors conveyed both the Main and Panhandle Tracts by deed

to Waste Management’s corporate predecessor (the Waste Management Deeds), who then

established the recycling center. According

to Waste Management’s regional Director of Planning and Project Development,

Charles Rivette , Waste Management has used the right-of-way

to operate the recycling center and to cross back and forth between the Main

and Panhandle Tracts for more than fifteen years. There is no alternate route between the Main

and Panhandle Tracts. Because the right-of-way

was abandoned by the railroad in 1999, Waste Management contends that, “if [the

right of way is not] utilized as part of the Sam Houston Recycling Center, [it]

would be a useless, land-locked piece of real estate.” In contrast, Boulanger denies that Lumpkin

conveyed fee title to the right-of-way in the Cramerus

Deed; instead, Boulanger alleges that Lumpkin retained the right-of-way in the Cramerus Deed and that Boulanger later purchased the right-of-way

as part of the 0.7175 acres he acquired from Lumpkin’s heirs in 2005.

Boulanger filed suit against Waste

Management for trespass and unjust enrichment.

Waste Management filed counterclaims for trespass to try title and suit

to quiet title. Waste Management also filed

a combined no-evidence and traditional motion for partial summary judgment, asserting

that Boulanger had no evidence of the ownership element of his trespass claim

or, alternatively, that Waste Management had conclusively negated that element. [1] Without stating its reasons, the trial court

granted Waste Management’s motion.

Thereafter, the parties dismissed the remainder of their claims, rendering

the trial court’s partial summary judgment order a final and appealable judgment. This appeal followed.

Summary Judgment Standard of Review

We review a

summary judgment de novo. Valence Operating Co. v.

Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); City of Galveston v. Tex. Gen. Land Office , 196 S.W.3d 218, 221

(Tex. App.—Houston [1st Dist.] 2006, pet. denied). A defendant

is entitled to a no-evidence summary judgment if, after adequate time for

discovery, there is no evidence of one or more essential elements of the plaintiff’s

claim. Tex.

R. Civ. P. 166a( i ); LMB, Ltd. v. Moreno , 201 S.W.3d 686, 688

(Tex. 2006). A defendant moving for a

traditional summary judgment, however, must conclusively negate at least one

essential element of the plaintiff’s claim or conclusively establish each

element of an affirmative defense. Tex. R. Civ. P. 166a(c); Frost Nat’l Bank v. Fernandez , 315

S.W.3d 494 , 508 - 509 (Tex. 2010); City

of Galveston , 196 S.W.3d at 221 . Under

both standards, we view all evidence in a light favorable to the non-movant and

indulge every reasonable inference in the non-movant’s favor. Dorsett ,

164 S.W.3d at 661 ; City

of Galveston , 196 S.W.3d at 221 .

Deed Construction

The parties’ disagreement is not

limited to their difference of opinion on the legal effect of Lumpkin’s

conveyance; they also dispute the proper role of construction aids and

extrinsic evidence in construing the Cramerus

Deed. Boulanger argues in his second and

fourth issues that neither the trial court nor this Court may apply the rules

of construction or consider extrinsic evidence in the absence of a pleading or

finding that the Cramerus Deed is ambiguous. Because there was no pleading or finding of

ambiguity, Boulanger contends we are bound by the language used in the “four

corners” of the Cramerus Deed in determining whether Lumpkin

conveyed fee title to the right-of-way. Waste

Management, however, argues that when the construction of a deed is at issue,

the courts must consult the rules of construction to give legal effect to the language

used in the conveyance. According to

Waste Management, the existence of an ambiguity is a prerequisite only to the

admission of extrinsic evidence. Waste

Management states the correct rule.

The construction of a deed is ordinarily a question of law. See

Terrill v. Tuckness , 985 S.W.2d

97, 101 (Tex. App.—San Antonio 1998, no pet.) ( noting

that rules of contract construction ordinarily apply to construction of

deeds). Our primary concern in

construing a deed is to ascertain the parties’ true intent as expressed in the

instrument. Luckel v. White , 819 S.W.2d

459, 461 (Tex. 1991); CenterPoint

Energy Houston Elec., L.L.P. v. Old TJC Co. , 177 S.W.3d 425, 430 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). “Because ‘once a dispute arises over meaning,

it can hardly be expected that the parties will agree on what meaning was

intended,’ courts use canons of construction to help ascertain the parties’

intent.” French v. Chevron U.S.A., Inc. , 896 S.W.2d 795, 797 (Tex. 1995)

(quoting Southland Royalty Co. v. Pan Am.

Petroleum Corp. , 378 S.W.2d 50, 59 (Tex. 1964) (Calvert, C.J.,

concurring)). The “four corners” rule requires

us to ascertain intent from the entire instrument. See

French , 896 S.W.2d at 797 . We must strive to harmonize all of the deed’s

parts, construing the deed to give effect to all of its provisions. Luckel , 819 S.W.2d at 462 ; CenterPoint Energy , 177 S.W.3d at 430 . Extrinsic evidence of intent is admissible

only if the deed is ambiguous on its face.

See Friendswood Dev. Co. v. McDade & Co. , 926 S.W.2d 280, 283 (Tex. 1996); CenterPoint Energy , 177 S.W.3d at 431 (“A court may

consider the parties’ interpretations of the contract through extrinsic or parol evidence only after a contract is first determined to

be ambiguous.”).

The decision whether the deed is

ambiguous is also a question of law. See J.M. Davidson, Inc. v. Webster , 128

S.W.3d 223, 229 (Tex. 2003); see also CenterPoint Energy ,

177 S.W.3d at 430 . To make this

determination, we look at the deed as a whole in light of the circumstances existing

when the parties entered into their agreement.

See CenterPoint

Energy , 177 S.W.3d at 430 . If the deed is worded in such a way that it

can be given a definite or certain legal meaning, then it is not ambiguous and

the court will be confined to the writing.

See id. at

30 - 31. A mere disagreement about the proper interpretation

of a deed, however, does not make the deed ambiguous; the instrument is

ambiguous only if, after application of the rules of construction, the deed is

reasonably susceptible to more than one meaning. Brown v. Havard , 593 S.W.2d 939, 942

(Tex. 1980); Universal C.I.T. Credit

Corp. v. Daniel , 243 S.W.2d 154, 157 (Tex. 1951).

Thus, in summary, a court may (1)

hear and consider evidence of the circumstances surrounding the execution of

the Cramerus Deed and (2) apply the rules of

construction to resolve the parties’ disagreement as to the proper construction

of the deed. Contrary to Boulanger’s

assertion, neither a pleading nor a finding of ambiguity is required. The absence of an ambiguity on the face of

the deed only precludes the admission and consideration of extrinsic evidence

of the parties’ subjective intent. See CenterPoint Energy ,

177 S.W.3d at 430 .

We overrule Boulanger’s second and

fourth issues.

The Cramerus

Deed

The remainder of Boulanger’s issues address the merits of the

trial court’s summary judgment.

Boulanger contends that summary judgment was improper because of ambiguity

in the Cramerus Deed and the existence of fact issues

as to the ownership of the railroad right-of-way. Because ownership is the dispositive issue in

this case, we must determine whether Lumpkin granted Cramerus

fee title to the right of way.

A single

word gives rise to the parties’ differing opinion as to the legal effect of

Lumpkin’s conveyance: “LESS.” The Cramerus Deed conveys certain property “LESS the

[described] tract of land reserved for railroad right-of-way.” Using dictionaries to define “less” as

commonly meaning “devoid of,” Boulanger contends the Cramerus

Deed excluded the right of way from the conveyance of the Main and Panhandle Tracts. Waste Management disagrees that “LESS” excludes

the right-of-way and suggests a different construction of the term — namely, one having the effect of conveying fee

title to all the land described while notifying Cramerus

that the grant is burdened by the railroad right-of-way and reserving the

railroad’s right to continue using that land.

Recognizing

that “separate ownership of long narrow strips of land, distinct from the land

adjoining on each side, is a fruitful source of litigation and disputes,” the

Texas Supreme Court developed a rule with respect to the legal construction of

conveyances like Lumpkin’s to Cramerus : “[I]t is presumed that a grantor has no intention

of reserving a fee in a narrow strip of land adjoining the land conveyed when

it ceases to be of use to him, unless such fee is clearly reserved.” Cantley v. Gulf Prod. Co. , 143 S.W.2d 912, 915 (Tex. 1940)

(presuming that language “keeping” thirty-foot-wide road easement did not

reserve title to strip of land underlying easement in absence of evidence of

clear intention to do so). Stated

differently, “[w]hen an instrument conveys land definitely described in the

instrument and then excepts from the conveyance a road, railroad right-of-way

or canal right-of-way occupying an easement on, over or across the land

conveyed, the instrument conveys the fee to the entire tract, subject to such

right-of-way, unless the deed clearly indicates that the grantor intended to

reserve the strip.” Moore v. Rotello ,

719 S.W.2d 372 , 375 - 76

(Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e .) (concluding that “save and except” language

in deed was not express reservation of interest in property, it had no other

effect than to say that grant was burdened with railroad right-of-way, and deed

conveyed fee title to entire tract of land).

There is no disagreement that the

railroad right-of-way at issue here is a forty-foot-wide strip of land that adjoins

and separates the Main and Panhandle Tracts conveyed in the Cramerus

Deed. And, we see no reason why “LESS”

should have a different legal effect than “keeping” or “save and effect,” as

those terms have given rise to the presumption stated above in Cantley and Moore . See Cantley , 143 S.W.2d at 915 ; Moore , 719 S.W.2d at 375 - 76. Applying that presumption, the Cramerus Deed would be reasonably susceptible to only one

construction — i.e., the construction urged

by Waste Management — unless

Boulanger presented summary judgment evidence that clearly indicated Lumpkin

intended to retain an interest in the right-of-way. He did not.

Although he asserts that the

“evidence shows the [right-of-way] is not a narrow strip of land” and that it

has some individual value because “[m] ost lots

located in any metropolitan area such as Houston are 50 or so feet wide” and

“many lots where townhomes are constructed are only 20 feet in width,”

Boulanger has not cited to any place in the record where the evidence of such

facts appears. Nor can we find any

evidence that the right-of-way was useful to Lumpkin after he conveyed the Main

and Panhandle Tracts to Cramerus . [2] Moreover,

as we have already determined that the word “LESS” has special meaning beyond

its common dictionary definition, we find no other language in the Cramerus Deed indicating that Lumpkin intended to reserve

the right-of-way for his own use.

In the absence of evidence that

Lumpkin “clearly reserved” title to the right-of-way, we conclude that the Cramerus Deed unambiguously conveyed fee title to all of the

land described therein, including the Main Tract, the Panhandle Tract, and the

right-of-way. The property description

that follows the word “LESS” merely served to notify Cramerus

that the grant was burdened by the railroad right-of-way. Boulanger concedes that, if the Cramerus Deed conveyed fee title to the right-of-way, then

Waste Management acquired that title under the Waste Management Deeds in 1991,

so we need not consider whether the Waste Management Deeds are valid or whether

Waste Management’s chain of title is complete.

Further, because the Cramerus Deed is

unambiguous, we will not decide whether the extrinsic evidence attached to the

summary judgment motion and response raises an issue of fact as to ownership of

the right-of-way. See CenterPoint Energy , 177 S.W.3d at 430 .

Instead, we conclude only that the trial

court did not err in granting summary judgment for Waste Management.

We overrule Boulanger’s first,

third, and fifth issues.

Conclusion

Having

found no error, we affirm the trial court’s summary judgment.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

[1]

To recover damages for trespass

to real property, a plaintiff must show that (1) he owns or has a lawful right

to possess the real property, (2) the defendant entered the plaintiff’s land

and the entry was physical, intentional, and voluntary, and (3) the defendant’s

trespass caused injury to the plaintiff.

Tex. Woman’s

Univ. v. The

Methodist Hosp. , 221 S.W.3d 267, 286 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

[2]

In that part of his brief

addressing the extrinsic evidence presented as a part of the summary judgment,

Boulanger contends that a fact issue exists as to whether Lumpkin intended to

reserve the right-of-way because, at the time he executed the Cramerus Deed, he had not yet granted the right-of-way to

the railroad. We do not consider this

contention because it was not raised as a ground for defeating Waste

Management’s summary judgment motion in the trial court. See Priddy v. Rawson , 282 S.W.3d 588, 597 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied).