

Opinion filed June
7, 2012
 
                                                                              
In The
                                                                              
  Eleventh Court of
Appeals
                                                                   __________
 
                                                         No.
11-10-00124-CV 
                                                    __________
 
                                 MARK
HARRINGTON, Appellant
 
                                                             V.
 
                        DAWSON-CONWAY
RANCH, LTD., Appellee
 

                                   On Appeal from
the 259th District Court
 
                                                       Shackelford
County, Texas
 
                                                   Trial
Court Cause No. 2008-089 
 

                                                                  O
P I N I O N
            Our
former opinion and judgment dated May 31, 2012, are withdrawn, and our opinion
and judgment dated June 7, 2012, are substituted therefor.
            The
issue in this case is whether the owners of the Dawson-Conway Ranch, Ltd. have
an easement, either by implication or by prescription, to use a road on the
Harrington Ranch that borders the Dawson-Conway on the west.   A short portion
of the road is south of the Dawson-Conway and crosses the Harrington Ranch from
County Road 201 to an access point at the southwest corner of the
Dawson-Conway.  We shall refer to this portion as the first access road.  From
the first access point, the road runs northward across the Harrington Ranch to
a second access point on the Dawson-Conway.  At the second access point, that
part of the Dawson-Conway is the north border of the Harrington Ranch.  This
longer portion of the road across the Harrington Ranch shall be referred to as
the second access road.
            The
two ranches were originally part of the Monroe Ranch.  In 1901, the Monroe
Ranch first conveyed part of its ranch to Dawson-Conway’s predecessors in
interest and then conveyed another part of its ranch (to the immediate west of
Dawson-Conway’s property) to Mark Harrington’s predecessors in interest.  The
only evidence concerning the establishment of the road was that the road was in
existence sometime in the 1940s.  To reach the second access point, the road
crosses sections 199, 198, and 197 of Harrington’s property.
            In
December 2007, Harrington closed the road between the first access point and
the second access point, but he continued to allow access to the Dawson-Conway
Ranch at the first access point.  He claimed the closing was because of the
trash left on his ranch by people going to the Dawson-Conway and not respecting
his property.  Dawson-Conway filed suit against Harrington in June 2010,
claiming an implied easement by necessity at the time of severance. 
Dawson-Conway also pled an easement by prescription, citing the ten-year
adverse possession statute.  Tex. Civ.
Prac. & Rem. Code Ann. § 16.026 (West 2002).  As an alternative
pleading, Dawson-Conway claimed a prescriptive easement to the entrance at the
first access point.
            Both
parties filed motions for summary judgment.  There was no evidence that the
road, or even an easement, existed over Harrington’s ranch at the time of
severance.  Dawson-Conway based its motion on the claim for a prescriptive
easement.  Harrington filed a standard motion for summary judgment and a
no-evidence motion for summary judgment against both easement claims of
Dawson-Conway.  The trial court granted Dawson-Conway’s motion and denied
Harrington’s motions.  We reverse and render judgment that Harrington’s motions
should have been granted and that Dawson-Conway’s motion should have been
denied.  Dawson-Conway did not establish a right to an easement over the
Harrington Ranch.
Harrington’s Issues on
Appeal
            In
Harrington’s first issue, he argues that the trial court erred in admitting as
evidence the affidavit of A.V. Jones Jr. who stated that “[i]t has always been
[his] understanding that this access route as it crosses sections 199, 198, and
197 [of Harrington’s property] was permitted by the owners of Dawson-Conway.”  In
Harrington’s second issue, he contends that the trial court erred in denying
his motions for summary judgment.  In the alternative, Harrington contends in
his third issue that the trial court erred in granting Dawson-Conway’s motion
for summary judgment because there was a genuine issue of material fact as to
at least one element of each of Dawson-Conway’s claims.  In his fourth and
final issue, Harrington contends that the trial court’s judgment was
overbroad.  We need only reach the first two issues.
Background Facts
            Dawson-Conway
consists of approximately forty-two sections of land (over 26,000 acres) in
Shackelford County.  One access to the ranch is County Road 167.  County Road
167 ends at the Dawson-Conway at its northwest quadrant.  To reach the rest of
the ranch, however, one must cross the Clear Fork of the Brazos River.  Thomas S.
Dill, representative for the Dawson-Conway, stated in his affidavit that the
river crossing is frequently impassable and not dependable.  But, in his
deposition, Dill acknowledged that he has crossed the river in a four-wheel
drive pickup, stating that the water is generally one or two feet deep.  Once
across the river, he has access to the entire Dawson-Conway.  The Clear Fork of
the Brazos River also splits the Harrington Ranch, and Harrington testified
that he crosses the river without a bridge.
            In
Dill’s affidavit, he described the southwest quadrant of the Dawson-Conway as
being extremely rough.  Yet it is obvious from the map that oil and gas lessees
accessed much of the ranch, including the southern part, to drill wells. 
Sections 193 and 194, near the Limited Access Point, have the name of Jones who
conducted drilling operations on both ranches.  In addition, Harrington
testified that there were roads in the southwest quadrant of the Dawson-Conway
that could be used by vehicles; he saw the roads when he rode horseback helping
Bud Wilfong work cattle.  Harrington and Wilfong at one time went near the
center of the Dawson-Conway, loaded the cattle, and then exited using the first
access point.  Harrington expressed his opinion that it would not be difficult
to build better roads on the Dawson-Conway if the owners or lessees did not
like the roads that were there.
              
There was no evidence when the disputed road over Harrington’s property was
first established or used.  The first access road from County Road 201 may have
been used from the time of severance, but there was no evidence of such use or
when County Road 201 was built.  Nor was there any evidence of when someone
built the second access road that crosses sections 197, 198, and 199 of
Harrington’s property.  Jones remembered using the road in the 1940s to go
quail hunting on the Dawson-Conway. 
            Harrington’s
predecessors began leasing land for mineral production as early as 1918. Those
leases gave producers the right to use or establish roads on Harrington’s
land.  Dawson-Conway acknowledged that Harrington, his predecessors, his grass
lessees, and his hunters used the road along with their use of the road.  Dawson-Conway’s
hunters, grass lessees, mineral lessees, and personnel have used the road from County
Road 201 to the second access point for many years.  Harrington maintained that
he and his predecessors permitted the use of the road by Dawson-Conway, stating
that he wanted to be a good neighbor.
            In
December 2007, Harrington had had enough of Dawson-Conway’s hunters throwing
trash on his land, mistakenly assuming they were on the Dawson-Conway and shooting
deer on Harrington’s land, driving too fast on the road (at one point running
over a calf belonging to Harrington’s grass lessee), and shooting a dog
belonging to one of Harrington’s managers.   Harrington testified that he had
never been notified that Dawson-Conway claimed a legal right to use the road on
his land until he locked the gates to prevent access to the second access
road.  Harrington continued to allow Dawson-Conway to use the first access
road.
Standard of Review
When
competing motions for summary judgment are filed and one is granted and the
other denied, the reviewing court must review the summary judgment evidence
presented by both sides, determine all questions presented, and render such
judgment as the trial court should have rendered.  Comm’rs Court of Titus
Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).  We review the trial court’s
summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003).  Dawson-Conway filed a traditional motion for
summary judgment, while Harrington sought summary judgment on both traditional
and no-evidence grounds.
In
a traditional summary judgment motion brought under Tex. R. Civ. P. 166a(c), the moving party has the burden of
showing that there is no genuine issue as to any material fact and that it is
entitled to judgment as a matter of law.  Browning v. Prostok, 165
S.W.3d 336 (Tex. 2005); Knott, 128 S.W.3d at 215–16.  A no-evidence
summary judgment motion made pursuant to Tex.
R. Civ. P. 166a(i) is essentially a motion for a pretrial directed
verdict.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.
2006).  Once such a motion is filed, the burden shifts to the nonmoving party
to present evidence raising an issue of material fact as to the elements
specified in the motion.  Tamez, 206 S.W.3d at 582; W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 550 (Tex. 2005).  We review the summary judgment
evidence in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable
jurors could and disregarding contrary evidence unless reasonable jurors could
not.  Tamez, 206 S.W.3d at 582; see Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 756 (Tex. 2007); City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005).  An appellate court reviewing a summary
judgment must consider whether reasonable and fair-minded jurors could differ
in their conclusions in light of all of the evidence presented.  Mayes,
236 S.W.3d at 755; City of Keller, 168 S.W.3d at 827.
Prescriptive Easement
Claim
            The
trial court granted Dawson-Conway’s motion for summary judgment, holding that
Dawson-Conway had established a prescriptive easement from County Road 201 to
the second access point. Dawson-Conway’s summary judgment evidence consisted of
portions of Harrington’s deposition, an affidavit by Jones, an affidavit by Dill,
and maps.  Harrington contends that Dawson-Conway did not meet the requirements
for a prescriptive easement.  We agree.  The trial court should have denied
Dawson-Conway’s motion and granted Harrington’s no-evidence motion and his
standard motion for summary judgment.
            A
prescriptive easement is not well-regarded in the law.  McClung v. Ayers,
352 S.W.3d 723, 728 (Tex. App.—Texarkana 2011, no pet.); Tiller v. Lake
Alexander Properties, Ltd., 96 S.W.3d 617, 624 (Tex. App.—Texarkana 2002,
no pet.); Toal v. Smith, 54 S.W.3d 431, 425 (Tex. App.—Waco 2001,
pet. denied); Wiegand v. Riojas, 547 S.W.2d 287, 289 (Tex. Civ. App.—Austin
1977, no writ).   To obtain a prescriptive easement, one must use someone
else’s land in a manner that is open, notorious, continuous, exclusive, and
adverse for a period of ten years or more.  Brooks v. Jones, 578 S.W.2d
669, 673 (Tex. 1979).  Exclusivity is not met when landowner and claimant both
use the road.  Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987).  When
a landowner and a claimant of an easement both use the same road, use by the
claimant is not exclusive to the landowner’s use and is not adverse.  Brooks,
578 S.W.2d at 673.  Dawson-Conway admits that Harrington also used the road.  Dill
testified that nothing prevented Harrington from using the road.  Joint use of
a road, no matter for how long, cannot ripen into an easement by prescription. 
Vrazel, 725 S.W.2d at 711; Othen v. Rosier, 226 S.W.2d 622, 626
(Tex. 1950).
            Harrington
contends that Dawson-Conway’s use of the road has been with his permission  and
that mere joint use, without more, will not establish a prescriptive easement. 
Tiller, 96 S.W.3d at 624.  Dawson-Conway concurs that this is a correct
assertion of the law where there is joint use.  But Dawson-Conway relies on Scott
v. Cannon, 959 S.W.2d 712, 722 (Tex. App.—Austin 1998, pet. denied), for an
exception to the general rule: independent acts coupled with joint use
by the claimant may be sufficient to establish the requisite adversity.  The
emphasis on “independent acts” by the Scott court is key to that court’s
analysis.  See Allen v. Allen, 280 S.W.3d 366, 379 (Tex. App.—Amarillo
2008, pet. denied) (distinguishing Scott on the facts and holding that
the evidence was legally insufficient to sustain jury’s finding of prescriptive
easement).
This
court cited Scott in Strain v. Knipe, No. 11-98-00207-CV, 1999 WL
33748004 (Tex. App.—Eastland Dec. 23, 1999, pet. denied) (not designated for
publication), where we pointed out that Knipe presented evidence of such acts: Knipe
had used and maintained the roadway across Strain’s land and had exclusively
done so since 1968; Knipe had paid for and put in two cattle guards on the
roadway; and Knipe used the road exclusively except for the time that the
Strains had leased Knipe’s property and had used the road only to access
Knipe’s property to graze their cattle.  In this case, there was no evidence
that Dawson-Conway maintained the road or had anything to do with the road
other than driving on it.  The only evidence was that Harrington or his oil and
gas lessee worked on the road and maintained it.  Harrington said that he paid
L.T. White to work on the road using Harrington’s gravel.
            Scott
is distinguishable on its facts from the case before this court.  In 1964, the
Scotts had filed in the county clerk’s office an affidavit signed by two
witnesses who claimed that the road over Cannon’s land was a road used by the
public to go to Scott’s property; the filing was done by the Scotts to obtain a
home improvement loan.  Id. at 717-18.  An attorney for the Cannons
discovered the 1964 affidavit by accident in 1972.  The Cannons, through their
attorney, notified the Scotts that the road was not a public road, but the
Cannons never gave notice to the Scotts that they could not use the road.  The
Scotts said that they refused to remove the affidavit from the court records
unless the Cannons granted them an express easement.  No such document was ever
presented to the Scotts, and Mrs. Cannon believed it was “a good time to just
keep quiet” because she thought use of the road by the Scotts would be
construed as permissive.  The Austin court relied on the unique facts to hold
that “[i]t is undisputed that in 1972 the Cannons were made aware of the
Scott’s claim of right to use the Road” and that that was the type of “distinct
and positive assertion” required by the Austin court in “Wiegand to ‘transform
permissive use of an easement into an adverse use.’”  Id. at 722.  There
is no evidence in the record of independent acts by Dawson-Conway that
could be construed as distinct and positive assertions of a right to use the
road by Dawson-Conway.
            Courts
have analyzed the acquisition of an easement by prescription as being analogous
to the acquisition of title by adverse possession.  Therefore, a claim of
prescription must be supported by proof of all of the elements that are
involved in the statute of limitations for adverse possession.  The hostile and
adverse character of the use necessary to establish an easement by prescription
is the same as that which is necessary to establish title by adverse
possession.  Othen, 226 S.W.2d at 626; Tiller, 96 S.W.3d at 624; Davis
v. Carriker, 536 S.W.2d 246, 250 (Tex. Civ. App.—Amarillo 1976, writ ref’d
n.r.e.).  One test to determine whether a claim is hostile as required to
establish an easement by prescription is whether the adverse possessor’s use,
occupancy, and possession of the land is of such nature and character as to
notify the true owner that the claimant is asserting a hostile claim to the
land.  Tiller, 96 S.W.3d at 624; Mack v. Landry, 22 S.W.3d 524,
531 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  The record is devoid of
any evidence that Dawson-Conway gave notice to Harrington that it was asserting
a hostile claim to use Harrington’s land before Harrington locked the gates.
            The
party claiming an easement by prescription must give notice that its use of
property is under a claim of right.  Otherwise, the use (especially if joint)
is presumed to be permissive, and a permissive use can never ripen into an
easement by prescription.  Sassman v. Collins, 115 S.W. 337, 339 (Tex.
Civ. App. 1908, writ ref’d), cited with approval in Othen, 226 S.W.2d at
627.  There must be an independent act of hostility to transform permissive use
of an easement into an adverse use so as to begin the prescriptive period.  Mack,
22 S.W.3d at 532.
            Harrington’s
counsel asked Dill, Dawson-Conway’s representative, the following questions
concerning notice:
            Q. 
How has your use of the road or the use of the road by your predecessors in
interest, the owners of the Dawson-Conway or prior owners, how has it been such
that Mr. Harrington or his predecessors in interest should have known that the
use of the road was under a claim of right, that is, that y’all or your
predecessors in interest were claiming a right to use the road as opposed to
just permission to use the road?
 
            A. 
Suppose, just by our use.
 
            Q. 
Okay.  If you’ll take a look back at Paragraph 12 again [in Dawson-Conway’s
pleading], the next sentence says, further, this use has been under a claim of
easement and not merely under license or permission.
 
            How
has the use been under a claim of easement and not merely license or
permission?
 
            A.  Just by our use, continued use over
the years.
 
            . . . .
 
            Q. 
How should Mr. Harrington or his predecessors in interest have known that you
or your predecessors in interest were claiming a right to continue to use the
road?
 
            A.  I don’t know.
 
As
opposed to the facts in Scott, neither Dawson-Conway nor its
predecessors made any assertion to Harrington or his predecessors of a right to
use the road until after Harrington closed the second access road.  There is no
evidence that Dawson-Conway contributed to the building of the road or
maintained the road.  The only maintenance was done by W.J. Whitt, a mineral
lessee of Harrington, or by Harrington.  Harrington locked the gate in December
2007 to prevent access to the portion of the road between the first access
point and the second access point.  Harrington testified that he had never been
notified that Dawson-Conway claimed a legal right to use the road on his land
until after he closed that portion of the road.  Dill’s testimony confirms
their joint use of the road with Harrington, but he provided no evidence that
Dawson-Conway gave notice they were claiming a legal right to use the road.
Dawson-Conway
first relies on the following testimony by Harrington to establish adverse
use.  It should be noted that there was no reference by Harrington to any
“acts” by Dawson-Conway that provided notice to Harrington of a prescriptive
claim by Dawson-Conway.  Harrington’s testimony was as follows:
            Q. 
Do you remember the general time frame, whether it was in the late 60’s, early
70’s, 80’s, whenever it might have been that you first became aware, if ever,
that representatives, whether they be hunters, oil and gas folks, whoever, were
accessing the Dawson-Conway via this road?
 
            A. 
What year?
 
            Q. 
Generally what year, what time frame?
 
            A. 
I don’t know because -- I couldn’t say.  I couldn’t say because I don’t know
when y’all made a lease or whatever.  I just know the oil field people that
were on it.
 
            .
. . .
 
            Q. 
. . .  And they got to the Dawson-Conway via this particular road?
 
            A. 
Yes, sir.
 
            Q. 
And that was -- how far back do you recall that being?
 
            A. 
Probably in ’68, ’69 possibly. 
 
            .
. . .
 
            Q. 
I just want to know very simply when it is you -- you first learned of the adverse
use of this road?
 
            A. 
I just told you.
 
            HARRINGTON’S
COUNSEL: Objection, form.
 
            Q. 
. . .  Somewhere around the late ’60s?  That’s your best recollection?
 
            A. 
I told you ’68 or ’69, best of my recollection.
 
The
context of the question to Harrington is important.   Dawson-Conway did not ask
which acts constituted notice to Harrington of an adverse use of the road. 
Dawson-Conway only wanted to know when Harrington became aware of
“representatives, whether they be hunters, oil and gas folks, whoever, were
accessing the Dawson-Conway via this road.”  Harrington was only asked about
joint use.  As Harrington points out in his brief, the terms “adverse” and
“hostile” have long had specific legal meanings with reference to a claim of
taking of rights in another’s land by prescription or by adverse possession.  Evans
v. Templeton, 6 S.W. 843, 844  (Tex. 1887). The claimant must show some
notorious act of ownership over the property, distinctly hostile to the claim
of the landowner.   Othen, 226 S.W.2d at 626; Rick v. Grubbs, 214
S.W.2d 925, 927 (Tex. 1948).  Dawson-Conway’s counsel and Harrington were only
discussing when Harrington noticed that people were using the road to access
Dawson-Conway.  And Harrington testified that he allowed use of the road by
Dawson-Conway because he “tried to be a good neighbor.” 
Given
the initial question and the context, Harrington was not admitting that
Dawson-Conway’s joint use of the road amounted to acts that were legally
adverse and gave notice to him of a claim of right.  Without evidence of acts
by Dawson-Conway that were independent of the joint use of the road and that
gave Harrington notice of Dawson-Conway’s claim of a right to use the road, the
quoted testimony by Harrington was legally insufficient to meet the
requirements for a prescriptive easement.
            Dawson-Conway
relies on the following acts to show their distinct and positive assertion of a
hostile claim of title: (1) Harrington did no maintenance on the road; (2)
Whitt widened the road without Harrington’s permission; and (3) Harrington was
concerned that Dawson-Conway’s hunters were not closing gates, were shooting
game on Harrington’s land thinking they were on the Dawson-Conway, and were
driving too fast on the road.
            Harrington
correctly contends that the issue is not whether Harrington maintained the
road.  The issue is whether Dawson-Conway maintained the road in a manner that
gave notice to Harrington that Dawson-Conway claimed a legal right to use the
road.  Dawson-Conway presented no evidence that it did any maintenance on the
road.  Dawson-Conway quotes at length Harrington’s answers concerning Whitt’s
widening of the road in the 1980s, in which Harrington stated that the widening
of the road was done without his permission and also that Whitt had placed tank
batteries in a place on Harrington’s land where Harrington did not think they
were needed.  The tank batteries were used for production from the Harrington
Ranch.  Dawson-Conway asserts that Whitt’s acts were “clear evidence of
independent acts of ownership.”  We disagree.  
            Whitt
was Harrington’s mineral lessee, and under his lease, Whitt had a right to
widen the road and place tank batteries on Harrington’s land.  Harrington’s
permission was not required.  Harrington’s testimony quoted by Dawson-Conway
provides no evidence of acts by Dawson-Conway, as required by Scott,
that could be construed as distinct and positive assertions (separate from
joint use) of a distinct and positive legal right to use the Harrington road. 
Whitt’s acts as Harrington’s lessee were not evidence of independent acts of
ownership by Dawson-Conway.
            The
remaining testimony that is cited by Dawson-Conway as an acknowledgment by
Harrington of adverse use involved a question to him about hunters who used the
road to hunt on the Dawson-Conway Ranch.  Harrington testified that he first
learned that, in addition to oil and gas operators, some hunters used the road
when Wilfong subleased the Dawson-Conway to the American Sportsmen.  Wilfong
was leasing the Dawson-Conway at the time.  Harrington said that the hunters
would not close the gates and, at times, they would hunt on his property when
they thought they were on the Dawson-Conway.  Often, Wilfong would meet the
hunters at the first access gate.  Wilfong and Harrington got along well.  They
even mutually agreed to lock the second access gate between 1978 and 1984
because Wilfong believed he was losing steers to theft.  Harrington would help
Wilfong work cattle, just as he helped Stasney Ranch when they leased the
Dawson-Conway.  Wilfong reprimanded the hunters when they did not close the
gates, hunted before they reached the Dawson-Conway, or drove too fast on the
road.
            The
following portion of Harrington’s testimony, relied on by Dawson-Conway,
related to Harrington’s locking the gate in December 2007 after becoming tired
of the hunters’ actions in using the road:
            Q. 
I may have asked you this in a different way and if I did I’m sorry.  But
getting to this -- the locking of this second gate, was there anything that
precipitated that?  Any event that occurred out there that made you say we need
to put a lock on this gate?
 
            A. 
It probably would be, you know, 20 years of being out there.  Enough is enough,
if you understand what I’m talking about.
 
            Q.
 Twenty years of people using that road -- using that road?
 
            A. 
Yes, sir.
 
            Q. 
As if it was theirs?
 
            A. 
Yes, sir.
 
            Dawson-Conway
asserts that the statement by Harrington that he had had enough of the hunters
using the road “as if it was theirs” amounts to an acknowledgment of use of the
road without his permission.  We disagree.  Harrington did not object to joint
use of the road; his objection was simply that the hunters on the Dawson-Conway
were not respectful as they used his road.  In his affidavit, Harrington stated
that, after Wilfong lost his lease, the hunters on the Dawson-Conway had shown
less and less regard for his land.  Just as Dawson-Conway had various lessees
of the ranch for cattle over the years, there probably also were different
hunters with leases on the Dawson-Conway.  Many people do not take care of
their own property.  Harrington apparently was referring to those types of
people when he said they used the road “as if it was theirs.”  Harrington’s
answer was not “a plain acknowledgment of use without his permission.”  A more
reasonable construction is that he tried to be a good neighbor allowing joint
use of his road, but the negligent and inconsiderate actions by Dawson-Conway’s
hunters finally exhausted his patience.  The quoted “as if it was theirs”
amounted to no evidence or certainly not more than a scintilla of evidence.  
            Actions
by Dawson-Conway’s hunters did not show any intent to possess the road
adversely to Harrington.  Their use was consistent with joint use of the road. 
Looking to the adverse possession analogy under the ten-year limitation
statute, “[n]o matter what the use and occupancy of the land may be, the
possessor must intend to appropriate it.”  Calfee v. Duke, 544 S.W.2d
640, 642 (Tex. 1976). 
Dawson-Conway
relies on an affidavit by Jones, an oil and gas operator who leased both
ranches at times, as evidence to support Dawson-Conway’s motion for summary
judgment.  Jones stated the following:
It
has always been my understanding that this access route as it crosses sections
199, 198, and 197 was permitted by the owners of the Dawson-Conway.
 
            Harrington
objected to this evidence, but his objection was overruled.  Rulings concerning
the admissibility of evidence are committed to the sound discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion. 
Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
Jones
stated that he had been in the oil and gas business in Shackelford County since
1953 and that his father had oil and gas operations in the county starting in
1932.  Although he stated that he was familiar with the Dawson-Conway Ranch and
the road on Harrington’s ranch, nowhere does he state what underlying facts led
to his “understanding,” only that he was thoroughly familiar with the area. 
Simply seeing the road and the ranches would not necessarily lead to an
understanding that Dawson-Conway controlled the Harrington road.  The
affidavit  violated the “Banjo Rule.”[1]

            The
trial court erred in admitting the Jones affidavit as evidence.  It is
insufficient as summary judgment evidence to support Dawson-Conway.  His
subjective “understanding” was a  conclusion, and there is nothing in the
affidavit to support that conclusion.  Even if the affidavit was admissible,
there is nothing in the record indicating that Jones communicated his
understanding to Harrington; therefore, it was not evidence that Harrington was
put on notice that Dawson-Conway was claiming a right to use the road in a
hostile and adverse way to Harrington.  Dawson-Conway’s inference from Jones’s
statement was not the only inference that can be drawn.  Jones’s understanding
that Dawson-Conway permitted his use of the road was not inconsistent with a
permissive joint use of the road.  The affidavit testimony of Jones did not
provide proof of any ultimate fact in issue.  See Allen, 280 S.W.3d at
375–76 (“[a]s far as I can remember the road has been where it is now” was “no
evidence that CR-216A and Cedar Hollow Road were synonymous”).  
The Claim of Implied
Easement of Necessity
            Easements
may be created by express grant, by implication, by necessity, by estoppel, and
by prescription.  Machala v. Weems, 56 S.W.3d 748, 754-55 (Tex. App.—Texarkana
2001, no pet.).  In addition to its prescriptive claim, Dawson-Conway pleaded
an implied easement by necessity.  In Harrington’s no-evidence motion for
summary judgment, he contended that there was no evidence to support the required
elements of Dawson-Conway’s claims to an implied easement by necessity over the
Harrington Ranch.  Harrington’s no-evidence motion should have been granted.
            Both
parties have not carefully distinguished (1) implied easements by necessity,
whether  by reservation or by grant; (2) implied easements by reservation; and
(3) implied easements by grant.  For cases distinguishing easements by
necessity from the other two implied easements, see Miller v. Elliott, 94
S.W.3d 38, 43 (Tex. App.—Tyler 2002, pet. denied); Fender v. Schaded,
420 S.W.2d 468 (Tex. Civ. App.—Tyler 1967, writ ref’d n.r.e.); Teich v.
Haby, 408 S.W.2d 562 (Tex. Civ. App.—San Antonio 1966, writ ref’d
n.r.e.); Barrick v. Gillete, 187 S.W.2d 683 (Tex. Civ.
App.—Eastland 1945, writ ref’d w.o.m.) (court expressly noted that the
case did not involve a claim of easement by necessity); Heard v. Roos,
885 S.W.2d 592 (Tex. App.—Corpus Christi 1994, no writ); and McClung, 352
S.W.3d 723.
            The
three separate types of implied easements have different elements. 
Dawson-Conway pleaded only an implied easement by necessity by grant, not an
implied easement appurtenant by grant.      The requirements are the same
whether the claimed easement by necessity is by grant or reservation.  Bains
v. Parker, 182 S.W.2d 397, 399 (Tex. 1944).  A landowner may claim
an implied easement of necessity by proving that (1) unity of ownership of the
dominant and servient estates existed prior to severance, (2) access must be a
necessity and not a mere convenience, and (3) the necessity existed at the time
the estates were severed.  Koonce v. J.E. Brite Estate, 663 S.W.2d 451,
452 (Tex. 1984); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.—San
Antonio 2006, pet. denied); Tiller, 96 S.W.3d at 622; Machala, 56
S.W.3d at 755.  Easements by necessity are temporary because their existence is
dependent on the necessity that created them.  See Bains, 182 S.W.2d at 399. 
Easements by necessity terminate upon the cessation of the necessity.  Id.;
Sassman, 115 S.W. 337; Crone, 219 S.W.3d at 69; Miller, 94
S.W.3d 38.  Therefore, Dawson-Conway had to also prove that a necessity was
continuing.  The party claiming an implied easement has the burden of proving
its entitlement to the easement.  Miller, 94 S.W.3d at 43; Wilson v.
McGuffin, 749 S.W.2d 606, 609 (Tex. App.—Corpus Christi 1988, writ
denied).  
The
cases involving an implied easement by necessity apply a “strict necessity”
test (no other access) regardless of whether the easement stems from a grant or
a reservation.  Duff v. Matthews, 311 S.W.2d 637 (Tex. 1958) (reservation
claimed); Othen, 226 S.W.2d 622 (reservation claimed); Bains, 182
S.W.2d 397 (reservation claimed); Sassman, 115 S.W. 337 (grant claimed);[2] Kruegel
v. Nitschmann, 40 S.W. 68 (Tex. Civ. App.—San Antonio 1897, writ ref’d) (grant
claimed); Crone, 219 S.W.3d 65 (grant claimed); Machala, 56
S.W.3d at 755 (grant and reservation claimed).  An easement by necessity first arose
from a presumption that, where a grantor conveyed to a person land that was
totally surrounded by other lands belonging either to the grantor or to the
grantor and other persons, there was an intention to grant a right-of-way to
enable the grantee to access the land purchased.  The doctrine was then
extended in favor of the grantor over his grantee’s land where similar
circumstances were involved.  4 Aloysius A. Leopold, Texas Practice: Land
Titles and Title Examination § 18.31 (3d ed.); see Bains, 182
S.W.2d at 399.
            An
easement may be implied from what a “grantor and grantee must have intended had
they both given the obvious facts of the transaction proper consideration.”  Drye
v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962); see also
Mitchell v. Castellaw, 246 S.W.2d 163, 167 (Tex. 1952).  To
successfully prosecute a claim for an implied easement appurtenant, the
dominant tract owner must prove that (1) unity of ownership between the
dominant and servient estate existed, (2) the use of the easement was apparent
at the time the dominant estate was granted, (3) use of the easement was
continuous so that the parties intended its use to pass by grant with the
dominant estate, and (4) the easement was reasonably necessary to the use and
enjoyment of the dominant estate.  See Drye, 364 S.W.2d at 207; Daniel
v. Fox, 917 S.W.2d 106 (Tex. App.—San Antonio 1996, writ denied); Fender,
420 S.W.2d at 472; Hoak v. Ferguson, 255 S.W.2d 258, 260 (Tex. Civ. App.—Fort
Worth 1952, writ ref’d n.r.e.).  As opposed to easements by necessity that may
terminate, implied easements appurtenant are permanent if they are proved.[3]
The
courts have interpreted the fourth requirement of “reasonably necessary” differently
in implied reservation cases versus implied grant cases.  In implied
reservation cases, the requirement of strict necessity was first adopted by the
supreme court in Mitchell.  Mitchell, 246 S.W.2d at 168. 
In implied grant cases, many Texas courts have adopted a rule of reasonable
rather than strict necessity, citing Bickler v. Bickler, 403 S.W.2d 354,
357 (Tex. 1966).  Bickler was an implied easement appurtenant by grant
case.  The supreme court held that the dominant estate was entitled to an
implied easement (use of a driveway) because Ralph Bickler had no other legal
access to his lot.  Use of the driveway was necessary to use of the dominant
estate.  Bickler, 403 S.W.2d at 357–59.  The supreme court pointed out
that its opinion was consistent with its earlier opinions in Duff and Othen. 
Yet the majority in Daniel, for example, expanded on the “necessary”
requirement and cited Bickler for a test of “reasonably necessary.”  Daniel,
917 S.W.2d at 110. 
            Severance
of the dominant estate was in 1901.  Dawson-Conway proved the first requirement
of an easement by necessity: unity of ownership of the dominant and servient
estates existed prior to severance.  But Dawson-Conway failed to adduce
evidence that access over the Harrington ranch was a necessity and that the
necessity existed at the time the estates were severed.  See Koonce, 663
S.W.2d 451; Crone, 219 S.W.3d 65; Tiller, 96 S.W.3d 617;
Machala, 56 S.W.3d. 748.
 
Dawson-Conway argues that it was not necessary to show that the road was there
at the time of severance, only that the necessity existed at that time.  But
there was no evidence of that necessity.  In the absence of evidence that there
was a necessity to use a road or an easement over the Harrington Ranch at the
time of severance because of no other legal access to the Dawson-Conway, an
easement by necessity may not be imposed.  Tiller, 96 S.W.3d at 623; Machala,
56 S.W.3d at 756; Benedictine Sisters of the Good Shepherd v. Ellison,
956 S.W.2d 629, 632 (Tex. App.—San Antonio 1997, pet. denied); Heard,
885 S.W.2d 595–96.
Dawson-Conway
relies heavily on Daniel because of its distinction between the degree
of necessity required for easements by implied grant and those by implied
reservation.  917 S.W.2d 106.  The court in Daniel relied on Fender,
420 S.W.2d at 472, to hold that the requirement for an easement by implied
grant was reasonable necessity.  Justice Duncan dissented, stating that,
“[u]nder Texas law, a party may not have a way of necessity when he has another
legal means of access to his property.  Bickler v. Bickler, 403 S.W.2d 354,
357 (Tex. 1966); Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 642–43
(1958).”  917 S.W.2d at 113.  Based on the reasoning in Bickler and Duff,
Justice Duncan viewed the necessity requirement as being the same for implied
easements of necessity by grant or by reservation.  Id.  In 2006,
Justice Duncan wrote for a unanimous court in Crone, holding that a
party seeking an easement by necessity must prove that he has no other legal
access to his property.  Crone, 219 S.W.3d at 69.
We
follow the views expressed by the Texas Supreme Court in the easement by
necessity cases of Duff, Othen, Sassman, and Bains and
by the courts in Crone, Machala, and Tiller.  In
an easement by necessity case, whether by reservation or grant, we hold that
the degree of necessity required is that of “strict necessity.”  Dawson-Conway
had to show that their predecessor grantee at the time of severance had no
other legal access to the Dawson-Conway property and that such a necessity
still exists today.  There was no evidence of such a necessity at the time of
severance.  And today, Dawson-Conway has a legal access to its property from County
Road 167 at its northwest quadrant.  
Dawson-Conway
argues that the impassability of the terrain within Dawson-Conway supports its
right to an easement of necessity.  Dill stated that the river is impassable at
times and that the terrain in the southwest quadrant is impassable.  But rivers
are often crossed by concrete low-water crossings, and roads can be built even
in rough terrain.  There was no evidence in the record as to what such
solutions would cost.  Oil and gas lessees often build roads for the landowner
in connection with their own operations.  The maps provided by Dawson-Conway
indicate that there has been a lot of oil and gas activity on the ranch. 
Further, the topographical map indicated that roads along fence lines could
access the entire Dawson-Conway.  Dawson-Conway’s evidence did not meet even
the “reasonably necessary” test in Daniel, where the court


noted evidence
that a bridge over the creek would cost more than the land was worth. 
Dawson-Conway provided no evidence of the cost of providing a low-water
crossing or bulldozing roads in the southwest quadrant and the rest of the
ranch.  
The
current impassability of roads on the Dawson-Conway did not give Dawson-Conway 
the right to an easement of necessity.  Duff, 311 S.W.2d at 642; Crone,
219 S.W.3d at 70.  As the court in Adams v. Norsworthy Ranch, Ltd., 975
S.W.2d 424, 429 (Tex. App.—Austin 1998, no pet.), cited by Dawson-Conway, explained
in rejecting an implied easement appurtenant by grant:
The
Adamses assert that they are unable to travel by car to the southern boundary
of their property from the [express] Easement Road access on the northern
portion due to the condition of the land.  However, they concede that they can
travel by foot and could build a road, but at great expense.  “When one has
access to a part of his tract of land by way of travel over his own property,
this, as a matter of law, is a better and more direct route than one which
burdens an adjacent landowner… It does not matter that the route across one’s
own land is longer, more circuitous, or in an inferior condition physically.”  Sentell
v. Williamson County, 801 S.W.2d 220, 223 (Tex. App.—Austin 1990, no
writ).  Only when there is no way through his own land can a grantee
claim a right over that of a grantor.  Duff v. Matthews, 158 Tex. 333,
311 S.W.2d 637, 640 (1958).
 
The Adamses had
one way of access using the express Easement Road but wanted an additional
easement that they thought was reasonably necessary.
Although
cited by Dawson-Conway, Akers v. Stevenson, 54 S.W.3d 880 (Tex. App.—Beaumont
2001, pet. denied), supports Harrington’s position.  Akers was an
implied easement of necessity by grant case, although the court cited the
requirements for an implied easement appurtenant by grant.  On appeal, Akers
(owner of the servient estate) contended that there was factually insufficient
evidence to support the trial court’s grant of an easement of necessity across
Akers’s land to reach the dominant estate known as Hollis Island.  The Akers
court cited Daniel but rejected Akers’s contention on the basis that
“[w]itnesses testified the forty-four acre tract (as well as the seventy-five
acre tract) was, is, and can only be accessed by this one route” over Akers’s
land.  54 S.W.3d at 883.  The court held that the evidence was sufficient that
the route to both tracts owned by the dominant estate owner was and had always
been through the forty-four acre tract only.  Id. 
            The
situation of the parties at the time of the severance in 1901 constitutes the
operative facts to support a claim of a grant by implication.  Hoak, 255
S.W.2d at 259.  The difficulty for Dawson-Conway appears to be the lack of
evidence concerning the area in 1901.  The only evidence of a road to the south
of Dawson-Conway that existed at the time of severance was one depicted on a
U.S. Geological Survey map dated 1893.  According to Dawson-Conway, the map
shows a road running to the east and west, located to the south of the
Dawson-Conway Ranch.  Access to the Dawson-Conway portion of the Monroe Ranch
in 1901 may have been from that road at any point, but there is no evidence
that access involved crossing over the Harrington Ranch at the time of
severance.  Apparently, there were no minutes available from the Shackelford County
Commissioners Court concerning when County Roads 167 and 201 were established.
            Harrington’s
first two issues are sustained.  Therefore, it is unnecessary to address his
third and fourth issues.
This Court’s Ruling
            The
judgment of the trial court is reversed, and judgment is rendered for Mark
Harrington that Dawson-Conway has no easement by prescription or by necessity
across the Harrington Ranch.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
June
7, 2012
Panel
consists of: Wright, C.J., 
McCall,
J., and Kalenak, J.




                [1]Fred A. Simpson
and Deborah J. Selden, The “Banjo Rule” on Testimony, 20 The Advocate, Spring 2001, at 44.


                [2]Because the writ
was refused, Sassman has equal precedential value with the Texas Supreme
Court’s own opinions.


                [3]Because there was
no evidence that the roads on the Harrington Ranch existed at the time of
severance, Dawson-Conway could not have shown that it was entitled to an
implied easement appurtenant by grant.  


