                                             OPINION
                                        No. 04-08-00443-CV

                           Daniel M. VAN DAM and Cheryl L. Van Dam,
                                          Appellants

                                                   v.

                               Patrick L. LEWIS and Dorisa L. Lewis,
                                             Appellees

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 06-08-44829-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: November 4, 2009

REVERSED AND RENDERED

           This appeal stems from a dispute over a piece of property providing water access to Lake

Corpus Christi for Pernitas Point Subdivision residents Appellees Patrick L. Lewis and Dorissa

Lewis. The Lewises claim an easement exists across a portion of land owned by Appellants

Daniel Van Dam and Cheryl L. Van Dam, which provides the Lewises, and other individuals,

access to Lake Corpus Christi. The trial court granted a declaratory judgment, in favor of the

Lewises, confirming an easement by implied dedication “for the benefit of the public,
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specifically Plaintiffs and all other lot owners within the Pernitas Point Subdivision.” The trial

court also denied the declaratory judgment sought by the Van Dams as fee simple owners. We

reverse the trial court’s judgment and render judgment that the property in question is not subject

to an easement by implied dedication.

                                               BACKGROUND

        The Pernitas Point subdivision is a platted subdivision created in the late 1950’s. The

original subdivision includes numbered lots and undivided areas designated as “Undivided Q” on

the subdivision plat. Over the years, portions of the Q areas were sold to individuals holding lots

adjacent to the Q areas including one of the Van Dams’ predecessors in title.

        In 2002, the Van Dams purchased several lots that included a portion of the Q land

adjacent to their lots. The record reflects that the Van Dams, and their predecessors, paid

property taxes on Lots 1-4 and the adjacent Q-2 property. The disputed easement in question

takes the form of a path or overgrown road over that portion of the Van Dams’ property formerly

designated as Undivided Q-2. 1 The Lewises purchased their property, lots 26, 27, and 28, in

August of 2005. Their property is also adjacent and contiguous to the portion of the Van Dams’

Q-2 property in question. Critically, the Q-2 property completely separates the Lewis property

from the water. The Lewises argue there is an easement across the Van Dams’ property granting

them access to the lake. The Van Dams argue that their deed includes fee simple ownership of

the Q-2 property unburdened by any easement.

        From August of 2005 through early 2006, the Lewises accessed the lake through their

back gate, crossing the Q-2 property, to enjoy the lake. In the spring of 2006, Daniel Van Dam

notified Patrick Lewis that the Q-2 property was private property and the Lewises’ use of Q-2


        1
           For purposes of clarity, the portion of the Van Dam property over which an easement is claimed will be
referenced as the Q-2 property.

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was trespassing. The Van Dams subsequently installed a metal chain across their property with a

sign that said “Private property, no trespassing.” Additionally, the Van Dams began constructing

a retaining wall and a boat ramp on the Q-2 property.

       The record clearly establishes, and the parties do not dispute, that the Van Dams own the

Q-2 property in question. The issue before this court is whether the evidence was legally

sufficient to establish the existence of an easement by implied dedication across the Q-2

property.

                                     STANDARD OF REVIEW

       An appellate court reviews declaratory judgments under the same standards as other

judgments. TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (Vernon 2008); Lidawi v. Progressive

County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex. App.—Houston [14th Dist.] 2003, no pet.). As

such, the procedure used to resolve the issue at trial determines the standard of review on appeal.

Lidawi, 112 S.W.3d at 730. A trial court has no discretion when evaluating a question of law.

See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).            When the trial court enters a

declaratory judgment after a bench trial, an appellate court applies a sufficiency of the evidence

review to the trial court’s factual findings and reviews its conclusions of law de novo. See Black

v. City of Killeen, 78 S.W.3d 686, 691 (Tex. App.—Austin 2002, pet. denied). However, when

the court does not enter findings of fact or conclusions of law to support its ruling, all facts

necessary to support the judgment are implied. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d

46, 52 (Tex. 2003); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

To analyze the legal sufficiency of the evidence supporting a finding, we review the record in the

light most favorable to the trial court’s findings and indulge every reasonable inference that

would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Additionally,



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we credit favorable evidence if a reasonable fact-finder could and disregard contrary evidence

unless a reasonable fact-finder could not. Id. at 827; accord Ingram v. Deere, No. 06-0815, 2009

WL 1900537, *3 (Tex. Jul 03, 2009).

                               EASEMENT BY IMPLIED DEDICATION

         The trial court’s judgment specifically declares that an easement by implied dedication

burdens the Van Dams’ Q-2 property.          The Van Dams argue that the evidence is legally

insufficient to support an easement by implied dedication. “Dedication” is the “appropriation of

land, or an easement therein, by the owner, for the use of the public.”          BLACK’S LAW

DICTIONARY 371 (5th ed. 1979). Once dedicated, a landowner “reserves no rights that are

incompatible with the full enjoyment of the public.” Scott v. Cannon, 959 S.W.2d 712, 718

(Tex. App.—Austin 1998, pet denied). Whether property has been dedicated to public use is

generally a question of fact. Broussard v. Jablecki, 792 S.W.2d 535, 537 (Tex. App.―Houston

[1st Dist.] 1990, no writ). An implied dedication requires both a clear and unequivocal intention

on the part of the landowner to appropriate the land to public use and an acceptance by the

public. Gutierrez v. County of Zapata, 951 S.W.2d 831, 838 (Tex. App.―San Antonio 1997, no

writ).

A. Required Elements of Easement by Implied Dedication

         In Texas, the elements of an implied dedication are well established:

         (1)    the landowner induced the belief that the landowner intended to
                dedicate the [property] to public use;
         (2)    the landowner was competent to do so;
         (3)    the public relied on the landowner's actions and will be served by
                the dedication; and
         (4)    there was an offer and acceptance.

Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984); Stein v.

Killough, 53 S.W.3d 36, 42-43 n.2 (Tex. App.―San Antonio 2001, no pet.). Because an implied

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dedication results in “the appropriation of private property for public use without any

compensation to the landowner,” the Lewises bore a heavy burden to establish each element of

the implied dedication. County of Real v. Hafley, 873 S.W.2d 725, 728 (Tex. App.―San

Antonio 1994, writ denied).

B. Donative Intent

       Based on the facts of this case, both parties agree that some evidence of the donative

intent of the original Q-2 landowners, the developers of Pernitas Point, had to be introduced at

trial. We, therefore, look to the Lewises’ evidence establishing the landowners’ donative intent.

See Greenway Parks Home Owners Ass’n v. City of Dallas, 312 S.W.2d 235, 241 (1958). We

note “[t]he intention to dedicate must be shown by something more than an omission or failure to

act or acquiesce on the part of the owner.” Id.

       1. The Developers’ Original Subdivision of Property

       The Van Dams argue that the original division and platting of Pernitas Point negate any

donative intent of the owner. The Van Dams assert that the Pernitas Development Company

specifically provided that all streets or roadways “within the subdivision were dedicated to the

public use forever.” The subdivision plat includes numerous streets and roadways platted and

dedicated for public use. Additionally, the Van Dams’ deed specifically provides for easements

for the benefit of the utilities and telephone company. Accordingly, the Van Dams argue the

Pernitas Development Company was familiar with “the proper method and language for making

a public dedication of land,” and did not create an easement within the undivided Q properties.

Although the Van Dams’ evidence clearly establishes there is no explicit easement across the Q-

2 property, it does not foreclose the trial court’s finding of an easement by implied dedication.




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       2. Advertisement Brochure

       To establish the donative intent of the developers, the Lewises primarily rely on a

brochure distributed in the early days of the subdivision as some evidence the developers

donated an easement over the Q-2 property. Jerry Hendrick, ex-mayor and city council member,

provided the trial court with a promotional brochure including a map used by the real estate

agents when the Pernitas Point lots were being divided and sold. The map identifies a three-

hundred-foot piece of property with an arrow referencing the undivided Q property as “owner

access.” Importantly, however, the brochure in question is undated, its author is unknown, and

the meaning of the reference to “owner access” is unclear. There is no evidence linking the

brochure to the original developers. In addition to its unknown provenance, the phrase “owner

access” does not support the dedication of the Q-2 property to the general public, a requirement

of an implied dedication discussed further below.

       3. Public Use

              a. Acquiescence by Pernitas Point Developers and Landowners

       As additional evidence of donative intent, the Lewises point to the testimony of neighbors

who accessed the lake through the Q-2 property. Several neighbors testified that, for over three

decades, multiple Pernitas Point landowners have used the portion of the Q-2 property in

question to access the lake. Additionally, neighbors and long-time Pernitas Point residents

Margaret Victor and Nancy Vial, testified that the Pernitas Point residents openly and

continuously used the Q-2 property as their primary access to Lake Corpus Christi for over

twenty years. Victor explained that she was provided with a promotional brochure very similar

to the one provided to Hendrick that identified the Q-2 property as owner access. Vial further




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testified that the previous landowner assured her that the Q-2 property was designated to provide

public access to Lake Corpus Christi.

       However, determining that a dedication was intended requires more than simply failing to

act or acquiescence in the use of land, although direct evidence of an overt act or a declaration is

not required. Baker v. Peace, 172 S.W.3d 82, 88 (Tex. App.—El Paso 2005, pet. denied); see

also Betts v. Reed, 165 S.W.3d 862, 868 (Tex. App.—Texarkana 2005, no pet.) (“There must be

some evidence in addition to the owner’s acquiescence that implies a donative intent.”).

Consequently, in the present case, mere acquiescence and use by the neighbors, without some

additional factor from which the donative intent can be inferred, does not establish an easement

by implied dedication. Id.; see also Greenway Parks Home Owners Ass’n, 312 S.W.2d at 241.

               b. Use by County Officials

       The Lewises also refer to the creation and use of a road over the Q-2 property to establish

donative intent. Hendrick testified that, based on his personal knowledge, a road through the Q-2

property to Lake Corpus Christi had been paved for over thirty-five years, although currently in

disrepair, and that both Jim Wells and Live Oak County previously maintained the roadway for

the county fire trucks. Michael Frederick, an elected alderman and current mayor pro-tem,

testified that he had searched the courthouse records for any reference to an easement on the Q-2

property and had failed to find any such documents. Additionally, he testified that the county

does not currently maintain any roadway across the Q-2 property. The record reflects the road is

in complete disrepair and overgrown and the counties have not used the road for water access for

many years. See Gutierrez, 951 S.W.2d at 841 (identifying public use as “oil field and ranch

workers, fishermen, tourists, sightseers, other strangers, [] patrons, visitors, school buses, public

utilities, the fire department, the sheriff’s department, and the highway department.”). “The



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requisite intention on the owner’s part may be inferred when there is evidence of some additional

factor that implies a donative intention when considered in light of the owner’s acquiescence in

the public’s use of the roadway.” Barstow v. State, 742 S.W.2d 495, 504-06 (Tex. App.—Austin

1987, writ denied).    This additional evidence may include an owner’s acceptance of “the

expenditure of public funds by public authorities to adapt, improve, or maintain the roadway for

use by the public.” Id. at 506; see also Greenway Parks, 312 S.W.2d at 241. There simply is no

evidence in the record that the road was created for use by the public or maintained for use by

the public.

               c. Use by Public at Large

       The Van Dams next assert that even if the evidence establishes some intent that Pernitas

Point neighbors could traverse the Q-2 property, the use of the Q-2 property by a limited class of

persons is not sufficient to constitute an implied dedication of the Q-2 property for public use.

More specifically, the Van Dams argue the Lewises failed to prove the road was “free and open

to all who have occasion to use it.” Gutierrez, 951 S.W.2d at 841. We agree. Although the

parties agree the easement must be for the public at large, and not limited to the landowners of

Pernitas Point, there was no testimony that the public at large used the Q-2 property to access

Lake Corpus Christi. In fact, the brochure relied upon by the Lewises referenced the Q-2

property as “owner access” which conflicts with the idea of a dedication to the general public.

Other evidence presented by the Lewises was in accord that the use of the Q-2 property was for

ingress and egress by a limited number of individuals of Pernitas Point, rather than the general

public. The evidence was that only subdivision residents and guests were anticipated users of the

Q-2 property and there was no evidence of the original owners’ intent to dedicate the use of the

Q-2 property to the general public.



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        4. Sale and Transfer of the Q-2 Property

        None of the testifying landowners purchased their property from the Pernitas

Development Company and the county deed records relating back over thirty years, for both the

Van Dam property and the Pernitas Point subdivision, fail to reference any easement with regard

to the Q-2 property in question. In 1971, Norman and Catherine Pinson sold lots 1-7 (a portion

of which was later purchased by the Van Dams) to Bruce Ivey and Joe Pritchett. The same

warranty deed also includes a portion of the previously “undivided Block Q2 . . . which tract of

land is adjacent to . . . lots 1-7.” The original owners knew how to grant an easement as

evidenced by the plat of Pernitas Point. The apparent lack of intent to donate an easement to the

public over the Q-2 property appears particularly evident given the subsequent partition and sale

in 1971 of the original undivided Q property unburdened by an express easement.

        Based on the record before us, we conclude there is legally insufficient evidence of

donative intent by the original owners and developers of Pernitas Point to burden the Q-2

property with an easement. 2

                                                  CONCLUSION

        The Lewises failed to meet the heavy burden of proof required for donative intent by the

original landowners. There is testimony that specific individuals used the property, and that the

county previously used the access road for county fire trucks, but the record does not substantiate

any intent by the original landowners to dedicate the property in question to the public at large.

At best, there is evidence that previous owners of the disputed property acquiesced in their

neighbors’ use of their property. Importantly, however, acquiescence is not sufficient. See

        2
            In Appellants’ final issue on appeal, they argue that to the extent the trial court’s judgment could have
been based on the legal theory of easement by prescription, the evidence is legally insufficient to support the
judgment. The judgment, however, specifically provides that the “easement was an implied dedication for the use of
the public for access to Lake Corpus Christi.” We, therefore, need not address this argument. See TEX. R. APP. P.
47.1 (requiring concise opinions addressing only those issues “necessary to final disposition of the appeal”).

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Greenway Parks, 312 S.W.2d at 241. Thus, the Lewises’ evidence was legally insufficient to

prove implied dedication. See County of Real, 873 S.W.2d at 728 (reiterating heavy burden of

proof for implied dedication). Accordingly, because the evidence fails to establish, as a matter of

law, each of the required elements of easement by implied dedication, the trial court erred in

granting an easement by implied dedication for the benefit of the public, including the Lewises

and all other landowners within the Pernitas Point subdivision. We, therefore, reverse the trial

court’s judgment and render judgment that the property in question is not subject to an easement

for the benefit of the public.


                                                  Rebecca Simmons, Justice




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