                                 NO. 07-07-0218-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                FEBRUARY 20, 2009

                        ______________________________

                          KODY KOTHMANN, APPELLANT

                                          v.

             GARY ROTHWELL D/B/A ROTHWELL HOMES, APPELLEE
                    _________________________________

            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2001-512,714-A; HONORABLE J. BLAIR CHERRY, JR., PRESIDING
                     _______________________________


Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J.1


                                      OPINION


      Kody Kothmann appeals a judgment declaring under an instrument granting the City

of Lubbock five drainage easements, surface water from the development of Gary Rothwell




      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005).
d/b/a Rothwell Homes can flow through the easements and onto the land of Kothmann.2

Finding the trial court correctly construed the granting instrument, we affirm.


                                       Background


       Rothwell owned undeveloped land west of a 64-acre tract owned by Jackie Philpott,

Kothmann’s predecessor in title. Rothwell desired to develop a subdivision on his realty

and the City required he obtain, in the City’s name, drainage easements on Philpott’s

property before development. In January 2000, Philpott executed an instrument entitled

“Drainage Easement” granting the City five drainage easements, each measuring fifty feet

by two hundred feet.3 The instrument was recorded in Lubbock County on January 24,

2000. Kothmann subsequently acquired the property of Philpott. Kothmann does not

dispute that he acquired Philpott’s property burdened with the easements. The dispute

focuses on the extent of the rights granted the City.


       At the time Kothmann acquired the property, the easements were not opened and

a “fence-line berm” separated his land from that of Rothwell. After the easements were

opened, Kothmann filed suit alleging damages from water flowing from the easements onto

his land. He also sought a declaratory judgment that the instrument did not permit the flow



       2
       We addressed related claims in a previous opinion. Kothmann v. City of Lubbock,
No. 07-04-0532-CV 2006 WL 756638, 2006 Tex. App. Lexis 2296 (Tex.App.–Amarillo
March 24, 2006, no pet.) (mem. op.).
       3
        The instrument creates the easements at various locations along the boundary
between the tracts now owned by Kothmann and Rothwell, each easement extending from
the boundary two hundred feet into Kothmann’s property. Kothmann’s 64-acre tract
extends some distance eastward beyond the end of the easements.

                                             2
of water off the easements onto the remainder of his property.          Rothwell filed a

counterclaim for declaratory relief seeking a declaration that water flowing through the

easements could continue past the boundaries of the easements. The City as owner of

the easements was joined to the declaratory judgment claims. Although not bifurcated by

order, the declaratory judgment claims were tried first, to the court. In the resulting

declaratory judgment, the trial court found the easements granted by the instrument

allowed “drainage of water onto [Kothmann’s] property at the five locations described

therein, and that such surface water is allowed to then continue its flow beyond the

boundaries of those five locations.” The court severed the declaratory judgment action

from the remainder of Kothmann’s claims, abated the remaining claims, and Kothmann

appeals the declaratory judgment.


                                      Discussion


      We review de novo a trial court’s interpretation of an unambiguous contract, as well

as its determination whether a contract is ambiguous. MCI Tel. Corp. v. Tex. Utils. Elec.

Co., 995 S.W.2d 647, 650-651 (Tex. 1999) (interpretation); ConocoPhillips Co. v. Incline

Energy, Inc., 189 S.W.3d 377, 380 (Tex.App.–Eastland 2006, pet. denied) (ambiguity). In

conducting a de novo review, we exercise our own judgment and redetermine each legal

issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999).


      In his first issue, Kothmann argues the court’s declaration expands the limitations

expressed in the instrument. He contends the trial court should have declared waters




                                           3
drained into the five easements described in the instrument are not permitted to move

beyond the defined boundaries of the easements. We disagree.


       Pertinent to our discussion, the instrument provides:


               THAT JACKIE PHILPOTT . . . ha[s] by these presents GRANTED,
       BARGAINED, SOLD and CONVEYED and by these presents do[es]
       GRANT, BARGAIN, SELL and CONVEY unto the CITY OF LUBBOCK, its
       legal representatives, successors and assigns, for the use of the public as
       a perpetual and permanent drainage easement, the free and uninterrupted
       use, liberty of passage in, on, along, over, upon, under and across all the
       property lying and being situated in Lubbock County, Texas, and being more
       particularly described as follows, to wit:

              [description of five tracts]
                                             ***
              SO LONG AS the public continues to use said property for the
       purposes herein stated, said easement includes, but is not limited to, the free
       and uninterrupted use, liberty and privilege of passage in, along, over,
       across, under, upon and against the above described land for the purpose
       of constructing, reconstructing, maintaining, repairing, cleaning and clearing
       said premises for the free and unobstructed drainage of surface water;
       together with the right of ingress, egress and regress for such purposes in,
       on, along, through and across all the property above described.

               It is hereby covenanted and agreed that the CITY OF LUBBOCK
       retains and reserves the right to set and determine the drainage grade and
       direction of flow of surface waters on the real estate above described, and
       buildings or like permanent structures shall not be erected, built or
       constructed in, upon, over, and along, or across the real estate above
       described . . . .


       An easement is an interest in land and carries with it some right to use, or benefit

from, the land for a specified purpose. Gollinger v. State, 834 S.W.2d 553, 555-56 (Tex.

App.–Houston [14th Dist.] 1992, no writ). Easement agreements are interpreted according

to the rules of contract construction and interpretation. Boland v. Natural Gas Pipeline Co.

of Am., 816 S.W.2d 843, 844 (Tex. App.–Fort Worth 1991, no writ). If the instrument is

                                             4
unambiguous, the court will give effect to the intention of the parties as expressed in the

writing. In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (citing Sun Oil Co.

v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981)). To achieve this objective, courts examine

and consider the entire writing in an effort to harmonize and give effect to all its provisions

so none are rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

No single provision taken alone will be given controlling effect; rather, all the provisions

must be considered with reference to the whole instrument. Myers v. Gulf Coast Minerals

Management Corporation, 361 S.W.2d 193, 196 (Tex.1962). A proper construction of the

terms of a grant, considered in the light of attending circumstances, determines the

purpose or extent of the right of use of an easement. Kearney & Son v. Fancher, 401

S.W.2d 897, 905 (Tex.Civ.App.–Fort Worth 1966, writ ref’d n.r.e.).


       Mindful of these standards as well as the rule that if a term in a conveyance is not

specifically defined, that term is given its plain, ordinary, and generally accepted meaning,4

we turn to the instrument.


       According to the instrument, the purpose of the grant from Philpott to the City was

creation of a “perpetual and permanent drainage easement.” For drainage, the instrument

grants the City “liberty of passage . . . over . . . and across” each of the easements

described by the instrument. As used here, “passage” means “to go past or across.”

Merriam-Webster’s Collegiate Dictionary 905 (11th ed. 2003). The instrument expresses



       4
         See Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)
(citing Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557
(Tex. 1953)).

                                              5
the parties’ intention that water drain freely without restraint over and across the

easements.


       Kothmann argues the language of the instrument permits the City and Rothwell to

drain only so much water as will naturally dissipate within the dimensions of the five

easements. But this reading requires wringing from the text of the instrument a limitation

that the City may do no more than impound water within each easement.                  This

interpretation creates something other than a drainage easement and is not consistent with

other language used in the instrument. For example, the instrument vests in the City the

right to “set and determine the drainage grade and direction of flow of surface waters.”

Moreover, the instrument grants the City maintenance access to the easements for the

“free and unobstructed drainage of surface waters,” a purpose clearly at odds with

Kothmann’s reading.


       Kothmann further argues the trial court’s ruling renders the stated boundaries of the

easements meaningless, contrary to standards of contract construction.           We again

disagree. Under the instrument language, the City’s maintenance access and activities are

limited to the described boundaries, as are its right to set and determine drainage grade

and direction of water flow. Further, the restrictions on the erection of buildings or like

structures exist only within the boundaries of the easements. But, consistent with the

stated purpose and other terms of the easement, we cannot agree the flow of water is

limited in the way Kothmann sees it. The trial court did not err in declaring that surface

water could flow beyond the boundaries of the five easements. We overrule Kothmann’s

first issue.

                                             6
        The trial court also declared the instrument free of ambiguity. In his second issue,

Kothmann challenges this declaration, contending as an alternative proposition that each

party’s interpretation of the instrument is legally reasonable, rendering the instrument

ambiguous.


        A contract is ambiguous if after applying established rules of construction it is

susceptible to more than one reasonable meaning. DeWitt County Elec. Coop., Inc., 1

S.W.3d 96, 100 (Tex. 1999). With respect to the declarations sought, we find the

instrument is subject to only one reasonable interpretation, that expressed by the trial court

in its judgment. The instrument is not ambiguous. Kothmann’s second issue is overruled.


        Having overruled Kothmann’s two issues on appeal, we affirm the judgment of the

trial court.




                                    James T. Campbell
                                         Justice




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