                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00305-CV

BRUCE G. GAYLOR AND MARTHA
BAKER SMITH,
                                                           Appellants
v.

OLA MAE BAKER STIVER AND
DAVID WITCHER STIVER,
                                                           Appellees



                          From the 278th District Court
                             Madison County, Texas
                         Trial Court No. 09-11925-278-10


                          MEMORANDUM OPINION


      Bruce Gaylor and Martha Baker Smith appeal from a judgment rendered against

them that denied their claims against Ola Mae and David Stiver for an easement by

estoppel, trespass, declaratory judgment, and injunctive relief, and that granted a

declaratory judgment in favor of the Stivers. Gaylor and Smith complain that the trial

court erred by: (1) finding that there was not an easement by estoppel, (2) finding that
cattle guards, fences, and road materials in the easement were owned by the Stivers, (3)

denying their claims for trespass, (4) granting a declaratory judgment in favor of the

Stivers and denying Gaylor and Smith's request for a declaratory judgment, (5)

awarding attorney's fees to the Stivers, and (6) denying their request for injunctive

relief. Because we find no reversible error, we affirm the judgment of the trial court.

Background

        In 1978, J.A. Baker and Willie Lee Baker, parents of Martha Baker Smith and Ola

Mae Baker Stiver, deeded a portion of their real estate to Gaylor and Smith, who were

then married.      Gaylor and Smith built a house which was painted blue on their

property. At the same time as the property transfer, the Bakers also deeded a right of

way easement to Gaylor and Smith. The written easement included an area where there

was an existing road and was thirty feet wide and extended from a farm-to-market road

to the blue house. At the entrance to the easement, a fifteen foot wide cattle guard had

previously been placed in the center of the easement with bars measuring three feet

each placed on either side of the cattle guard. The road was also used by Baker for his

farming and ranching operations. Shortly after the conveyance of the easement, a board

fence was erected at the entrance of the easement that extended approximately ten feet

past either side of the written easement. The fence was painted the same color of blue

as Gaylor and Smith's house. The evidence was disputed as to whether it was J.A.




Gaylor v. Stiver                                                                     Page 2
Baker or Gaylor who built the fence, but the trial court's findings of fact include a

finding that Baker built the fence.

        In 1983, the Bakers deeded a parcel of land to the Stivers, which included the

land subject to the easement. The Stivers used the property in part to raise cattle. In

either 2005 or 2008, the Stivers removed the remains of the blue board fence and

replaced it because it had fallen into disrepair and could not contain their cattle. The

trial court found that the fence removal and replacement happened in 2005.

        In 2008, Gaylor and Smith's son, Jim, contacted the Stivers to inform them that he

was having materials delivered to reconstruct the blue fence as it had been prior to its

removal. The Stivers refused to allow the construction of the fence and this litigation

ensued. After a bench trial, the trial court determined that there was not an easement

by estoppel created, granted the Stivers' request for a declaratory judgment that the

easement was for purposes of ingress and egress only and that the road materials were

owned by the Stivers, awarded attorney's fees to the Stivers, and denied all of Gaylor

and Smith's claims. The trial court entered findings of fact and conclusions of law.

The Right of Way Easement

        The deed in question was entitled "RIGHT OF WAY EASEMENT" and stated

that the Bakers were granting "a right of way easement for the purpose of ingress and

egress, the free and uninterrupted use, liberty and easement of passing in and along a

certain passageway or road across the said premises…" The easement further stated


Gaylor v. Stiver                                                                       Page 3
that "no fences, buildings, or other improvements shall be placed in, on or upon said

easement…" The easement went on to say that the easement was "for the purpose of

ingress and egress, together with all the rights and appurtenances thereto in anywise

belonging to [Gaylor and Smith]." Additionally, the easement stated again that Gaylor

and Smith "shall not fence said easement or any part thereof without express consent"

of the Bakers or their assigns.     The easement concludes by reiterating that "this

easement is for the purpose of granting a perpetual right to the use of the passageway

or road and the right of ingress and egress thereon by the owners of any property

lawfully connected thereto … and to provide for access to said property for any

purpose" by Gaylor and Smith and that Gaylor and Smith did not have "any obligation

to maintain the road existing or constructed thereon."

Easement by Estoppel

        In their first issue, Gaylor and Smith complain that the trial court erred by

denying their claim that an easement by estoppel had been created when the blue fence

was constructed.     Gaylor and Smith challenge the sufficiency of the evidence

surrounding the trial court's findings that the blue fence was constructed by Baker and

that Baker did not intend that Gaylor and Smith would maintain the size and design of

the blue fence built at the entrance of the easement. Gaylor and Smith argue that the

evidence showed that it was Gaylor who built the fence with Baker's consent and

assistance and that Baker's actions "by word and deed" showed that Baker intended for


Gaylor v. Stiver                                                                 Page 4
the entranceway to be included in the easement even though its width exceeded the size

of the written easement.

Standard of Review

        Findings of fact entered in a case tried to the court have the same force and

dignity as a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991). We thus review findings of fact by the same standards that are applied in

reviewing the legal and factual sufficiency of the evidence supporting a jury's answer to

a jury question. Id.

        When the party who had the burden of proof at trial complains of the legal

insufficiency of an adverse finding, that party must demonstrate the evidence

conclusively establishes all vital facts in support of the finding sought. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). A reviewing court must examine the record for

evidence supporting the adverse finding, ignoring all evidence to the contrary. Id. If

more than a scintilla of evidence supports the adverse finding, the issue is overruled.

Id. If there is no evidence to support the adverse finding, the entire record must be

examined to determine whether the contrary proposition is established as a matter of

law.    Id.   The issue is sustained only if the contrary proposition is conclusively

established. Id. The ultimate test for legal sufficiency is whether the evidence would

enable a reasonable and fair-minded fact finder to reach the verdict under review. City

of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).


Gaylor v. Stiver                                                                     Page 5
        When a party attacks the factual sufficiency of an adverse finding on an issue on

which it had the burden of proof, the party must demonstrate on appeal that the

adverse finding is against the great weight and preponderance of the evidence. Dow

Chem., 46 S.W.3d at 242. A reviewing court considers all the evidence and will set aside

the judgment only if it is so contrary to the overwhelming weight of the evidence that it

is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under either

standard of review, the trier of fact is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697

(Tex. 1986); see also City of Keller, 168 S.W.3d at 819.

        An easement confers upon one person the valuable right to use the land of

another for a specific purpose. Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.—Tyler

2005, no pet.). Since an easement is an interest in land, the grant of an easement should

be drawn and executed with the same formalities as a deed to real estate. Id. The

doctrine of equitable estoppel, or easement by estoppel, provides an exception to

prevent injustice and protect innocent parties from fraud. Allen v. Allen, 280 S.W.3d 366,

381 (Tex. App.—Amarillo 2008, pet. denied).

        "The doctrine of easement by estoppel holds that the owner of the alleged

servient estate may be estopped to deny the existence of an easement by making

representations that have been acted upon by the holder of the alleged dominant

estate."   Ingham v. O'Block, 351 S.W.3d 96, 100 (Tex. App.—San Antonio 2011, pet.


Gaylor v. Stiver                                                                     Page 6
denied) (quoting Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.—San Antonio

1996, writ denied)). Three elements are necessary to the creation of an easement by

estoppel: (1) a representation communicated, either by word or action, to the promisee;

(2) the communication was believed; and (3) the promisee relied on the communication.

Id.

        The essence of the doctrine of easement by estoppel is that the owner of a

servient estate may be estopped to deny the existence of an easement by making

representations that are acted on by the owner of the dominant estate. Allen, 280 S.W.3d

at 381 (citing Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1962)). The gravity

of a judicial means of acquiring an interest in land of another solely by parol evidence

requires that equitable estoppel be strictly applied. Martin v. Cockrell, 335 S.W.3d 229,

237 (Tex. App.—Amarillo 2010, no pet.). The estoppel should be certain, precise, and

clear. Id.

Relevant Facts—Easement

        Gaylor testified that he built the blue fence at the entrance to the easement in

order to create, in essence, a pathway to direct people to the blue house. Other similar

board fences had been built along the road where cattle guards were installed. The

cattle guards and fences were all painted the same color of blue as the house. Gaylor

stated that Baker expressly consented to the construction of the fence and that he

assisted in building it. Boards left over from a gazebo that Gaylor and Baker had


Gaylor v. Stiver                                                                      Page 7
constructed near the blue house were used to construct the fence at the entrance to the

easement.

        At trial, Smith testified that Gaylor participated in the building of the fence, but

that Baker was the better carpenter so he did most of the work and instructed his

employees as to what to do. The fence was constructed and painted blue with Baker's

permission and approval. In her deposition, Smith had stated that Baker built the fence

with the help of his employees and that Gaylor was rarely there.

        Ola Stiver testified that the fence was constructed to designate the entrance to the

blue house for a big grand opening of the house. Smith had contacted Ola Stiver in

2005 when the fence was removed to tell her that Jim was upset that the entrance had

been replaced. Stiver stated that Smith did not claim ownership of the fence but that

her son was upset because Baker had built the fence to designate the blue house

entrance.

        David Stiver testified that the fence at the entrance to the easement had fallen

into disrepair and that he had repaired it many times over the years. He testified that

neither Gaylor nor Jim had made repairs to the fence. However, by 2005, the fence

could no longer be repaired because the wood was so rotted that it would no longer

hold nails. Stivers had cattle feeding on the property and needed a fence that would

hold the cattle in, so in 2005 he hired a person named Bullard to replace the fence.




Gaylor v. Stiver                                                                      Page 8
Bullard removed the blue boards and stacked them up, where after some time they

were eventually burned. The new fence constructed by Bullard was not painted blue.

Analysis

        The trial court was called upon to determine which recitation of the events was

true, and did so by finding that Baker built the fence and did not intend that Gaylor and

Smith would determine or be responsible for the maintenance or size of the fence.

There is conflicting evidence regarding the requirements to establish an easement by

estoppel, and the trial court resolved those conflicts in favor of the Stivers.

        Our review of the record shows that because there was more than a scintilla of

evidence to support the trial court's fact finding, the evidence was legally sufficient for

the trial court's determination regarding who built the fence. Further, we cannot say

that the evidence supporting the trial court's finding is so weak or so against the great

weight and preponderance of the evidence that it is clearly wrong and unjust. See Dow

Chem., 46 S.W.3d at 242. Further, based on the record before us, we find that Gaylor

and Smith have failed to prove an easement by estoppel as a matter of law. Likewise,

we cannot say that the trial court's failure to find an easement by estoppel is so weak or

so against the great weight and preponderance of the evidence that it is clearly wrong

and unjust. See Dow Chem., 46 S.W.3d at 242. Accordingly, we overrule issue one.




Gaylor v. Stiver                                                                     Page 9
Ownership of the Cattle Guards, Fences, and Road Material

        In their second issue, Gaylor and Smith complain of the trial court's ruling that

the cattle guards, fences, and road material located in the written easement were

conveyed to the Stivers by the Bakers and were therefore owned by the Stivers. As a

preliminary matter, Gaylor and Smith argue that the issue of the ownership of the cattle

guards, fences, and road material was not included in the Stivers' pleadings and was

not tried by consent. However, Gaylor and Smith were pursuing claims against the

Stivers for trespass to real property and chattels. Each of those causes of action includes

an element regarding ownership of the property, whether the property is real or

personal. See Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet.

denied) (trespass to real property); Jones v. Boswell, 250 S.W.3d 140, 143 (Tex. App.—

Eastland 2008, no pet.) (trespass to chattels). Additionally, the Stivers requested a

declaratory judgment construing the written deed "to confirm the nature and extent of

the easement," which could be construed to include whether the cattle guards, fences,

and road material were included and to what extent, if any. The trial court announced

its intent to determine ownership of the cattle guards, fences, and road materials during

the trial.    We do not find that the trial court's determination of ownership was

erroneous because it was not included in pleadings or tried by consent.




Gaylor v. Stiver                                                                    Page 10
Relevant Facts—Ownership

        Gaylor testified that he installed all but two of the cattle guards within the

easement, and that they were all painted blue to further direct traffic to the blue house.

One of the two cattle guards that he did not install was the cattle guard at the entrance

to the easement, which had been installed by an oil company prior to the execution of

the written easement. Jim Gaylor testified that the cattle guards were originally painted

blue but over time became blue and black, with the paint having been chipped away.

Jim did not recall how long it had been that the cattle guards were in this condition, but

also testified that he had often painted the cattle guards with blue paint he had

purchased. Jim testified that he had painted the cattle guards as recently as six months

before the trial. Smith testified that she thought that the cattle guards were black but

didn't pay attention to them.

        David Stiver testified that the cattle guards were black and had been for many

years. Stiver further testified that he had reworked or replaced all of the cattle guards

at his expense over the years. Ola Stiver testified that the cattle guards were black but

that they did not paint them that way. Ola testified that the cattle guards had never

been painted blue again after the grand opening.

        The trial court's findings of fact include a finding that the Stivers acquired the

cattle guards, fences, and road material, including the wooden entranceway when the

real property was conveyed to them by the Bakers. Once again, the trial court was


Gaylor v. Stiver                                                                   Page 11
called upon to decide which position he found to be credible and he did so in favor of

the Stivers. Our review of the record shows that because there was more than a scintilla

of evidence to support the trial court's fact finding, the evidence was legally sufficient

for the trial court's determination regarding the cattle guards, fences, and road material.

Further, we cannot say that the evidence supporting the trial court's finding is so weak

or so against the great weight and preponderance of the evidence that it is clearly

wrong and unjust. See Dow Chem., 46 S.W.3d at 242. We overrule issue two.

Trespass

        In their third issue, Gaylor and Smith complain that the trial court erred by

denying their claims for trespass for the destruction of the blue fence at the entrance to

the easement. The Stivers contend that Gaylor and Smith's claims fail because the

statute of limitations had expired prior to the filing of the claim. Gaylor and Smith

argue that the limitations issue was waived by the Stivers because it was not plead.

However, the Stivers' first amended answer did include a claim that the statute of

limitations had run, therefore, that issue was not waived by the Stivers.

        Trespass claims are governed by a two-year statute of limitations. See TEX. CIV.

PRAC. & REM. CODE ANN. § 16.003(a) (West 2002); see also Yalamanchili v. Mousa, 316

S.W.3d 33, 37 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). The trial court's

findings of fact include a finding that the blue fence was taken down in 2005 and there

was legally and factually sufficient evidence to support that finding, including the


Gaylor v. Stiver                                                                    Page 12
testimony of the Stivers, the testimony of the individual who removed and replaced the

blue fence, and an invoice for the fence removal and repair dated in 2005. Gaylor and

Smith's original petition in this matter was not filed until 2009. The trial court did not

err by denying Gaylor and Smith's claims for trespass because they were barred by

limitations.1 We overrule issue three.

Declaratory Judgment

        Gaylor and Smith's fourth issue complains that the trial court erred in granting

the Stivers' request for a declaratory judgment and denying their request because the

trial court should have declared that an easement by estoppel was created and that

Gaylor and Smith had the right to choose the color scheme of the easement. Gaylor and

Smith provide no authorities or argument separate from issues one and two in support

of this complaint. Because we have found that the trial court did not err in the first two

issues, we overrule issue four.

Attorney's Fees

        In their fifth issue, Gaylor and Smith complain that the trial court abused its

discretion by awarding attorney's fees to the Stivers but they provide no authority and

virtually no argument to support their contention. As such, this issue is inadequately

briefed, and is therefore waived. See TEX. R. APP. P. 38.1(i). We overrule issue five.


1 Additionally, we determined in issue two that the trial court did not err by finding that Gaylor and
Smith were not the owners of the fence, therefore Gaylor and Smith's trespass claims would fail on that
basis as well. See Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied); Jones
v. Boswell, 250 S.W.3d 140, 143 (Tex. App.—Eastland 2008, no pet.).

Gaylor v. Stiver                                                                                    Page 13
Injunctive Relief

        Gaylor and Smith complain in their sixth issue that the trial court erred by

denying their request for injunctive relief to prevent the Stivers from destroying the

entrance to the easement, interfering with repairs to it, and from changing the color

scheme of the easement. Because we have found in issue two that the trial court did not

err by finding that Gaylor and Smith were not the owners of the fence, there was no

error in the trial court's denial of the request for injunctive relief. We overrule issue six.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 1, 2014
[CV06]




Gaylor v. Stiver                                                                       Page 14
