
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.

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
d/b/a Rothwell Homes can flow through the easements and onto the land of Kothmann.
 
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.
  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
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
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
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,
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
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.
          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
