                                   07-11-00404-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                        PANEL A

                                SEPTEMBER 28, 2012


              KYLE L. AND BEVERLY B. GREENWOOD, APPELLANTS

                                           v.

            MARTHA JOY LEE N/K/A MARTHA L. CLANTON, APPELLEE


            FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY;

        NO. 09-002318-CV-272; HONORABLE TRAVIS B. BRYAN III, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                        OPINION


      Appellants, Kyle and Beverly Greenwood, defendants and counterplaintiffs

below, appeal the trial court’s summary judgment which declared the scope of an

easement and respective rights of the Greenwoods as owners of the dominant estate

and neighboring servient estate owner, Martha Lee (now known as Martha Clanton),

plaintiff and counterdefendant below.    The Greenwoods challenge the trial court’s

narrow interpretation of the express easement and the limitations on their rights to use

the easement. We will affirm in part and reverse and remand in part.
                            Factual and Procedural History


      In rural Brazos County, Clanton owns a ten-acre tract of land which she uses for

residential and ranching purposes, and the Greenwoods own a neighboring forty-acre

tract they purchased in 2009. 1 The Greenwoods’ property is landlocked and connected

to Steep Hollow Road, a public road, by means of an “[e]asement and right-of-way” over

Clanton’s property. The Greenwoods decided to build a residence on their land and, in

furtherance of that development, sought to run utility lines along the easement

burdening the Clanton property.     Clanton resisted their efforts, asserting that the

easement was limited to a means of ingress and egress only per the express terms of

the easement. Clanton sued, seeking declaratory relief to the effect that the easement

was so limited.


      The Greenwoods answered and filed a counterclaim seeking declaratory relief of

their own on issues concerning widening and improvement of the road and obstruction

of the easement by locking gates. The Greenwoods took and have maintained the

position that the easement was more general in nature and permitted them three things

in addition to a simple means of ingress and egress: (1) the right to construct and lay

utility lines to their property over and across the Clanton property, (2) a means of

ingress and egress that is unobstructed by locked gates, and (3) the right to improve

and widen the access road so as to encompass the entirety of the forty-five feet

included in the creation of the express easement.



1
 More precisely, Clanton and the Greenwoods own tracts measuring, 10.62 acres and
40.5 acres, respectively.
                                           2
       Clanton moved for partial summary judgment that the easement was limited in

purpose to a means of ingress and egress only from the Greenwoods’ property to Steep

Hollow Road. The trial court granted partial summary judgment on this issue. More

specifically, the trial court concluded that the 2009 deed to the Greenwoods granted

them “the right to use the Easement for an access road for ingress and egress only and

does not grant the right to place any utilities on, under, above[,] or in such Easement.”


       Subsequently, Clanton moved for no-evidence summary judgment on the

widening, improvement, and gate issues raised in the Greenwoods’ counterclaim for

declaratory relief. The trial court granted Clanton’s no-evidence motion for summary

judgment and, in pertinent part, concluded as follows:


             1. The Easement allows ingress and egress from           Steep Hollow
       Road across the 45-foot wide strip of land described more      particularly in
       the Easement (the “45-Foot Easement Strip”) to access          the dominant
       estate property currently owned by Defendants Kyle              and Beverly
       Greenwood. . . .
              2. The Easement only allows as much use of the 45-Foot
       Easement Strip as is necessary for the full enjoyment of the Easement,
       which shall be limited to a roadway for ingress and egress that is no wider
       than twenty (20) feet. The Easement also allows use of the roadway for
       purposes of transporting loads in excess of twenty (20) feet as may be
       necessary during construction and development of the Greenwood
       Property, the Easement further allows the construction, maintenance,
       repair, and replacement of an all-weather road over the existing gravel
       roadway along the entire length of the 45-Foot Easement Strip, which road
       may be paved and include suitable drainage. All expense of construction,
       maintenance, repair, and replacement of the all-weather road shall be
       borne by the beneficiaries of the Easement, absent other agreement.




                                             3
              3. The Easement allowed the installation of a gate at the entrance
       to Plaintiff’s property (the “Clanton Gate”) and at the entrance to the
       Greenwood Property (the “Greenwood Gate”). 2 . . . .
              ....


               6. The Greenwoods and their heirs and assigns are permanently
       enjoined from the installation of utilities or communications lines running
       in, on, under, or over the Easement.
              7. The easement described as Tract II in the [2009] cash warranty
       deed . . . grants to Defendants the right to use such easement for an
       access road for ingress and egress only and does not grant the right to
       place any utilities on, under, above or in such easement. . . . .

The trial court also references the application of the provisions to the easement

recorded in 1964.


       It is in this posture that the Greenwoods’ appeal comes to this Court. In three

issues, the Greenwoods challenge the trial court’s granting of partial summary judgment

limiting the scope and purpose of the easement over the Clanton property. They also

challenge the trial court’s conclusion, by way of no-evidence summary judgment, that

the Greenwoods failed to show that (1) they were entitled to widen the road to the entire

forty-five feet encompassed in the easement and (2) they were entitled to passage

across the easement unobstructed by gates.


Summary of the parties’ positions on appeal


       The Greenwoods maintain on appeal that, despite the very clear language in the

2009 cash warranty deed by which they came to own their forty-acre tract and the

easement burdening the Clanton property, the language used in 1964 to create the

2
 The trial court’s very specific instructions regarding the installation and operation of the
gates will be recited in their entirety later in the opinion.
                                             4
easement–“[e]asement and right-of-way”–was not so limited and that the “[e]asement

and right-of-way” grants them the right to install utility lines on, under, and above the

easement to service their tract of land. The trial court, having before it the language

creating the easement in 1964 through each conveyance up to the Greenwoods’ 2009

purchase of the property and the “access road,” disagreed, concluding that the

easement permitted the Greenwoods a means of ingress and egress only and expressly

concluded that it did not grant them the right to install, maintain, replace, or repair utility

lines on, under, above, or in the easement as the Greenwoods had designed.


       Clanton, servient estate owner, maintains that the easement is more restricted,

that its scope is limited to an access road to be used only for ingress and egress to the

landlocked Greenwood property such that the dominant estate may have access to

Steep Hollow Road. Clanton has used her property for ranching purposes since she

acquired the property in 1981, and, since 1981, there has been a gate at the entrance to

her property. She has provided the Greenwoods the combination to the lock so that

they may pass through whenever the gate is locked. She maintains that the gate is

permitted and that the Greenwoods may not widen and pave the road to encompass the

entire forty-five feet provided in the express terms of the easement. The Greenwoods

challenge the trial court’s summary judgment on the scope of the easement and the trial

court’s no-evidence summary judgment as to the width and gate issues.


Chain of conveyances relating to the easement


       In April 1964, Laura M. Hicks and J.L. Mims conveyed to J.E. Weedon Jr. the

following:

                                              5
       An Easement and right-of-way over a certain tract or parcel of land
       situated in the R. Perry League in Brazos County, Texas, and being a part
       of a tract of 50 acres described as “First” tract in deed from J.L. Mims to
       M.P. Mims, et al., dated February 10, 1923, and recorded in Book 60,
       page 595, Deed Records of Brazos County, Texas, the portion of said
       tract over which the easement is hereby conveyed being a strip of land 45
       feet in width off the extreme Northeast side of said tract, – containing 2.06
       acres of land, more or less.

Months later, in November 1964, Weedon conveyed to the Veterans’ Land Board of the

State of Texas “a 45 ft. wide strip, parcel or tract of land to be used as an access road.”

Shortly thereafter, in December 1964, the Veterans’ Land Board conveyed to Everett R.

Briggs “an easement and right-of-way . . . to be used as an access road.”


       Decades passed and, in 2009, Greenwoods purchased from Briggs the forty-acre

tract and “a forty-five foot (45’) access easement” by cash warranty deed which

expressly incorporated field notes describing the easement as “a 45 ft. wide strip or tract

of land to be used as an access road.”          During the pendency of this suit, the

Greenwoods negotiated a transfer from J.E. Weedon of any rights or interests that may

have remained vested in him since November 1964 with respect to the easement.


                                 Scope of the Easement


Standard of review for traditional summary judgment


       We review the trial court’s decision to grant summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a

summary judgment, we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Id. A trial court properly grants a motion for summary judgment when the movant has

                                            6
established that there are no genuine issues of material fact and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). When the trial court does not

specify the grounds for its summary judgment, the appellate court must affirm the

summary judgment if any of the theories presented to the trial court and preserved for

appellate review are meritorious. Knott, 128 S.W.3d at 216.


General principles governing express easements and their construction


      An easement confers upon one person the right to use the land of another for a

specific purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.

2002); Lakeside Launches, Inc. v Austin Yacht Club, Inc., 750 S.W.2d 868, 871

(Tex.App.—Austin 1988, writ denied). An easement does not convey the property itself,

but it does carry with it the right to do whatever is reasonably necessary for full

enjoyment of the rights granted. See Roberts v. Friendswood Dev. Co., 886 S.W.2d

363, 367 (Tex.App.—Houston [1st Dist.] 1994, writ denied).          Easement holders,

although not occupiers of the property subject to the easement, have a duty to use

ordinary care regarding the use of the easement. Id. The easement holder has a duty

to maintain the easement, and the owner of the servient estate has no right to interfere

with the dominant estate. Id.


      Interpretation of contracts granting easements are reviewed de novo. Ferrara v.

Moore, 318 S.W.3d 487, 490 (Tex. App.—Texarkana 2010, pet. denied).               Basic

principles of contract construction govern the terms of an express easement. Canyon

Reg’l Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616 (Tex. 2008).

                                           7
An easement should be interpreted to give effect to the intentions of the parties as

ascertained from the language used in the instrument, or the circumstances surrounding

the creation of the servitude, and to carry out the purpose for which it was created.

Marcus Cable, 90 S.W.3d at 701.       That is, “[t]he contracting parties’ intentions, as

expressed in the grant, determine the scope of the conveyed interest.” Id. at 700–01.

Nothing passes by implication as incidental to the grant of an easement “except what is

reasonably necessary” to fairly enjoy the rights expressly granted. Id. at 701 (quoting

Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974)).


      So, the well-established rule is that actual language of the grant controls: “Where

an easement is created by express grant or reservation, the extent of the right acquired

depends not upon user, as in the case of easements created by prescription, . . . but

upon the terms of the grant or reservation properly construed.” 3 Kearney & Son v.

Fancher, 401 S.W.2d 897, 905 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n.r.e.); see

Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 498 (Tex.App.—Houston [1st

Dist.] 2004, pet. denied) (observing that, “[u]nless the language is ambiguous, we rely


3
  The emphasis our law places upon an easement’s express terms serves important
public policies by promoting certainty in land transactions. In order to evaluate the
burdens placed upon real property, a potential purchaser must be able to safely rely
upon granting language. Marcus Cable, 90 S.W.3d at 702. Similarly, those who grant
easements should be assured that their conveyances will not be construed to
undermine private-property rights–like the rights to “exclude others” or to “obtain a
profit”–any more than what was intended in the grant. Id. (quoting Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436, 73 L.Ed.2d 868, 102 S.Ct.
3164 (1982)). The common law does, however, allow some flexibility in determining an
easement holder’s rights; the manner, frequency, and intensity of an easement’s use
may change over time to accommodate technological development. Id. at 701. But
such changes must fall within the purposes for which the easement was originally
created, as determined by the grant’s terms. See id.

                                           8
solely on the written instrument”). When the terms of the grant are not specifically

defined, we give them their plain, ordinary, and generally accepted meaning. Marcus

Cable, 90 S.W.3d at 701. An easement’s express terms, interpreted according to their

generally accepted meaning, therefore delineate the purposes for which the easement

holder may use the property.      Id.   Any use beyond the delineated purposes is an

unauthorized presence regardless of whether the unauthorized use results in a

noticeable burden to the servient estate. 4 Id. at 703 (citing McDaniel Bros. v. Wilson, 70

S.W.2d 618, 621 (Tex.Civ.App.—Beaumont 1934, writ ref’d)).


      We may not construe the easement to grant the Greenwoods any rights beyond

those conveyed to them. See id. at 701. A change in the nature of the dominant estate

cannot alter the scope of the express easement as it was created. See Kearney & Son,

401 S.W.2d at 905 (observing that “where the parties to an instrument granting,

reserving[,] or covenanting for an easement specifically state the uses or purposes for

which it is created, the instrument is, of course, limited to such uses and cannot be

enlarged by any change in the use or character of the dominant tenement”). 5 Adhering



4
  So, although certainly important to Clanton in terms of the integrity and purpose of her
acreage, we need not consider in our resolution of this issue the potential damage to
her property that would follow from the Greenwoods’ proposed reading of the scope of
the easement. If the easement does not provide the Greenwoods this right then it is,
regardless of the extent of any damage done to the servient estate, an unauthorized
presence on the Clanton’s land.
5
  Recognizing that the easement at issue has not been used in the manner in which
they propose during the nearly fifty years of its existence, the Greenwoods seem to rely
on a corollary of this rule: If the language of the easement clearly gives the grantee a
right in excess of the one actually used, such right continues to exist notwithstanding
the exercise of a lesser privilege. See Lower Colo. River Auth. v. Ashby, 530 S.W.2d
628, 632–33 (Tex.App.—Austin 1975, writ ref’d n.r.e.); see Johnson v. Sw. Pub. Serv.
                                            9
to basic easement principles, we must decide not what is most convenient or profitable

to the Greenwoods, but what purpose the contracting parties intended the easement to

serve. See Marcus Cable, 90 S.W.3d at 702–03 (citing Dauenhauer v. Devine, 51 Tex.

480, 489–90 (1879)).


Analysis


        We begin by looking to the “plain, ordinary, and generally accepted meaning” of

the terms “[e]asement and right-of-way” as used in 1964 when Hicks and Mims

conveyed to Weedon the easement at issue. We begin with the plain and ordinary

meanings of the relevant terms from the dictionary. An “easement” is an “interest in

land owned by another that entitles its holder to a specific limited use or enjoyment.”

MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 392 (11th ed. 2003). A “right-of-way” is

defined generally as “a legal right of passage over another person’s ground.” Id. at

1073.


        Within the law, the “plain, ordinary, and generally accepted meaning[s]” of the

terms are similar. An “easement” is “[a]n interest in land owned by another person,

consisting in the right to use or control the land, or an area above or below it, for a

specific limited purpose (such as to cross it for access to a public road).” BLACK’S LAW

DICTIONARY 586 (9th ed. 2009). The term “right-of-way” has one of three meanings: (1)

“[t]he right to pass through property owned by another;” (2) “[t]he right to build and

operate a railway line or a highway on land belonging to another, or the land so used;”



Co., 688 S.W.2d 653, 655 (Tex.App.—Amarillo 1985, no writ) (recognizing that the law
provides easement holder the right to use easement “to its fullest extent”).
                                           10
or (3) “[t]he strip of land subject to a nonowner’s right to pass through.” Id. at 1440.

Consistent with the language used in 1964, the 2009 cash warranty deed by which the

Greenwoods were conveyed the property and easement defined the easement as an

“access easement,” which is defined as “[a]n easement allowing one or more persons to

travel across another’s land to get to a nearby location, such as a road.” Id. at 586.


       Case law reflects that the plain and ordinary meaning of the term “easement and

right-of-way” has become generally accepted. When asked to determine the scope of

an express easement, the Austin court concluded that the use of the word “right-of-way”

in conjunction with “easement” delineated the scope and purpose of the grant.

Lakeside Launches, 750 S.W.2d at 871. The Austin court observed that “[r]ight-of-way,

when used alone, can have more than one meaning: it may denote either a right of

passage or the right-of-way strip of land itself.” Id. (citing S. H. Oil & Royalty Co. v. Tex.

& New Orleans R.R. Co., 295 S.W.2d 227, 230–31 (Tex.Civ.App.—Beaumont 1956, writ

ref’d n.r.e.)). Therefore, the court concluded, the only reasonable reading of “easement

and right-of-way” in the grant at issue was one in which the term “right-of-way” was

used to mean “right-of-passage over and across all of the land lying between the 670-

foot contour line and the waters of Lake Travis.” Id. The Corpus Christi court arrived at

a consistent conclusion:


       We conclude that the only reasonable reading of “easement and right-of-
       way” in this grant is one in which the term “right-of-way” is used to mean
       right-of-passage over and across all the land described in the instrument,
       without a conveyance of title from the Navigation District to the County.

Long Island Owner’s Ass’n v. Davidson, 965 S.W.2d 674, 684 (Tex.App.—Corpus

Christi 1998, pet. denied) (citing Lakeside Launches, 750 S.W.2d at 871). Although the
                                             11
facts and issues in the cases before the Austin and Corpus Christi courts vary from

those in the case at bar, both cases are instructive as to the general treatment and

understanding of the term used in the instant case. In both cases, “easement and right-

of-way” was understood to mean a right to pass over described land. Id.; Lakeside

Launches, 750 S.W.2d at 871.


       According to the 2009 cash warranty deed, which refers to the servitude as an

“access easement” and specifically incorporates for all purposes field notes which also

refer to the easement as an “access easement” and describes it as “[a]ll that certain 45

ft. strip of land to be used as an access road,” the easement is clearly limited to an

access road. Even if we were to limit our review to the 1964 language “[e]asement and

right-of-way over” the servient estate, a description which the Greenwoods advance as

broader in scope than the 2009 cash warranty deed, 6 our conclusion remains the same:

based on the plain, ordinary, and generally accepted meaning of the terms used, the

easement serving the Greenwoods’ property and burdening the Clanton property is

limited in scope to an easement for means of ingress and egress only. Installation of

utility lines is not permitted by the terms of the grant of the easement; therefore, any use

of the easement to do so is an unauthorized presence on Clanton’s property. See

Marcus Cable, 90 S.W.3d at 703.


       Based on the express terms of the “[e]asement and right-of-way” as it was

created in 1964 and through its conveyance to the Greenwoods in 2009, the trial court

properly concluded that, as a matter of law, the easement at issue was limited in scope

6
  And for that reason, they negotiated the aforementioned transfer from Weedon of any
interest that remained vested in him from the 1964 creation of the easement.
                                            12
to a means of ingress and egress only and that, contrary to the Greenwoods’ broader

interpretation, the installation of utility lines on, under, above, or in the easement was

outside the express purpose of the easement and therefore unauthorized.            Simply

because the Greenwoods have undertaken to develop the land into residential property

does not mean the scope of the easement therefore adjusts to fit the changing nature of

the dominant estate. See Kearney & Son, 401 S.W.2d at 904–05. We overrule the

Greenwoods’ first issue. Having determined that the trial court properly determined the

scope of the easement, we turn to the issues concerning the width of the easement.


                    Widening and Improvement of the Existing Road


      In their counterpetition, the Greenwoods sought declaratory relief that they were

entitled to widen and improve the existing road to include the entire forty-five feet as

provided in the express language of the easement. Clanton moved for no-evidence

summary judgment on the basis that the Greenwoods “do not have any evidence that

there is any reasonable reason they need to use the entire 45-foot easement for an

access road.”7 The Greenwoods responded that they were entitled to the declaratory

relief requested regarding the width issue “under the terms of the easement and under

applicable Texas law.”     The trial court granted Clanton’s no-evidence motion for

summary judgment concluding that the Greenwoods were not so entitled.

7
  She also asserted a number of other elements of which she claimed the Greenwoods
had no evidence: “(1) there is a [justiciable] controversy or anything more for the Court
to declare in this regard; (2) that the declaration sought is anything other than an
impermissible advisory opinion; (3) there is any reasonable need to use the entire 45-
foot wide easement for an access road; (4) that the easement at issue grants more right
than reasonably necessary for Defendants to use the easement for an access road.” In
response, the Greenwoods point out that there are several, and, we think, obvious
“unresolved disputes” regarding the width of the easement and gating issues.
                                           13
Standard of review for no-evidence summary judgment


       A no-evidence summary judgment is essentially a pretrial directed verdict; thus,

we apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 750–51 (Tex. 2003). We review the evidence in a light most favorable

to the nonmovant and disregard all evidence and inferences to the contrary. Id. at 751.

We will sustain a no-evidence point when (a) there is a complete absence of evidence

of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to

the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital

fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the

opposite of the vital fact. Id. More than a scintilla of evidence exists when the evidence

“rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.” Id. (quoting Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)).   With that, our task in reviewing a no-evidence summary judgment is to

determine whether the nonmovant produced any evidence of probative force to raise a

fact issue on the material questions presented. Kimber v. Sideris, 8 S.W.3d 672, 675–

76 (Tex.App.—Amarillo 1999, no pet.)


       On a no-evidence motion for summary judgment, the movant does not bear the

burden of establishing each element of its own claim or defense because the burden is

on the nonmovant to present enough evidence to be entitled to a trial. See Gen. Mills

Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.—Dallas 2000, no pet.).

A no-evidence motion for judgment motion must specifically state the elements for

                                             14
which there is no evidence.      TEX. R. CIV. P. 166a(i).    If the motion challenges the

nonmovant’s proof on a matter that is not an element of its case, the challenge is

insufficient. See Mott v. Red’s Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex.App.—

Houston [1st Dist.] 2007, no pet.); Culver v. Gulf Coast Window & Energy Prods., Inc.,

No. 01-11-00080-CV, 2012 Tex. App. LEXIS 415, at *22 (Tex.App.—Houston [1st Dist.]

Jan. 19, 2012, no pet.) (mem. op.).


Law on the breadth of the express easement: the Greenwoods’ rights


       The Greenwoods as the parties seeking an affirmative declaration that they are

within their rights to widen and improve the road to forty-five feet had the burden to

show that they were entitled to such relief. See Graff v. Whittle, 947 S.W.2d 629, 634–

35 (Tex. App.—Texarkana 1997, writ denied) (determining in a declaratory judgment

action, the defendants, who contended they had a right to use the road because it was

a public road and because they had an easement in the road, asserted the affirmative of

the controlling issue and had the burden of proof). Before we evaluate the evidence

produced in this case, we first address what was needed.              That is, we first must

ascertain what the Greenwoods would have to prove in order to establish that the

easement entitles them the right to use the entire forty-five feet.


       In determining the breadth of the Greenwoods’ easement, we remain mindful that

their rights do not arise solely from necessity or convenience; rather, they arise from an

express grant in a recorded instrument. See Williams v. Thompson, 256 S.W.2d 399,

403 (Tex. 1953). Consequently, their rights as the dominant estate are paramount, to

the extent of the grant, to the rights of the servient estate.        See id.   Again, when

                                             15
considering the terms of an express easement, we apply basic principles of contract

construction. Marcus Cable, 90 S.W.3d at 700. And, the intent expressed in the grant

by the contracting parties determines the scope of the easement. Id. at 700–01.


       “[T]he owner of a way, whose limits are defined in the grant, has not only the

right of free passage over the traveled part but also over such portions of the way as he

thinks proper or necessary.” Williams, 256 S.W.2d at 403 (citing Murray v. Dickson, 123

S.W. 179, 183 (Tex.Civ.App.—Dallas 1909, no writ)). In Williams, the court held that

the holder of the dominant estate had the right to use the entire thirty feet described in

the grant for a roadway because “it follows logically, in the absence of restrictive words

in the grant, that the grantee can fit the entire width for use.” Id. at 404 (quoting Rotch

v. Livingston, 40 A. 426, 427 (Me. 1898)). As far as width is concerned, an easement

holder’s “right to make a road is as wide as his right to a road.” Id. (quoting Rotch, 40 A.

at 432); see Unger v. Landry, No. 01-03-01331-CV, 2005 Tex. App. LEXIS 91, at *6–11

(Tex.App.—Houston [1st Dist.] Jan. 6, 2005, pet. denied) (mem. op.) (applying Williams

to determine as a matter of law that the holders of easement had right to full extent of

the thirty-foot width as delineated by express terms of the easement).


Limitations on the Greenwoods’ Rights


       The Texas Supreme Court also explored the limitations on an easement holder’s

right to use the full width of an express easement. Williams, 256 S.W.2d at 403–05.

The court specifically rejected the limitation proposed by the Supreme Court of Illinois.

See id. at 404 (rejecting limitation expressed in Doan v. Allgood, 141 N.E. 779, 780 (Ill.

1923)). The Doan court held that the grantee of a private road easement may make

                                            16
such grades, etc., as may be necessary to enable him to make use of the way in

accordance with the grant, “provided in doing so he does not injure the servient estate.”

Doan, 141 N.E. at 780. The Williams court regarded “this last proviso as too broad to

constitute a valid limitation on a private road easement owner” and did not approve it.

Williams, 256 S.W.2d at 404. Further, if language in the Rotch case could be read “as

an absolute non-injury limitation,” it rejected that limitation as also too broad.      Id.

Instead, Williams expressly adhered to the “proper, practical[,] and workable limitation”

in Lone Star Gas Co. v. Hutton, 58 S.W. 19, 21 (Tex. Comm’n App. 1930, holding

approved).   That is, if the easement holder exercises the rights conferred in the

instrument without negligence, no damages are recoverable. 8 Id.


Analysis


      Here, the express terms of the grant give the Greenwoods the unrestricted right

to use the entire forty-five feet of a strip of land along the northeastern edge of the

servient estate.   No words in the grant specifically limit the Greenwoods’ use to a

specific roadway then in use or to that part of the easement which may be necessary or

convenient. Cf. Williams, 256 S.W.2d at 400, 405 (finding no such limitation in deed

language that allowed use of “the streets, alleys and roads running through said

property . . . more carefully described as [metes and bounds]”).

8
  So, it would appear that the limits on the Greenwoods’ exercise of their rights granted
by the easement come in the form of a cause of action in negligence, not an issue
before the trial court or before this Court at this time. We expressly decline to be read
as making any comment or conclusion that would bear on any future action concerning
any issue raised relating to allegations of negligent injury to land in connection with use
of the easement at its fullest or widest extent.

                                            17
      On appeal, Clanton takes the position that “[a]n easement holder does not have

carte blanche to use an easement to the fullest extent of his theoretical rights; he is

required to make reasonable use of the easement.” She relies on Lamar Cnty. Elec.

Co-op Ass’n v. Bryant, 770 S.W.2d 921, 923 (Tex. App.—Texarkana 1989, no writ), to

support her position. However, Lamar County Electric does not outline the burden that

was placed on the Greenwoods as the parties seeking affirmative declaratory relief in

connection with the scope of an express easement. 9 That is, unlike the easement at

issue in Lamar County Electric, the easement at issue in the instant case is an express

easement, the construction of which varies significantly from a prescriptive easement as

do   the   respective    rights   and   responsibilities   of   the   parties   involved.

See id. at 922. Here, we deal with a creature far different than that addressed in Lamar

County Electric; we need only look to the instrument creating the easement to

determine the width of the easement.       See Williams, 256 S.W.2d at 404.          The

Greenwoods’ “right to make a road is as wide as [their] right to a road.” Id. (quoting

Rotch, 40 A. at 432).


      Because the trial court’s no-evidence summary judgment held the Greenwoods

to a burden they did not bear under the law applicable to the circumstances at hand,

that summary judgment was improper. See Mott, 249 S.W.3d at 98. In other words, it

is of no moment whether the Greenwoods were able to muster a scintilla of evidence

regarding the “reasonable necessity,” “reasonable discretion,” or “reasonable reason,”

9
  Likewise, the case on which Lamar County Electric relies is distinguishable from the
instant case. See Simpson v. Phillips Pipe Line Co., 603 S.W.2d 307, (Tex.Civ.App.—
Beaumont 1980, writ ref’d n.r.e.). In Simpson, the instrument granting the easement at
issue, while obviously express in nature, did not specifically outline the width of the
easement. See id. at 309.
                                          18
all limitations Clanton has attempted to apply to the Greenwoods’ choice to use the

easement to the full extent of their rights; the applicable law does not call upon them to

do so.    As holders of an express easement granting them a forty-five-foot-wide

easement, they need only bring evidence of the easement and its terms. They did.


       Proper construction of the express terms of the easement does not allow for an

indefinite description of the width of the easement, nor can the terms be read to give the

servient estate owner any right to determine when or whether the easement holder may

exercise his rights to the fullest extent expressly granted. No terms specifically limit the

Greenwoods’ rights with respect to the forty-five feet included in the easement. The

Greenwoods hold the right to a forty-five-foot-wide easement over defined property and,

on these facts, “there can be no controversy over what land is included and really

conveyed.”    See S. Pine Lumber Co. v. Hart, 340 S.W.2d 775, 780 (Tex. 1960).

Because the easement here can be given a definite meaning, we construe it to

encompass the boundaries set forth in the unambiguous terms of the instrument

creating the easement and further specified in the metes and bounds description

provided in the 2009 cash warranty deed by which the Greenwoods acquired their

property and the easement. See Marcus Cable, 90 S.W.3d at 703. The Greenwoods

hold the right to an easement forty-five feet in width. Though these rights are in excess

of the ones that have been used, such rights still exist notwithstanding the prior exercise

of a lesser privilege. See Lower Colo. River Auth., 530 S.W.2d at 632–33.


       So, based on the longstanding rule outlined in Williams, the Greenwoods are

permitted to use the easement to the full extent of the express terms of the instrument

                                            19
by which it was created. Accordingly, we sustain the Greenwoods’ second point of

error, reverse the trial court’s no-evidence summary judgment which limits the

Greenwoods’ right to use only twenty feet of the easement, and remand the matter to

the trial court for further proceedings related to the Greenwoods’ action seeking

affirmative declaratory relief. 10


                                       Gate Issue


       In the Greenwoods’ final issue on appeal, we are asked to return to the issue

concerning the scope of the easement. That is to say, we must decide another matter

relating to what can and cannot be done with respect to the use of the easement at

issue. Here, the issue is whether Clanton is permitted to use a locking gate along the

easement.      The Greenwoods contend that she cannot, that they are entitled to

unobstructed access along the easement. Clanton maintains that she can so long as

the Greenwoods are given access through those gates and may still use the easement




10
  No one contends that the language used in 1964–“45 feet in width”–is ambiguous;
rather, it seems, they disagree over its implementation. When, after applying
established rules of contract construction, an easement is open to only a single,
reasonable and definite interpretation, we must construe it as a matter of law even
though the parties offer different interpretations of the easement’s terms. See Marcus
Cable, 90 S.W.3d at 703. However, because the trial court could not have granted
judgment as a matter of law on this issue when there was before it no motion urging it to
do so, we are similarly limited in the remedy we may give. See TEX. R. APP. P. 43.2(c)
(permitting the court of appeals to render the judgment the trial court should have).
With that, we will reverse the trial court’s judgment granting Clanton’s no-evidence
motion for summary judgment to the degree it limits the Greenwoods’ rights to use the
easement to any width less than the full forty-five feet provided for in the express terms
of the easement. We are, however, constrained to remand the matter to the trial court
for appropriate resolution and disposition of the Greenwoods’ request for declaratory
relief on this particular issue.

                                           20
for access to and from Steep Hollow Road. The trial court rendered a very specific

judgment on the matter, permitting two gates with very specific instructions:


              3. The Easement allows the installation of a gate at the entrance to
      Plaintiff’s property (the “Clanton Gate”). The Clanton Gate shall be
      aligned with the road so as to open onto the road, allowing vehicular
      ingress and egress so that vehicles need not leave the road to pass
      through the gate. The Clanton Gate, when opened, shall provide an
      opening of not less than 16 feet. At the discretion of Plaintiff, the Clanton
      Gate may be locked. The owners of the Greenwood property shall at all
      times be provided with a key or combination as applicable to allow access
      through the Clanton Gate. The key or combination shall not be changed
      by Plaintiff more often than annually, absent extraordinary circumstances.
      The owners of the Greenwood Property or the Clanton property may, at
      their respective sole expense, install a double-locking device on the
      Clanton Gate, which allows access by either party with such party’s own
      key or combination. The parties shall reasonably cooperate so that the
      locking, opening, and closing of the Clanton Gate shall be conducted by
      each party so as to not unreasonably disturb Plaintiff’s use of her property
      or use of the 45-Foot Easement Strip by the owners of the Greenwood
      Property.
             4. The owners of the Greenwood Property shall follow the “cowboy
      rule” of etiquette for the condition of the Clanton Gate, i.e., leave the gate
      in the same condition it was found; if it was open when encountered, then
      pass through and leave it open, and if it was closed, then open and pass
      through and close it.
             5. The Greenwood Gate, which shall be within the sole control of
      the owners of the Greenwood property, shall be of such design and type
      as the owners of the Greenwood Property elect in their sole discretion,
      and Plaintiff shall not be entitled to any key, combination, or other access
      through the Greenwood Gate. If the Greenwood Gate is left continuously
      or habitually open, removed, or is otherwise inadequate to keep Plaintiff’s
      property and livestock safe or secure or from escaping onto the
      Greenwood Property, Plaintiff may install and have sole control over a
      gate to be located on Plaintiff’s property at the entrance to the Greenwood
      Property; provided that the owners of the Greenwood Property shall be
      provided with a key or combination to allow free and continuous access
      through the gate to be installed by Plaintiff.




                                           21
Applicable Law and Analysis


      In support of her alternative request for summary judgment, Clanton presented

evidence that her property had been used as a ranch for livestock since at least 1981,

that it continues to be used for ranching purposes, and that, since 1981, a gate has

stood on the easement at the entrance to her property. She also presented evidence

that she uses her land to tend horses, burros, goats, chickens, and other livestock. In

her no-evidence motion for summary judgment, she contended that the Greenwoods

could not produce evidence that they are entitled, by specific terms of the easement or

by any other document or fact, to use the easement free of gates or other obstructions.


      The express terms of the easement do not address the matter of gates. To show

that they were entitled to passage over the easement unobstructed by gates when the

easement’s terms do not address the issue, the Greenwoods were called on to show

that their claim to gate-free passage over the easement is reasonably necessary and

convenient and that their claimed right places the lightest possible burden on Clanton’s

property. See Reaves v. Lindsay, 326 S.W.3d 276, 282 (Tex.App.—Houston [1st Dist.]

2010, no pet.).        We engage in this balancing test, guided by the following

considerations: “the terms of the grant, its purpose, the nature and situation of the

property, and the manner in which it is used” unless the easement’s language provides

direction otherwise.    Gerstner v. Wilhelm, 584 S.W.2d 955, 958 (Tex.App.—Austin

1979, writ dism’d) (concluding that trial court did not abuse its discretion by requiring

servient estate to remove gates from easement providing access to otherwise




                                           22
landlocked property and quoting Arden v. Boone, 221 S.W. 265, 266 (Tex. Comm’n

App. 1920, judgm’t approved)).


      Again, the express terms of the easement remain silent on the issue of gates.

We note that the easement was created to provide access to the landlocked forty-acre

tract belonging to the Greenwoods.       They are developing their land for residential

purposes, and Clanton uses her land for residential and ranching purposes.

Considering the nature of the properties at issue, gate-free passage does not appear

reasonably necessary or convenient.


      The Greenwoods presented evidence that (1) there was not a closed or locked

gate at the time they inspected the property near the time of their purchase, (2) the gate

was often left open, (3) for the nearly forty-five-year period when Briggs, their immediate

predecessor in interest, owned–but did not reside on–the property, only on a few

occasions was the gate locked such that he could not pass through the gate, and (4)

during their ownership of the property, the Greenwoods have encountered the gate both

opened and closed. 11 From this evidence, we can ascertain that a gate has been

present for decades but was not always locked. Cf. McDaniel v. Calvert, 875 S.W.2d

482, 483, 485 (Tex.App.—Fort Worth 1994, no writ) (noting among other factors that, for

decades, gates had not existed on easement in question). We also learn that the

nature of the Greenwood property is to be changed dramatically from what sounds to be

range or ranch land to residential use. The Greenwoods’ evidence that a locked gate

was rarely used in the past does not establish that access over the easement without

11
  In her affidavit, Clanton maintained that she most often keeps the gate closed but
occasionally leaves it open.
                                            23
gates is, at this point in time, reasonably necessary or convenient and the least burden

on the Clanton property.


       In fact, the Greenwoods’ own evidence in response to Clanton’s no-evidence

motion for summary judgment indicates they are amenable to a closed, locked gate so

long as they are given access to the gate without having to leave their vehicles,

suggesting that gate-free access is not reasonably necessary. From Kyle Greenwood’s

affidavit in response to Clanton’s no-evidence motion for summary judgment, it appears

that the Greenwoods want easier access and would accept a locked gate so long as

they need not get out of their vehicle in order to gain entrance through it:


       My wife and I do not believe it is reasonable for Martha Clanton to block
       access to the 45-foot wide easement with a chained and locked gate at
       the entrance to her 10-acre tract. This requires getting in and out of a
       vehicle, regardless of the weather, to use the easement and right-of-way.
       There was no such chained and locked gate across the easement
       entrance to the Clanton property when we purchased our 40-acre tract.
       We would have no objection if she installed an electric gate at the
       entrance to her 10-acre tract that could be opened with a remote control
       device or by use of a mounted keypad that could be accessed from a
       vehicle window.
So, the Greenwoods’ position, more precisely worded, may be that they are entitled to

access over the easement without having to get out of the car to pass through a gate. 12


       Considering the purpose of the easement, the Greenwoods should have

continuous access to their tract of land. Considering the nature and situation of the

land, gates are reasonable; the Greenwoods presented no evidence that their passage

12
  “[W]e tend to think that it is necessary for us to do everything from our automobiles. I
maintain, however, that it is not unreasonable to exit from an automobile and open a
gate.” See Ferrara, 318 S.W.3d at 500 n.11 (Moseley, J., concurring in part and
dissenting in part).

                                             24
free of gates is reasonably necessary or convenient to the Greenwoods’ use of the

easement. So long as the Greenwoods are provided complete and continuous access

through the gate at the boundary of the Clanton tract, the purpose of the easement is

served and the needs of the respective parcels of land are served. The Greenwoods

have failed to present evidence that they are entitled to pass along the easement

without gates. The trial court properly granted no-evidence summary judgment on this

issue. 13 We overrule the Greenwoods’ final point of error.


                                         Conclusion


       We reverse the trial court’s judgment that limits the Greenwoods’ rights in

connection with the easement to a road not to exceed twenty feet in width. We remand

to the trial court the matters concerning only the Greenwoods’ request for declaratory

relief that they are entitled to use the entire forty-five-foot width of the easement. We

affirm the trial court’s judgment in all other respects.




                                                   Mackey K. Hancock
                                                       Justice


Pirtle, J., concurring and dissenting.




13
   As for the details of the trial court’s judgment concerning the specification and
operation of the gates to be used, the Greenwoods have not specifically challenged the
judgment on those terms. We limit our review solely to the trial court’s conclusion that
the easement permitted installation of gates and its logical corollary that the
Greenwoods were not entitled to passage over the easement free of any gates.
                                              25
