                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   No. 07-17-00133-CV


               JOHN B. GORDON AND RUTH A. GORDON, APPELLANTS

                                            V.

                 JASON DEMMON AND JUTTA DEMMON, APPELLEES

                           On Appeal from the 169th District Court
                                      Bell County, Texas
              Trial Court No. 249,484-C, Honorable Gordon G. Adams, Presiding

                                     April 23, 2019

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellants John B. Gordon and wife Ruth A. Gordon sued appellees Jason

Demmon and wife Jutta Demmon to establish an easement allowing access to their

landlocked property. They pled entitlement to an easement under various theories,

including necessity. Mona Marie Counts and Joy Dale Nugent intervened in the suit

seeking similar relief.1 After a bench trial, the court declared two easements by necessity




      1   Evidence showed Counts and Nugent owned a tract of land north of the Gordons.
in favor of the Gordons and an easement by necessity in favor of Counts and Nugent.

Dissatisfied with the extent of the relief granted, the Gordons appeal. Counts and Nugent

did not join the appeal. The Demmons present a cross-point on appeal. We will overrule

the Gordons’ issues and the Demmons’ cross-point and affirm the judgment of the trial

court.


                                       Background


         During 1969 the Gordons contracted with William L. Bremser and his wife, Marleen

L. Bremser, to buy an irregularly-shaped, 6.02-acre tract severed from the Bremser’s

larger tract. The Gordons satisfied the contract terms and title was conveyed to them by

warranty deed in 1971.       It is undisputed that the land the Gordons purchased is

surrounded by land owned by others and does not abut a public road.


         From the time of their purchase, the Gordons used two routes to access their

property. On the south and west side of their tract is a gravel road known as “South

Road.” Along the north side of the property is a way known as “Schrader Road.” The

center twenty-foot strip of Schrader Road is paved with what was described at trial as

chip seal or old asphalt.


         In 2003, the Demmons acquired the tracts that contain Schrader Road and the

South Road adjacent the Gordons’ property. According to the Gordons, thereafter the

Demmons began obstructing the Gordons’ means of access from Schrader Road and the

South Road by locking a gate on Schrader Road. In 2011, the Gordons filed suit to

establish easements over Schrader Road and the South Road.




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       Throughout trial the parties disputed the Gordons’ request for two access routes

to their land. According to the Gordons’ testimony, the topography of the property is

complicated by a canyon or ravine2 running across its center, making Schrader Road the

only means of access to the northern part and the South Road the only access on the

south. Mr. Gordon testified it would be “very difficult” to get to the south side of the

property without driving on the South Road, and said a forty-foot-deep “culvert - - gulch”

made it “very impassible by vehicle” to go from the south side of the property to the north

side. Mr. Demmon disputed the limited access the Gordons claimed, telling the court that

from a point inside a gate on Schrader Road the Gordons could drive “anywhere on [their]

property except for the ravine itself.”


       The court’s judgment granted the Gordons easements by necessity along both

roads. The judgment limited both easements “to that portion of the described property

reasonably required to permit the holder to accomplish the purpose of the easement,

which is ingress and egress” to the Gordons’ property. The easements were “no wider

than reasonably necessary to afford” the Gordons “ingress and egress to their” property.

On the Demmons’ motion, the court granted a partial new trial solely to determine the

scope and location of the easements it declared.


       At the partial new trial, Mr. Gordon testified at length of his future plans to develop

his tract into a subdivision with private residences and recreational facilities such as tennis

and volleyball courts, a picnic pavilion, a zip-line, and nature trails. Based on his claims

that accessibility to parts of the tract was limited, he reiterated the necessity of a sixty-



       2   The feature also sometimes was referred to as a gulch and a gully.

                                              3
foot easement along Schrader Road and along South Road. Otherwise, he maintained,

portions of his property would be inaccessible, costing him potential homesites.


       Mr. Gordon and Mr. Demmon disagreed over the feasibility of the Gordons’

development plan.3 According to Mr. Demmon, the “back half,” or about two and one-half

acres of the Gordons’ land, is a flood zone which is not “buildable.” The court also heard

conflicting evidence regarding the need for use of the Demmons’ property for ingress and

egress by heavy equipment and truck traffic during the Gordons’ possible future

construction.


       The judgment which followed granted the Gordons an easement by necessity for

the general purpose of ingress and egress covering Schrader Road “plus an additional

30 foot wide easement to access” the Gordons’ property. 4 A second easement was

granted along the South Road. Findings of fact and conclusions of law, following the new

trial and final judgment, were neither requested nor filed.


Jurisdiction


       On our own motion, we notified the parties of our concern that the Gordons’ notice

of appeal appeared untimely filed. We requested letter briefing and the parties complied.


       The Gordons filed suit in 2011 with trial settings during November 2013 and June

2014. On August 15, 2014, the court signed an instrument entitled “memorandum ruling.”


       3 Mr. Gordon also testified that his property had been annexed by the City of
Killeen. The impact of annexation on the issues before the court is not clear from the
record.

       The easements are further described by surveyor’s field notes appended to the
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judgment. We have no need to attempt a further description of their parameters.

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On November 12, 2015, the trial court signed an instrument entitled “final judgment.” The

Demmons filed a motion for new trial on December 11, 2015, and the court heard the

motion on January 22, 2016. By order signed on February 2, 2016, the court granted a

partial new trial “solely with respect to the scope and location of the easement.” The trial

court conducted a partial new trial on October 3, 2016, and on October 31, 2016, signed

an instrument entitled “memorandum ruling.”


       On January 9, 2017, the trial court signed a “final judgment.” The Gordons filed a

motion for new trial on February 8, 2017, which was denied after a March 10 hearing.

The Gordons filed notice of appeal on March 24, 2017.


       In their letter brief, the Gordons argued the February 2016 order granting a partial

new trial was signed more than seventy-five days after the November 2015 final judgment

and was therefore a nullity because the trial court no longer had plenary jurisdiction to

grant a new trial.


       We disagree that the trial court acted outside its plenary power by granting the

partial new trial. The Gordons are correct that a timely filed motion for new trial is

considered overruled by operation of law if not determined by written order signed within

seventy-five days after the judgment was signed. TEX. R. CIV. P. 329b(c). But Rule

329b(e) invests a trial court with plenary power to grant a new trial for thirty days following

the date a motion for new trial is overruled by operation of law. TEX. R. CIV. P. 329b(e).

The Gordons’ motion for new trial was overruled by operation of law on January 26, 2016,

but when the trial court ordered a partial new trial on February 2, it acted within its plenary

jurisdiction. See Coinmach, Inc. v. Aspenwood Apt. Corp., 98 S.W.3d 377, 378 & n.1



                                              5
(Tex. App.—Houston [1st Dist.] 2003, no pet.) (motion for new trial was overruled by

operation of law but during the following 30-day period of plenary power trial court granted

motion for new trial).


       The Gordons’ letter brief also addressed the potential impact on the appellate

timetable of the trial court’s October 31, 2016 memorandum ruling. Their argument is to

the effect that the signing of the memorandum ruling did not, together with the November

2015 judgment, complete a final judgment and thus begin the appellate timetable because

that was not the intention of the parties and the trial court. Although it appears from the

Demmons’ letter brief they do not disagree with the Gordons on this point, we will address

the issue briefly.


       “[A] final judgment may consist of several orders that cumulatively dispose of all

parties and issues.” Onyung v. Onyung, No. 01-10-00519-CV, 2013 Tex. App. LEXIS

9190, at *25-26 (Tex. App.—Houston [1st Dist.] July 25, 2013, pet. denied) (mem. op.)

(quoting Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.]

2001, pet. denied)). The documents being discussed were signed by the trial court after

a conventional trial on the merits. Under those circumstances, “the court’s intent matters

if there is a dispute about whether the judgment is final.” In re B.W.S., No. 05-15-01207-

CV, 2016 Tex. App. LEXIS 12575, at *5 (Tex. App.—Dallas Nov. 28, 2016, no pet.) (mem.

op.) (citing Vaughn v. Drennon, 324 S.W.3d 560, 561, 563 (Tex. 2010) (per curiam)). We

determine the trial court’s intent as “gathered from the language of the decree and the

record as a whole, aided on occasion by the conduct of the parties.” Drennon, 324

S.W.3d at 563 (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203 (Tex. 2001)).



                                             6
       Having now considered the record as a whole, and considering the language of

the trial court’s memorandum rulings and its subsequent instruments entitled “final

judgment,” together with the parties’ conduct, we are satisfied the trial court did not intend

final resolution of the case until it signed the January 9, 2017 final judgment. The

Gordons’ timely-filed motion for new trial extended the appellate timetable, making their

notice of appeal filed March 24 timely.       TEX. R. APP. P. 26.1(a)(1).      Our appellate

jurisdiction properly has been invoked. We proceed to the merits of the appeal.


Easement by Necessity


       By their first issue, the Gordons argue the trial court erred by limiting the width of

their necessity easement over Schrader Road to less than sixty feet. Their issue asserts

no evidence, or factually insufficient evidence, supports such a limitation.


       An easement confers on one person the 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.).

An easement is a “liberty, privilege or advantage in land without profit, existing distinct

from the ownership of the soil.” Miller v. Babb, 263 S.W. 253, 254 (Tex. Comm’n App.

1924, judgm’t adopted). It is a burden on one estate, the servient estate, for the benefit

of another, the dominant estate. Id.


       When a grantor conveys a tract of land that is surrounded by the grantor’s land, or

by his and that of third persons, and to which the grantee can only have access to or

egress from through lands other than that conveyed, the grantee has a right of way by

necessity over the remaining lands of the grantor. Bains v. Parker, 143 Tex. 57, 182

S.W.2d 397, 399 (1944) (citations omitted). “To successfully assert [an easement by


                                              7
necessity], the party claiming the easement must demonstrate: (1) unity of ownership of

the alleged dominant and servient estates prior to severance; (2) the claimed access is a

necessity and not a mere convenience; and (3) the necessity existed at the time the two

estates were severed. . . . As this analysis makes clear, a party seeking a necessity

easement must prove both a historical necessity (that the way was necessary at the time

of severance) and a continuing, present necessity for the way in question.” Hamrick v.

Ward, 446 S.W.3d 377, 382 (Tex. 2014); see Staley Family P’ship v. Stiles, 483 S.W.3d

545, 549; Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958) (“The way of

necessity must be more than one of convenience for if the owner of the land can use

another way, he cannot claim by implication to pass over that of another to get to his

own”); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied)

(establishing an easement by necessity requires the proof by the party seeking the

easement by necessity that he has no other legal access to his property). The claimant

of an easement by necessity bears the burden of proving its claim of access across the

property of another was a necessity and not merely a convenience.            Harrington v.

Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 724 (Tex. App.—Eastland 2012, pet.

denied). The degree of necessity required is that of strict necessity. Id.


       The Gordons had the burden at trial to prove their entitlement to the easement they

sought. Bains, 182 S.W.2d at 399 (“burden is on the party claiming an easement in

another person’s land to prove all of the facts necessary to establish the easement”). A

party attacking the legal sufficiency of evidence supporting an adverse finding on an issue

on which the party bore the burden of proof must demonstrate all vital facts in support of

the issue were established as a matter of law. Dow Chemical Co. v. Francis, 46 S.W.3d


                                             8
237, 241 (Tex. 2001) (per curiam); DeLeon v. Lacey, No. 03-13-00292-CV, 2015 Tex.

App. LEXIS 7230, at *14-15, *n.2 (Tex. App.—Austin July 15, 2015, no pet.) (mem. op.).

The analysis requires that we first examine the record in the light most favorable to the

verdict for some evidence supporting the finding, crediting evidence favoring the finding

if a reasonable fact finder could and disregarding contrary evidence unless a reasonable

fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).

Some evidence, meaning more than a scintilla, exists when the evidence “rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions.”

Merrell Dow Pharms., Inc. v Havner, 953 S.W.2d 706, 711 (Tex. 1997). If, however, no

evidence appears to support the finding, we then examine the entire record to determine

whether the contrary proposition is established as a matter of law. Francis, 46 S.W.3d at

241; Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.

App.—Amarillo 1988, writ denied). A proposition is established as a matter of law when

a reasonable fact finder could draw only one conclusion from the evidence presented.

City of Keller, 168 S.W.3d at 814-16.


       On a factual sufficiency review, the appellate court must consider and weigh all the

evidence and will set aside the verdict only if it is so contrary to the overwhelming weight

of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986).


       Although the Gordons consistently took the position at trial that a sixty-foot-wide

way along Schrader Road was necessary for ingress and egress to their land, the court

heard evidence that a more narrow easement across the Demmons’ property would be

adequate for the Gordons’ access. Mr. Demmon described a way of access requiring a

                                             9
fifteen-foot-wide easement across his property that he was willing to give the Gordons,

and described why he believed it would permit them “more than reasonable” access to

their property. Keeping in mind that our state requires strict necessity for declaration of

an easement by necessity, Hamrick, 446 S.W.3d at 379, 384, we conclude the record

contains some evidence supporting the trial court’s conclusion that the easement it

granted, and not a more extensive easement along Schrader Road, was necessary for

the Gordons’ ingress and egress.


       Moreover, as noted, the court granted the Gordons an easement along the South

Road as well. The propriety of the trial court’s grant of two easements by necessity to the

Gordons’ single tract is not an issue directly before us on appeal.5 Nonetheless, the

existence of the South Road as a way of necessity to their tract would in any event

preclude us from agreeing with the Gordons that their evidence established as a matter

of law the necessity of a wider easement along Schrader Road than the trial court granted.


       Considering all the evidence the court heard regarding the necessity of easements

for ingress and egress to the Gordons’ tract, we also could not conclude the easement it

granted along Schrader Road was so contrary to the overwhelming weight of the evidence

regarding its necessity as to be clearly wrong and unjust.


       For those reasons, we overrule the Gordons’ first issue.




       5
       See Duff, 311 S.W.2d at 643 (reversing easement by necessity where landowner
had access to another part of tract).

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Easement by Estoppel


      By their second issue, the Gordons argue the trial court did not render an easement

by estoppel in their favor even though they showed themselves entitled to such relief as

a matter of law. In support, they point to the testimony of Mr. Gordon that before he

bought the property Mr. Bremser told the Gordons they would have access via Schrader

Road and the South Road. Mr. Gordon further testified that in 1969 he agreed to pay a

premium for the property because, among other things, the two “road strips . . . made the

property really valuable.” Mr. Demmon testified when they purchased the property he

was not told the Gordons used both roads to access their property as the means to access

their property. Kevin Gilbert, the Demmons’ grantor, testified that before the Demmons

purchased their property he notified them that he did not restrict the Gordons’ use of

Schrader Road. But Mr. Demmon also testified by deposition at the time they purchased

the property Mr. Gilbert told him the South Road was designated for the Gordons’ access.


      Like their first issue, the Gordons here attack the sufficiency of evidence supporting

an adverse finding on an issue on which they bore the burden of proof. See Dow

Chemical, 46 S.W.3d at 241.


      The statute of frauds generally requires a writing to establish an easement.

Machala v. Weems, 56 S.W.3d 748, 756 (Tex. App.—Texarkana 2001, no pet.); see

Miller, 263 S.W. at 254 (easement must be created by grant and not parol agreement).

But the doctrine of equitable estoppel provides an exception to prevent injustice and

protect innocent parties from fraud. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979);

Machala, 56 S.W.3d at 756. The essence of the doctrine of easement by estoppel is the



                                            11
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. Drye v.

Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1962). As an exception to the

requirement that an easement must be created by a writing, the doctrine should be strictly

applied. See Moore County v. Bergner, 526 S.W.2d 702, 706 (Tex. Civ. App.—Amarillo

1975, no writ). Like other applications of estoppel, it should be certain, precise and clear.

See McAnally v. Friends of WCC, Inc., 113 S.W.3d 875, 879 (Tex. App.—Dallas 2003,

no pet.) (citing Linney v. Wood, 66 Tex. 22, 17 S.W. 244, 246 (1886)) (estoppel by deed).


       Three elements must be proven to establish an easement by estoppel: (1) a

representation of the easement communicated, either by words or action, to the promisee;

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

Storms, 579 S.W.2d at 452; Stallman, 9 S.W.3d at 246. “In order to create an easement

by estoppel, something must be said or done by the owner of the servient estate at the

time of the grant of the dominant estate that induces the acceptance of the grant.”

Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex. App.—

Austin 1988, writ denied). An easement by estoppel is binding on the successors in title

to the servient estate if reliance on the existing easement continues.            Holden v.

Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied).


       Mr. Bremser died prior to trial and the only evidence of his representation to the

Gordons was the testimony of Mr. Gordon. “[B]ecause trial courts can view a witness’s

demeanor, they are given great latitude in believing or disbelieving a witness’s testimony,

particularly when the witness is interested in the outcome.” In re Jane Doe 4, 19 S.W.3d

322, 325 (Tex. 2000).     “Acting as factfinder, a trial judge can, therefore, reject the

                                             12
uncontroverted testimony of an interested witness unless it is readily controvertible, it is

clear, positive, direct, and there are no circumstances tending to discredit or impeach it.”

Id. As counsel for the Demmons argued to the court on the first day of trial, Mr. Bremser

was dead and obviously not subject to cross-examination. What Mr. Bremser told Mr.

Gordon about accessing the landlocked property the Gordons contracted to purchase

was not recorded in any writing in evidence. No witness purporting to have heard the

representation of Mr. Bremser, aside from Mr. Gordon, was identified. In short, we find

the testimony of Mr. Gordon, as to what he recalled Mr. Bremser told him over forty years

earlier, was not readily controvertible. It thus was not binding on the trial court. The

Gordons did not establish entitlement as a matter of law to an easement by estoppel. We

overrule their issue contending otherwise.


The Demmons’ Cross-Point


       The Demmons argue by cross-point that they conclusively proved the five-year

adverse possession statute of limitation6 bars the Gordons from obtaining any access to

their property by an easement over the Demmons’ property. Alternatively, the Demmons

contend the easements by necessity granted the Gordons are more extensive than

necessary for ingress and egress to the Gordons’ property.


       As the Gordons correctly point out in their reply brief, because the Demmons seek

greater relief on appeal than they were granted by the trial court, they were obligated to

file a notice of appeal. TEX. R. APP. P. 25.1(c). They did not. Nor do they now urge a

“just cause” excusing them from the obligation of filing a notice of appeal. TEX. R. APP.



       6   See TEX. CIV. PRAC. & REM. CODE ANN. § 16.025(a) (West 2002).

                                             13
P. 25.1(c). We therefore may not consider the Demmons’ cross-point. It is overruled.

See Storck v. Tres Lagos Prop. Owners Ass’n, 442 S.W.3d 730, 746 (Tex. App.—

Texarkana 2014, pet. denied) (like conclusion on similar facts).


                                          Conclusion


       Having overruled the Gordons’ issues and the cross-point of the Demmons, we

affirm the judgment of the trial court.


                                                       James T. Campbell
                                                          Justice




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