                                   NO. 07-07-0352-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  AUGUST 7, 2008
                          ______________________________

                   SOUTH PLAINS LAMESA RAILROAD, LTD., AND
                      LARRY DALE WISENER, APPELLANTS

                                            V.

            WALTER HEINRICH AND RUSSELL HEINRICH, APPELLEES
                   _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2005-529,332; HONORABLE RUBEN REYES, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Appellants, South Plains Lamesa Railroad, Ltd. (South Plains), and Larry Dale

Wisener (Wisener), appeal from the judgment of the 72nd District Court of Lubbock

County, Texas, granting two easements under a railline in favor of appellees, Walter

Heinrich and Russell Heinrich (collectively “Heinrich”). By five issues, South Plains and

Wisener contend the trial court erred in 1) finding that there was an easement in existence,

2) refusing a requested charge on the issue of “misrepresentation,” as opposed to the

charge given of “representation,” 3) allowing evidence of the arrest of Wisener to go before
the jury, 4) failing to file findings of fact and conclusions of law on the questions of

easement appurtenant and attorney’s fees, and 5) that the evidence was legally and

factually insufficient to support the award of attorney’s fees to Heinrich. We affirm.


                              Factual and Legal Background


       This case arose out of Heinrich’s contention that Wisener, on behalf of South Plains,

granted two separate easements for water lines under South Plain’s tracks. The first

easement in question came about in 1997 as a result of conversations between Walter

Heinrich and Wisener.       The testimony at trial developed that Heinrich desired the

easement to transport water from a farm they owned and operated on one side of the

railroad track to a second farm they owned and operated on the other side of the track.

The pipeline was installed, giving accord to certain requirements of South Plains, and,

subsequently, Heinrich installed a drip irrigation system on the receiving farm for utilization

of the imported water. The evidence at trial was that the total cost to install the pipeline

under the railroad track and the drip irrigation system was $98,538.54. At trial, Wisener

contended that Walter Heinrich was advised that the pipeline would be removed at any

time if it posed a problem in South Plain’s utilization of the tracks. Heinrich presented

testimony that there were no conditions placed on the continued utilization of the pipeline.

Heinrich requested that the easement be reduced to writing, but Wisener stated that was

not necessary. As a result, there was never a written easement signed by the respective

parties. In 2004, Heinrich again approached South Plains and Wisener about a second

pipeline at a different location. Walter Heinrich testified that the pipeline was necessary

to deliver water from water wells purchased from the City of Slaton to another Heinrich

                                              2
farm that had limited watering capacity. The testimony at trial indicated that South Plains

approved the construction to place the second pipeline under the tracks. Again, the issue

of reducing the easement to writing was discussed. Wisener stated that he desired to have

a written easement prepared and Heinrich agreed. However, no written easement was

ever forwarded to Heinrich. Walter Heinrich testified that the cost of the second pipeline

was $7,036.80.


       Shortly after completion of the second pipeline, Wisener was involved in an

altercation involving one of South Plain’s employees and the City of Slaton Police

Department. The altercation resulted in Wisener’s arrest. Testimony at trial indicated that,

shortly after the arrest, Wisener contacted Jerry Kitten of Slaton in an effort to get

something done about the police and the Mayor of Slaton. Kitten testified that he indicated

that Wisener should contact Walter Heinrich about the situation. Wisener subsequently

contacted Walter Heinrich in an effort to gain support for his proposed actions against the

police officers and the Mayor. Walter Heinrich testified that, when he advised Wisener that

he could not help him, Wisener stated he would cut the pipelines in question. This suit was

filed immediately thereafter and a temporary injunction was granted preventing South

Plains and Wisener from interfering with the pipelines in question. Subsequently, at the

trial on the merits, the trial court submitted two questions to the jury.


       Question No. 1:
              Do you find that Walter Heinrich has a permanent waterline
              easement under the railroad tracks of Defendant South Plains
              Lamesa Railroad, Ltd., between his land and the land of
              Russell Heinrich?”


                                              3
Instruction: In connection with this question, you are instructed that in order
to establish an easement, you must find each of the following elements:


       (1) A representation was communicated by Larry Dale Wisener
       to Walter Heinrich, either by words or by actions, that Walter
       Heinrich had a permanent easement;


       (2) The communication was believed by Walter Heinrich; and


       (3) Walter Heinrich relied on the communication.


Answer “Yes” or “No.”


Question No. 2:
       Do you find that Walter Heinrich has a permanent waterline
       easement across the property and under the railroad tracks of
       Defendant South Plains Lamesa Railroad, Ltd., from water
       wells near the northwest corner of the property of South Plains
       Lamesa Railroad, Ltd., to Walter Heinrich’s land?


Instruction: In connection with this question, you are instructed that in order
to establish an easement, you must find each of the following elements:


       (1) A representation was communicated by Larry Dale Wisener
       to Walter Heinrich, either by words or by actions, that Walter
       Heinrich had a permanent easement;


       (2) The communication was believed by Walter Heinrich; and


       (3) Walter Heinrich relied on the communication


Answer “Yes” or “No.”




                                      4
The jury answered yes to both questions submitted. Based upon these answers, the trial

court heard evidence about attorney’s fees and entered the judgment appealed from.


                         Existence of an Enforceable Easement


         Via their first issue, South Plains and Wisener contend that there was no

enforceable easement for either pipeline. South Plains and Wisener state that the 1997

and 2004 easements were not enforceable under either the statute of frauds or the statute

of conveyances. South Plains and Wisener’s brief proceeds to document all the various

types of easements that are required to be in writing and note that neither of the

easements in question were reduced to writing. While South Plains and Wisener’s brief

correctly states the law, it is of no import for purposes of this appeal. This case was tried

under the theory that the easements in question were easements by estoppel, also known

as easement in pais, which is an exception to the requirement that easements must be in

writing to be enforceable. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex.

1962).


         South Plains and Wisener acknowledge that Texas jurisprudence recognizes the

doctrine of easement by estoppel, however, they contend that, for the doctrine to apply,

there must be a vendor/vendee relationship existing between the parties. See Scott v.

Cannon, 959 S.W.2d 712, 720 (Tex.App.–Austin 1998, pet. denied).1 According to South


         1
        We note that, in Scott, the court states that a vendor/vendee relationship is
necessary to establish an easement by estoppel. However, the case was decided because
the record did not conclusively show any affirmative representations as to the existence
of an easement. Scott, 959 S.W.2d at 720. Therefore, the language regarding a
vendor/vendee relationship is dicta.

                                             5
Plains and Wisener’s theory, this is the missing element in Heinrich’s case. The record

reflects that both Heinrichs testified that there was no existing vendor/vendee relationship

between the parties. However, South Plains and Wisener’s reliance on the purported

requirement for such a relationship is misplaced. In one of the first cases involving the

question of easement by estoppel, the Texas Supreme Court outlined the elements

necessary to establish such an easement and nowhere in the opinion is a vendor/vendee

relationship required. F.J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 267-68 (1875).

Since the Harrison case, the Texas Supreme Court has never required the existence of a

vendor/vendee relationship in applying the doctrine of easement by estoppel. A review of

Texas cases reveals that the holding in Scott has been rejected by those courts that have

considered the question of the necessity of a vendor/vendee relationship to establish an

easement by estoppel. See Murphy v. Long, 170 S.W.3d 621, 627-28 (Tex.App.–El Paso

2005, pet. denied). See also Mack v. Landry, 22 S.W.3d 524, 529-30 (Tex.App.–Houston

[14th Dist.] 2000, no pet.) (discussing cases holding that vendor/vendee relationship not

required).


       Rather than as contended by South Plains and Wisener, the elements of easement

by estoppel are: 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.     Drye, 364 S.W.2d at 209-10.         Concluding that a vendor/vendee

relationship is not required to prove that an easement was granted by estoppel, we

overrule South Plains and Wisener’s first issue.




                                             6
                                     Jury Instruction


       South Plains and Wisener next contend that the trial court erred in overruling their

objection to the instructions accompanying jury questions numbers 1 and 2.             The

instructions referenced “representations” made by Wisener to Heinrich. South Plains and

Wisener contend that the instruction is deficient because it did not refer to

“misrepresentations.”


       When reviewing a complaint about a jury instruction, the relevant inquiry is was the

instruction given proper. TEX . R. CIV. P. 277; Plainsman Trading Co. v. Crews, 898 S.W.2d

786, 791 (Tex. 1995). The question of whether an instruction is properly worded is

reviewed under an abuse of discretion standard. M. N. Dannenbaum, Inc. v. Brummerhop,

840 S.W.2d 624, 631 (Tex.App.–Houston [14th Dist.] 1992, writ denied). South Plains and

Wisener’s contention challenges the wording of the instruction given.


       South Plains and Wisener correctly point out that the record contains no reference

to an affirmative misrepresentation by Wisener to Henirich. However, the cases cited by

South Plains and Wisener to support a requirement of an affirmative misrepresentation are

either not on point or are clearly distinguishable. First, Miller v. Babb, 263 S.W. 253, 254

(Tex. 1924), did not address the requirements necessary to create an easement by

estoppel, rather it addressed the necessity for the particular easement in question to be

incorporated into the deed conveying the property. Next, South Plains and Wisener cite

to Stallman v. Newman, 9 S.W.3d 243 (Tex.App.–Houston [14th Dist.] 1999, pet. denied),

for the proposition that a misrepresentation is required. However, the opinion actually


                                             7
states that the element required for an easement by estoppel is a representation

communicated to the promisee, as opposed to a misrepresentation. Id. at 247. It appears

that some courts have used the terms representation and misrepresentation almost

interchangeably when discussing the application of the facts to the law, as in the Stallman

case. However, in one of the earliest easement by estoppel cases decided by the Texas

Supreme Court, the Court used the terms “parole agreement or representation” to describe

how an easement by estoppel might be created. F. J. Harrison & Co., 44 Tex. at 265.

Currently, whenever courts have set forth the elements required to prove an easement by

estoppel, they have universally used the term “representation.” Cleaver v. Cundiff, 203

S.W.3d 373, 375 (Tex.App.–Eastland 2006, pet. denied); Murphy, 170 S.W.3d at 625. For

these reasons, we find the trial court’s jury instructions to have been properly worded and

overrule South Plains and Wisener’s issue.


                               Evidence of Wisener’s Arrest


       South Plains and Wisener next contend that the trial court erred in admitting the

testimony of Jerry Kitten and Walter Heinrich regarding the arrest of Wisener by the City

of Slaton police. The admission of evidence is committed to the sound discretion of the

trial judge. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its

discretion when its decision is arbitrary, unreasonable, and without reference to any guiding

rules or principles. In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007). If an

appellant can show that the trial court’s ruling was in error, he must further demonstrate

that the error was calculated to cause the rendition of an improper judgment. TEX . R. APP.

P. 44.1; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Therefore, to

                                             8
properly review the issue, we must first establish whether or not the trial court’s action in

admitting the evidence was, in fact, in error.


        South Plains and Wisener allege that the trial court’s actions were in error because

the evidence was not relevant to any inquiry before the jury. TEX . R. EVID . 401.2 The rules

of evidence further provide that evidence which is not relevant is inadmissible. Rule 402.

Therefore, we must first determine whether the evidence was relevant. For evidence to

be relevant, it must logically tend to make a particular proposition more or less likely.

Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex.App.–Dallas 1993, no writ).

Additionally, the proposition to be proved must be of consequence to some issue in the

trial. Id. The record shows that the first agreement regarding a water line was entered into

in 1997. Between 1997 and the time of the disputed testimony, there were no

communications from South Plains and Wisener to Heinrich regarding that first line. The

second agreement was entered into in January or February of 2004. As noted above,

there was discussion of entering into a written agreement, but no agreement was ever

executed. Heinrich had no further discussions with South Plains or Wisener regarding the

second line until the time of the disputed testimony. After the incident that led to the arrest

of Wisener, Walter Heinrich testified that he received a call from Wisener advising that

there was a matter he needed to discuss with Walter Heinrich. Wisener would not discuss

the matter over the phone. In a face-to-face meeting, Wisener told Walter Heinrich that

he needed to get the Mayor of Slaton, the Chief of Police, and two officers fired or



        2
            Further reference to the Texas Rules of Evidence will be by reference to “Rule
___.”

                                              9
removed. Walter Heinrich advised Wisener that he could not do that because he did not

even live inside the city limits of Slaton. Wisener then advised Walter Heinrich that if he

did not take the requested action that the pipelines in question would be cut. Later in the

trial, Jerry Kitten testified that he also received a call from Wisener and was requested to

takes steps to get the Mayor, Chief of Police, and the two officers involved in Wisener’s

arrest all fired or replaced. The testimony reflects that Jerry Kitten also has water lines

running under the right of way of South Plains. Kitten testified that, when he told Wisener

that he could not comply with the request, Wisener threatened to have his water lines

removed.


       Heinrich posits that the evidence in question was admissible to show what triggered

the sudden change in the status of the easements in question. Under this theory of

admissibility, it was the arrest of Wisener that caused what had been treated as a

permanent easement, based upon the conduct of the parties, to become an easement at

the convenience of Wisener. Ultimately, it goes to the question of the intent of Wisener

at the time of the conversation with Walter Heinrich. The evidence, according to Heinrich,

was placed before the jury in the historical context of the relationship between the parties

and their dealings prior to the arrest incident. As such, there is at least a logical connection

between this line of questioning and the propositions that Heinrich was attempting to prove,

the existence of a permanent easement. N. Dallas Diagnostic Ctr. v. Dewberry, 900

S.W.2d 90, 94 (Tex.App.–Dallas 1995, writ denied). Accordingly, the admitted evidence

was relevant.




                                              10
       South Plains and Wisener next contend that, even if the evidence in question was

relevant, it should have been excluded under Rule 403. At the time the testimony of Walter

Heinrich and Jerry Kitten was offered, South Plains and Wisener’s sole objection went to

the issue of relevancy. To preserve a complaint on appeal, a party must make a timely

objection that states the specific grounds for the desired ruling. Rule 103(a)(1); TEX . R.

APP. P. 33.1(a). If a party fails to make a timely objection and obtain a ruling, the error is

not preserved and the complaint is waived. Texas Dep’t of Transp. v. Olson, 980 S.W.2d

890, 898 (Tex.App.–Fort Worth 1998, no pet.). Additionally, the complaint on appeal must

comport with the objection at trial. Id. Because the evidence was not objected to on the

grounds of Rule 403, the complaint is waived.


       Having reviewed the contentions of South Plains and Wisener, we cannot say the

trial court abused its discretion in admitting the evidence at issue. In re J.P.B., 180 S.W.3d

at 575. Accordingly, South Plains and Wisener’s issue is overruled.


                         Findings of Fact and Conclusions of Law


       South Plains and Wisener’s next contention concerns two matters contained in the

trial court’s judgment. The judgment awarded attorney’s fees to Heinrich and found that

the easements in question were easements appurtenant.3 Neither of these findings were

contained in issues submitted to the jury. Therefore, as to both of these findings, South

Plains and Wisener requested the trial court to enter findings of fact and conclusions of


       3
        The term easement by estoppel goes to the question of the establishment of an
easement, whereas, the term easement appurtenant goes to the rights afforded the holder
of such an easement.

                                             11
law. Since no findings of fact and conclusions of law were issued by the court, South

Plains and Wisener filed a notice of past due findings of fact and conclusions of law. No

separate findings of fact and conclusions of law were ever entered and now South Plains

and Wisener contend that the failure to enter the requested findings of fact and

conclusions of law was error.


       Initially, we note that, even though there were no separate findings of fact and

conclusions of law filed, the judgment does, in fact, contain the findings of fact and

conclusions of law South Plains and Wisener requested.4 Rule 299a of The Texas Rules

of Civil Procedure states that findings of fact shall not be recited in the judgment. However,

the same rule follows this prohibition with the following, “If there is a conflict between

findings of fact recited in a judgment in violation of this rule and findings of fact made


       4
        In connection with the conclusion that the easement was appurtenant to the land,
the court made the following finding in connection with both easements:

       The easement includes the right of ingress, egress and regress for Walter
       Heinrich, his tenants and workman for the repair, replacement and
       maintenance of the waterline. The easement benefits Walter Heinrich Tract
       #1 and touches and concerns Easement Tract A; therefore the easement is
       an easement appurtenant and will run with the land.

       The court set out the same findings for Walter Heinrich Tracts #2 and #3 concerning
Easement Tract B. The stipulated legal descriptions of the Tracts was also contained in
the judgment.

       Regarding the attorney’s fees, the judgment states,

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that
       the Plaintiffs WALTER HEINRICH AND RUSSELL HEINRICH recover of and
       from Defendants SOUTH PLAINS LAMESA RAILROAD, LTD. and LARRY
       DALE WISENER, Individually, the sum of $80,000.00 as reasonable and
       necessary attorney’s fees in the trial court pursuant to and in accordance
       with Section 37.009 of the Texas Civil Practices & Remedies Code.

                                             12
pursuant to Rule 297 and 298, the latter findings will control for appellate purposes.” TEX .

R. CIV. P. 299a.    Thus, we are faced with the same situation this court previously

addressed in Hill v. Hill, 971 S.W.2d 153, 156-57 (Tex.App.–Amarillo 1998, no pet.).


       In Hill, the trial court filed no separate findings of fact and conclusions of law, rather

the necessary findings and conclusions were in the judgment. Id. at 157. In Hill we

recognized that filing the findings in the judgment was contrary to Rule 299a of the Texas

Rules of Civil Procedure, however, we stated that findings in the judgment were not shorn

of all authority. Id. Those findings in the judgment have probative value as long as they

do not conflict with findings filed in a separate document. Id. Thus, this Court reasoned

that findings in the judgment could be considered because they revealed the basis for the

trial court’s decision. Id. On this basis, we affirmed that portion of the trial court’s

judgment which included the findings. We see no reason to reverse our position.5

Accordingly, we overrule South Plains and Wisener’s issue regarding the absence of

separate findings of fact and conclusions of law.


       The findings of fact in regards to the attorney’s fees is not as detailed as that for the

easement appurtenant. If the findings of fact and conclusions of law filed in the judgment

regarding attorney’s fees is not sufficient, we still find that South Plains and Wisener have

suffered no injury. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). The evidence

supporting the trial court’s determination of attorney’s fees is discussed in detail in the

following issue.


       5
       We were not the first court to so rule. See Martinez v. Molinar, 953 S.W.2d 399,
401 (Tex.App.–El Paso 1997, no writ).

                                              13
         Legal and Factual Sufficiency of Evidence Regarding Attorney’s Fees


       South Plains and Wisener next contend that the evidence was legally and factually

insufficient to support the trial court’s award of attorney’s fees. The case before us was

tried under the Declaratory Judgment Act. TEX . CIV. PRAC . & REM . CODE ANN . Chapt. 37

(Vernon 2008). Pursuant to the statute, “the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” TEX . CIV. PRAC . & REM . CODE §

37.009. When reviewing an award of attorney’s fees under the Act, an appellate court

must determine whether the trial court abused its discretion by awarding fees when there

was insufficient evidence that the fees were reasonable and necessary or when the award

was inequitable or unjust. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).


       The evidence before the trial court consisted of the testimony of Heinrich’s attorney

that he charged $275.00 per hour and had spent 256.5 hours on the case. Additionally,

counsel testified that he had charged this hourly rate for several years and had charged

a similar rate to a number of clients. Testimony was also presented that Heinrich’s counsel

had associated another attorney to assist with research and writing of trial briefs and other

matters. The second attorney charged $175.00 per hour. The total amount of attorney’s

fees testified to by Heinrich’s counsel was $88,900.50. There was additional testimony that

$20,043.75 had been charged to Heinrich for paralegal fees. Trial counsel then testified

to fees in case of appeal to the Court of Appeals and the Supreme Court of Texas. During

cross-examination, Heinrich’s trial counsel testified that he knew of several lawyers who

charged at least as much as an hourly rate, both in Lubbock, Texas, and in the region

around Lubbock. Additionally, Heinrich produced two other attorneys who testified that the

                                             14
hourly rate of $275.00 was reasonable and necessary. South Plains and Wisener’s

attorney testified that his hourly rate in this matter was $150.00. He further testified that

he had spent 167 hours on the case. South Plains and Wisener’s basic contention is that,

since their attorney charged a lower hourly rate and had fewer hours involved in the case,

the trial court’s order on attorney’s fees is improper.


       The disparity in the hourly rate and number of hours spent on the case may be due

to any number of reasons. However, there was evidence presented that supported the

attorney’s fees awarded by the court. Id. Therefore, we cannot say that the trial court

abused its discretion in awarding attorney’s fees of $80,600. Id. South Plains and Wisener

have not challenged the award of attorney’s fees as being inequitable or unjust. Neither

have they challenged the award of attorney’s fees in connection with any appellate matters.

Accordingly, we overrule their issue.


                                        Conclusion


       Having overruled all of South Plains and Wisener’s issues, we affirm the trial court’s

judgment.


                                                  Mackey K. Hancock
                                                       Justice




                                             15
