                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00441-CV

                             Abel R. VASQUEZ and Amelia M. Vasquez,
                                          Appellants

                                              v.
                                            Jesus
                          Jesus E. ZAMARIPPA and Yolanda P. Zamarippa,
                                          Appellees

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010-CI-09427
                          Honorable Solomon Casseb, III, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 31, 2013

AFFIRMED

           Abel and Amelia Vasquez appeal the trial court’s judgment, asserting the judgment granted

relief that exceeded the relief requested in the pleadings. Specifically, the Vasquezes contend the

pleadings did not allege any claim involving the title to a water well or request a permanent

injunction enjoining the Vasquezes from using the water well. The Vasquezes also claim the issues

were not tried by consent; however, the Vasquezes’ attorney candidly admitted in the appellants’

brief that he had not reviewed the reporter’s record from the trial and was relying on Mr. Vasquez’s

recollection of the trial testimony. Jesus and Yolanda Zamarippa respond that a trespass to try title
                                                                                     04-12-00441-CV


claim was alleged in the pleadings which also requested a permanent injunction. The Zamarippas

further respond that the claims were tried by consent. We affirm the trial court’s judgment.

                                            BACKGROUND

       The Vasquezes and Zamarippas owned adjacent properties. The Vasquezes have an

easement across the Zamarippas’ property for ingress and egress. A water well, which was built

prior to both parties’ purchase of their respective properties, extends into the easement. The water

well does not, however, interfere with the use of the easement for ingress and egress. A dispute

arose between Mr. Vasquez and Mr. Zamarippa regarding the use of the water well, and the

Zamarippas filed the underlying lawsuit against the Vasquezes. After a bench trial, the trial court

entered a judgment enjoining the Vasquezes from using the water well and granting the

Zamarippas title to and exclusive use of the water well.

       The Vasquezes appeal the judgment. After the parties filed their respective briefs, the

reporter’s record from the trial was filed in this court.

                                             DISCUSSION

       A judgment must be supported by the pleadings and proof at trial. Cunningham v. Parkdale

Bank, 660 S.W.2d 810, 813 (Tex. 1983); Phillips v. Phillips, 296 S.W.3d 656, 670 (Tex. App.—

El Paso 2009, pet. denied). In determining whether a judgment conforms to the pleadings, we

view the pleadings as a whole. Raymond v. Raymond, 190 S.W.3d 77, 83 (Tex. App.—Houston

[1st Dist.] 2005, no pet.); Wilson v. McCracken, 713 S.W.2d 394, 395 (Tex. App.—Houston [14th

Dist.] 1986, no writ).

       “When issues not raised by the pleadings are tried by express or implied consent of the

parties, they shall be treated as if they had been raised in the pleadings.” TEX. R. CIV. P. 67; see

also Phillips, 296 S.W.3d at 670. To determine whether an issue was tried by consent, “the court



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must examine the record not for evidence of the issue, but rather for evidence of trial of the issue.”

Moneyhon v. Moneyhon, 278 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

        In their original petition and application for temporary and permanent injunction, the

Zamarippas allege that they are “next door neighbors” to the Vasquezes, and the Vasquezes have

use of an easement for access which runs across the Zamarippas’ property. The petition further

alleges that the Zamarippas own a water well located on their property and within the easement.

After summarizing the discord that developed between the parties relating to the use of the water

well, the petition states, “Plaintiffs, as a result of the above and foregoing[,] file suit against

Defendants for Trespass to Try Title, and for Equitable Relief to judicially establish said easement

and water well described by the Plaintiffs.” The petition then requests “affirmative relief for causes

of action which includes: … 3. Trespass to Try Title and Real Property.” The petition also requests

a permanent injunction against the Vasquezes prohibiting them from “[e]xcluding or interfering

with the Plaintiffs[’] access, use, and enjoyment of their residence, real property, the easement and

water well located on land owned [by] the Plaintiffs.”

        During the bench trial, the Zamarippas introduced deeds as evidence to establish their

ownership of and title to the water well. All of the deeds describe the easement granted in favor

of the Vasquezes as an ingress and egress easement. Mr. Zamarippa testified the water well is

located on his land with a portion of the water well located within the easement. In response to

whether he told Mr. Vasquez he could not use the water well, Mr. Zamarippa stated, “Yes, because

it’s in my title. I own the well. It is mine, sir.” Mr. Zamarippa testified that the water well is not

a water source for drinking. Instead, he uses the well to provide water to his cattle. 1 Mr. Zamarippa



1
 The Vasquezes refer to an easement of necessity in their brief, alluding to the water well providing the sole source
of water to their property. However, both Mr. Zamarippa and Ms. Vasquez testified at trial that the Vasquezes’
property has water available through Bexar Met service.

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testified that he repaired the electrical pump for the water well when he purchased the property

and pays the electrical bill to operate the pump.

       Mr. Vasquez also testified regarding ownership of the water well, stating that his problems

with Mr. Zamarippa “started with the well, you know, when I told him to stay away from there,

that it wasn’t in his property, that it didn’t belong to him.” In response to what Mr. Vasquez was

asking the court to do as far as the well was concerned, Mr. Vasquez stated, “Just get it amended,

you know, by writing that it’s mine and to keep him off my property.”

       After reviewing the pleadings as a whole, we hold that the judgment awarding the

Zamarippas title and exclusive use to the water well is supported by the pleadings. The judgment

resolves the Zamarippas’ trespass to try title claim and permanently enjoins the Vasquezes from

interfering with the Zamarippas’ ownership of the water well. Even absent the pleadings, we

would hold that the issue of title and ownership was tried by consent. Accordingly, the issues

presented in the Vasquezes’ brief are overruled.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                    Luz Elena D. Chapa, Justice




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