Opinion issued December 5, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-00993-CV
                           ———————————
         SHELDON LINDSAY AND ELAINE LINDSAY, Appellants
                                        V.
           WILLIAM REAVES AND LINDA REAVES, Appellees


                   On Appeal from the 155th District Court
                            Austin County, Texas
                      Trial Court Case No. 2006V-0037


                         MEMORANDUM OPINION

      A jury determined that William and Linda Reaves could place a fence and

gates on their property along the easement held by Sheldon and Elaine Lindsay. In

two issues, the Lindsays argue the jury’s determination was legally insufficient

because an implied easement prohibited the construction of the fence and gates.
       We affirm.

                                   Background

       The Reaveses own property along F.M. Road 2502 in Austin County. The

Lindsays own adjoining property and access F.M. Road 2502 through an easement

along the Reaveses’ property. Both properties were once owned by Everett Luhn,

and the easement was created when he divided and sold the properties. In 2006,

the Reaveses sought to fence and gate their property, including the easement, for

the purpose of raising cattle.

       The Lindsays brought suit, seeking a declaratory judgment to prevent the

installation of fences and gates along the easement. The Reaveses counterclaimed,

seeking a declaratory judgment establishing their right to install gates and fences.

The parties filed cross-motions for summary judgment, disputing whether an

express or implied easement prevented the installation of the fence and gates. The

trial court ruled in favor of the Lindsays and the Reaveses appealed. On appeal,

we held that a fact issue existed for both the express and implied easement

theories. 1




1
       Reaves v. Lindsay, 326 S.W.3d 276, 282–83 (Tex. App.—Houston [1st Dist.]
       2010, no pet.)

                                         2
      We remanded the case, and the matter was brought to trial before a jury.

The jury determined that the Reaveses were permitted to construct fences and gates

along the easement. The Lindsays now appeal.

                                 Legal Sufficiency

      In two issues, the Lindsays argue the jury’s determination was legally

insufficient because an implied easement prohibited the construction of the fence

and gates. In their first issue, they argue the trial court should have granted their

motion for directed verdict. In their second issue, they argue the trial court should

have granted their motion for judgment notwithstanding the verdict (JNOV). The

Reavses argue that the Lindsays have waived this issue because the jury was never

asked to consider whether an implied easement prevented the construction of the

fence and gates.

A.    Standard of Review

      We review a trial court’s ruling on a motion for directed verdict or a motion

for judgment notwithstanding the verdict under a legal-sufficiency standard. City

of Keller v. Wilson, 168 S.W.3d 802, 823–24 (Tex. 2005); City of Houston v.

Proler, 373 S.W.3d 748, 754 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We

must determine whether there is any evidence of probative force to raise a fact

issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co., 140

S.W.3d 681, 684 (Tex. 2004); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 21


                                         3
(Tex. App.—Houston [1st Dist.] 2009, pet. denied). In reviewing the sufficiency

of the evidence in support of the judgment, we “must credit favorable evidence if

reasonable jurors could, and disregard contrary evidence unless reasonable jurors

could not.” City of Keller, 168 S.W.3d at 827. “A directed verdict is warranted

when the evidence is such that no other verdict can be rendered and the moving

party is entitled, as a matter of law, to judgment.” B & W Supply, 305 S.W.3d at

21.

      A trial court may grant a motion for JNOV if a directed verdict would have

been proper, and it may disregard any jury finding on a question that has no

support in the evidence. TEX. R. CIV. P. 301. In reviewing the rendition of JNOV,

the reviewing court must determine whether there is any evidence upon which the

jury could have made the finding. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.

2003).

B.    Waiver

      The Lindsays sought to prevent the construction of the fence and gates under

two theories: (1) they were prohibited under the express easement, and (2) they

were prohibited under the implied easement. In our earlier opinion, we held,

“When an express easement is stated in general terms, the easement ‘implies a

grant of unlimited reasonable use such as is reasonably necessary and convenient

and as little burdensome as possible to the servient owner.’” Reaves v. Lindsay,


                                        4
326 S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting

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

      In order to establish an easement by implied grant, the party asserting
      its existence must show that (1) there was unity of ownership between
      the dominant and servient estate when the two were severed; (2) at the
      time the dominant estate was granted, there was apparent use of the
      easement; (3) use of the easement before the severance was
      continuous, indicating an intent by the owners to pass the easement by
      grant with the dominant estate; and (4) the easement must be
      reasonably necessary to the use and enjoyment of the dominant estate.

Id. at 283 (citing Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d

916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).

      While these inquiries are similar, they focus on different things. Under an

express easement theory, the focus is on the terms of the express easement and a

further implied use is created as is reasonably necessary and convenient for that

express easement. Id. at 282. In contrast, under an implied easement theory, the

focus is on an apparent use that is reasonably necessary to the use and enjoyment

of the dominant estate. Id. at 283.

      The only matter submitted to the jury was whether the express easement

allowed or prohibited the construction of the fence and gates along the easement.

The jury instructions included the language of the express easement and asked the

jury to consider the easement’s language in determining whether the fence and

gates could be constructed. The jury was not asked to make any determination on



                                        5
any of the elements for implied easement. The Reaveses argue this establishes that

the Lindsays have waived the issue.

      Pursuant to Rule 279 of the Texas Rules of Civil Procedure, “[a] claim is not

waived . . . when the evidence conclusively establishes the elements of the offense,

even if none of the elements of the offense is submitted to the jury for

consideration.” Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied) (citing TEX. R. CIV. P. 279). “Jurors are not

free to reach a verdict contrary to [the] evidence; indeed uncontroverted issues

need not be submitted to a jury at all.” City of Keller, 168 S.W.3d at 814–15.

“Thus, when the evidence conclusively establishes a claim, the claim may be part

of the judgment, even if no jury question on the claim was submitted.” VR Elec.,

Inc., 276 S.W.3d at 677.

      Here, the Lindsays moved for a directed verdict and for a JNOV, claiming

that they had established as a matter of law that the fence and gates were prohibited

under an implied easement. This was sufficient to preserve their legal-sufficiency

arguments on appeal. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991).

C.    Analysis

      To prevail on their implied easement claim, the Lindsays were required to

establish that (1) there was unity of ownership between the dominant and servient

estate when the two were severed; (2) at the time the dominant estate was granted,


                                         6
there was apparent use of the easement; (3) use of the easement before the

severance was continuous, indicating an intent by the owners to pass the easement

by grant with the dominant estate; and (4) the easement must have been reasonably

necessary to the use and enjoyment of the dominant estate. Reaves, 326 S.W.3d at

283.

       Prior to trial, the parties stipulated to the following:

       2. Unity of Ownership. There was unity of ownership between the
       Luhn Estate [the relevant portion now owned by the Reaveses] and
       the Atkerson Estate [now owned by the Lindsays] when the Atkerson
       Estate was severed from the Luhn Estate and the Easement was
       created.

       3. Use of Roadway at Time Created. At the time and since the time,
       the Atkerson Estate was severed from the Luhn Estate, the easement
       has been used as a roadway, open and unobstructed without any gates
       or cattleguards.

The Lindsays rely on these stipulations along with the testimony of Della Naquin

for their argument that their implied easement claim was established as a matter of

law. Naquin testified that her mother and father-in-law had bought what is now the

Lindsays’ property. The express easement at issue was created with this sale.

Naquin testified that, other than the gate and fence that separates the Lindsays

property from the Reaveses property, there had never been any fence or gate along

the easement. She also testified as follows:

       Q.    All right. And at that time, was the road necessary to get to the
             house?


                                            7
      A.    Yes. That is the only way to get to it.

      Even assuming an “apparent use of the easement” can be established by

showing the absence of certain improvements, we hold that the record does not

establish as a matter of law the existence of the implied easement the Lindsays

assert. The Lindsays argue that the implied easement prohibits fences, gates, or

other obstructions being placed on or along the road. They have presented no

evidence, however, that an easement prohibiting fences or gates is “reasonably

necessary to the use and enjoyment of the dominant estate.” Reaves, 326 S.W.3d

at 283. Naquin testified that the road was necessary for the use and enjoyment of

the dominant estate. That is not in dispute, however. The road is part of the

express easement, not the implied easement the Lindsays claim to exist. Naquin

did not testify that the lack of fences or gates was necessary for the use and the

enjoyment of her parents’ property.

      We overrule the Lindsays’ two issues.

                                      Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

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