AFFIRM; and Opinion Filed June 18, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00735-CV

           THE STALEY FAMILY PARTNERSHIP, LTD., Appellant
                                   V.
 DAVID LEE STILES, DELZIE STILES, GINGER WESTBROOK, ROBERT STILES,
                      AND DAVID STILES, Appellees

                      On Appeal from the 429th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 429-03484-2010

                                          OPINION
                           Before Justices Fillmore, Evans, and Lewis
                                  Opinion by Justice Fillmore
       Appellant, the Staley Family Partnership, Ltd. (Staley) brought an action seeking a

judicial declaration that it has an easement by necessity across land owned by appellees David

Lee Stiles, Delzie Stiles, Ginger Westbrook, Robert Stiles, and David Stiles to access County

Road 134 (CR 134). Appellees filed a counterclaim, seeking a judicial declaration that Staley

does not have an easement across appellees’ property and attorney’s fees. All issues were

submitted to the trial court in a bench trial. The trial court rendered judgment granting appellees’

counterclaim for declaratory judgment that Staley does not have an easement across appellees’

property and awarding appellees their attorney’s fees. We affirm the trial court’s judgment.
                                          Background

       Staley is the owner of a tract of land consisting of 10.129 acres (the Staley Tract) located

in Collin County, Texas. The Staley Tract was previously part of a much larger tract of land

owned by Thompson Helms by grant from the State of Texas in 1853 (the Thompson Helms

Tract). In 1855, after the deaths of Thompson Helms and his wife, Abigail, their estate conveyed

the portion of the Thompson Helms Tract west of Honey Creek to Robert Skaggs. In 1866, the

remaining portion of the Thompson Helms Tract was partitioned by the probate court between

the children of Thompson and Abigail Helms: Mary Helms, George Helms, Sarah T. Helms,

Frances M. Helms, James Helms, and Axia Ann Helms. At the time of the 1866 partition, Axia

Ann Helms was awarded a 152 acre tract that was the northernmost of the six partitioned tracts

of land (the Axia Ann Helms Tract), James Helms was awarded a 142 acre tract of land (the

James Helms Tract) south of the Axia Ann Helms Tract, and Frances M. Helms was awarded a

110 acre tract south of the James Helms Tract (the Frances M. Helms Tract), as shown on the

map below.




                                               –2–
       In 1873, Frances M. Helms conveyed 60 acres comprising the eastern portion of his 110

acre tract to James Helms. In 1876, Frances M. Helms conveyed 40 acres in the middle of his

original 110 acre tract to James Helms, retaining the 10.129 acre tract now known as the Staley

Tract (depicted by gray shading on the map above). Honey Creek borders this remaining 10.129

acre tract to the west and south, and an unnamed tributary of Honey Creek borders the tract to

the east. In 1880, Frances M. Helms conveyed the remaining 10.129 acre tract, the westernmost

portion of his original 110-acre tract, to Moses Hubbard. Upon the death of Moses Hubbard and

his wife, the 10.129 acre tract was owned by The Moses and Mary Jane Hubbard Trust created

by a January 5, 1897 will. In June 2005, the 10.129 acre tract was conveyed from The Moses

                                             –3–
and Mary Jane Hubbard Trust to Berry Lynn Johnston. 1 In September 2005, the 10.129 acre

tract of land was conveyed by Berry Lynn Johnston to Charis Interests, Inc. In December 2009,

the 10.129 acre tract of land was conveyed by Charis Interests, Inc. to Staley.

            Appellees own the portion of the Axia Ann Helms Tract and the portion of the James

Helms Tract that are bordered by Honey Creek on the west and an unnamed tributary of Honey

Creek on the east (the Stiles Tract). The Stiles Tract is north of the Staley Tract. CR 134 is now

located on the northern boundary of the Stiles Tract. Honey Creek and the unnamed tributary of

Honey Creek extend north of CR 134.

            At trial, Staley sought a declaratory judgment that by reason of necessity, it “has or owns

an access easement to, over, and across the Stiles Tract for purposes of access to and from [CR

134].” Following a bench trial, the trial court signed a judgment declaring that Staley does not

have an easement across appellees’ property—the Stiles Tract—to access CR 134 from Staley’s

10.129 acre tract—the Staley Tract—and awarding appellees attorney’s fees. The trial court

filed findings of fact and conclusions of law. Staley requested additional findings, which were

not made. Specifically, the trial court concluded that Staley does not have an easement by

necessity, an implied easement, or an easement by estoppel across appellees’ property. 2 Staley

filed this appeal.

                                                       Easement by Necessity

            Staley contends the trial court erred by failing to grant a declaratory judgment that Staley

established an easement by necessity over appellees’ property to access CR 134 and by rendering

        1
       When the 10.129 acre tract was sold to Berry Lynn Johnston in 2005, a specific exception in the special warranty deed provided, “Right of
access to a public street or road from subject property is not insured.”
    2
       “Easements may be created by express grant, by implication, by necessity, by estoppel, or by prescription.” Machala v. Weems, 56 S.W.3d
748, 755 (Tex. App.—Texarkana 2001, no pet.); Tiller v. Lake Alexander Props., Ltd., 96 S.W.3d 617, 621 ((Tex. App.—Texarkana 2002, no
pet.); see also Hamrick v. Ward, 359 S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.] 2012, pets. granted) (“Texas courts commonly refer to
easements implied by necessity as ‘easements by necessity’ and easements implied by prior use simply as ‘implied easements.’”). At trial, Staley
relied on theories of easement by implication, necessity, and estoppel. However, on appeal, Staley challenges only the trial court’s failure to find
it has an easement by necessity.



                                                                       –4–
a declaratory judgment in favor of appellees that Staley does not have an easement by necessity

over appellees’ property to access CR 134. Whether a party is entitled to an easement by

necessity is a question of law, and we review the trial court’s conclusions of law de novo. See

Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 631 (Tex. App.—San

Antonio 1997, pet. denied). A conclusion of law will be reversed if it is erroneous as a matter of

law. Id.

                               Elements of Easement by Necessity and Burden of Proof

           An easement by necessity is established with proof of (1) unity of ownership of the

dominant and servient estates prior to severance, (2) necessity of a roadway, and (3) existence of

the necessity at the time of the severance of the two estates. Id.; see also Koonce v. Brite Estate,

663 S.W.2d 451, 452 (Tex. 1984). An easement by necessity is temporary and “ceases when the

necessity terminates.” Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 1944); see also Crone v.

Brumley, 219 S.W.3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied). As the party seeking

the easement by necessity, Staley had the burden to establish all elements of that claim. See Duff

v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958); Crone, 219 S.W.3d at 68 (party seeking

easement has burden of proof). Whether these requirements have been met is determined at the

time of severance of the alleged dominant and servient estates. Miller v. Elliott, 94 S.W.3d 38,

43 (Tex. App.—Tyler 2002, pet. denied); 3 see also Ingham v. O’Block, 351 S.W.3d 96, 102 (Tex.

App.—San Antonio 2011, pet. denied) (relevant time to determine unity of ownership is when

easement was allegedly created, that is, at time of severance).




     3
       The parcel of land owned by the grantor of the alleged easement is referred to as the servient estate and the parcel of land benefitted by the
alleged easement is referred to as the dominant estate. See Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San Antonio 1996, writ denied).



                                                                       –5–
                                                                   Analysis

           Prior to the 1866 partition of the Thompson Helms Tract, the property on which the

Staley Tract and the Stiles Tract are now located was united in common ownership by Thompson

Helms. In other words, the alleged dominant estate—the Staley Tract—and alleged servient

estate—the Stiles Tract—were a part of a single tract (the Thompson Helms Tract) until it was

partitioned in 1866. At that time, the 10.129 acres now known as the Staley Tract were part of

the Frances M. Helms Tract, and the Stiles Tract to the north of the Staley Tract was part of the

James Helms Tract and the Axia Ann Helms Tract. It is over what was the James Helms Tract

and the Axia Ann Helms Tract at the time of the 1866 partition that Staley sought an easement

by necessity to CR 134. The land contained in the Staley Tract was never part of the James

Helms Tract to its north. We therefore conclude the relevant severance occurred in 1866 when

the Thompson Helms Tract was partitioned and there was a severance of the alleged dominant

estate and the alleged servient estate. Accordingly, we necessarily reject the trial court’s Finding

of Fact No. 16 that the relevant severance occurred in 1876 when Frances M. Helms conveyed

40 acres of the remaining 50 acres in the Frances M. Helms Tract to James Helms. 4

           Staley contends the Staley Tract has remained “landlocked” since 1866, and the necessity

for an easement across the Stiles Tract to the public road system has existed since that time and

presently exists. According to Staley, the partition in 1866 of the Thompson Helms Tract made

the westernmost 10.129 acres of the Frances M. Helms tract inaccessible from the east, south,

and west due to impassable ravines of Honey Creek on the west and south and the unnamed

tributary of Honey Creek on the east. Staley contends, therefore, that at the time of the 1866

partition, the only access to the 10.129 acres of the Frances M. Helms Tract was from the north,

through the James Helms Tract and the Axia Ann Helms Tract.

   4
       The trial court’s erroneous Finding of Fact No. 16, however, did not result in the rendering of an incorrect judgment.



                                                                      –6–
       Necessity at the time of severance is an essential element of an easement by necessity.

Staley bore the burden of proving not only unity of ownership and present necessity, “but also

‘historical necessity,’ i.e., an easement was necessary at the time of the severance.” Ellison, 956

S.W.2d at 633; see also Ingham, 351 S.W.3d at 102 (referring to third element of easement by

necessity as “historical necessity”).

       Staley sought declaration of an easement by necessity “to, over, and across the Stiles

Tract for purposes of access to and from [CR 134].” Staley bore the burden of establishing that

its claim for access across the Stiles Tract was a necessity and not merely a convenience. See

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

pet. denied) (“In an easement by necessity case, whether by reservation or grant, we hold that the

degree of necessity required is that of ‘strict necessity.’”). Staley also bore the burden of

establishing that this necessity to cross the Stiles Tract for access to CR 134 arose at the time of

the partition of the alleged dominant and servient estates. See Ellison, 956 S.W.2d at 633. The

inquiry that governs resolution of this case is whether at the time of the severance, the dominant

estate—the Staley Tract—had the right to pass over the servient estate—the Stiles Tract—due to

necessity of access to CR 134. See Bains, 182 S.W.2d at 399; Crone, 219 S.W.3d at 70 (noting

no evidence established that at time of severance a public road abutted property across which

plaintiff sought easement by necessity; evidence was therefore legally insufficient to support

easement by necessity); Tiller v. Lake Alexander Props., Ltd, 96 S.W.3d 617, 623 (Tex. App.—

Texarkana 2002, no pet.) (easement by necessity may not be imposed where there is no evidence

of necessity to access public road at time of severance of dominant and servient estates); Heard

v. Roos, 885 S.W.2d 592, 596 (Tex. App.—Corpus Christi 1994, no pet.) (proof of unity of

ownership and necessity of roadway not enough to establish an easement by necessity; proof the

necessity existed at time dominant and servient estates were severed must be shown, and

                                                –7–
evidence did not support a finding that public road existed at time of severance); Ellison, 956

S.W.2d at 632 (holding a requisite to proof of historical necessity is a showing that easement

would provide access to a public road existing prior to severance of dominant and servient

estates); see also Perez v. Benavides, No. 04-06-00751-CV, 2007 WL 1608927, at *2 (Tex.

App.—San Antonio June 6, 2007, no pet.) (mem. op.) (at the time of severance, Share F was

landlocked, and Perez’s predecessors never gained access to a public road across Share F;

accordingly, evidence conclusively established no necessity existed for Perez’s predecessors to

use Share F to access a public road at time the estates were severed); Penney v. Mangum, No. 07-

08-0025-CV, 2009 WL 1677837, at *2 (Tex. App.—Amarillo, June 16, 2009, no pet.) (mem.

op.) (record clearly showed that at time of severance, FM 1187 was in existence and was only

access to servient estate; easement to access FM 1877 was necessity); Daniel v. Fox, 917 S.W.2d

106, 112 (Tex. App.—San Antonio 1996, writ denied) (“We find overwhelming evidence that

the roadway in controversy was in existence and being used as a necessity prior to and

subsequent to [partition of the property].”).

          Thomas Staley testified at trial that 1866 maps do not show CR 134. He testified that the

records that would provide information regarding establishment of CR 134 “go back” to the

1930s. He testified the “mapping is very poor, so it’s not clear what roads were up there. We’re

pretty certain there were some roads. We don’t know if it’s 134 or not.” As to whether CR 134

was located at the northern boundary of what is now the Stiles Tract in 1866, Thomas Staley

testified that there may have been a county road, “But – it might not have been called a county

road. It may have just been a road, you know. We don’t know. That’s a long time ago.” 5 See

Crone, 219 S.W.3d at 69–70 (maps dated 1936 and 1944 did not establish existence of a public

road in 1920 or 1923, nor did they furnish a basis for inferring that a public road existed some

   5
       At submission, counsel for Staley acknowledged Staley did not show at trial the location of a public road in 1866.



                                                                      –8–
sixteen and twenty years before their publication). David Stiles testified at trial that he had no

knowledge of what was at the northern boundary of the Stiles Tract in 1866. There is no credible

evidence in the record that a public road was in existence and being used in 1866 at the northern

boundary of what is now the Stiles Tract. 6 Although Staley contends the Staley Tract was

landlocked at the time of severance, there is no credible evidence to show the necessity of access

across the Stiles Tract to a public road in the current location of CR 134 at the time of severance.

Applying the appropriate standard of review, we conclude Staley failed to establish as a matter of

law the essential element of existence of the necessity at the time of the severance.

                                                         Attorney’s Fees

          Staley contends that, because the trial court erred by failing to grant a declaratory

judgment that Staley established an easement by necessity, the trial court erred by awarding

attorney’s fees to appellees and by failing to award attorney’s fees to Staley. The trial court has

discretion to award reasonable and necessary attorney’s fees as it deems equitable and just under

the Uniform Declaratory Judgments Act (UDJA). See TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.009 (West 2008) (trial court may award reasonable and necessary attorney’s fees to

prevailing party in declaratory judgment action); see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.002(b) & 37.004(a); Roberson v. City of Austin, 157 S.W.3d 130, 136–37 (Tex. App.—

Austin 2005, pet. denied) (noting a large number of easement cases have been decided under the

UDJA and that the UDJA, which is to be liberally applied, states it applies to determine the

validity of deeds). The grant or denial of attorney’s fees in a declaratory judgment action lies

within the discretion of the trial court, and its judgment will not be reversed on appeal absent a

clear showing that it abused that discretion. Oake v. Collin Cnty., 692 S.W.2d 454, 455 (Tex.


     6
       There is also no credible evidence in the record that a public road was in existence and being used in 1876 (the date the trial court
determined the relevant severance occurred) at the northern boundary of what is now the Stiles Tract.



                                                                   –9–
1985); see also Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300,

319 (Tex. App.—Texarkana 2006, pet. denied) (entitlement to attorney’s fees “depends on what

is equitable and just, and the trial court’s power is, in that respect, discretionary”).

        Staley did not file a post-trial motion complaining about the amount of attorney’s fees

awarded appellees or that the attorney’s fees awarded appellees were unreasonable or

unnecessary, and Staley does not argue on appeal that the attorney’s fees awarded appellees were

unreasonable or unnecessary. Staley only argues that the trial court erred as a matter of law by

awarding attorney’s fees to appellees because appellees should not have been the prevailing

parties in the trial court. The trial court granted appellees’ request for a declaratory judgment

that Staley does not have an easement by necessity across appellees’ property.             Having

concluded the trial court did not err by granting appellees’ request for a declaratory judgment or

by denying Staley’s request for a declaratory judgment, and as Staley does not contend the

appellees’ attorney’s fees are unreasonable or unnecessary, we cannot conclude the trial court

abused its discretion by awarding attorney’s fees to appellees.

                                             Conclusion

        We resolve Staley’s sole issue against it. We affirm the trial court’s judgment.




                                                      /Robert M. Fillmore/
                                                      ROBERT M. FILLMORE
                                                      JUSTICE



130735F.P05




                                                 –10–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STALEY FAMILY PARTNERSHIP,                         On Appeal from the 429th Judicial District
LTD., Appellant                                        Court, Collin County, Texas,
                                                       Trial Court Cause No. 429-03484-2010.
No. 05-13-00735-CV          V.                         Opinion delivered by Justice Fillmore,
                                                       Justices Evans and Lewis participating.
DAVID LEE STILES, DELZIE STILES,
GINGER WESTBROOK, ROBERT
STILES, AND DAVID STILES, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
       It is ORDERED that appellees David Lee Stiles, Delzie Stiles, Ginger Westbrook,
Robert Stiles, and David Stiles recover their costs of this appeal from appellant The Staley
Family Partnership.


Judgment entered this 18th day of June, 2014.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE




                                                –11–
