Reversed and Remanded and Majority and Dissenting Opinions filed
September 10, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-01141-CV

            UNION PACIFIC RAILROAD COMPANY, Appellant
                                        V.

           CHARLES SEBER AND BARBARA SEBER, Appellees

                   On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2008-64372

                       MAJORITY OPINION

      Charles and Barbara Seber sued Union Pacific Railroad Company
contending that it wrongfully removed the Sebers’ private railroad crossing. The
Sebers claimed a right to use the crossing pursuant to an implied easement by prior
use. The trial court granted summary judgment in favor of the Sebers, declaring
that the Sebers have a right to use the crossing and ordering Union Pacific to
reinstall the crossing. Additionally, the trial court denied Union Pacific’s no-
evidence summary judgment motion. The trial court signed a final judgment
incorporating the earlier interlocutory order granting summary judgment; the final
judgment also awarded the Sebers attorney’s fees based on a bench trial. Union
Pacific appealed the trial court’s summary judgment orders and final judgment.

       The Texas Supreme Court clarified the law on implied easements in
Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014), while this appeal was pending.
Relying on Hamrick, we conclude that the Sebers cannot assert an implied
easement by prior use. Accordingly, we reverse the trial court’s final judgment
based on an order granting the Sebers’ motion for summary judgment. We remand
the case to the trial court for further proceedings consistent with this opinion.

                                       BACKGROUND1

       Union Pacific’s predecessor in interest condemned a railroad right-of-way
along Hufsmith-Kuykendahl Road in 1902 along with a 1.5 acre tract of land
adjoining the right-of-way, which the railroad used for a section house.                     The
railroad constructed a crossing over the right-of-way, which permitted access
between the otherwise landlocked 1.5 acre tract and Hufsmith-Kuykendahl Road.
The 1.5 acre tract later was severed from the right-of-way and conveyed to a
number of different owners until it became part of a larger tract of land, which the
Sebers now own.

       The Sebers’ larger tract of land is landlocked along its northern and eastern
boundaries. The property’s western boundary abuts Stuebner-Airline Road. Union
Pacific’s railroad right-of-way runs along the property’s entire southern boundary.
The Sebers accessed their property from both Stuebner-Airline Road and the

       1
        We state only the relevant title history that the parties do not dispute, unless otherwise
noted. We express no opinion on whether our account of the title history is accurate as a matter
of law.

                                                2
railroad crossing to Hufsmith-Kuykendahl Road until 2008, when Union Pacific
permanently removed the railroad crossing.2 The Sebers now access their property
only from Stuebner-Airline Road.




       The parties’ dispute in this, their second appeal to this court, is whether
Union Pacific violated the Sebers’ rights when it removed the railroad crossing to
Hufsmith-Kuykendahl Road in 2008. We recount the case’s procedural history in
detail to clarify the parties’ contentions. We also address an intervening decision
from the Supreme Court of Texas that affects our disposition of this appeal.

I.     The First Appeal

       The Sebers filed suit on October 30, 2008, alleging that Union Pacific’s


       2
          A Union Pacific manager explained at his deposition: “[A] crossing usually consists of
some type of planking surface, concrete, timber, asphalt, something like that, on top of the track
structure. Then there’s a roadway approach that touches that. So [in closing a crossing] we
would traditionally remove the planking and pull the roadway back to open the ditches up if
there are ditches there. . . . The crossing boards are removed and set either side of the track
blocking the crossing. That’s all we did at that time.”

                                                3
removal of the private railroad crossing was “wrongful, constituted a trespass, and
was done in derogation of [their] vested rights.” The Sebers sought a declaratory
judgment that they were entitled to use the crossing and a mandatory injunction
requiring Union Pacific to replace the crossing. Alternatively, the Sebers sought
monetary damages, including exemplary damages, for (1) inverse condemnation of
their right to use the crossing; and (2) Union Pacific’s interference with their
“vested property rights.”

       Union Pacific filed a motion for traditional summary judgment and
contended that (1) the Sebers had no legal right to use the crossing; (2) Union
Pacific’s railroad right-of-way entitled it to exclude the Sebers; (3) the Sebers’
claims were preempted by federal law; (4) the Sebers’ trespass claim failed as a
matter of law; and (5) the Sebers could not obtain exemplary damages.3

       The Sebers filed a motion for partial summary judgment contending that
Union Pacific’s predecessor in interest conveyed an express easement to use the
crossing to the Sebers’ predecessor in title.

       The trial court signed an order on January 26, 2010, granting Union Pacific’s
motion for summary judgment. The Sebers timely appealed.

       On appeal, we affirmed the trial court’s (1) summary judgment in favor of
Union Pacific with respect to the Sebers’ trespass and exemplary damage claims;
and (2) denial of the Sebers’ partial summary judgment motion. See Seber v.
Union Pac. R.R. Co., 350 S.W.3d 640, 656 (Tex. App.—Houston [14th Dist.]
2011, no pet.).     Additionally, we determined that the property deeds filed as
summary judgment evidence did not grant the Sebers’ predecessor in title an
       3
          Union Pacific also filed a no-evidence summary judgment motion; however, the trial
court did not rule on the no-evidence motion and we did not consider the motion on appeal. See
Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 645 n.2 (Tex. App.—Houston [14th Dist.] 2011,
no pet.).

                                              4
express easement to use the railroad crossing. See id. at 647. We determined,
however, that a fact issue existed as to whether the Sebers had an implied easement
to use the railroad crossing. See id. at 650.

       We surveyed the law on implied easements in making our decision, noting at
the outset that “potentially confusing terminology pertaining to implied easements
[made] it more difficult to identify, apply, and analyze the correct governing
framework.” Id. at 647. We discussed two types of implied easements, which we
referred to then and will refer to now as “easements by necessity” and “easements
by prior use.” Id. at 647-48, 648 n.4.

       “An easement by necessity has three requirements: (1) unity of ownership
of both parcels prior to separation; (2) access must be a necessity and not a mere
convenience; and (3) the necessity must exist at the time of severance.” Id. at 648
(citing Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984)). On the other
hand, we stated: “A party claiming an easement by prior use must prove that at the
time of the severance: (1) both parcels were under unified ownership; (2) the use
was apparent; (3) the use was continuous; and (4) the use was necessary to the use
of the dominant estate.” Id. (citing Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.
1966) and Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962)).4

        “The Sebers expressly den[ied] that they claim[ed] an easement by
necessity.” Id. at 649. We determined that the dispute “center[ed] on an easement
by prior use.” Id. We then focused on the fourth element for establishing an
easement by prior use — that the party claiming the easement must prove that, at
the time the dominant and servient estates were severed, the “use was necessary to

       4
         An easement appurtenant requires a dominant and a servient estate. See Drye, 364
S.W.2d at 207; Seber, 350 S.W.3d at 646. The dominant estate is the estate to which the
easement attached; the servient estate is subject to the use of the dominant estate to the extent of
the easement granted or reserved. See Drye, 364 S.W.2d at 207; Seber, 350 S.W.3d at 646.

                                                 5
the use of the dominant estate.” See id. at 648-49; see also Bickler, 403 S.W.2d at
357; Drye, 364 S.W.2d at 207.

      We determined that Texas law required the Sebers to show “only reasonable
necessity,” rather than “strict necessity,” to establish an implied easement because
the Sebers alleged an implied grant of an easement and not an implied reservation
of an easement. Id. at 649 (citing Mitchell v. Castellaw, 246 S.W.2d 163, 168
(Tex. 1952) and Howell v. Estes, 12 S.W. 62, 62-63 (Tex. 1888)). We further
determined that the “relevant timeframe for proving reasonable necessity [was] the
point at which the 1.5 acre tract was severed,” and that the Sebers did not have to
show that the implied easement remained a “continued necessity” at all times after
severance, including “when the Sebers became owners of the larger tract of land.”
See id. at 649-50, 650 n.5.

      Applying our interpretation of Texas implied easement law and the relevant
standard of review, we held “that the grounds asserted in Union Pacific’s . . .
summary judgment motion did not establish as a matter of law that the Sebers
[were] foreclosed from invoking a right to use the crossing pursuant to an implied
easement by prior use.” Id. at 650. We also held that Union Pacific’s railroad
right-of-way did not entitle it to exclude the Sebers from the crossing and that
federal law did not preempt the Sebers’ claims. See id. at 651-52. Accordingly,
we reversed the trial court’s summary judgment order with respect to the Sebers’
claims, other than their claims for trespass and exemplary damages. See id. at 656.
We remanded the case to the trial court for proceedings consistent with our
opinion. See id.

II.   The Second Appeal

      The Sebers amended their petition following remand. They requested a
mandatory injunction requiring Union Pacific to replace the railroad crossing and a
                                         6
declaratory judgment “that they [had] obtained the right to use the railroad crossing
as an implied easement, based on the prior use of the land.”             The Sebers,
alternatively, requested “all appropriate monetary relief.”

      The Sebers filed a motion for traditional summary judgment in which they
contended that (1) Union Pacific’s predecessor in interest severed the 1.5 acre tract
from the railroad right-of-way in 1959; and (2) at the time of severance, an
easement to use the railroad crossing was reasonably necessary.          The Sebers
argued that these circumstances established an implied easement by prior use. The
Sebers attached as summary judgment evidence a 1959 deed purporting to transfer
the 1.5 acre tract from Union Pacific’s predecessor in interest to W.E. Simpson,
whom the Sebers asserted was their predecessor in title. The Sebers also attached
to their motion Barbara Seber’s affidavit, in which she averred that the railroad
crossing was apparent in 1959 and in continuous use since at least 1902.

      Union Pacific contended the Sebers had not established that the 1959 deed
conveyed an interest in the 1.5 acre tract and, therefore, the Sebers had not proved
unity of ownership of the dominant and servient estates at the time of severance.
According to Union Pacific, the 1902 condemnation decree did not award fee
simple title to the right-of-way and the 1.5 acre tract to Union Pacific’s predecessor
in interest. Union Pacific argued that its predecessor in interest had a lesser
interest in the condemned property that reverted back to the original owner when
the property ceased to be used for railroad purposes. Union Pacific argued that this
reversion occurred before execution of the 1959 deed because the deed states:
“The property herein described is not used or useful for railroad purposes.” Union
Pacific also argued that the Sebers had not proved through Barbara Seber’s
affidavit that the crossing was apparent and continuously used in 1959 and earlier
because Barbara Seber’s affidavit was not based on personal knowledge, was

                                          7
conclusory, could not be readily controverted, and was inconsistent with her
deposition testimony.

       Union Pacific also filed a no-evidence summary judgment motion, in which
it contended that the Sebers could not establish an implied easement by prior use
because the Sebers had no evidence that (1) the 1959 deed conveyed an interest in
the land; and (2) the railroad crossing existed or was in use in 1959. The Sebers
responded to Union Pacific’s no-evidence summary judgment motion with
substantially the same evidence they relied on in their summary judgment motion.

       The trial court granted the Sebers’ traditional motion for summary judgment
on January 27, 2012, and denied Union Pacific’s no-evidence summary judgment
motion on February 17, 2012. The case proceeded to a bench trial on attorney’s
fees. The trial court signed a final judgment on September 25, 2013, in which it
awarded the Sebers $126,875 in reasonable and necessary attorney’s fees along
with additional amounts contingent upon successful defense of the judgment on
appeal. Union Pacific timely appealed.

       Union Pacific argues in two issues that the trial court erred in applying the
law on implied easements by prior use to the summary judgment evidence. It
argues, as it did in the trial court, that its predecessor in interest “lost ownership” of
the 1.5 acre tract of land before it executed the 1959 deed. Union Pacific also
argues that Barbara Seber’s affidavit is no evidence, or at a minimum no
conclusive evidence, that the crossing was being used in 1959. In a third issue,
Union Pacific contends that the trial court erred in granting attorney’s fees to the
Sebers because they should not have prevailed on their claims.

III.   Hamrick v. Ward

       The Texas Supreme Court decided Hamrick v. Ward, 446 S.W.3d 377 (Tex.


                                            8
2014), after the parties filed their appellate briefs.     The supreme court used
Hamrick “to provide clarity in an area of property law that ha[d] lacked clarity for
some time: implied easements.” Id. at 379. In Hamrick the supreme court held that
the easement-by-necessity doctrine — and not the easement-by-prior-use doctrine
— must apply “to claims of landowners asserting implied easements for roadway
access to their landlocked, previously unified parcel.” Id. at 379; see id. at 382.

      The supreme court described the facts of the case as follows. A landowner
constructed a dirt road along the eastern edge of his 41.1 acre parcel of land in the
1930s. Id. at 379. The landowner later severed the parcel into a two-acre parcel
and a 39.1 acre parcel. Id. The landowner sold the two-acre parcel in the 1950s to
a couple who used the dirt road to access their property. Id. The 39.1 acre parcel
was sold to a developer for construction of a subdivision in the 1990s. Id. The
developer paved roads within the larger parcel and planned to construct a paved
driveway to connect the two-acre parcel to one of the subdivision’s newly paved
roads. Id. The county, however, refused the developer permission to connect the
two-acre parcel to one of the newly paved roads because the two-acre parcel had
not been platted.    Id.   In response, the developer unilaterally filed a special
restriction amendment to the subdivision’s deed restrictions. Id. The special
restriction purported to create a prescriptive easement along the dirt road for the
owner of the two-acre parcel to access her property. Id. at 379-80. The developer
then sold lots over which the dirt road ran to homebuyers, whom the court referred
to collectively as “the Hamricks.” Id. at 380.

      Tom and Betsey Ward purchased the two-acre parcel of land in the 2000s.
Id. They reinforced the dirt road with gravel and made use of the road to begin
construction of a new home. Id. The Hamricks sued to enjoin the Wards from
using the dirt road. Id. The trial court granted a temporary injunction, which

                                          9
prevented the Wards from using the dirt road for construction of their home. Id.
As a result, the Wards platted their property and built a driveway to provide the
Wards with access to one of the subdivision’s newly paved roads. Id. The Wards
then completed construction of their home. Id. The Wards filed a counterclaim
against the Hamricks arguing that they had an implied easement by prior use to use
the dirt road; the Wards requested a declaratory judgment regarding their right to
an easement. Id.

      The trial court granted the Wards’ motion for summary judgment after
determining that the Wards had conclusively established the existence of an
easement by prior use. Id. The Hamricks appealed, and the court of appeals
determined that the summary judgment evidence conclusively established
beneficial use of the road prior to severance and the necessity of the road. See id.;
Hamrick v. Ward, 359 S.W.3d 770, 776-79 (Tex. App.—Houston [14th Dist.]
2011), rev’d, 446 S.W.3d 377 (Tex. 2014). The court of appeals unanimously held
that the Wards were required to prove necessity only at the time of severance,
rather than continuing necessity. See Hamrick, 446 S.W.3d at 380; Hamrick, 359
S.W.3d at 777. The court of appeals remanded because it determined that a fact
issue remained with respect to one of the Hamricks’ asserted defenses.           See
Hamrick, 446 S.W.3d at 380; Hamrick, 359 S.W.3d at 785.

      The Hamricks appealed to the Texas Supreme Court. They argued that the
court of appeals erred by concluding that the Wards were required to demonstrate
the necessity of the easement only at the time of severance. Hamrick, 446 S.W.3d
at 381. The Wards countered that the supreme court had never required continued
necessity for easements by prior use. Id. The supreme court determined that the
Wards could not prevail on an implied easement by prior use. Id. It held that “the
applicable doctrine for roadway access to previously unified, landlocked parcels is

                                         10
the necessity easement.” Id.5 The court remanded the case to the trial court
because the Wards only pleaded theories of easement by prior use and easement by
prescription. Id. at 385. The court would not “foreclose the Wards from bringing
a necessity easement claim in light of [the court’s] clarification of the law.” Id.

      In reaching its decision, the supreme court stated:

      To successfully assert [an easement by 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.

Id. at 382. Additionally, a party seeking an easement by necessity must prove
strict, rather than reasonable necessity. Id. at 379, 384.

IV.   Post-Hamrick Supplemental Briefing

      Union Pacific filed a supplemental brief in this court after the supreme court
issued Hamrick. Union Pacific argued that the Sebers are claiming a roadway
easement to a landlocked, previously unified parcel of land; therefore, Union
Pacific contends, the Sebers must pursue an easement by necessity theory under
Hamrick.    Union Pacific further argues that the Sebers cannot prevail on an
easement-by-necessity theory because the crossing over Union Pacific’s railroad
right-of-way ceased to be necessary when the 1.5 acre tract of land became part of
the larger tract that borders Stuebner-Airline Road to the west. Union Pacific
requested that judgment in favor of the Sebers be reversed and judgment rendered
in favor of Union Pacific. Alternatively, it requested that we remand the case to

      5
        The supreme court referred to the two types of implied easements as “prior use
easements” and “necessity easements.” Hamrick, 446 S.W.3d at 381.

                                          11
the trial court for development of the easement-by-necessity issue.

      The Sebers responded that the railroad crossing between their property and
Hufsmith-Kuykendahl Road is not a roadway; therefore, they contend that
Hamrick does not control. The Sebers argued that the railroad crossing is instead
an “improvement” and that Hamrick did not “impact the continued ability of such
improvements to qualify as [easements by prior use].” See id. at 384-85. The
Sebers requested that we affirm the trial court’s judgment because the evidence
established an easement by prior use. Alternatively, the Sebers requested that we
remand the case if we determine the crossing to be a roadway so that the trial court
can consider the issue of easement by necessity and other easement theories the
Sebers may assert in light of Hamrick.

                                    ANALYSIS

I.    The Sebers’ Traditional Motion for Summary Judgment

      We consider first whether the railroad crossing between the Sebers’ property
and Hufsmith-Kuykendahl Road is a “roadway” or “other improvement.” See id.
at 384-85. Our resolution of this question determines the controlling implied
easement law under Hamrick, which, in turn, affects our analysis of whether the
trial court erred in granting traditional summary judgment in favor of the Sebers.
See id.; see also Tex. R. Civ. P. 166(a)(c) (a traditional summary judgment movant
must show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law); Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005) (an appellate court reviews the trial court’s summary
judgment de novo).

      Hamrick determined that the dirt road at issue in that case, which later was
reinforced with gravel, was a roadway. Hamrick, 446 S.W.3d at 385. The court


                                         12
stated:

      Roadways by nature are typically substantial encumbrances on
      property, and we accordingly require strict, continuing necessity to
      maintain necessity easements. By contrast, we created and have
      primarily utilized the prior use easement doctrine for lesser
      improvements to the landlocked parcel, such as utility lines that
      traverse the adjoining tract. We have required, to some degree, a
      lesser burden of proof for prior use easements (reasonable necessity at
      severance rather than strict and continued necessity) because they
      generally impose a lesser encumbrance on the adjoining tract (e.g., a
      power line compared to a roadway).

Id. at 379.

      The supreme court summarized the development of implied easement law.
See id. at 381-84. The court recognized in Alley v. Carleton, 29 Tex. 74 (1867),
that an implied easement by necessity “results when a grantor, in conveying or
retaining a parcel of land, fails to expressly provide for a means of accessing the
land.” Hamrick, 446 S.W.3d at 382 (citing Alley, 29 Tex. at 78). The implied
easement by necessity facilitates “continued productive use of the landlocked
parcel.” Id.

      Two decades after Alley was decided, the supreme court found the
framework established for easements by necessity “to be ill suited for other
improvements that nonetheless are properly construed as implied easements.” Id.
These “other improvements” included the use of a stairwell in an adjacent building,
the right to graze cattle on an exposed lakebed, and the recreational use of
adjoining property. Id. at 382-84 (citing Howell, 12 S.W. at 62), Ulbricht v.
Friedsam, 325 S.W.2d 669, 677 (Tex. 1959), and Drye, 364 S.W.2d at 208). The
court established a doctrine of easement by prior use “for assessing whether to
recognize implied easements for improvements across previously unified adjoining
property.” Hamrick, 446 S.W.3d at 383. The doctrine of easement by prior use
                                        13
applied as follows: “‘[I]f an improvement constructed over, under, or upon one
parcel of land for the convenient use and enjoyment of another contiguous parcel
by the owner of both be open and usable and permanent in its character . . . the use
of such improvement will pass as an easement, although it may not be absolutely
necessary to the enjoyment of the estate conveyed.’” Id. (citing Howell, 12 S.W. at
63). The court applied the easement by prior use doctrine to, among other things,
“‘a part[ition] wall,’ ‘a drain or aqueduct,’ ‘a water [gas] or sewer line into the
granted estate,’ ‘a drain from the land,’ ‘light and air,’ ‘lateral support,’ and
‘water.’” Id. at 384 (citing Drye, 364 S.W.2d at 207-08).

       The supreme court recognized that “the express elements required for prior
use easements do not restrict themselves to certain easement purposes.” Id. In at
least one prior case, “a party pursued a prior use easement (rather than a necessity
easement) for roadway access to a previously unified, landlocked parcel.” Id. at
385 (citing Bickler, 403 S.W.2d at 357).6              Nevertheless, the supreme court
“developed the two types of implied easements for discrete circumstances. The
less forgiving proof requirements for necessity easements (strict and continuing
necessity) simply serve as acknowledgment that roadways typically are more
significant intrusions on servient estates. By contrast, improvements at issue in
prior use easements (e.g., water lines, sewer lines, power lines) tend to involve
more modest impositions on servient estates.” Id. at 384. According to Hamrick:
“Applying this distinction to the Wards’ claimed easement does not entail
prolonged analysis.      Their claimed easement concerns a roadway to access a

       6
         Bickler held that an easement to use a driveway attached to the dominant estate under
the doctrine of implied easement by prior use because there was no other legal access to and
from the dominant estate. Bickler, 403 S.W.2d at 356-59. Similarly, Ulbricht held that an
easement to graze cattle on an exposed lakebed and an easement to access property from the lake
attached to the dominant estate under the doctrine of implied easement by prior use. Ulbricht,
325 S.W.2d at 677; see Hamrick, 446 S.W.3d at 384 n.9.

                                              14
previously unified, landlocked parcel. This is precisely the factual scenario for
which we created the necessity easement doctrine well over a century ago, and . . .
the Wards must pursue a necessity easement rather than a prior use easement.” Id.
at 385.

      Relying on Hamrick, the Sebers argue: “Here, the easement at issue is over
an improvement — a crossing that the railroad constructed over its tracks. This
improvement is the type that [Hamrick] held constitutes a lesser encumbrance on
property than does a roadway, and to which the [easement by prior use] doctrine
still applies.” The Sebers provide a dictionary definition of “improvement” as
“‘[a]n addition to real property, whether permanent or not; esp., one that increases
its value or utility or that enhances its appearance.’” (quoting BLACK’S LAW
DICTIONARY 761 (7th ed. 1999)). The Sebers argue that Hamrick’s holding does
not apply to “improvements” such as the crossing, but applies instead only to
“roadways.”

      We determine, upon a close reading of Hamrick, that the Sebers misconstrue
Hamrick’s reasoning and holding. Hamrick did not create a dichotomy between
“roadways” and “improvements.”         Instead, Hamrick treated a roadway as an
“improvement,” and it discussed easements by prior use as applicable to “other
improvements” that “involve more modest impositions on servient estates.” See id.
at 383-84.

      The railroad crossing at issue in this case provided access to Hufsmith-
Kuykendahl Road for the 1.5 acre tract after it became landlocked. The crossing
also provided a means to travel over the railroad right-of-way.                  This
“improvement” — as both a roadway access and a means to travel over a railroad
right-of-way — is at least as significant an intrusion on the railroad right-of-way as
roadway access was on the servient estates in Hamrick. See id. at 385; cf. City of

                                         15
Houston v. Goings, 795 S.W.2d 829, 832 (Tex. App.—Houston [14th Dist.] 1990,
writ denied) (“A public bridge forming a connecting link in a street or highway is a
part of that street or highway.”). The improvement at issue here is more akin to a
roadway and less akin to “more modest impositions” such as water, sewer, or
power lines. See Hamrick, 446 S.W.3d at 384. Based on the reasoning and
holding of Hamrick, we conclude that the Sebers must pursue an easement by
necessity for roadway access over the railroad right-of-way. See Hamrick, 446
S.W.3d at 384-85.

      It follows that the trial court erred in granting summary judgment in favor of
the Sebers on their pleaded theory of easement by prior use. To prevail on a
traditional motion for summary judgment, the movant must show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law. Tex. R. Civ. P. 166a(c). We review a trial court’s summary
judgment de novo. Valence, 164 S.W.3d at 661. We hold that the Sebers are not
entitled to summary judgment on their pleaded easement by prior use claim
because the Sebers cannot prevail on this claim as a matter of law. See Tex. R.
Civ. P. 166(a)(c); Hamrick, 446 S.W.3d at 385-86; Valence, 164 S.W.3d at 661.
We reverse the trial court’s final judgment based on the January 27, 2012 summary
judgment order.

II.   Remand in the Interest of Justice

      The Sebers did not plead an easement by necessity theory and — until this
point in the litigation — have expressly denied relying on such a theory. The
Sebers nevertheless request that we remand the case to allow the Sebers an
opportunity to plead and prove an easement by necessity theory or any other
easement theory that is not foreclosed by Hamrick. The Sebers argue that they
should be allowed the same opportunity on remand that was afforded to the Wards

                                        16
in Hamrick. See Hamrick, 446 S.W.3d at 385 (“Although we refrain from opining
as to whether the Wards will ultimately prevail on a necessity easement claim, our
clarification of the law entitles them to the opportunity to plead and prove such a
claim.”).

      Union Pacific argues in its post-Hamrick supplemental brief that (1) the
Sebers’ only available claim is for an implied easement by necessity; and (2) any
easement by necessity terminated when the 1.5 acre tract was joined with the larger
tract that has access to Stuebner-Airline Road. Union Pacific requests that we
render judgment in its favor and remand the case to the trial court to determine
Union Pacific’s attorney’s fees award. Union Pacific also states: “If this Court is
concerned that the implied easement by necessity argument was not fully
developed in the trial court, then — like the Supreme Court did in Hamrick — it
can remand for further development of that issue.”

      Union Pacific argued in its no-evidence motion for summary judgment that
the Sebers could not proffer evidence to support required elements of an easement
by prior use. Union Pacific understandably did not move for summary judgment
on an as-yet unpleaded claim for easement by necessity.              Union Pacific
understandably did not argue in its motion for summary judgment that access to
Stuebner-Airline Road prevented the Sebers from establishing an easement by
necessity after the larger tract was joined with the 1.5 acre tract; the Sebers were
not pursuing a claim based on an easement by necessity at the time, and Hamrick
had not yet been decided.

      Under these circumstances, the trial court could not properly have granted
summary judgment in favor of Union Pacific on an easement by necessity claim,
which had not been pleaded, and which had not been addressed in Union Pacific’s
no-evidence motion for summary judgment. See Johnson v. Brewer & Pritchard,

                                        17
P.C., 73 S.W.3d 193, 204 (Tex. 2002) (“A court cannot grant summary judgment
on grounds that were not presented.”); see also G & H Towing Co. v. Magee, 347
S.W.3d 293, 298 (Tex. 2011) (“[A] trial court errs in granting a summary judgment
on a cause of action not expressly presented by written motion.”); Dubose v.
Worker’s Med., P.A., 117 S.W.3d 916, 922 (Tex. App.—Houston [14th Dist.]
2003, no pet.) (“The trial court may not grant summary judgment as a matter of
law on a cause of action not addressed in the summary judgment proceeding.”).
Union Pacific does not cite any authority for the proposition that we may render
judgment under these circumstances. Cf. Hamrick, 446 S.W.3d at 385 (“[W]e
procedurally cannot hold that the Wards prevailed on a theory they have not
advanced in the trial court.”).     We reject Union Pacific’s request to render
judgment in its favor with respect to an easement by necessity theory that was not
pursued in the trial court.

      Furthermore, we have broad discretion to remand a case in the interest of
justice after reversing the trial court’s judgment. See Tex. R. App. P. 43.3(b);
Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no
pet.); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (a court of appeals, unlike the Texas Supreme Court, cannot remand
in the interest of justice without first reversing the trial court’s judgment). We may
exercise our discretion to remand as long as there is a probability that the case, for
any reason, has not been fully developed. See Ahmed, 261 S.W.3d at 196. We
also may remand if a case needs further development because it was tried on an
incorrect legal theory. Id.

      We have determined that summary judgment in favor of the Sebers based on
an easement-by-prior-use theory is erroneous because an easement by prior use is
unavailable to the Sebers following Hamrick. The Sebers asserted at oral argument

                                         18
that access to their property from Stuebner-Airline Road is impeded during certain
times of the year due to wet conditions. The parties have not adequately developed
facts or arguments regarding whether this impediment or other circumstances
affect the Sebers’ right, if any, to an easement by necessity. See Mitchell v.
Castellaw, 246 S.W.2d 163, 168 (1952) (“[E]ven the term ‘strict necessity’ is not
hopelessly inelastic for sensible application to varying sets of facts.”). Under the
circumstances, we remand the case in the interest of justice to allow the Sebers an
opportunity to plead and pursue an easement-by-necessity theory or any other
easement theory that has not been foreclosed by Hamrick, and to allow the parties
to develop facts and arguments accordingly. See Tex. R. App. P. 43.3(b).

      The dissent misses the mark by contending it is erroneous to remand in the
interest of justice, and to do so “without addressing the railroad company’s
rendition arguments” asserting there is no evidence on two elements of a claim for
easement by prior use.

      The dissent does not contend that we can ignore Hamrick. The dissent stops
well short of concluding that a necessity easement claim does not fit the
circumstances here under Hamrick. The dissent does not explain how any useful
purpose would be served by determining on appeal whether the Sebers proffered
evidence on two particular elements of a prior-use easement claim that is
unavailable to them as a matter of law after Hamrick. If such a claim is legally
unavailable to the Sebers, then purported fact issues on particular elements of the
legally unavailable claim are not “material” under Texas Rules of Civil Procedure
166a(c) and (i); further, discussing immaterial fact issues is not “necessary to final
disposition of the appeal” under Texas Rule of Appellate Procedure 47.1.

      The dissent’s main thrust appears to be that rendition arguments must be
decided before remand arguments under the general rule discussed in Bradleys’

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Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (“Generally,
when a party presents multiple grounds for reversal of a judgment on appeal, the
appellate court should first address those points that would afford the party the
greatest relief.”) (citing Tex. R. App. P. 43.3). But the general rule has exceptions.
One of those exceptions allows a remand in “the interests of justice” in appropriate
circumstances. See Tex. R. App. P. 43.3(b).7

       The appropriate circumstances for a remand in the interest of justice are
present here in light of Hamrick’s clarification of many decades of muddled
terminology and less-than-clear analysis accompanying efforts to distinguish
between implied prior-use easements and implied necessity easements.                             See
Hamrick, 446 S.W.3d at 381-82, 384-85. In their supplemental briefs, Union
Pacific and the Sebers both have invited this court to remand for further
proceedings in light of Hamrick. We believe the appropriate course is to exercise
our discretion under Texas Rule of Appellate Procedure 43.3(b); accept an
invitation extended by both parties; and follow Hamrick’s lead by remanding so
that we do “not foreclose the [Sebers] . . . from bringing a necessity easement
claim in light of [Hamrick’s] . . . clarification of the law.” See Hamrick, 446
S.W.3d at 385.



       7
           Relying on Natural Gas Pipeline Company of America v. Pool, 124 S.W.3d 188, 201
(Tex. 2003), the dissent contends it is invoking a distinct “greatest-degree-of-finality rule” that is
separate from the general admonition to determine rendition issues before remand issues. Ante at
4-5. Pool immediately followed this phrase by citing and discussing Bradleys’ Electric. See
Pool, 124 S.W.3d at 201 (citing Bradleys’ Elec., Inc., 995 S.W.3d at 677). Therefore, it is
questionable at best whether use of the phrase “greatest degree of finality” in Pool announces a
free-standing decisional “rule” that is distinct from the general direction to address rendition
issues first as discussed in Bradleys’ Electric and many other cases. In any event, nothing about
the appearance of this phrase in Pool suggests that the supreme court intended to restrict the
availability of remand in the interest of justice in appropriate circumstances – or to read implicit
limits into Texas Rule of Appellate Procedure 43.3 that do not appear in the rule’s text.

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                                   CONCLUSION

      We reverse the trial court’s September 25, 2013 final judgment, which
incorporates the erroneous January 27, 2012 summary judgment order. In light of
our disposition, we do not assess the propriety of the trial court’s denial of Union
Pacific’s no-evidence summary judgment motion, which was aimed solely at the
Sebers’ claim for an easement by prior use. We reverse the trial court’s final
judgment awarding attorney’s fees to the Sebers because the fee award was
predicated on the trial court’s erroneous summary judgment in favor of the Sebers
on an easement-by-prior-use claim that is unavailable to the Sebers after Hamrick.
We remand the case to the trial court for further proceedings consistent with this
opinion.




                                             /s/ William J. Boyce
                                                 Justice


Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Frost, C.J.
dissenting opinion).




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