Opinion issued August 31, 2012.




                                  In The

                           Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-10-01002-CV
                         ———————————
 MIKE BOULANGER, TRUSTEE, ON BEHALF OF WESTLUM TRUST,
                       Appellant
                                    V.
  WASTE MANAGEMENT OF TEXAS, INC., WASTE MANAGEMENT,
  INC., AND USA WASTE LANDFILL OPERATIONS AND TRANSFER,
                        INC., Appellees



                  On Appeal from the 334th District Court
                           Harris County, Texas
                     Trial Court Case No. 2010-28400



                       OPINION ON REHEARING

     Mike Boulanger, as Trustee on behalf of the Westlum Trust, moved for

rehearing of our December 15, 2011 opinion and judgment. We deny the motion
for rehearing. To clarify the governing standards of deed interpretation and

construction, however, we withdraw our prior opinion and judgment and issue the

following opinion and judgment in their stead.

      In this dispute regarding the interpretation and construction of a deed,

Boulanger and Waste Management of Texas, Inc., Waste Management, Inc., and

USA Waste Landfill Operations and Transfer, Inc. (collectively, Waste

Management) claim competing title to an abandoned railroad right-of-way. The

trial court granted summary judgment in favor of Waste Management. Boulanger

appeals, contending that the summary judgment should be reversed because the

trial court erred by looking beyond the four corners of the deed at issue,

considering construction aids and extrinsic evidence in the absence of any pleading

or finding of ambiguity, and failing to recognize the existence of a fact issue as to

the ownership of the right-of-way. We affirm the trial court’s judgment.

                                     Background

      The Sam Houston Recycling Center sits at the southwest corner of Westview

Drive and Lumpkin Road in Houston, Texas. The property consists of two tracts of

land: (1) the “Main Tract” of approximately 3.6406 acres and (2) the “Panhandle

Tract” of approximately 2.117 acres. Running in a north-south direction between

the Main Tract and the Panhandle Tract is the forty-foot-wide railroad right-of-way

that is the subject of this property dispute.

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      The Main Tract and the Panhandle Tract originally were part of a larger,

142-acre tract of land owned by C.P. Lumpkin. Lumpkin split the 142 acres into

various parcels. The Main Tract and the Panhandle Tract were included in one

parcel, which consisted of 14.177 acres. In 1955, Lumpkin conveyed 13.697 acres

of the parcel, including the Main and Panhandle Tracts, by deed to Cramerus

Realty Company (the Cramerus Deed). The Cramerus Deed identified the property

conveyed by metes and bounds description and stated that it was “LESS the

following tract of land reserved for railroad right-of-way:”

            BEGINNING at a point in the North line of Tract “F” above
      from which the Northwest corner of tract “F” bears N. 88 deg. 38’ 23”
      W. 681.93 feet;

            THENCE S. 88 deg. 38’ 23” E., along the North line of Tract
      “F”, 40.01 feet to a point;

            THENCE S. 88 deg. 38’ 33: W. along the South line of Tract
      “F” 40.01 ft. to a point;

            THENCE North 522.70 feet to the place of beginning, and
      containing 0.480 acres of land.

      The parties dispute the legal effect of this language. Boulanger argues that

the language excluded the right-of-way from the conveyance of the Main and

Panhandle Tracts and that Lumpkin (and later his heirs) retained title to the right-

of-way until Boulanger acquired it in 2005. In contrast, Waste Management argues

that Lumpkin’s heirs had no interest to convey to Boulanger because the Cramerus

Deed passed fee title to the right-of-way along with the Main and Panhandle Tracts
                                          3
and, through a series of subsequent conveyances, Waste Management acquired the

right-of-way in 1991. According to Waste Management, the language at issue

served only to notify Cramerus that the land conveyed was burdened by the right-

of-way. Waste Management asserts that, because there is no alternate route

between the Main and Panhandle Tracts, “if [the right-of-way is not] utilized as

part of the Sam Houston Recycling Center, [it] would be a useless, land-locked

piece of real estate.”

      Boulanger sued Waste Management, seeking to enjoin Waste Management’s

use of the right-of-way and to recover actual and punitive damages for trespass and

unjust enrichment. Waste Management generally denied the allegations in

Boulanger’s petition and filed counterclaims for trespass to try title and suit to

quiet title. Before the case proceeded to a jury trial, Waste Management filed a

combined no-evidence and traditional motion for partial summary judgment,

asserting that Boulanger had no evidence of the ownership element of his trespass

claim or, alternatively, that Waste Management had conclusively negated that

element.1 Without stating its reasons, the trial court granted Waste Management’s


1
      Both of Boulanger’s theories of recovery were contingent upon a showing that he
      holds title to or lawful possession of the right-of-way. To recover damages on his
      trespass to real property claim, Boulanger must show that (1) he owns or has a
      lawful right to possess the disputed property, (2) Waste Management entered his
      land and the entry was physical, intentional, and voluntary, and (3) Waste
      Management’s trespass caused him injury. See Tex. Woman’s Univ. v. The
      Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.] 2006, no
                                          4
motion. Waste Management dismissed its claims against Boulanger, rendering the

trial court’s partial summary judgment final and appealable.

                    Summary Judgment Standard of Review

      We review summary judgments de novo and according to well-settled

standards. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);

City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied). Waste Management was entitled to a no-

evidence summary judgment if, after adequate time for discovery, there was no

evidence of one or more essential elements of Boulanger’s claim. See TEX. R. CIV.

P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). To prevail on

its its traditional summary judgment motion, however, Waste Management was

required to conclusively negate at least one essential element of Boulanger’s claim

or conclusively establish each element of an affirmative defense. See TEX. R. CIV.

P. 166a(c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 50809 (Tex. 2010);

City of Galveston, 196 S.W.3d at 221. Under both standards, we view all evidence




      pet.). “Unjust enrichment occurs when the ‘person sought to be charged [has]
      wrongfully secured a benefit or [has] passively received one which it would [be]
      unconscionable to retain.’” Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265,
      270 (Tex. App.—San Antonio 2004, pet. denied) (quoting City of Corpus v. S.S.
      Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. App.—Corpus Christi
      1987, writ denied)).

                                          5
in a light favorable to Boulanger and indulge every reasonable inference in his

favor. See Dorsett, 164 S.W.3d at 661; City of Galveston, 196 S.W.3d at 221.

                                 Deed Construction

      The resolution of this appeal turns on the construction of the Cramerus

Deed. “As is often true in litigation involving the interpretation and construction of

written instruments,” both Boulanger and Waste Management insist that the

Cramerus Deed is “‘plain and unambiguous’ and admits of no reasonable meaning

other than that for which they contend.” McMahon v. Christmann, 303 S.W.2d

341, 343 (Tex. 1957). Their disagreement, however, is not limited to a difference

of opinion regarding the legal effect of Lumpkin’s conveyance; Boulanger and

Waste Management also dispute whether the trial court properly applied the law

relating to the interpretation and construction of deeds.

      Boulanger argues in his second and fourth issues that neither the trial court

nor this Court may apply rules of construction or consider extrinsic evidence in the

absence of a pleading and finding that the Cramerus Deed is ambiguous. Absent

ambiguity, according to Boulanger, courts are bound by the language used in the

“four corners” of the deed in determining the property conveyed. Waste

Management, however, argues that to construe the Cramerus Deed, the courts may

consult construction aids to ascertain the parties’ intent and give legal effect to the

language used in the conveyance. According to Waste Management, the existence

                                          6
of an ambiguity is a prerequisite only to the admission of extrinsic evidence. Thus

in sum, Boulanger and Waste Management agree that courts should not consider

extrinsic evidence before determining that a deed is ambiguous, but they disagree

whether rules of construction may be considered before such determination.

      The majority of the deed-construction cases cited by Boulanger do not

support his position that a pleading and finding of ambiguity must precede the

application of rules of construction. In both Neel v. Killam Oil Co., Ltd., 88 S.W.3d

334, 339−41 (Tex. App.—San Antonio 2002, no pet.), disapproved of by Hausser

v. Cuellar, 345 S.W.3d 462, 470 (Tex. App.—San Antonio 2011, pet. denied) (en

banc) and Cherokee Water Co. v. Freeman, 33 S.W.3d 334, 353−54 (Tex. App.—

Texarkana 2000, no pet.), the court applied rules of construction in a manner

inconsistent with Boulanger’s position—i.e., the court considered rules of

construction to avoid a finding of ambiguity in the deed at issue, not as a method of

resolving an already-declared ambiguity. In Cherokee Water, the court described

only the admission of extrinsic evidence as being dependent on a determination of

ambiguity in the deed. See 33 S.W.3d at 353. Nevertheless, in his motion for

rehearing, Boulanger asserts that a holding contrary to his position would be in

direct contradiction of the Eastland Court of Appeals’s statement in Gail v. Berry,

343 S.W.3d 520, 525 (Tex. App.—Eastland 2011, pet denied), that the rules of

construction will not be considered absent an allegation that a deed is ambiguous.

                                         7
That statement, however, follows the Eastland Court of Appeals’s own authority

adopting a two-step procedure for deciding a deed’s meaning: first, that court

interprets a deed by applying “rules of interpretation” and second, if application of

the rules of interpretation reveals that a deed is ambiguous, the court employs

“canons of construction” to give the deed legal effect. See, e.g., Moon Royalty,

LLC v. Boldrick Partners, 244 S.W.3d 391, 394 (Tex. App.—Eastland 2007, no

pet.) (drawing distinction between application of “rules of interpretation” and

“canons of construction”); Stewman Ranch, Inc. v. Double M. Ranch, Ltd., 192

S.W.3d 808, 811 (Tex. App.—Eastland 2006, pet. denied). As our sister court of

appeals in Tyler has observed, the two-step procedure adopted by the Eastland

Court of Appeals is not the method used by other Texas courts, including this

Court, in determining whether a deed is ambiguous. See Elder v. Anadarko E & P

Co., No. 12-10-00250-CV, 2011 WL 2713817, at *2 (Tex. App.—Tyler July 13,

2011, no pet.) (mem. op.); see also Buffalo Ranch Co., Ltd. v. Thomason, 727

S.W.2d 331, 333 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (applying

canons to determine that deed was not ambiguous). “In practice, the courts of

Texas and other jurisdictions have used the terms ‘interpretation’ and

‘construction’ interchangeably. Consequently, both terms have been used to refer

to the rules or canons applied by courts to determine whether a written instrument

is ambiguous.” Elder, 2011 WL 2713817, at *2 (emphasis added); see, e.g.,

                                         8
Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589

(Tex. 1996) (stating that “if the contract is subject to two or more reasonable

interpretations after applying the pertinent rules of construction, the contract is

ambiguous”) (emphasis added); Universal C.I.T. Credit Corp. v. Daniel, 243

S.W.2d 154, 157 (Tex. 1951) (stating that “a contract is ambiguous only when the

application of pertinent rules of interpretation to the face of the instrument leaves

it genuinely uncertain which one of two or more meanings is the proper meaning”)

(emphasis added).

      What is clear is that intent is the benchmark for judicial interpretation of

deeds. “Because ‘once a dispute arises over meaning, it can hardly be expected that

the parties will agree on what meaning was intended,’ courts use canons of

construction to help ascertain the parties’ intent.” French v. Chevron U.S.A., Inc.,

896 S.W.2d 795, 797 (Tex. 1995) (quoting Southland Royalty Co. v. Pan Am.

Petroleum Corp., 378 S.W.2d 50, 59 (Tex. 1964) (Calvert, C.J., concurring)

(recognizing that courts “have built up a system of rules of interpretation and

construction to arrive at meaning, ignoring testimony of subjective intent”)); see also

Buffalo Ranch Co., 727 S.W.2d at 333 (concluding that deed language reserving

mineral interest was not ambiguous because it could be “accorded a certain legal

meaning by applying appropriate rules of construction”); Humble Oil & Refining

Co. v. Kirkindall, 119 S.W.2d 731, 733 (Tex. Civ. App.—Beaumont 1938), aff’d,

                                          9
145 S.W.2d 1074 (Tex. 1941) (“The canons of law for the construction of deeds

are for the purpose of discovering the intent of the makers.”). The “fundamental

rule of construction” is the “four corners” rule. Luckel v. White, 819 S.W.2d 459,

461 (Tex. 1991); CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177

S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Even if we

could discern the actual subjective intent of the parties, it is not that intent that

governs the interpretation of the deed. Luckel, 819 S.W.2d at 462; see also J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Instead, we must

discern the intent of the parties as expressed in the deed as a whole, striving to

harmonize all of its parts and give effect to all of its provisions. Luckel, 819

S.W.2d at 462; CenterPoint Energy, 177 S.W.3d at 430.

      Nowhere in the cases cited by Boulanger do we find a directive that

ambiguity must be found to exist before the rules of construction can be considered

in aid of ascertaining the parties’ intent. Rather, the absence of ambiguity

precludes only the admission and consideration of extrinsic evidence. See

Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996);

CenterPoint Energy, 177 S.W.3d at 431 (“A court may consider the parties’

interpretations of the contract through extrinsic or parol evidence only after a

contract is first determined to be ambiguous.”). The courts’ use of rules of

construction in interpreting and construing deeds has a practical basis. “It avoids

                                         10
the difficulties inherent in the admission of extrinsic evidence. ‘Individual

adjudication of deeds would lead to disparate results depending on circumstances

extraneous to the instrument.’ It would also complicate the job of title examiners

who would be unable to rely on the written word.” Elder, 2011 WL 2713817, at *3

(quoting Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and

Leases: An Encyclopedia of Canons of Construction, 24 TEX. TECH. L. REV. 1, 19

(1993)).

      The decision of whether an ambiguity exists is a question of law. See J.M.

Davidson, 128 S.W.3d at 229; CenterPoint Energy, 177 S.W.3d at 430. If the deed

is worded in such a way that it can be given a definite or certain legal meaning,

then it is not ambiguous and the court will be confined to the writing. See

CenterPoint Energy, 177 S.W.3d at 43031. A mere disagreement about the proper

interpretation of a deed, however, does not make the deed ambiguous; the

instrument is ambiguous only if, after application of the rules of construction, the

deed is reasonably susceptible to more than one meaning. See Brown v. Havard,

593 S.W.2d 939, 942 (Tex. 1980); Universal C.I.T. Credit Corp., 243 S.W.2d at

157; see also Buffalo Ranch Co., 727 S.W.2d at 333 (concluding that deed

language reserving mineral interest was not ambiguous because it could be

“accorded a certain legal meaning by applying appropriate rules of construction”);

Houchins v. Devon Energy Prod. Co., L.P., No. 01-08-00273-CV, 2009 WL

                                        11
3321406, at *4 (Tex. App.—Houston [1st Dist.] Oct. 15, 2009, pet. denied) (mem.

op.) (observing that ambiguity arises only after application of established rules of

construction leaves deed susceptible to more than one meaning). Likewise, the

construction of an unambiguous deed is a question of law, which we review de

novo. See Luckel, 819 S.W.2d at 461; CenterPoint Energy, 177 S.W.3d at 430.

      Having concluded that Waste Management states the correct rule for the

interpretation and construction of the Cramerus Deed and that the trial court, like

this Court, could consider rules of construction even absent a pleading or finding

of ambiguity, we overrule Boulanger’s second and fourth issues.

                               The Cramerus Deed

      Boulanger’s remaining issues address the merits of the trial court’s summary

judgment. Boulanger contends that summary judgment was improper because the

trial court misconstrued the plain language of the Cramerus Deed as conveying

title to the railroad right-of-way or, alternatively, because of ambiguity in the deed

or the existence of fact issues as to the ownership of the right-of-way. Because

ownership is the dispositive issue in this case, we must determine whether

Lumpkin granted Cramerus fee title to the right-of-way.

      A single word gives rise to the parties’ differing opinion as to the legal effect

of Lumpkin’s conveyance: “LESS.” The Cramerus Deed conveys a single parcel of

property “LESS the [described] tract of land reserved for railroad right-of-way,”

                                         12
which effectively divides the parcel into the Main and Panhandle Tracts abutting

the east and west side of the right-of-way. Using dictionaries to define “less” as

commonly meaning “devoid of,” Boulanger contends the Cramerus Deed excluded

the right-of-way from the conveyance of the Main and Panhandle Tracts. Waste

Management disagrees that “LESS” excludes the right-of-way and suggests a

different construction of the term—namely, one having the effect of conveying fee

title to all the land described while notifying Cramerus that the grant is burdened

by the railroad right-of-way and reserving the railroad’s right to use that land.

      Recognizing that “separate ownership of long narrow strips of land, distinct

from the land adjoining on each side, is a fruitful source of litigation and disputes,”

the Texas Supreme Court developed a rule with respect to the legal construction of

conveyances like Lumpkin’s to Cramerus: “[I]t is presumed that a grantor has no

intention of reserving a fee in a narrow strip of land adjoining the land conveyed

when it ceases to be of use to him, unless such fee is clearly reserved.” Cantley v.

Gulf Prod. Co., 143 S.W.2d 912, 915 (Tex. 1940) (presuming that language

“keeping” thirty-foot-wide road easement did not reserve title to strip of land

underlying easement in absence of evidence of clear intention to do so). Stated

differently, “[w]hen an instrument conveys land definitely described in the

instrument and then excepts from the conveyance a road, railroad right-of-way or

canal right-of-way occupying an easement on, over or across the land conveyed,

                                          13
the instrument conveys the fee to the entire tract, subject to such right-of-way,

unless the deed clearly indicates that the grantor intended to reserve the strip.”

Moore v. Rotello, 719 S.W.2d 372, 37576 (Tex. App.—Houston [14th Dist.]

1986, writ ref’d n.r.e.) (concluding that “save and except” language in deed was

not express reservation of interest in property, it had no other effect than to say that

grant was burdened with railroad right-of-way, and deed conveyed fee title to

entire tract of land).

       There is no disagreement that the right-of-way at issue is a forty-foot-wide

strip of land that adjoins and separates the Main and Panhandle Tracts conveyed in

the Cramerus Deed. And, we see no reason why “less” should have a different

legal effect than “keeping” or “save and except,” as those terms have given rise to

the presumption stated above in Cantley and Moore. See Cantley, 143 S.W.2d at

915; Moore, 719 S.W.2d at 37576. Although he asserts that the “evidence shows

the [right-of-way] is not a narrow strip of land” and that it has some individual

value because “[m]ost lots located in any metropolitan area such as Houston are 50

or so feet wide” and “many lots where townhomes are constructed are only 20 feet

in width,” Boulanger has not cited to any place in the record where the evidence of

such facts appear. Moreover, as we have already determined that the word “less”

has special meaning beyond its common dictionary definition, we find no other

language in the Cramerus Deed clearly indicating that Lumpkin intended to reserve

                                          14
the right-of-way for his own use. In the absence of such language, we apply the

Cantley and Moore presumption and determine that the Cramerus Deed is

reasonably susceptible to only one construction—i.e., the construction urged by

Waste     Management.      We    therefore    conclude   that     the   Cramerus   Deed

unambiguously conveyed fee title to all of the land described therein, including the

Main Tract, the Panhandle Tract, and the right-of-way. The property description

that follows the word “less” merely served to notify Cramerus that the grant was

burdened by the railroad right-of-way.

        Boulanger concedes that, if the Cramerus Deed conveyed fee title to the

right-of-way, then Waste Management acquired that title under the Waste

Management Deeds in 1991, so we need not consider whether the Waste

Management Deeds are valid or whether Waste Management’s chain of title is

complete. Further, because the Cramerus Deed is unambiguous, we will not decide

whether the extrinsic evidence attached to the summary judgment motion and

response raises an issue of fact as to ownership of the right-of-way. See

CenterPoint Energy, 177 S.W.3d at 430. Instead, we conclude only that the trial

court did not err in granting summary judgment for Waste Management.

        We overrule Boulanger’s first, third, and fifth issues.




                                             15
                                   Conclusion

      Having found no error, we affirm the trial court’s summary judgment.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.




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