
                           NO. 07-08-0299-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL A

                              JULY 14, 2010








                      STEPHEN E. MARTIN, APPELLANT


                                   v.


                 GENE OLIVER "BUDDY" COCKRELL, APPELLEE





              FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

             NO. 34,879; HONORABLE STEVEN R. EMMERT, JUDGE






Before CAMPBELL, HANCOCK and PIRTLE, JJ.


                                OPINION


      Appellant, Stephen E. Martin, appeals from  a  judgment  rendered
in favor of Appellee, Gene Oliver "Buddy" Cockrell,  following  a  jury
trial of Cockrell's declaratory judgment action  seeking  to  establish
an equitable easement by estoppel across Martin's property.   By  seven
issues, Martin contends (1) the evidence is legally  insufficient,  (2)
the evidence is factually insufficient  to  support  a  finding  of  an
easement in the pasture road across his property, (3)  Cockrell  failed
to submit or request jury questions on one or more  essential  elements
of his easement by estoppel claim, (4) the  Court's  charge  failed  to
properly instruct the jury on the nature  and  scope  of  the  easement
claimed, (5) the trial court  improperly  expanded  the  scope  of  the
easement, (6) the jury erred  in  failing  to  award  him  damages  for
Cockrell's trespass, and (7) the trial court erred in failing to  award
him recovery of attorney's fees.  We reverse and  render  in  part  and
affirm in part.

                               Background

      At issue in this  appeal  is  a  pasture  road  located  in  Gray
County, Texas, that begins at the southern tip of County  Road  24  and
traverses Martin's property south through Sections 113 and 84, Block M-
2 of the BS&F  Survey  (Survey)  to  the  northern  middle  section  of
Cockrell's property, Sections 114 and 83,  Block  M-2  of  the  Survey.
Following a jury trial, the trial  court  issued  a  judgment  awarding
Cockrell, his heirs, successors  and  assigns,  a  permanent  equitable
easement of ingress and egress over Martin's property for  agricultural
purposes.

      The Joneses and Ingrums

      At trial, Paul Jones testified his family built the pasture  road
on Sections 113  and  84  of  Block  M-2  of  the  Survey  (the  "Jones
property") from a cow trail in the late  1930s  or  early  1940s.   The
Jones family used the pasture road to tend to their cattle.   In  1941,
the Ingrums purchased Sections 114 and 83 of Block M-2  of  the  Survey
(the "Ingrum property").  The northern border of  the  Ingrum  property
abutted the southern border of the Jones property.

      From the early 1940s, Larry Ingrum testified the Ingrums  usually
used the pasture road on the Jones property to exit their property  and
travel north to County Road 24.  They  placed  cattle  in  the  pasture
nearest to the Jones  property  so  they  wouldn't  have  to  ride  two
pastures.  The Ingrums would typically enter their  property  from  the
west side, come down through the middle tending their cattle  and  then
exit their property using the pasture road on the Jones  property.   At
some indeterminate time, the Ingrums  built  some  cattle  pens  and  a
couple of windmills in the middle pasture and used the pasture road  on
the Jones property to service the windmills.

      Ingrum testified there was a gentlemen's  agreement  between  his
family and the Joneses permitting the Ingrums to enter and  exit  their
property over the pasture road on the Jones  property.   There  was  no
written agreement or contract.  The Ingrums used the  pasture  road  on
the Jones property "by friendly neighbourly permission"--"[b]oth  sides
just did what they did." Ingrum further testified they  "never  claimed
to have a legal right to use the road" and agreed that their  right  to
use the road was "consistent with friendly permission."

      Jones testified his family  didn't  have  "a  problem  with  [the
Ingrums] using the road,"  the  two  families  were  "just  friends"---
"friendly  use  of  the  road."   He  testified  "[n]obody  ever  asked
permission to use the road and  permission  was  never  given."   Jones
testified that on  two  different  occasions,  one  of  Ingrum's  hands
pulled off the road  onto  the  pasture  and  damaged  his  grass.   He
testified he told the Ingrums he wanted it stopped and it stopped.   He
also testified his family "never gave anyone an  easement  to  use  the
road."

      The Martins and Cockrells

      In 2000, Alice Ingrum Gray inherited the  Ingrum  property.   She
had two sons, Gene Oliver "Buddy" Cockrell and  Lee  Cockrell,  Alice's
guardian.  Also, in 2000, Martin  purchased  the  Jones  property  from
Paul Jones.[1]

      From 2001 to 2006, Martin leased the Ingrum property from May  to
October of each year for grazing purposes.  During the  lease  periods,
between 2003 and 2006, Martin's wife, Susan, cared for their cattle  on
the Ingrum property approximately three  times  a  week.   Because  the
Martins were not living on the  Martin  property  at  the  time,  Susan
would enter and exit the Ingrum property via Gray County  Road  22  off
Highway 152, or she would cross the Ingrum property and exit on  County
Road 26.  She testified it was unnecessary for her to use  the  pasture
road in dispute to care for their cattle on the Ingrum property.   When
accessing the north  middle  pasture  on  the  Ingrum's  property,  the
difference between using the disputed pasture road and  Ingrum's  entry
roads was simply a matter of convenience, rather than  necessity.   The
distance required to travel to access the north middle  of  the  Ingrum
property from Ingrum's road  was  approximately  eight  miles,  whereas
access via the disputed pasture road was approximately five miles.

      Susan also testified the Ingrum roads were "perfectly  good"  and
provided access to the  Ingrum  windmills  and  caliche  pit.   If  the
Ingrum roads were graded, she testified they could  drive  large  water
testing trucks or  windmill  service  trucks  over  the  roads.   While
caring for the cattle on the Ingrum property,  Susan  drove  a  one-ton
pickup truck with a sixteen foot gooseneck trailer.

      Between  2000  and  2002,  Martin  did  not  observe  anyone,  or
evidence of anyone, traveling  over  the  disputed  pasture  road.   In
2002, however, Martin gave Gray County permission to  use  the  pasture
road to haul caliche dug from a pit on the  Ingrum  property.[2]   Gray
County Commissioner  Joe  Wheeley  testified  Martin  gave  the  county
permission to haul caliche across the pasture road via  a  "gentlemen's
agreement," not a formal easement.

      In order to use the pasture  road  year-round  to  haul  caliche,
with Martin's permission, the county applied caliche  to  the  road.[3]
For their convenience, the county also installed a  culvert  or  cattle
guard where the Ingrum property adjoined the Martin  property  and,  to
protect the county's caliche, Martin installed a  combination  lock  at
the point of entry to the Ingrum property  from  the  pasture  road  in
2002.  When the county ceased  hauling  caliche  in  2006,  the  county
removed the culvert  or  cattle  guard,  removed  the  caliche  from  a
portion of the pasture road, and  plowed  and  seeded  the  roadway  to
return  the  pasture  road  to  its  original  condition  per  Martin's
request.

      In November 2006, Cockrell asked Martin for  the  combination  to
the locked gate between the Ingrum and Martin properties  in  order  to
check the windmills located in Ingrum's middle  pasture.   Martin  gave
Cockrell the combination.  Three days  later,  Marshall  Hopkins  began
parking heavy equipment on Martin's property intending to haul  caliche
out of the Ingrum pit to satisfy his requirements for a local  job  for
Teja Feeders.  When Martin questioned  Hopkins's  use  of  the  pasture
road, Hopkins told Martin that Cockrell had  given  him  permission  to
haul the caliche over  the  pasture  road.   Martin  refused  to  allow
Hopkins use of the  road  and  Hopkins  removed  his  equipment.   Days
later, Martin installed a combination lock on the gate located  at  the
juncture of County Road 24 and the pasture road on  his  property.   He
did not give this combination to Cockrell.

      In April 2007, Cockrell agreed  to  settle  his  mother's  estate
with his brother.  As a result of  the  settlement,  Cockrell  received
the Ingrum Property.[4]  Shortly thereafter, Cockrell  informed  Martin
that he would not lease his pasture to Martin  because  he  was  giving
his middle pasture a rest.[5]  Later, Cockrell called Martin and  asked
for the combination to the lock on the gate where County  Road  24  met
the pasture road on Martin's property.  Martin agreed to meet  Cockrell
at the gate and let him  in  and  out.   Cockrell  responded  that  the
arrangement was unworkable.  In  June  or  July  2007,  Cockrell  again
approached Martin in order to obtain  the  combination  to  the  locked
gate and Martin refused to give Cockrell the  combination.[6]   Shortly
thereafter, Cockrell filed suit to obtain use of the pasture road.

      Court Proceedings


       On  August  17,  2007,  Cockrell  filed  a  petition  seeking  a
temporary injunction restraining Martin from denying him access to  the
Cockrell property over the pasture road on Martin's property.  After  a
hearing on September 14, 2007, the  trial  court  granted  a  temporary
injunction enjoining Martin from  restricting  Cockrell's  use  of  the
pasture road for agricultural purposes.


      After the temporary restraining order, Martin gave  Cockrell  the
combination to the lock installed on Martin's gate between County  Road
24 and the pasture road.  Thereafter, Cockrell  and  Hopkins  traversed
the pasture road with heavy equipment to remove caliche  from  the  pit
to shore up a windmill on the Cockrell property.  In the process,  they
drove off the pasture road into Martin's pasture.

      On January 16, 2008, Martin counterclaimed against  Cockrell  for
possession of the pasture road, an order barring  Cockrell  from  using
the pasture road, trespass, and damages  to  repair  his  pasture.   On
January 31, 2008, Cockrell filed his first amended  petition  asserting
a permanent equitable easement or easement by estoppel  permitting  him
to use the pasture road on Martin's property.  On  February  11,  2008,
Cockrell also filed a supplemental petition requesting that  the  trial
court declare him an equitable easement over the pasture road  pursuant
to the Texas  Declaratory  Judgment  Act  and  award  him  recovery  of
reasonable attorney's fees.

      Following a two-day trial, the jury found that  Cockrell  had  an
equitable easement to use the  pasture  road,  Cockrell  trespassed  on
Martin's property when  Hopkins's  equipment  was  driven  outside  the
pasture road, Cockrell's use of  a  passageway  alongside  the  pasture
road was not privileged, and Martin was  entitled  to  no  damages  for
Cockrell's trespass.   On  June  12,  2008,  the  trial  court  entered
judgment granting Cockrell a permanent easement of ingress  and  egress
over the pasture road on Martin's property  for  agricultural  purposes
and that Martin take nothing  as  to  his  counterclaim.   Martin  gave
timely notice of appeal.

                               Discussion

I. Legal Sufficiency

      A.  Standard of Review

      In conducting a legal sufficiency review, we  must  consider  the
evidence in  the  light  most  favorable  to  the  challenged  finding,
indulge every reasonable inference to support it;  City  of  Keller  v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005), and credit favorable  evidence
if reasonable jurors could while disregarding contrary evidence  unless
reasonable jurors could  not.   Id.  at  827.   A  challenge  to  legal
sufficiency will be sustained when, among other  things,  the  evidence
offered to establish a vital fact does not exceed a  scintilla.[7]  Id.
at 810.  In addition, so long as the evidence falls within the zone  of
reasonable disagreement, we may not invade  the  fact-finding  role  of
the jurors, who alone  determine  the  credibility  of  witnesses,  the
weight to be given their testimony, and whether  to  accept  or  reject
all  or  part  of  their  testimony.   Wilson,  168  S.W.3d   at   822.
Generally, if an appellate court sustains a  "no  evidence"  or  "legal
sufficiency" issue, the appellate court must reverse  and  also  render
judgment.  See  In  re  State  ex  rel.  K.D.C.,  78  S.W.3d  543,  551
(Tex.App.--Amarillo 2002, no pet.) (citing  Vista  Chevrolet,  Inc.  v.
Lewis, 709 S.W.2d 176, 176 (Tex. 1986)).

      B.  Easement by Estoppel

      The doctrine of equitable estoppel or  estoppel  in  pais  is  an
exception to the statute of frauds;[8] Cleaver v. Cundiff,  203  S.W.3d
373, 375 (Tex.App.--Eastland 2006, no pet.), and, "[b]eing  a  creature
of equity, it seeks  to  prevent  injustice  and  to  protect  innocent
parties from fraud."  Storms v. Tuck, 579 S.W.2d 447, 451 (Tex.  1979).
 Under this doctrine, a landowner may  be  estopped  from  denying  the
existence of  an  easement  created  by  "representations"  upon  which
another has detrimentally relied.  Cleaver, 203  S.W.3d  at  375.   The
doctrine was first discussed  in  Texas  jurisprudence  more  than  125
years ago when the Supreme Court  articulated  the  rationale  for  the
doctrine of easement by estoppel:

      The owner of land may create an easement by a parol agreement  or
      representation which has been so acted on by others as to  create
      an estoppel en pais.  As where he has by parol agreement  granted
      a right to such easement in his land, upon the faith of which the
      other party has expended moneys which will be lost and  valueless
      if the right to  enjoy  such  easement  is  revoked,  equity  has
      enjoined the owner of the first estate from preventing the use of
      it.

F.J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 267-68 (1875).

      Essentially, estoppel in pais holds that the owner of a  servient
estate may be estopped to deny  the  existence  of  an  easement[9]  by
making representations that have been acted upon by the  owner  of  the
dominant estate to his detriment; Storms, 579 S.W.2d at  451,  and  "is
grounded on the condition that justice forbids one to gainsay  his  own
acts  or  assertions."   Wallace  v.  McKinzie,  869  S.W.2d  592,  595
(Tex.App.--Amarillo 1993, writ denied).  Each case in  which  equitable
estoppel is sought to be applied must rest upon its own facts.   Vrazel
v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987).[10]

      The gravity of a judicial means of acquiring an interest in  land
of  another  solely  by  parol  requires  that  equitable  estoppel  be
strictly applied; Allen v.  Allen,  280  S.W.3d  366,  381  (Tex.App.--
Amarillo 2008, pet.  denied)  (citing  Moore  County  v.  Bergner,  526
S.W.2d 702,  706  (Tex.Civ.App.--Amarillo  1975,  no  writ)),  and  the
estoppel "should be certain, precise and clear."  Id. (citing  McAnally
v. Friends of WCC, Inc., 113 S.W.3d 875,  879  (Tex.App.--Dallas  2003,
no pet.)).

      Three elements are necessary to create an easement  by  estoppel:
(1) a representation of the easement communicated, either by  words  or
action, to the promisee; (2) the communication was  believed;  and  (3)
the promisee detrimentally relied on the  communication.   Storms,  579
S.W.2d at 452.  See Allen, 280 S.W.2d at 381; McKinzie, 869  S.W.2d  at
595.[11]  Further, once created, an easement by estoppel is binding  on
the successors in title to the servient estate  if  reliance  upon  the
existing easement continues.  Cleaver, 203 S.W.3d  at  375;  Holden  v.
Weidenfeller, 929 S.W.2d 124, 131  (Tex.App.--San  Antonio  1996,  writ
denied).


      To establish the first element, Cockrell relies  upon  the  legal
fiction of representation by silence.  "The principle  of  estoppel  by
silence arises where a person is under a duty to another to speak,  but
refrains from doing so and thereby leads the other to act  in  reliance
on a mistaken understanding of the facts.  The duty to speak  does  not
arise until the silent party is himself aware of the  facts."   Storms,
579 S.W.2d at 452.



C.  The Pasture Road

      At trial, Cockrell asserted[12] the Ingrums obtained an  easement
by  estoppel  over  the  pasture  road  due  to  Jones's  silence   and
acquiescence in the Ingrums’ use of the pasture road for  approximately
fifty-five years.[13]  And, after Jones  transferred  the  property  to
Martin and Cockrell came to own the Ingrum property, he  asserted  that
he succeeded  to  the  Ingrum  easement  by  estoppel  and/or,  in  the
alternative, obtained an easement by estoppel  over  the  pasture  road
via Martin's silence and acquiescence in  his  subsequent  use  of  the
pasture road.

      1.  Ingrum and Jones

      Because Cockrell relies on the silence and  acquiescence  of  the
Jones family in establishing an easement by estoppel in  favor  of  his
predecessors in title, the Ingrums,  we  will  first  consider  whether
Cockrell adduced any evidence that the Joneses had  a  duty  to  speak.
That is, did the Joneses owe a duty to advise  the  Ingrums  that  they
were permissive users of the  pasture  road?   We  will  then  consider
whether there is any evidence the Joneses made  any  representation  of
an easement to the Ingrums that  was  believed  and  acted  on  by  the
Ingrums to their detriment.

      Having reviewed  the  entire  record,  we  find  no  evidence  to
establish that the Joneses had any duty to make such  a  representation
to  the  Ingrums.   Rather,  all  of  the  evidence  adduced  at  trial
indicates that both the Ingrums and the  Joneses  understood  that  the
Ingrums’  use  of  the  pasture  road  was  by  "friendly   neighbourly
permission."

      Neither is there any evidence of extenuating  circumstances  that
would establish such a duty on behalf of the Joneses.   The  record  is
devoid of any evidence establishing the Ingrums expended any  money  or
effort on the construction  or  upkeep  of  the  pasture  road[14]  or,
relying  on  the  pasture  road,  made  any  substantial  or  permanent
improvements to their property of which  the  Joneses  were  aware.[15]
Furthermore,  distinguishing  this  case  from  other  cases  involving
landlocked tracts,[16] here there were  alternative  means  of  ingress
and egress to the Ingrum  or  Cockrell  property  without  use  of  the
disputed pasture road.[17]  In short, there is  no  evidence  that  the
Joneses were aware of any facts that would  give  rise  to  a  duty  to
advise the Ingrums that they were permissive users of the pasture  road
in order to avoid the imposition of an easement by estoppel.

       Moreover, even if the Joneses had a  duty  to  speak  and  their
silence or acquiescence  constituted  a  representation,  there  is  no
evidence  the  Ingrums  "believed"  such  a  representation.   To   the
contrary, Ingrum's testimony establishes he "believed" his family  used
the pasture road with the  "neighbourly  permission"  of  the  Joneses.
Neither is  there  any  evidence  that  the  Ingrums  relied  to  their
detriment on any representation, silent or spoken, by the  Joneses.[18]


       Cockrell  contends  that  the  McKinzie  case  stands  for   the
proposition that the doctrine of equitable estoppel  requires  no  more
than mere silence when one who, by his silence, induces another to  act
in a particular manner and  then  attempts  to  adopt  an  inconsistent
position that  would  cause  loss  or  injury  to  the  relying  party.
Cockrell's reliance on the McKinzie case is,  however,  misplaced.   In
McKinzie, there was some evidence that  the  relying  party  "believed"
the landowner's silence was a  representation  of  an  easement,  i.e.,
McKinzie filed  an  affidavit  in  the  deed  records  of  Kent  County
claiming an easement over the  roads  on  Wallace's  property  for  the
purpose of ingress and egress to his landlocked property.   869  S.W.2d
at 595.  In addition, McKinzie testified  that,  after  a  conversation
with Wallace, he believed he had an easement and  in  reliance  thereon
maintained the access road and made improvements to his property.   Id.
 Here, all the evidence is to the contrary, i.e., the Ingrums  believed
their use was permissive, did not construct or  maintain  the  disputed
pasture road and Cockrell adduced no evidence that the  Ingrums  relied
on use of the road to make any substantial  or  permanent  improvements
to their property.

       Accordingly,  considering  the  evidence  in  the   light   most
favorable to the jury's  finding  of  an  easement  by  estoppel  while
indulging every  reasonable  inference  to  support  it,  we  find  the
evidence offered in support of an easement by  estoppel  by  virtue  of
the relationship between the Joneses and the Ingrums, does  not  exceed
a scintilla.

      2.  Cockrell and Martin

      Cockrell's evidence in support of an easement by estoppel due  to
any relationship between Cockrell and  Martin  is  even  more  tenuous.
Martin  purchased  the  Jones  property  in  2000.   From  that  point,
Cockrell contends two fact  scenarios  gave  rise  to  an  easement  by
estoppel.  One, from 2001 to 2006, Martin  entered  into  a  series  of
grazing leases with Lee  Cockrell  as  Alice  Ingrum  Gray's  guardian,
where he used the disputed pasture road to access the  Ingrum  property
and, two, from 2002 to 2006, Martin  gave  Gray  County  permission  to
haul caliche from the  Cockrell  property  over  the  pasture  road  to
County Road 24.


      That Martin may have used a pasture road on his own  property  to
care for his cattle grazing on the Ingrum property pursuant to a  lease
is of no moment.  "[O]ne cannot be said to have an easement  in  lands,
the fee simple to which is in himself."   Othen  v.  Rosier,  148  Tex.
485, 226 S.W.2d 622, 625 (1950).[19]   A  landlord/tenant  relationship
does not create a vendor/vendee relationship.  See Allison, 836  S.W.2d
at 188 ("[s]ince there was no prior common ownership of the tracts,  no
vendor/vendee   relationship    existed    between    the    parties").
Furthermore, with respect to Gray County's use  of  the  pasture  road,
Martin had a "gentlemen's  agreement"  with  Gray  County  Commissioner
Wheeley permitting the county to use the pasture road  for  a  specific
purpose.  Martin's agreement with Wheeley could  not  have  created  an
easement in  favor  of  Cockrell.   Therefore,  neither  of  these  two
scenarios gave rise to an easement by estoppel.


      In 2006, Cockrell received the combination to  the  lock  between
the Ingrum and Martin properties for the purpose  of  checking  on  his
windmills.  However, three  days  later,  when  Marshal  Hopkins  began
parking his heavy equipment on Martin's  property  in  anticipation  of
using the pasture road  to  haul  caliche  from  the  Ingrum  property,
Martin denied Hopkins use of the pasture road and days later  installed
a combination lock on the gate where County Road  24  met  the  pasture
road at the entrance of his property.  Further, in June or  July  2007,
after Cockrell obtained title to the Ingrum  property,  Martin  refused
to give Cockrell the combination to the lock.


      Under the circumstances, Martin had no duty to speak and made  no
representation to Cockrell.  Giving Cockrell  the  combination  to  the
locked gate between the Ingrum and Martin properties was  more  in  the
nature of giving a license in real estate[20] rather than  creating  an
easement.  See  Machala  v.  Weems,  56  S.W.3d  748,  760  (Tex.App.--
Texarkana 2001, no pet.).  Martin could have  changed  combinations  at
any time.  In addition, there  is  no  evidence  Martin  had  made  any
representation to  Cockrell  that  would  have  required  him  to  give
Cockrell a new combination to the gate.   Rather,  the  evidence  shows
that,  only  days  later,  Martin  denied  entry  to  Hopkins  when  he
requested use of the pasture road to haul caliche from the pit  located
on the Cockrell's property and thereafter refused to give Cockrell  the
combination to the locked gate at the entrance of the pasture road  off
County Road 24.

      In addition, like the relationship between the  Joneses  and  the
Ingrums, there was no evidence of common ownership of  the  tracts,  no
vendor/vendee relationship and no probative evidence of  fraud,  actual
or constructive, perpetrated upon  Cockrell.   Neither  was  there  any
evidence of misrepresentations or overreaching conduct by Martin.

      Accordingly,  we  sustain  Martin’s  first  issue.   Because  our
finding pretermits issues two  through  five,  we  will  next  consider
issues six and seven.


II.  Nominal Damages


      The jury found that  Cockrell  trespassed  on  Martin's  property
when Hopkins drove his equipment outside the pasture road,  proximately
causing damages to Martin's property.  The jury further found  the  use
of  a  passageway  alongside  the  pasture  road  was  not  privileged.
Nonetheless, in response to the question as to what sum  of  money,  if
paid now in cash, would fairly and  reasonably  compensate  Martin  for
his damages, the jury answered: "$ - 0 - ."   In  accordance  with  the
jury's verdict, the trial judge ordered that Martin "take  nothing"  by
virtue of his counterclaim against Cockrell.

      Martin contends that because the jury found a  trespass,  and  no
privilege, he is entitled to "nominal damages"  as  a  matter  of  law.
Martin relies solely upon the case of General Mills  Restaurants,  Inc.
v. Texas Wings, Inc., 12 S.W.3d 827,  833  (Tex.App.--Dallas  2000,  no
pet.), as support for his proposition of law.  His reliance  upon  this
authority is misplaced because General Mills arises in  the  procedural
context of a no-evidence  motion  for  summary  judgment.   There,  the
appellate court found that the trial court erred when  it  granted  the
appellee's no-evidence  summary  judgment  based  upon  an  absence  of
evidence of damages on appellee's claim.

      Here, Martin's claim is essentially a contention that the  jury's
finding is not supported by the  evidence,  or  is  against  the  great
weight and preponderance of the evidence.   A  review  of  the  record,
however, reveals that it is devoid of any  evidence  establishing  that
Martin expended any money or effort repairing  any  damages  caused  by
Cockrell's vehicles or  equipment  being  driven  outside  the  pasture
road.  Although there was testimony concerning  the  efforts  necessary
to restore the pasture  road  to  its  original  condition  after  Gray
County ceased using the road, no similar evidence  was  ever  presented
which would have allowed a jury to attach  a  monetary  figure  to  any
efforts to restore the  adjacent  passageway  after  Cockrell's  usage.
The jury was the sole judge of the evidence and it alone  was  entitled
to make credibility determinations as to the weight and sufficiency  of
the evidence.  Based upon the record before us, we cannot say that  the
jury's decision to deny recovery of damages for this  trespass  was  so
against the great weight and preponderance of the  evidence  as  to  be
clearly wrong or manifestly unjust.  Martin simply failed to carry  his
burden of proof.  Accordingly, his sixth issue is overruled.


III.  Attorney's Fees

       In  his  Original  Verified  Petition  filed  August  17,  2007,
Cockrell asserted he was entitled to an easement by  prescription  over
the pasture road  because  of  past  use  that  was  "open,  notorious,
continuous, exclusive and adverse."   On  January  31,  2008,  Cockrell
amended  his  petition,  in  part,  eliminating  his  assertion  of  an
easement by prescription.   Martin  asserts  that  he  is  entitled  to
reasonable  and  necessary  attorney's  fees   in   defending   against
Cockrell's claim  of  easement  by  prescription  pursuant  to  Section
16.034 of the Texas Civil Practice and Remedies Code.   See  Tex.  Civ.
Prac. & Rem. Code Ann. § 16.034 (Vernon 2002).[21]

      A.  Standard of Review

       Because  the  award  of  attorney's  fees  rests  in  the  sound
discretion of the trial court, the judgment will  not  be  reversed  on
appeal without a clear showing of abuse of discretion.  Ridge Oil  Co.,
Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004).  See  Smith
v. McCarthy, 195 S.W.3d  301,  303  (Tex.App.--Fort  Worth  2006,  pet.
denied)  (section  16.034  provides  for  a  discretionary   award   of
attorney's fees).  A trial court abuses its  discretion  when  it  acts
arbitrarily and unreasonably, or without  reference  to  guiding  rules
and  principles.   City  of  Amarillo  v.  Glick,  991  S.W.2d  14,  17
(Tex.App.--Amarillo  1997,  no  pet.)  (citing  Downer  v.   Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied,  476
U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)).

      B.  Section 16.034

      Section 16.034 states, in pertinent part, as follows:
      In a suit for the possession of real property  between  a  person
      claiming under record title to the property and one  claiming  by
      adverse possession, if the prevailing party  recovers  possession
      of the property from a person unlawfully  in  actual  possession,
      the court may award costs and reasonable attorney's fees  to  the
      prevailing party.


Section 16.034(a).[22]


      The pleadings make clear that at no point did this  case  involve
a  claim  by  Cockrell  for  adverse  possession  and  there   was   no
adjudication that either party was unlawfully in actual  possession  of
the other's property.  While Martin seeks to  equate  Cockrell's  claim
of prescriptive easement to an adverse  possession  claim  there  is  a
fundamental difference between the two,  i.e.,  an  adverse  possession
claim  asserts  a  right  to  ownership  of  land  while  a  claim   of
prescriptive easement asserts a privilege of using the land.   Although
the elements of the two claims may be quite similar; Othen, 226  S.W.2d
at 492, their practical effect  is  significantly  different.   Because
Cockrell made  no  claim  of  adverse  possession,  section  16.034  is
inapplicable and the trial  court  did  not  abuse  its  discretion  by
denying Martin's request for  attorney's  fees.[23]   Martin's  seventh
issue is overruled.

                               CONCLUSION


      We reverse that portion of the trial court's judgment awarding  a
permanent equitable easement and render  judgment  that  Cockrell  take
nothing as to his claims against Martin; we affirm that portion of  the
trial court's judgment decreeing that Martin take  nothing  as  to  his
counterclaim against Cockrell and, in light thereof,  we  also  reverse
the trial  court’s  assessment  of  costs  against  Martin  and  render
judgment against Cockrell for all costs of court.



                                        Patrick A. Pirtle
                                              Justice

-----------------------
[1]Hereinafter, the  "Jones  Property"  will  be  referred  to  as  the
"Martin Property."

[2]Lee Cockrell, as Alice Ingrum Gray's guardian, had entered  into  an
agreement to sell caliche to Gray County for fifty cents a yard.

[3]Otherwise, rain would make the pasture road nearly  impassable  even
for a pickup truck.

[4]On July 3, 2007, the Ingrum  property  was  deeded  to  Cockrell  by
Jerry G. Davis, Independent Administrator of the  Estate  of  Alice  B.
Ingrum Gray, Deceased.  Cockrell testified  that,  when  negotiating  a
settlement of his mother's  estate  with  his  brother,  he  took  into
account the county's contract to haul caliche which paid  ten  thousand
dollars a year and use of the pasture road over  the  Martin  property.
Hereinafter,  the  "Ingrum  Property"  will  be  referred  to  as   the
"Cockrell Property."

[5]Cockrell subsequently entered into grazing leases  with  a  relative
who paid more for the leases than Martin was paying.

[6]Mike Voss of Mike's Water Well Service testified he  did  his  first
job for Cockrell in early spring 2007.  He testified he repaired  three
of Cockrell's windmills, all in bad shape.  He  further  testified  the
pasture road facilitates work  on  the  windmills  and  was  "the  only
entrance that we had with  our  equipment  to  get  in  there."   Susan
Martin testified there were other roads on  the  Ingrum  property  from
where access could be  had  to  the  windmills  although  it  might  be
necessary to blade them to accommodate windmill servicing trucks.

[7]Less than a scintilla of evidence exists when  the  evidence  is  so
weak as to do no more than create a mere surmise or suspicion of  fact.
 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751  (Tex.  2003),  cert.
denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004).

[8]Section 26.01 of the Texas Business and Commerce Code provides  that
a promise or agreement for the sale of real estate is  not  enforceable
unless the promise or agreement, or a memorandum of it, is  in  writing
and signed by the person charged with the promise or  agreement  or  by
someone lawfully authorized to sign for him.  Tex.  Bus.  &  Com.  Code
Ann. § 26.01 (Vernon 2009).  See Tex. Prop. Code Ann. §  5.021  (Vernon
2004).

[9]An easement confers on one person the  right  to  use  the  land  of
another for a specific purpose; Hubert v. Davis, 170  S.W.3d  706,  710
(Tex.App.--Tyler 2005, no pet.), but  does  not  convey  title  to  the
property.  South Plains Switching, Ltd., Co. v. BNSF Railway  Co.,  255
S.W.3d 690, 707 (Tex.App.--Amarillo 2008, pet.  denied).   See  Stephen
F. Austin State University v. Flynn, 228 S.W.3d 653, 658  (Tex.  2006).
It is a burden on one estate, the servient estate, for the  benefit  of
another, the dominant estate.  Miller v. Babb, 263 S.W.253,  254  (Tex.
Comm'n App. 1924, judgm't adopted).

[10]Application of  the  doctrine  has  been  "rare  and  nebulous"  in
circumstances other than  the  three  circumstances  described  by  the
Texas Supreme Court in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d  196,
209-10 (Tex. 1958):  (1) a dedication of a  street,  alley  or  square;
(2) an owner selling land with reference to a map or plat;  and  (3)  a
seller of land who allows its purchaser to expend money on  an  alleged
"servient" estate.  Id.  See Scott  v.  Cannon,  959  S.W.2d  712,  720
(Tex.App.--Austin 1998, pet.  denied).   None  of  these  circumstances
exist here.

[11]These elements apply at the time  the  communication  creating  the
alleged easement  is  made.   Vinson  v.  Brown,  80  S.W.3d  221,  229
(Tex.App.--Austin 2002, no pet.) (citing  Lakeside  Launches,  Inc.  v.
Austin Yacht Club, Inc., 750 S.W.2d 868,  872  (Tex.App.--Austin  1988,
writ denied)).

[12]Cockrell  had  the  burden  at  trial  to  prove  an  easement   by
implication.  See Miller v. Elliot, 94 S.W.3d 38,  43  (Tex.App.--Tyler
2002, pet. denied).

[13]Cockrell did not  assert  at  trial  there  was  any  prior  common
ownership of the Ingrum and Jones properties or that any  vendor/vendee
relationship  ever  existed  between  the  owners  of  the  properties.
Neither is there any evidence of  record  that  any  fraud,  actual  or
constructive, was perpetrated by any owner of either property.

[14]"The doctrine of estoppel in pais has been applied when the  seller
allows the purchaser to expend money on the 'servient'  tract,  as  for
example a drainage ditch across the  grantor's  land,  or  a  house  or
other  structure  which  encroaches  on  the  land  of  the  'servient'
estate'; Drye, 364 S.W.2d at 210.   See  Storms,  579  S.W.2d  at  453;
Murphy v. Long, 170 S.W.3d  621,  628  (Tex.App.--El  Paso  2005,  pet.
denied).

[15]Where there is  little  or  no  evidence  that  the  owner  of  the
"servient" estate was aware that the alleged  owners  of  a  "dominant"
estate made any substantial improvements to their  property,  there  is
no duty to speak.  Wilson v. McGuffin, 749 S.W.2d 606, 611  (Tex.App.--
Corpus Christi 1988, writ denied).  Here, there  was  no  testimony  by
Jones or Ingrum that Jones was aware of any improvements  made  by  the
Ingrums on their property.

[16]See, e.g., Cundiff, 203 S.W.3d at 376 (nearly one hundred years  of
use and landlocked claimant built and  maintained  the  road  and  made
improvements on  his  property);  Weidenfeller,  929  S.W.2d  124,  131
(Tex.App.--San Antonio 1996, writ denied) (more than  fifty  years  and
landlocked claimant contributed to  road  maintenance,  built  a  large
house on the property and presented evidence of significant amounts  of
labor and money being expended to improve  claimant's  property);  Russ
v. Womack, No. 13-08-0002-CV, 2008 Tex. App. LEXIS 8361, *12 (Tex.App.-
-Corpus Christi Nov. 6 2008, no pet.) (not designated for  publication)
(twelve years during which landlocked families  built  homes  and  made
improvements without objection); Thompson v. Houk, No.  12-04-00315-CV,
2005 Tex. App. LEXIS 6875, at *8  (Tex.App.—Tyler  Aug.  24,  2005,  no
pet.) (not designated for  publication)  (easement  by  estoppel  found
where, for at least twenty years,  landlocked  claimants  used  access,
moved in a mobile home and established  permanent  residence);  Russell
v. Rawls, No. 08-00-0546-CV, 2003  Tex.  App.  LEXIS  2369,  at  *11-12
(Tex.App.--El Paso  March  20,  2003,  no  pet.)  (not  designated  for
publication)  (finding  permissive,  acquiescent  conduct   constituted
representation where, for more than  ten  years,  owner  of  landlocked
track traveled road to care for self  and  landowner  of  the  servient
estate who was in failing health).

[17]"Where the  landowners  had  another  method  of  access  to  their
properties but used a second roadway as  a  matter  of  convenience  to
reach their property, there can be no implied easement over the  second
roadway because there is no necessity."   Duff  v.  Mathews,  158  Tex.
333, 311 S.W.2d 637, 643 (1958).  See Adams v. Norsworthy Ranch,  Ltd.,
975  S.W.2d  424,  429  (Tex.App.--Austin  1998,  no  pet.).  Moreover,
"impassibility of a  [second]  road  gives  a  party  no  right  to  an
easement."  Duff, 311 S.W.2d at  643.   See  Roberts  v.  Allison,  836
S.W.2d 185, 188 (Tex.App.--Tyler 1992, writ denied)  (impassability  of
alternative  route  not  notice  of  an  easement  claim);  Sentell  v.
Williamson County, Texas, 801 S.W.2d 220, 223  (Tex.App.--Austin  1990,
no pet.) (no matter that alternate route is "too steep or  too  narrow,
or that other and like difficulties exist").  "When one has  access  to
a part of his tract of land by way of travel  over  his  own  property,
this, as a matter of law, is a better and more direct  route  than  one
which burdens an adjacent landowner."  Id.

[18]While the  Ingrums  erected  some  cattle  pens  and  a  couple  of
windmills on their property, there is no evidence they  were  built  in
reliance on use of the pasture road.  The improvements were  consistent
with the Ingrums overall use of  their  property  as  a  cattle  ranch.
Given there were alternative means of access  to  the  Ingrum  property
and the value of  the  improvements  would  not  be  lost  or  rendered
valueless if the pasture road  could  not  be  used,  evidence  of  the
improvements  represents  less  than  a   scintilla   in   support   of
detrimental reliance.  In addition, the  evidence  at  trial  indicated
the cattle pens had largely rotted and the windmills were in  disrepair
when Cockrell took ownership of the Ingrum property.

[19]Moreover, "[t]he use of a way over the land of another when the
owner is also using the same is not such adverse possession as will
serve as notice of a claim of right, for the reason that the same is
not inconsistent with a license from the owner."  Othen, 226 S.W.2d at
627.

[20]A license in real estate merely confers a privilege to do some  act
or acts upon the land without conveying any interest  in  or  title  to
the land itself;  Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-
-El Paso 1993, no pet.), and is revocable at will.   Drye,  364  S.W.2d
at 203.

[21]Although this statute was subsequently  amended  in  2009;  Act  of
June 29, 2009, 81st Leg., R.S., ch. 901, §  1,  2009  Tex.  Gen.  Laws,
2431, this suit is governed by the law  in  effect  immediately  before
the effective date of the amendment, September 1, 2009.  Id.  at  §  2.
Further, for convenience, we will cite to section 16.034 of  the  Texas
Civil Practice and Remedies  Code  throughout  the  remainder  of  this
opinion simply as "section 16.034" or § 16.034."

[22]In general, attorney's fees are  not  recoverable  unless  provided
for by statute or between the parties.  New Amsterdam Casualty  Company
v. Texas Industries, Inc., 414  S.W.2d  914,  915  (Tex.  1967).   Such
statutory  provisions  for  the  recovery  of  attorney  fees  must  be
strictly construed  because  they  are  penal  in  nature  and  are  in
derogation of the common law.  Id.


[23]See Spruell v. Goelzer, No. 13-98-070-CV, 1999 Tex. App. LEXIS
6493, at *3 (Tex.App.--Corpus Christi Aug. 26, 1999, no pet.) (not
designated for publication).



