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                                             OPINION

                                         No. 04-08-00021-CV

                         Xavier REYES and Wife Maria del Rosario T. Reyes,
                                          Appellants

                                                  v.

                            Eligio E. SAENZ, Jr. and Wife Martha Saenz,
                                            Appellees

                      From the 229th Judicial District Court, Duval County, Texas
                                      Trial Court No. DC-06-287
                             Honorable Alex W. Gabert, Judge Presiding

                      ON APPELLEE’S MOTION FOR REHEARING

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 29, 2008

REVERSED AND REMANDED

           This is an appeal from the trial court’s summary judgment rendered in favor of appellees.

In an opinion and judgment dated July 9, 2008, we reversed and remanded after a determination that

appellees did not establish their entitlement to summary judgment as a matter of law. Appellees filed

a motion for rehearing. To clarify our discussion on the issue of necessity, we vacate our earlier
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judgment, withdraw our earlier opinion, and issue this opinion and judgment in their place.

Concluding our original decision was correct, we overrule appellees’ motion for rehearing.

                                        BACKGROUND

       Appellants, Xavier Reyes and Maria del Rosario T. Reyes own sixty acres of land, which they

acquired in 1978 from Francisca Thrash. Appellees, Eligio E. Saenz, Jr. and Martha Saenz own

approximately eighty-seven acres of land, which they acquired in 1970 from the previous owners,

who in turn had acquired the land from Francisca Thrash in 1965. There is no dispute that the land

owned by the Saenzes is surrounded by land owned by others, and that the Saenzes’ land does not

abut a public road. The underlying dispute involves the use of a road that leads from the Saenzes’

land across Mrs. Thrasher’s land and across the Reyeses’ land to a public road. In October 2006, the

Saenzes sued the Reyeses asking for a declaratory judgment on their right of way across the Reyeses’

property for the purpose of accessing the Saenzes’ property. The Saenzes also asked that the Reyeses

be permanently enjoined from interfering with their use and enjoyment of the roadway across the

Reyeses’ property. In their petition, the Saenzes based their request for relief on five theories:

implied easement appurtenant, easement by implication, easement by necessity, easement by

estoppel, and easement by prescription. The Saenzes later moved for summary judgment on three

of their five theories: implied easement appurtenant, easement by implication, and easement by

necessity. The trial court rendered summary judgment in favor of the Saenzes “under the various

legal theories pled by them.” This appeal by the Reyeses ensued.

                          NO-EVIDENCE SUMMARY JUDGMENT

       The Saenzes moved for both a no-evidence summary judgment and a traditional summary

judgment. The basis of the Saenzes’ no-evidence motion was that the Reyeses had “failed to

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produce any evidence to negate or disprove the essential elements of [the Saenzes’] claims.”

Although the trial court did not state whether it was granting the no-evidence motion or the

traditional motion or both, we construe the court’s statement that the Saenzes were entitled to

summary judgment “under the various legal theories pled by them” as granting a traditional summary

judgment. We also note that the Saenzes, as plaintiffs, were not entitled to a no-evidence summary

judgment on their own claims. The Texas Rules of Civil Procedure allow a party to move for

summary judgment “on the ground that there is no evidence of one or more essential elements of a

claim ... on which an adverse party would have the burden of proof at trial.” TEX . R. CIV . P. 166a(i)

(emphasis added). The Saenzes had the burden of proof on their easement claim; therefore, they

were not entitled to a no-evidence summary judgment on that claim.

                          TRADITIONAL SUMMARY JUDGMENT

       The Saenzes’ petition asserted five theories as the basis for their requested relief; however,

they moved for a traditional summary judgment on only three of those grounds: implied easement

appurtenant, easement by implication, and easement by necessity. Accordingly, to the extent the trial

court rendered judgment in favor of the Saenzes on the two grounds not raised in their motion, the

Saenzes were not entitled to summary judgment on the theories of easement by estoppel and

easement by prescription. We thus narrow our review to whether the Saenzes established their

entitlement to summary judgment as a matter of law under the remaining three grounds.

       A plaintiff, as movant, must conclusively prove all essential elements of his or her claim to

be entitled to summary judgment. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The movant

bears the burden of showing there are no genuine issues of material fact and that he or she is entitled

to judgment as a matter of law. Id.; TEX . R. CIV . P. 166a(c). When reviewing a summary judgment,

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we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts in the nonmovant’s favor. Provident Life and Acc. Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003).

       An essential element common to all three theories under which the Saenzes sought relief is

the element of necessity. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-08 (Tex. 1962)

(stating an easement is appurtenant when it is necessary and essential to the enjoyment of the

dominant estate; to prove an easement by implication, the use must be necessary to the use of the

dominant estate); Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984) (stating one of the

required elements to establish an easement by necessity is that “access must be a necessity and not

a mere convenience”). Because necessity is the common, and dispositive element for the purpose

of this appeal, we further narrow our review to whether the Saenzes carried their burden of showing

there are no genuine issues of material fact on the element of necessity, and we do not consider

whether they met their burden on the remaining elements of their theories of recovery.

       There is no dispute the Saenzes must cross property owned by another in order to access their

acreage. “[A]n easement by necessity is not defeated by proof that the party seeking the easement

has ‘a mere license to use a way across the land’ of another.” Crone v. Brumley, 219 S.W.3d 65, 68

(Tex. App.—San Antonio 2006, pet. denied). However, the party seeking to establish an easement

by necessity must prove he has no other legal access to his property. Id. The party seeking to

establish an easement by necessity also must prove that the necessity existed at the time the estates

were severed. See Koonce, 663 S.W.2d at 452 (an element necessary to establish an implied

easement by necessity is that the necessity must exist at the time of severance of the two estates);

Perkins v. Krauter Family P’ship, Ltd., No. 04-03-00166-CV, 2004 WL 2097516, at *1 (Tex.

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App.—San Antonio Sept. 22, 2004, no pet.) (mem. op., not designated for publication) (holding

same as to an implied easement appurtenant); Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San

Antonio 1996, writ denied) (holding same as to an easement by implication). In their motion for

summary judgment, the Saenzes asserted “the use of the road was necessary because it was, and still

is, the only practicable way to reach [the Saenzes’] landlocked property. There is no other

practicable means of access.” [Emphasis added.] The Saenzes did not assert there exists no other

legal access to their property, whether at the time of severance or at present time, and no summary

judgment evidence was offered to support, or explain, their contention that access across the

Reyeses’ property was the “only practicable way” to reach the Saenzes’ landlocked property.

Conclusory statements contained in a motion for summary judgment do not constitute summary

judgment evidence. See TEX . R. CIV . P. 166a(c) (prohibiting oral evidence in summary judgment

determination); Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.

1995) (noting pleadings are not competent summary judgment evidence); Madeksho v. Abraham,

Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied) (noting conclusions in motion for summary judgment or response are not summary judgment

evidence).

       Also, in their response to the Saenzes’ motion, the Reyeses point to the testimony of Xavier

Reyes, which the Saenzes attached to their motion for summary judgment, in which Xavier is

questioned as follows:

       Q.      All right. And are you aware of whether or not Eligio [Saenz] has any other
               method of getting to a public roadway, other than through Mrs. Thrash’s
               property and through your property?



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         A.        He’s even going through my, my easement that I bought outright several
                   times, and also through the ranch, through other places. [Emphasis added]

         Q.        Through what other places sir?

         A.        Through mine and Bazans and Manuel Reyes too. He’s been using it, not
                   right now because he locked the gates. [Emphasis added]

Xavier Reyes’ testimony raises a genuine issue of material fact on whether the Saenzes have other

possible legal means of access to their property and on whether access across the Reyeses’ property

is a necessity, as opposed to a mere convenience. See Mitchell v. Castellaw, 151 Tex. 56, 246

S.W.2d 163, 168 (1952) (holding the question of necessity “is one of mixed law and fact and

accordingly one for the fact finder in the ordinary case.”).

                                                   CONCLUSION

          We conclude the Saenzes failed to conclusively prove an essential element common to all

three of the theories on which they moved for summary judgment. Accordingly, the trial court erred

in rendering summary judgment in favor of the Saenzes. We reverse the trial court’s judgment and

remand for further proceedings.1



                                                                   Sandee Bryan Marion, Justice




         1
             W e decline to address the Reyeses’ first and third issues as they are not dispositive to this appeal. T EX . R.
A PP . P. 47.1.


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