                                MEMORANDUM OPINION
                                       No. 04-07-00654-CV

           ESTATE OF JOSE ERNESTO TREVINO, Deceased; Guadalupe P. Trevino,
                         Jose Jaime Trevino and Patsy Trevino,
                                      Appellants

                                                v.

   Billy C. MELTON, Daisy Melton, Maria Del Rosario P. Lopez and Miguel G. Lopez, Jr.,
                                     Appellees

                         From the County Court at Law, Starr County, Texas
                                    Trial Court No. CC-03-132
                            Honorable Romero Molina, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 3, 2009

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

           This case stems from an easement dispute. Appellants Estate of Jose Ernesto Trevino,

Deceased, Guadalupe P. Trevino, Jose Jaime Trevino and Patsy Trevino (the Trevinos) filed a

petition seeking a declaratory judgment that they held an easement appurtenant to Farm to

Market Road 755 (FM 755) by prescription, by estoppel, or by recognition of recordings made in
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the plats and deeds recorded in the Office of the County Clerk of Starr County, Texas. Prior to

trial, the trial court entered a no-evidence summary judgment in favor of Appellees Billy D.

Melton, Daisy Melton, Maria del Rosario P. Lopez, and Miguel G. Lopez, Jr. On the estoppel by

easement claim, the trial court rendered judgment on a jury verdict finding that the Trevinos do

not have an easement by estoppel over the road in question. We affirm the trial court’s judgment

that appellants did not have an easement by estoppels, as well as, the summary judgment of no

easement by reference.    We reverse, however, the trial court’s summary judgment of no

prescriptive easement.

                                     FACTUAL BACKGROUND

       This dispute concerns a road easement that serves as the only access from the Trevinos’

property to FM 755. Beginning in 1958, Jose Ernesto Trevino (Ernesto), the family patriarch,

began accumulating what would grow to approximately 330 acres of ranch land. According to

the Trevinos, Ernesto built the road almost immediately after purchase. In 1959, the Trevinos

granted an easement to Medina Electric to connect electricity to their land, and other

improvements to the land followed.

       According to the Trevinos, the road connects the Trevino Ranch to FM 755, and provides

the only ingress and egress to their ranch. Although there is some question as to who built the

road, there is no controversy regarding the Trevinos continued use. In 1963, Appellee Maria P.

Del Rosario Lopez’s father, Jesus Porras, Jr. (Jesus), purchased the 49.962 acre tract which

included the road in question, as part of a larger tract of 204.562 acres. Over the years, there




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were three fences with key-locked gates placed on the road: (1) at the entry from FM 755; (2) at

an entry onto the Carrera Ranch; 1 and (3) at the entry to the Trevino Ranch. 2

        In 1989, Maria decided to subdivide her land and sell individual lots. The Trevinos

agreed to remove the first gate on the road based on Maria’s request “prompted by her plan to

subdivide her land to sell and because she wanted prospective buyers to be able to view the lots

being offered for sale.” Maria also assured Jose Jaime Trevino (Jaime) that her sale of the lots

along the road would not affect the Trevinos’ use of the road.

        On March 29, 1989, Emede Barrera and Dario O. Garza purchased two one-acre lots

from Maria by warranty deed. One fronted FM 755 and the other tract was located immediately

behind the first. Maria told Barrera “that road was going to be there forever for the use of the

people.” She assured Barrera that the road could be used by anyone that needed to get to the

properties in the back. The deed to Barrera, recorded on April 27, 1989, included a metes and

bounds description mentioning the “South R.O.W. line of a 40.0 feet Road Easement.” After the

sale of these two acres through various owners, in April of 2000, the Meltons purchased the two

one-acre lots. The deeds included the same language regarding the easement and the Meltons

acknowledged the easement noted in the deed.




1
  The property situated between the Trevino Ranch and FM 755 is owned by the Carrera family. The Carrera family
was not involved in this dispute.
2
  Although the Carreras apparently use a different access for their property, there does not appear to be any issue
with regard to the Trevinos crossing the Carrerra property.

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       Trouble began in November 2002 when the Trevinos leased their property to Ignacio

Barrera. For several months, the Meltons voiced concerns regarding vehicles traveling at an

unsafe rate of speed on the road. Their complaints, however, were ignored. In response, Billy

Melton informed Jaime Trevino that he had twenty-four hours to remove the cattle from the

Trevino Ranch because the road would be closed with a locked gate to control the traffic. Billy

stated that the Trevinos would be given one key for their use.

       On March 9, 2003, Billy obstructed the Trevinos’ passage through the road with twenty

bales of hay and three vehicles. Both Jaime Trevino and Daisy Melton assert they called the

Sheriff’s Department and there were allegations by the Trevinos that Daisy used numerous

profanities towards them and even threatened them. Billy claimed that he owned the road by

purchase, but eventually explained that he was actually in the process of purchasing the road

from the Lopezes and Billy conditioned the Trevinos’ future use of the road on the Trevinos’

production of an easement to use the road.


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                      NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

       “An easement is . . . [the] privilege . . . to use another parcel of land for some limited

purpose.” Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San Antonio 1996, writ denied).

The tract of land on which the easement is imposed is the servient estate, and the tract of land

benefitted by the easement is the dominant estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d

196, 207 (Tex. 1963). On March 8, 2005, Appellees filed a no-evidence motion for summary

judgment regarding the Trevinos’ various easement claims. In response, the Trevinos filed an

opposition to the motion for summary judgment and a counter-motion for partial summary

judgment.

A. The Summary Judgment Order

       The appellate record does not contain a copy of the trial court’s order dated January 25,

2007, resolving Appellees’ no-evidence motion for summary judgment. It appears from the

record of the arguments made by counsel and the trial court’s order signed January 30, 2007

addressing the Trevinos’ motion, that the trial court denied the Trevinos’ counter motion for

partial summary judgment against Defendants Maria Del Rosario Lopez and Miguel G. Lopez,

Jr., and previously granted the no-evidence motion for summary judgment with regard to

easement by prescription and easement by reference.         The January 30th order specifically

provides:

       The Court further orders that a jury trial be set on the sole issue of whether or not
       Plaintiffs can establish and have a right to an easement by estoppel over
       Defendants’ land as described in the pleadings on file with the papers in this
       cause which issue is not addressed or disposed [of] by the Court’s ruling made in
       this order.

We, therefore, address the trial court’s take nothing summary judgment on the Trevinos’ claims

of easement by prescription and easement by reference.



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B. No-Evidence Standard of Review

         Rule 166a(i) provides that a party is entitled to summary judgment if, “[a]fter adequate

time for discovery, . . . there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P.

166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Taylor-

Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 487 (Tex. App.—San Antonio 2000, pet. denied).

“A no-evidence summary judgment [motion] is improperly granted if the respondent brings forth

more than a scintilla of probative evidence to raise a genuine issue of material fact.” Gomez v.

Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.—San Antonio 1999, no pet.); accord

TEX. R. CIV. P. 166a(i). “More than a scintilla of evidence exists when the evidence rises to a

level that would enable reasonable and fair-minded people to differ in their conclusions.” King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal quotation marks omitted).

Less than a scintilla of evidence exists if the evidence is so weak as to do no more than create a

mere surmise or suspicion of a fact. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 n.18 (Tex.

2004).

C. Easement by Prescription

         Here, the property interest claimed by the Trevinos is an easement appurtenant; that is, an

easement across the servient estate in favor of the dominant estate. The easement burdens the

servient estate, benefits the dominant estate, and “attaches to the land of the dominant estate.”

Drye, 364 S.W.2d at 207. Such an easement may be created by a writing, in which case

language of conveyance is required. However, an easement appurtenant may also be created

without a writing by dedication, implication, or estoppel. Id. at 203.




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       1. Necessary Elements

       An easement by prescription rests on the claimant’s actions under a color of right.

“Burdening another’s property with a prescriptive easement is not well-regarded in the law.”

Toal v. Smith, 54 S.W.3d 431, 435 (Tex. App.—Waco 2001, pet. denied). To establish “an

easement by prescription, the [claimant] must show that his use of [another’s] land was: (1) open

and notorious; (2) adverse to the owner’s claim of right; (3) exclusive; (4) uninterrupted; and (5)

continuous for a period of ten years.” Id. at 435; Mack v. Landry, 22 S.W.3d 524, 531 (Tex.

App.—Houston [14th Dist.] 2000, no pet.) (“[A] person acquires a prescriptive easement by the

open, notorious, continuous, exclusive, and adverse use of someone else’s land for ten years.”);

Stallman v. Newman, 9 S.W.3d 243, 248 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

“[F]ailure to establish any of these essential elements by a preponderance of the evidence,”

negates the claim of easement. Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979) (citations

omitted).

       “The hostile and adverse character of the use necessary to establish an easement by

prescription is the same as that which is necessary to establish title by adverse possession.”

Mack, 22 S.W.3d at 531 (citing Othen v. Rosier, 148 Tex. 485, 492, 226 S.W.2d 622, 626

(1950)).    Adverse possession is defined in section 16.021 of the Texas Civil Practice and

Remedies Code as “an actual and visible appropriation of real property, commenced and

continued under a claim of right that is inconsistent with and is hostile to the claim of another

person.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (Vernon 2002). “One general test to

determine whether a claim is hostile is whether the [claimant’s] use, occupancy, and possession

of the land is of such a nature and character as to notify the true owner that the claimant is

asserting a hostile claim to the land.” Mack, 22 S.W.3d at 531; Stallman, 9 S.W.3d at 248. The



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owner of the servient estate must have actual or constructive notice that there was an adverse and

hostile claim against the property. See Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App.—

Austin 1998, pet. denied). In determining whether a claim is hostile, we consider “whether the

adverse possessor’s use, occupancy, and possession of the land is of such nature and character as

to notify the true owner that the claimant is asserting a hostile claim to the land.” Mack, 22

S.W.3d at 531.

       Notably, if permission to use the property is granted, the claim cannot be adverse absent

notice of the hostile nature of the claimant’s possession. Wright v. Wallace, 700 S.W.2d 269,

271 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.). Establishing that the use is adverse and

hostile requires the claimant take open action to obtain a permanent right to use the property, not

merely to obtain permission to do so. See Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex.

1987). The easement “claimant must exclude, or attempt to exclude, all other persons, including

the property owner[,] from using the roadway.” Stallman, 9 S.W.3d at 249. Joint continuous

use, without a legally adverse or hostile act, is not sufficient. Mack, 22 S.W.3d at 532.

       2. Proof at Summary Judgment

       Because the prescriptive easement requires adverse possession for a period of ten years, it

is imperative to understand the chronology of events. Ernesto Trevino began purchasing the

ranch property in 1959 and continued to purchase property for approximately twenty years.

According to the summary judgment evidence, he immediately built the twenty-five foot wide

road to his property commencing from the boundary line of the right of way road easement to

FM 755 and passing through property that was later purchased by Jesus Porras, Jr., Maria’s




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father. 3 The roadway was not only cleared by Ernesto, but he blocked the roadway with a

locked gate. Jaime’s testimony that the road construction was performed without the permission

of the owner is uncontroverted.

        On August 26, 1959, Ernesto openly contracted with Medina Electric Cooperative for

permission to use the road as a utility easement. The co-op installed clearly visible utility poles

and electrical lines that provided electricity exclusively to the Trevino Ranch.                     Moreover,

although contested by Billy Melton, both Jaime and Patsy Trevino provided affidavits that the

road was the sole means of ingress to and egress from the Trevino Ranch.

        3. Analysis

        The testimony is uncontroverted that prior to 1989, no one else used the road for any

reason. There is nothing to contradict the Trevinos’ testimony that from 1959 until 1989, they

maintained open, notorious, exclusive use of the road, including a locked gate, from FM 755.

The locked gate is clearly “some evidence” that the use of the property was exclusive, or that the

Trevinos excluded or attempted to exclude all other persons. See Stallman, 9 S.W.3d at 248

(“[H]ostility can be shown by the adverse possessor’s decision to ‘designedly enclose’ the

disputed property by erecting a fence.”); accord Mack, 22 S.W.3d at 528-29 (citing Exxon Corp.

v. Schutzmaier, 537 S.W.2d 282, 285-86 (Tex. Civ. App.—Beaumont 1976, no writ)).                               In

addition to some evidence of exclusivity, the testimony provides some evidence that for more

than the prescriptive period, Ernesto maintained the roadway uninterrupted, continuously, in an

open and notorious manner and adverse to the rights of Jesus, the property owner. Therefore,



3
  Based on an Affidavit of Heirship, the testimony supports that Jesus Porras, Jr., Maria’s father, purchased the
property containing the roadway in question in 1962. On July 10, 1979, Jesus sold a portion of the property to his
brother, Domingo P. Porras, and retained the remainder. On December 22, 1980, after the death of her father, Maria
inherited the portion of the land belonging to her father.


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without deciding the matter, there is some evidence that by the time Maria inherited the property

in question, it was already encumbered with the Trevino easement.

       Maria acknowledges that she knew the Trevinos were using the roadway, but she

maintains that they were using it with permission. The use of property with the owner’s express

or implied permission or license cannot rise to the level of a prescriptive easement, no matter

how long the use continues. Vrazel, 725 S.W.2d at 711; Othen v. Rosier, 148 Tex. 485, 492, 226

S.W.2d 622, 626-27 (1950). Yet, the earliest testimony of permission to use the roadway was in

1989, years or even decades after the prescriptive period had run. When Maria decided to

develop her property, she notified the Trevinos that she wanted to designate the road as a

subdivision road and to widen it to forty feet in order to be in compliance with Starr County

subdivision regulations. There is testimony in the summary judgment record that Maria made

assurances that the Trevinos’ right to use the road would not be disturbed. Although one could

argue that the Trevinos’ use of the roadway at that point was permissive, a fact issue exists over

whether a prescriptive easement was obtained as much as twenty years earlier.

       Accordingly, because the Trevinos produced some evidence that raised a genuine issue of

material fact on whether they had obtained a prescriptive easement on the roadway in question,

the trial court erred in granting Appellees’ no-evidence summary judgment with regard to the

Trevinos’ claim of a prescriptive easement.

D.     Estoppel by Deed

       The Trevinos next assert that the trial court erred in granting the no-evidence summary

judgment based on estoppel by deed. Estoppel by deed, or sometimes called estoppel by contract

or estoppel by reference, provides that a party to a contract or deed may not, at a later date, take a

position inconsistent with its provisions, to the prejudice of another. See Johnson v. Structured



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Asset Servs., LLC, 148 S.W.3d 711, 721-22 (Tex. App.—Dallas 2004, no pet.) (defining estoppel

by contract); Moore v. Energy States, Inc., 71 S.W.3d 796, 799 (Tex. App.—Eastland 2002, pet.

denied) (defining estoppel by deed); Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966);

see also Horne v. Ross, 777 S.W.2d 755, 756 (Tex. App.—San Antonio 1989, no writ)

(“Conveyance of land by reference to a map or plat showing abutting roads or streets results in

the purchaser, or one holding under him, acquiring a private easement in the roads or streets

shown on the plat.”). In other words, “[u]nder the theory of estoppel by deed, the grantor of an

estate in land is estopped to assert an interest in or against the estate the deed purports to

convey.” Chappell Hill Bank v. Smith, 257 S.W.3d 320, 326 (Tex. App.—Houston [14th Dist.]

2008, no pet.).

       Appellees argue there is no written conveyance with respect to the roadway and,

therefore, the deeds in question do not support an easement by reference.         The evidence,

however, contradicts their assertions. In 1988, Maria sold approximately two acres of property,

bordered by the roadway in question, to Emede Barrera and Dario O. Garza. An engineering

report, filed with the warranty deed on the property describes the property “[b]eginning at a set

iron pin on the South R.O.W. line of a 40.0 feet Road Easement for the Northwest corner

hereof.” Additionally, the diagram attached to the report includes an easement drawn running

along the north side of the two-acre plot. Two years later, Mr. Barrera and Mr. Garza sold the

property to Hilda Gomez. Ms. Gomez subsequently sold the two acre plot to Elsie F. Limas, and

in 2000, the Meltons purchased the property from Ms. Limas. Although the last conveyance

does not include the engineer’s report, the property is described as bordered by “a proposed 40.0

feet road easement.” The evidence before the trial court for the summary judgment included

testimony of Billy Melton acknowledging that he knew about the roadway when he purchased



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the original two acres from Ms. Limas. He asserts, however, that the additional 2.67 acres that

he purchased from Maria in November of 2001, property that included the roadway, gave him

absolute right to the roadway, unencumbered by any easements.

       While the deeds do not specifically identify, by metes and bounds, the roadway upon

which the Trevinos assert an easement, “the description provides enough information so that a

party familiar with the locality can identify the premises with reasonable certainty.” Chappell

Hill Bank, 257 S.W.3d at 326-27 (citing Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247,

248-49 (1955)). The Trevinos’ argument fails, however, because an estoppel by deed precludes

a party to the document from later denying the road’s existence. See Dykes, 406 S.W.2d at 181

(“[T]he purchasers of the lots [to whom the seller showed a map with a street, existing or not,

touching the lot] have a right to have the street thrown open forever.”); Angell v. Bailey, 225

S.W.3d 834, 841 (Tex. App.—El Paso 2007, no pet.) (“Estoppel by deed stands for the general

proposition that all parties to a deed are bound by the recitals therein, which operate as an

estoppel, working on the interest in the land if it be a deed of conveyance, and binding both

parties and privies; privies in blood, privies in estate, and privies in law.” (quoting Freeman v.

Stephens Prod. Co., 171 S.W.3d 651, 654 (Tex. App.—Corpus Christi 2005, pet. denied)

(internal quotation marks omitted)). The Trevinos were not a party to any of the deeds described

above. The trial court, therefore, did not err in granting the no-evidence summary judgment

regarding the easement by deed and we overrule this issue on appeal.

E. Summary Judgment in Regard to Tort Claims

       In the introductory paragraph and the prayer of their appellate brief, the Trevinos contend

the trial court erred in granting a no-evidence summary judgment on the causes of action for

assault and malicious prosecution because these causes of action were not addressed or requested



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in the appellees’ motion for summary judgment. We are constrained in addressing this point

because the record does not contain the alleged erroneous summary judgment, and because of

Appellants’ limited briefing. The Trevinos do not cite any authority or outline their argument on

appeal. Thus, the Trevinos have waived a challenge to the trial court’s grant of the no-evidence

summary judgment. See TEX. R. APP. P. 38.1(h) (requiring appellant’s brief to contain clear and

concise argument for contentions made with appropriate citations to authorities and record);

Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(recognizing appellant’s failure to brief issue results in waiver on appeal).

       Additionally, there is no motion for summary judgment that included the tort claims.

Likewise, no order disposing of these claims is in the record.           During trial, the Trevinos

presented evidence regarding Daisy Melton’s alleged assault on March 9, 2003. Outside the

presence of the jury, the Trevinos requested the trial court sever these causes and abate the same

pending the completion of the criminal prosecution. The Trevinos’ counsel acknowledged the

claims were “not ripe for trial” and that he was limited in his ability to ask questions of the

witnesses. The trial court denied the motion. No bill of exception or offer of proof was sought

by the Trevinos. See TEX. R. EVID. 103(a), (b). Moreover, when the claims were not presented

in the trial court’s proposed jury charge, counsel neither objected to the charge, nor provided the

trial court with a proposed charge including the claims. See TEX. R. CIV. P. 279 (“Upon appeal

all independent grounds of recovery or of defense not conclusively established under the

evidence and no element of which is submitted or requested are waived.”); TEX. R. APP. P.

33.1(a) (providing that to preserve a complaint for appellate review the complaining party must

have made a timely and sufficiently specific request, objection, or motion in the trial court);

Murray v. O & A Exp., Inc., 630 S.W.2d 633, 637 (Tex. 1982) (deciding the party waived



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argument that pleadings did not support the charge submission by failing to make a timely

objection to the charge on that ground). Accordingly, the Trevinos waived their tort claims and

this issue is overruled.

                              FACTUAL AND LEGAL SUFFICIENCY

A. Standard of Review

        The Trevinos challenge the legal sufficiency of the jury’s failure to find easement by

estoppel. We review a legal sufficiency challenge to an adverse finding to determine whether the

evidence conclusively proves a fact that establishes a party’s right to a judgment as a matter of

law. In doing so, we “must view the evidence in the light favorable to the verdict, crediting

favorable evidence if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).

        The Trevinos also challenge the jury’s failure to find easement by estoppel as against the

great weight and preponderance of the evidence. In reviewing this challenge, we must first

examine the record to determine if there is some evidence to support the finding and if there is

evidence, then we must determine, in the light of the entire record, whether the finding is so

contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong

and manifestly unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). “The

court of appeals must consider and weigh all the evidence, and can set aside a verdict only if the

evidence is so weak or if the finding is so against the great weight and preponderance of the

evidence that it is clearly wrong and unjust.” Id. at 241 (citing Pool v. Ford Motor Co., 715

S.W.2d 629, 635 (Tex. 1986), disapproved on other grounds by Crown Life Ins. Co. v. Casteel,

22 S.W.3d 378 (Tex. 2000)).




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B. Easement by Estoppel

       Three elements are necessary for an easement by estoppel: (1) “a representation

communicated, either by word or action, to the promisee”; (2) the promisee believed the

communication; and (3) the promisee relied on the communication to his detriment. Holden v.

Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied); accord Drye,

364 S.W.2d at 211. Under this doctrine, a landowner may be estopped from denying the

existence of an easement created by “representations” upon which another has detrimentally

relied. Drye, 364 S.W.2d at 209. These representations may be verbal or nonverbal. Storms v.

Tuck, 579 S.W.2d 447, 452-54 (Tex. 1979). “An easement by estoppel once created is binding

upon successors in title if reliance upon the existence of the easement continues.” Holden, 929

S.W.2d at 131. Because the easement claimed in the present case is an easement appurtenant to

the land, Appellees argue that it is an interest in land which requires a writing to create or

transfer. See TEX. PROP. CODE ANN. § 5.021 (Vernon 2003); Drye, 364 S.W.2d at 203.

       The supreme court has recognized that “[t]he exact nature and extent of the doctrine . . .

have not been clearly defined.” Drye, 364 S.W.2d at 209. Although the application of the

doctrine of easement by estoppel depends upon the unique facts of each case, this equitable

doctrine has been applied to circumstances such as the “dedication of a street, alley, or square”; a

conveyance “with reference to a map or plat”; and expenditures by the owner of the alleged

easement for improvements on the servient estate. Id. at 209-10. The doctrine has also been

applied to circumstances involving expenditures on the dominant estate.          See Holden, 929

S.W.2d at 132; Exxon Corp. v. Schutzmaier, 537 S.W.2d 282, 285-86 (Tex. Civ. App.—




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Beaumont 1976, no writ); N. Clear Lake Dev. Corp. v. Blackstock, 450 S.W.2d 678, 683 (Tex.

Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.).

C. Testimony at Trial

       The Trevinos were required to prove that a representation was communicated, believed,

and relied upon to their detriment. Billy testified that the road in question belonged to Maria and

Miguel and that when they divided the property into small tracts, the road was left “open to

access the other properties.” After his dispute with the Trevinos, Billy spoke to Miguel and was

told “if the Trevinos cannot get along with you lock the gate.” Additionally, he testified that

when he purchased the property there were no easements.           Billy opined that although the

Trevinos were given permission by the Lopezes to use the roadway, there was never an

easement.

       The testimony also included a number of contradictions. Maria testified that her father

built the road, but Guadalupe Trevino remembered the road being there when she and Ernesto

purchased the property in 1959. Throughout her testimony, Maria explained that she continued

to honor her father’s grant of permission to use the road, but was definite that she had never

given any type or form of conveyance of land to the Trevinos. She explained that she was only

“honor[ing] her father’s word with [Ernesto] Trevino” to “just to continue letting them go by.”

Moreover, although permission was given to use the roadway, no promises were ever made that

the Trevinos would have any type of easement in the property. In fact, Maria acknowledged

speaking to Guadalupe and telling her not to worry and that she would talk to the Meltons, but

once again she did not make any promises in the form of an easement.




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D. Analysis

       Four questions, all based on a preponderance of the evidence, were posed to the jury: (1)

“whether a representation or representations were made by the owners of the property over

which the road runs or lies to [the Trevinos] that they had a right to use the road in order to enter

and exit out of their land”; (2) whether “a representation or representations were made to [the

Trevinos] by words or conduct that they had the right to use the road”; (3) whether “[the

Trevinos] believed the representation or representations made by the owners of the property over

which the road runs or lies that [the Trevinos] had the right to use this road”; and (4) whether

“[the Trevinos] relied to their own detriment on the representation or representations made to

them by the owners of the land over which the road runs that they had a right to use the road.”

To each of these questions, the jury answered, “we do not.”

       Contrary to the Trevinos’ assertions, this case is easily distinguished from Holden v.

Weidenfeller, wherein this court affirmed an easement by estoppel claim based on similar facts.

See Holden v. Weidenfeller, 929 S.W.2d 124, 131-32 (Tex. App.—San Antonio 1996, writ

denied). Like the Trevinos, the Weidenfellers alleged that they were landlocked owners and had

used the road continuously for thirty-five years for ingress and egress before the opposing

landowners, the Holdens, attempted to lock them out. Id. at 131. Importantly, however, the

Weidenfellers bought their property with the understanding that the road gave them access to the

property and that the Holdens made no objection to the use of the road for over seven years after

the Weidenfellers purchased the property and even allowed the Weidenfellers to place their own

lock on the gate. Id. at 131-32 (noting the evidence showed that the landlocked owners and their

predecessors built a house on the property and had spent significant amounts of time and money

improving the property over the years).



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        There are no such allegations here. To the contrary, the evidence is uncontroverted that

Ernesto Trevino purchased the property prior to any purchases by Maria’s father and there is

little to no evidence that the Trevinos actually expended money on the road in question or relied

to their detriment on any promises made by any of Appellees or even Jesus Porras. Additionally,

there is significant testimony that any representations made by the owners of the property were

simply permission to use the roadway to access the Trevino Ranch. More specifically, the

Lopezes both testified that Maria’s father built and maintained the road and that any use of the

road by the Trevinos was by permission based on a relationship between Jesus Porras and

Ernesto Trevino. We hold that the evidence was both legally and factually sufficient to support

the jury’s verdict.

                                         CONCLUSION

        Because the Trevinos failed to properly brief the tort claims, or object before the trial

court, their tort claims are waived on appeal. Furthermore, estoppel by reference only protects

the purchaser of the property, not an unnamed third-party, and thus, the trial court properly

granted the no-evidence summary judgment regarding this easement. We, therefore, affirm the

trial court with regard to the no-evidence summary judgment on the easement by reference and

tort claims. The evidence at trial was both legally and factually sufficient to support the trial

court’s judgment of no easement by estoppel.

        However, because the Trevinos raised a genuine issue of material fact at the summary

judgment hearing regarding each of the elements required for a prescriptive easement, the trial

court erred in granting the no-evidence summary judgment on that issue. We, therefore, reverse




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the trial court’s grant of summary judgment on the Trevinos’ claims of prescriptive easement,

and remand this matter to the trial court for further proceedings consistent with this opinion.



                                                        Rebecca Simmons, Justice




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