Opinion issued October 25, 2018




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-16-00773-CV
                             ———————————
 CLEARPOINT CROSSING PROPERTY OWNERS ASSOCIATION AND
    CULLEN'S LLC AND 11500 SPACE CENTER, LLC, Appellants
                                          V.
        JOSEPH CHAMBERS AND DEBBIE CHAMBERS, Appellees


                    On Appeal from the 164th District Court
                             Harris County, Texas
                       Trial Court Case No. 2011-05504


                                 O P I N I O N

      In this appeal, we determine the scope of two express easements and whether

landowners may claim those easements, and an easement by necessity, to benefit

their entire tract. After a jury trial, the trial court rendered a judgment in favor of

landowners Joseph and Debbie Chambers, ruling that (1) the express easements
provide the entire tract with an unqualified right of access to a public road via the

adjacent landowners’ private road and parking lot; and (2) an implied easement by

necessity gives the same unqualified right of access.

      The adjacent landowners, who are burdened by these easements, appeal. First,

the burdened landowners contend that the trial court erred in ruling that the express

easements provide an unqualified right of access to the entire tract, because the

express easements benefit only a portion of the tract and replaced an earlier,

abandoned easement that granted access only for uses associated with drilling for oil

and gas. Second, the burdened landowners contend that the trial court erred in ruling

that the Chambers have an easement by necessity across the private road and parking

lot because no evidence demonstrates a present necessity for access.

      We conclude that the express easements benefit a portion of the Chambers

tract, and not the entire tract, because they unambiguously limit the land benefitted

by describing it. We further conclude that the express easements granting access do

not limit that access to uses associated with drilling for oil and gas on the benefited

tract. Thus, we reject the burdened landowners’ contention that access is limited to

that needed for oil and gas activity. Because the express easements grant a right of

ingress and egress to a portion of—and not the entire—tract, we reverse the

judgment declaring that the express easements benefit the entire tract.

      With respect to the second contention, challenging the trial court’s finding of


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an easement by necessity, we conclude that no evidence supports a finding of present

necessity. Express easements exist and benefit a portion of the tract, and the

remainder of the tract is contiguous with the portion benefited by the express

easements. Thus, we reverse the judgment granting an implied easement by

necessity. We remand the case for entry of judgment consistent with this opinion

and for further proceedings to address maintenance costs and attorney’s fees.

                                 BACKGROUND

      The Chambers own 32 acres near, but not touching, Space Center Boulevard

(the “Chambers tract”). Adjoining the Chambers tract, and between the Chambers

tract and Space Center Boulevard, is land owned by Clearpoint Crossing Property

Owners Association and 11500 Space Center, LLC, and leased by Cullen’s, LLC

(the “Clearpoint tract”). The Chambers tract is landlocked, lacking direct access to

a public road.

      Exxon Mobil Corporation previously owned the Chambers tract.                 In

November 2007, Exxon abandoned an earlier easement that gave the Chambers tract

access across the Clearpoint tract, in exchange for the two express easements at issue

in this case. In one easement, Clearpoint conveyed an easement across its land via

a private road; in the other, 11500 Space Center conveyed an easement across a

parking lot. Together, the two easements gave Exxon access from the Chambers

tract to Space Center Boulevard. Both easements are perpetual, irrevocable, and run


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with the land to benefit Exxon’s successors and assigns. The easements state that

their purpose was to give “free and uninterrupted pedestrian and vehicular ingress to

and egress from” a parcel of the Chambers tract identified as “Drill Site BB,” which

they describe as a 7-acre tract within the larger 32-acre property. Exxon had owned

Drill Site BB before acquiring the entire 32 acres.

      The following diagram illustrates the general location of the properties

relative to one another (though not to scale):




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As the diagram shows, while the express easements state that they exist to provide

access to Drill Site BB, that access is indirect, because Drill Site BB is on the

opposite end of the Chambers tract from the Clearpoint tract and Drill Site BB’s

boundaries do not abut the Clearpoint tract.

      After buying the Chambers tract, the Chambers began using the easements to

clear the land in preparation for growing hay on 20 acres and for building air-

conditioned storage units on another 5 acres. This lawsuit arose after Clearpoint

opposed this use of the easements.

      The parties tried their dispute to a jury. Clearpoint and 11500 Space Center

contended that the express easements are limited in scope and grant the Chambers

access to benefit Drill Site BB, not the entire tract, and for the sole purpose of

furthering drilling activities. Clearpoint and 11500 Space Center also disputed

whether the Chambers were entitled to an implied easement by necessity.

      The Chambers countered that the express easements grant access to the

entirety of their 32-acre property for any purpose. They also maintained that they

were entitled to an easement by necessity granting an unqualified right of ingress

and egress.

      The jury found that the express easements granted a right of ingress and egress

to benefit the entire Chambers tract. In addition, the jury made three predicate




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findings in the Chambers’s favor as to whether they had a necessity easement.

Specifically, the jury found that:

         ●     the Chambers tract was severed from the Clearpoint tract in May 2004;

         ●     an easement across the Clearpoint tract at that time would have provided
               access from the Chambers tract to a public road; and

         ●     the Chambers tract had no other access to a public road on that date.

Based on these findings, the jury further found that Clearpoint and 11500 Space

Center were entitled to $15,000 and $25,000, respectively, for reimbursement for

maintenance, improvement, and repair of the easements benefiting the Chambers

tract.       The jury found that both sides had incurred reasonable and necessary

attorney’s fees: it found that Clearpoint and 11500 Space Center had incurred

$102,088.29 in fees in the trial court; the jury found that the Chambers incurred

$55,000 in fees in the trial court and awarded $15,000 in the event of an appeal to

the court of appeals and $20,000 should it be necessary to file a petition for review

to the Supreme Court of Texas.

         Based on the jury’s verdict, the trial court rendered a judgment declaring that

(1) the express easements give the Chambers an unqualified right of ingress and

egress to and from their entire property, not just Drill Site BB; and (2) the Chambers

have a necessity easement as an additional easement across the Clearpoint tract in

the same location and for the same purpose as the express easements. It awarded



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$15,000 to Clearpoint and $25,000 to 11500 Space Center in maintenance costs. It

awarded the Chambers their attorney’s fees.

                                   DISCUSSION

I.    The Express Easements

      Clearpoint and 11500 Space Center contend that the trial court erred in ruling

that the express easements give the Chambers a right of ingress and egress to and

from the entirety of their 32-acre property. Clearpoint and 11500 Space Center

further contend that these express easements convey only the rights conferred by the

earlier, abandoned easement. The earlier easement provided for access to the 7 acres

comprising Drill Site BB and only for drilling-related activity.

      A.     Applicable law

      When an express easement is unambiguous, the trial court must interpret it as

a matter of law, and we review a trial court’s interpretation of an unambiguous

easement de novo. See DeWitt Cty. Elec. Co-op v. Parks, 1 S.W.3d 96, 100 (Tex.

1999); CenterPoint Energy Houston Elec. v. Bluebonnet Dr., 264 S.W.3d 381, 388

(Tex. App.—Houston [1st Dist.] 2008, pet. denied).         An express easement is

unambiguous when its language has a certain or definite meaning. DeWitt Cty., 1

S.W.3d at 100. The mere fact that the parties disagree about the meaning of an

express easement does not render the easement ambiguous. Id.




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      An easement does not convey title to property. Stephen F. Austin Univ. v.

Flynn, 228 S.W.3d 653, 658 (Tex. 2007); Brookshire Katy Drainage Dist. v. Lily

Gardens, 333 S.W.3d 301, 309 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

Rather, it is a nonpossessory interest that allows its holder to use another’s property

for a stated purpose, in this instance, access to a public road. See Marcus Cable

Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002); Koelsch v. Indus. Gas Supply

Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). An

easement that grants a right of ingress and egress, like the ones at issue, allows the

holder to traverse another’s land to access his own property. Coleman v. Forister,

514 S.W.2d 899, 903 (Tex. 1974).

      We interpret an express easement using ordinary principles of contract

interpretation. Marcus Cable, 90 S.W.3d at 700; CenterPoint, 264 S.W.3d at 388.

We rely solely on the written terms of an easement to ascertain its scope, focusing

on the terms of its granting language. See Marcus Cable, 90 S.W.3d at 700–01;

CenterPoint, 264 S.W.3d at 388. Unless defined, we give these terms their plain,

ordinary, generally accepted meaning.         Marcus Cable, 90 S.W.3d at 701;

CenterPoint, 264 S.W.3d at 388. So interpreted, an easement’s express terms

delineate the purposes for which it may be used. Marcus Cable, 90 S.W.3d at 701.

      An easement does not grant any rights by implication unless those rights are

reasonably necessary to enjoy the rights that the easement expressly grants. Marcus


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Cable, 90 S.W.3d at 701; CenterPoint, 264 S.W.3d at 389. If the easement does not

provide for a purpose, a use in the service of that purpose is not allowed. See Marcus

Cable, 90 S.W.3d at 701–02; CenterPoint, 264 S.W.3d at 389.

      B.     Analysis

      The two November 2007 easements respectively provide:

      a 50-foot wide road access easement (the “Easement”) on, over, under,
      across, along and through the land (hereinafter called the “Easement
      Area”) being 25-feet wide on either side of the centerline as depicted
      and described in Exhibit “A” attached hereto and made a part hereof for
      the purpose (the “Easement Purpose”) of providing Grantee, Grantee’s
      invitees, and Grantee’s successors and assigns, free and uninterrupted
      pedestrian and vehicular ingress to and egress from the property
      described in Exhibit “B” attached hereto and made a part hereof (“Drill
      Site BB”);

                                        ***

      a 50-foot wide road access easement (collectively, the “Easement”) on,
      over, under, across, along and through the land (hereinafter called the
      “Easement Area”) described in Exhibit “A” attached hereto and made
      a part hereof for the purpose (the “Easement Purpose”) of constructing,
      maintaining, operating, repairing, and removing a road over the
      Easement Area in order to provide Grantee and Grantee’s invitees,
      successors and assigns, free and uninterrupted pedestrian and vehicular
      ingress to and egress from the property described in Exhibit “B”
      attached hereto and made a part hereof (“Drill Site BB”).

The language of these easements is plain: it provides the Chambers with the right to

go across the Clearpoint tract “free and uninterrupted” to access Drill Site BB.

      Contrary to Clearpoint and 11500 Space Center’s contention, these easements

do not limit the right of ingress and egress that runs with the Chambers tract to uses


                                          9
associated with drilling-related activities. No language in the easements supports

such a limitation. Clearpoint and 11500 Space Center rely on language from the

earlier, abandoned easement for this limitation. The abandonment instrument,

however, expressly states that two new easements would “replace” that earlier one.

Accordingly, we reject Clearpoint and 11500 Space Center’s reliance on the earlier

easement to support a drilling-activity limitation on the right of access that benefits

Drill Site BB.

      But Clearpoint and 11500 Space Center are correct that the express easements

grant access to and from Drill Site BB, not anywhere else on the 32-acre tract. Both

easements say so, and Exhibit “B” to each easement specifically identifies Drill Site

BB as a 7-acre parcel, not to include the much larger 32 acres comprising the whole

of the Chambers tract. The right to exclude others is an essential attribute of real

property ownership; thus, the law protects landowners who convey unambiguous

easements by ensuring that the limited access afforded to others will not be

interpreted as granting rights of ingress or egress broader than those easements. See

Marcus Cable, 90 S.W.3d at 700, 702.

      We therefore hold that the trial court erred in declaring that the express

easements grant access to the entire Chambers tract.           As a matter of law,

unambiguous easements like these can only be used to access the land specified in

the conveyance; they do not entitle the Chambers to directly access other parts of


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their tract. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979); Holmstrom v. Lee, 26

S.W.3d 526, 534 (Tex. App.—Austin 2000, no pet.); Jordan v. Rash, 745 S.W.2d

549, 553 (Tex. App.—Waco 1988, no writ).

      The Chambers respond that the express easements are ambiguous and thus the

jury properly decided their scope. The Chambers do not identify a particular

ambiguity. The express easements are, perhaps, atypical in that the Clearpoint tract

is not adjacent to Drill Site BB and the easements consequently grant access

indirectly by way of a route through the Chambers tract. An access easement,

however, need not adjoin the land that it serves. See Forister v. Coleman, 418

S.W.2d 550, 559–60 (Tex. Civ. App.—Austin 1967), writ ref’d n.r.e., 431 S.W.2d

2 (Tex. 1968) (per curiam); Heard v. Bowen, 184 S.W. 234, 237–38 (Tex. Civ.

App.—San Antonio 1916, writ ref’d); see also Bains v. Parker, 182 S.W.2d 397,

398–99 (Tex. 1944) (easement across servient estate to third-party’s land, which in

turn gave dominant estate access to roadway, held valid). Thus, this feature of the

express easements does not render them ambiguous. Because the interpretation of

easements’ unambiguous language presents a question of law, the issue should not

have been submitted to a jury; thus, we sustain the challenge to its verdict. See

DeWitt Cty., 1 S.W.3d at 100.




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      In sum, the express easements benefit only the portion of the Chambers tracts

described as Drill Site BB. The easements grant unqualified access to that site,

without regard for whether the access furthers drilling-related activities.

II.   The Implied Easement by Necessity

      Clearpoint and 11500 Space Center contend that the trial court erred in ruling

that the Chambers are entitled to a necessity easement across the same land burdened

by the express easements. Clearpoint and 11500 Space Center challenge this ruling

on several grounds, including that the Chambers did not adduce evidence showing

that they presently lack a means of ingress and egress to and from the Chambers tract

to a public road.

      A.     Applicable law

      To successfully establish an easement by necessity, the Chambers had to

prove, among other things, that “the claimed access is a necessity and not a mere

convenience.” Hamrick v. Ward, 446 S.W.3d 377, 382 (Tex. 2014). This requires

a showing of “strict necessity.” See id. at 379, 382–85; Union Pac. R.R. Co. v. Seber,

477 S.W.3d 424, 431 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Under this

standard, the Chambers bore the burden “to exclude, by proof, the possibility of

another way of ingress and egress except the way claimed.” Duff v. Matthews, 311

S.W.2d 637, 641 (Tex. 1958); see also Sloan v. Hill, No. 01-12-00045-CV, 2013

WL 816414, at *8 (Tex. App.—Houston [1st Dist.] Mar. 5, 2013, pet. denied) (mem.


                                          12
op.) (“Necessity requires a showing that a grantee has ‘no way’ to access its land

without the easement.”). Thus, if the proof establishes that the Chambers have other

means of accessing the Chambers tract, a necessity easement cannot exist as a matter

of law. See Alley v. Carleton, 29 Tex. 74, 78 (1867) (stating that “if the owner of

the land can use another way, he cannot claim by implication to pass over that of

another to get to his own”); Payne v. Edmonson, 712 S.W.2d 793, 796 (Tex. App.—

Houston [1st Dist.] 1986, writ ref’d n.r.e.) (holding that implied easement couldn’t

have arisen as matter of law because another means allowed access to land).

      B.     Analysis

      The express easements unambiguously grant part of the Chambers tract a right

of ingress and egress across the Clearpoint tract, for the purpose of accessing Drill

Site BB. Drill Site BB’s northern and eastern boundaries, in turn, adjoin the

remainder of the Chambers tract. Because the Chambers can access the remainder

of their property from Drill Site BB, for which they have express easements across

the Clearpoint tract to a public road, the Chambers cannot establish the strict

necessity required for the law to imply an easement by necessity.

      The Supreme Court of Texas’s decision in Duff v. Matthews dictates this

result. In Duff, Matthews sought a necessity easement to access his land by traveling

across Duff’s. 311 S.W.2d at 638. The record showed that every lot in the

subdivision, including the plaintiff’s land, was accessible by road. Id. at 638–40.


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Matthews nonetheless sought a necessity easement on the basis that (1) the access

road to his lot was impassible due to its disrepair; and (2) the impassible road could

not provide him with access to the entirety of his land due to difficult terrain. Id. at

640.   The Court rejected both contentions.        Id. at 642–43.     With respect to

impassibility, Matthews’s remedy was to repair the road. See id. at 643. As to the

difficulty of the terrain, the Court held that a necessity easement cannot exist when

a landowner can get to his property across his own land. Id. This is so because a

landowner must have “no other way” to access his land to have an easement by

necessity. Id.; see also Sloan, 2013 WL 816414, at *8.

       The Chambers have access to the rest of the Chambers tract from Drill Site

BB, which, in turn, is benefited by express easements granting access to a public

road. The Chambers may traverse Drill Site BB to access the remainder of their

property. That another route to the remainder of their property might be more

convenient or practical is not a legally sufficient basis for imposing a necessity

easement on other landowners. See Hamrick, 446 S.W.3d at 382; Duff, 311 S.W.2d

at 640; Alley, 29 Tex. at 78. The Chambers existing access to the rest of the

Chambers tract through Drill Site BB defeats the showing of present necessity that

is required for an implied easement as a matter of law. See Duff, 311 S.W.2d at 643

(necessity easement “will not exist where a man can get to his property through his

own land” regardless of how difficult that might be); Payne, 712 S.W.2d at 796


                                          14
(necessity easement barred as matter of law where record showed that alternative

route existed on plaintiff’s own land despite evidence that alternative route would

be costly, narrow, and hazardous).

       We hold that the trial court erred in submitting the issue of a necessity

easement to the jury, given the express easements provide access to Drill Site BB

and from thence to the remainder of the Chambers tract. We therefore sustain

Clearpoint and 11500 Space Center’s second issue.

III.   Maintenance Costs and Attorney’s Fees

       The jury found that $15,000 and $25,000 would fairly and reasonably

compensate Clearpoint and 11500 Space Center, respectively, for the Chambers’s

share of the costs to maintain, improve, or repair the private-road and parking-lot

easements. The jury’s assessment of fair and reasonable compensation, however,

was necessarily based to an extent on its understanding of the actual use of the

private road and parking lot that the Chambers were legally entitled to make under

the express easements. See RESTATEMENT (THIRD)      OF   PROPERTY (SERVITUDES) §

4.13 cmt. d (2000) (when owners of dominant and servient estates jointly use land

subject to easement, “the frequency and intensity of use made by each” should be

taken into account in allocating maintenance costs); see, e.g., Gold Coast

Neighborhood Ass’n v. State, 403 P.3d 214, 237 (Haw. 2017) (landowners jointly

responsible for repair of land subject to easement “in accordance with equitable


                                        15
considerations relating to their relative use, enjoyment, and contributions”); Bina v.

Bina, 239 N.W. 68, 71 (Iowa 1931) (landowner who used private road on his land

that was subject to easement less than landowner benefited by easement “should bear

a correspondingly lower proportion of the repair burden”). Likewise, the trial court’s

decision to award attorney’s fees was based on the Chambers’ prevailing position in

the trial court. Because we reverse the trial court’s judgment, we reverse these

awards and remand these issues for further proceedings.

                                  CONCLUSION

      We reverse the judgment of the trial court declaring that the November 2007

easements benefit the entire Chambers tract. We remand the case to the trial court

for entry of judgment declaring that the express easements grant the Chambers tract

a right of ingress and egress to and from Drill Site BB, with access not limited to

uses related to drilling activity. Because Drill Site BB is contiguous to the remainder

of the Chambers tract and Drill Site BB is benefitted by easements granting access

to a public road, we reverse the judgment declaring an easement by necessity. We

remand the case to the trial court for further proceedings on the issues of

maintenance costs and attorney’s fees.



                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

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