Affirmed and Majority and Concurring Opinions filed July 16, 2019.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-18-00055-CV

 CHARLES W. COOK, LEVI WATSON, JESSICA WATSON, JOE BLAIR
  ROWTON, JAMIE LOUIS ROWTON, AND CHARLES TOWNSEND,
                        Appellants
                                      V.
   RONEN NISSIMOV, NATALIA NISSIMOV, AND BRIAN BLALOCK,
                         Appellees

                   On Appeal from the 12th District Court
                          Grimes County, Texas
                       Trial Court Cause No. 33,436

                           MAJORITY OPINION

      Appellants Charles W. Cook, Levi Watson, Jessica Watson, Joe Blair Rowton,
Jamie Louis Rowton, and Charles Townsend appeal from the trial court’s orders
denying their motion for summary judgment and granting summary judgment in
favor of appellees Ronen Nissimov, Natalia Nissimov, and Brian Blalock. We
affirm.
                                 BACKGROUND

      This dispute centers on the rights to use a roadway easement through a gated
subdivision known as Tierra Buena – North (“the Subdivision”). A rough sketch
below shows the Subdivision, the Northern Lots, and the Access Easement.


                   The Northern Lots




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I.     The Access Easement

       In 2009, appellant Charles Cook and the Bousquet Family Limited Partnership
entered into an agreement with Ralph McKnight regarding a 130-acre tract in Grimes
County known at the time as “Stagecoach Crossing.” 1 This 130-acre tract would
later be subdivided and would become the Tierra Buena North Subdivision at the
center of this dispute. McKnight owned a non-exclusive right to a 60-foot easement
(“Access Easement”) that could be used to access the Subdivision. McKnight
assigned to Cook, his heirs and assigns, the non-exclusive right to use the easement.
The agreement noted that Cook owned an additional 450 acres adjoining and to the
north of the Subdivision’s 130 acres. With regard to the additional land, the
agreement stated that, “In the event that Cook decides to subdivide this 450 acres,
or any part thereof, and to use the aforementioned easement for access to said 450
acre tract, Cook agrees to impose the minimum deed restrictions . . . of [the
Subdivision].”

II.    The Subdivision Lots

       Cook subdivided the 130 acres and sold the lots in the Subdivision. Blalock
and the Nissimovs were two of the buyers. The deeds conveyed:

       Tract EIGHT (8),2 TIERRA BUENA NORTH, a subdivision in Grimes
       County, Texas according to the plat thereof recorded in Vol. 1318, page
       747, Real Property Records of Grimes County, Texas; together with
       rights of ingress and egress over and across the roadway easement
       described in the Agreement dated March 31, 2009, executed by and
       between Charles W. Cook, Thomas G. Bousquet, The Bousquet Family
       Limited Partnership, LTD and Ralph McKnight, recorded in Vol. 1300,

       1
          Cook later bought the Bousquet Family Limited Partnership’s interest, leaving Cook as
the sole developer of the Subdivision.
       2
          The Nissimovs purchased Tract 8. Blalock purchased Tracts 4, 5, and 6. The disputed
portions of the deeds are similar with the exception of the purchasers’ names and the description
of the individual tracts.

                                               3
       page 89, Real Property Records, Grimes County, Texas.

Each deed contained the following “Exceptions to Conveyance and Warranty”:

       a) Validly existing easements, rights-of-way, and prescriptive rights,
       whether of record or not;
                                        *****
       c) Those building lines and easements reflected on the Plat of TIERRA
       BUENA NORTH filed in Vol. 1318, Page 747, of the Real Property
       Records of Grimes County, Texas.

III.   The Northern Lots

       After Cook sold lots to appellees in the Subdivision, he subdivided the 450-
acre northern property and sold unplatted lots north of the Subdivision (“Northern
Lots”). Cook sold lots to appellants Levi Watson, Jessica Watson, Joe Blair Rowton,
Jamie Louis Rowton, and Charles Townsend. When Cook sold those lots he
purported to grant access to the lots across the Subdivision using the 60-foot Access
Easement.

       The sale of the Northern Lots and grant of access across the Access Easement
led to the probability that the purchasers of the Northern Lots would be granted
access to the private gated subdivision. Cook understood that he could grant access
to the easement as long as the deed restrictions on the Northern Lots were the same
or similar to those on the Subdivision lots.

IV.    Procedural History

       Grimes County filed suit against Cook alleging violations of portions of the
Property Code and the Deceptive Trade Practices Act because Cook was selling the
Northern Lots as unplatted lots. Appellees intervened in the County’s suit and
alleged that Cook was attempting to use a private easement, the Access Easement,
through the Subdivision to access the Northern Lots. Appellees argued that the

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Access Easement was never intended to provide access to property outside of the
private, gated subdivision. Appellees sought severance of their action from the suit
filed by Grimes County.

      The trial court granted the parties’ motion to sever appellees’ suit from the
suit by Grimes County, which resulted in this case. Cook filed an answer alleging
that he had reserved a right to use the Access Easement in the Subdivision when he
sold the lots to appellees.

      Appellants filed a motion for summary judgment in the trial court in which
they alleged that Cook retained ownership of the Access Easement when he sold lots
to appellees and, as a result of that retention of ownership, Cook retained the right
to grant appellants the right to use the Access Easement to access the Northern Lots.
Cook attached to his motion for summary judgment an affidavit that states that he
“excepted from the conveyance [to Nissimov and Blalock] ‘Validly existing
easements, rights of way, and prescriptive rights, whether of record or not.’”

      After appellants filed their motion for summary judgment, appellees amended
their petition to add a claim for fraud in a real estate transaction, and included a
statement by Thomas G. Bousquet, general partner of the Bousquet Limited
Partnership, which stated, “The Access Easement was never intended to provide
access to any property outside of the [Subdivision], but was always intended to be a
private, gated easement for the sole use of the owners of lots in [the Subdivision].”
In response, appellants supplemented their motion for summary judgment arguing
that appellees’ fraud claim was barred by the applicable statute of limitations.

      Appellees filed a competing motion for summary judgment in which they
sought a declaratory judgment that appellants had no right to use the Access
Easement through the Subdivision. Appellees argued that Cook could not grant
access to the Access Easement running through the Subdivision because Cook had
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not reserved an interest in the Access Easement when he conveyed the lots to
appellees. Appellees further argued that because Cook conveyed the lots with
reference to a plat, the Access Easement necessarily became part of the deed by
incorporation. The only way Cook could have retained a right to access the easement
would have been to reserve that right in the deeds to the lot owners in the
Subdivision. Appellees argued that by excepting the Access Easement from the
deeds Cook did not reserve the right to grant access to the easement.

      The trial court denied appellants’ motion for summary judgment and granted
appellees’ motion for summary judgment. In granting summary judgment, the trial
court ruled:

         • The Tierra Buena North Subdivision, a subdivision in Grimes
           County, Texas, according to the map or plat thereof recorded in
           Volume 1318, Page 747, Real Property Records of Grimes
           County, Texas (the “Subdivision”), is a private, gated
           subdivision.
         • Ronen Nissimov, Natalia Nissimov (collectively, “Nissimovs”),
           and Brian Blalock (together with Nissimovs, “Plaintiffs”) have
           the right to utilize the Private Road Easement to access their lots
           in the Subdivision by virtue of their lots being sold by reference
           to the plat of the Subdivision (the “Plat”), which is recorded at
           Volume 1318, Page 747, Real Property Records of Grimes
           County, Texas.
                                       *****
         • Defendant Charles W. Cook (“Cook”) has not reserved any right
           to use the Private Road Easement over the lots owned by
           Plaintiffs within the Subdivision.
         • Cook had and presently has no right to transfer any right to use
           the Private Road Easement over the lots owned by Plaintiffs
           within the Subdivision for the purpose of accessing property
           outside of the Subdivision to any person or entity.
         • Cook’s purported grants of easements over the Private Road
           Easement over the lots owned by Plaintiffs within the
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               Subdivision to access property outside of the Subdivision are
               invalid.

The trial court granted appellants’ motion for summary judgment on appellees’ fraud
claim, ruling that appellees’ claim for fraud in a real estate transaction was barred
by the statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (statute
of limitations for fraud is four years). The trial court subsequently signed a final
judgment awarding attorneys’ fees to appellees. This appeal followed.

                    SUMMARY-JUDGMENT STANDARD OF REVIEW

      An appellate court applies de novo review to the grant of a traditional motion
for summary judgment, using the same standard that the trial court used in the first
instance. Duerr v. Brown, 262 S.W.3d 63, 68 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005)). The trial court resolved this case on the parties’ cross-motions for summary
judgment. “When we review cross-motions for summary judgment, we consider
both motions and render the judgment that the trial court should have rendered.”
Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist., 46 S.W.3d 880, 884
(Tex. 2001). Each party bears the burden of establishing that it is entitled to judgment
as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356
(Tex. 2000).

                                      ANALYSIS

      In three issues appellants argue the trial court should have granted their motion
for summary judgment and denied appellees’ motion. Specifically, appellants raise
the question of whether the exception clauses in the deeds used to convey Tracts 4,
5, and 6 to Blalock, and Tract 8 to the Nissimovs retained the Access Easement
running through the 130 acres to Cook. No party complains of the trial court’s order
granting appellants’ motion for summary judgment on the claim for fraud in a real

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estate transaction.

      An easement is a non-possessory interest in another’s property that authorizes
the holder to use that property for a particular purpose. Marcus Cable Assocs., L.P.
v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). An easement does not convey the
property itself. Seber v. Union Pac. R. Co., 350 S.W.3d 640, 646–47 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). For an easement appurtenant to exist either by
implication or in writing, there must be (1) a dominant estate, to which the easement
is attached; and (2) a servient estate, which is subject to the use of the dominant
estate to the extent of the easement granted or reserved. Drye v. Eagle Rock Ranch,
Inc., 364 S.W.2d 196, 207 (Tex. 1962).

      In determining whether an easement has been granted expressly, we look to
the same rules of construction applicable to deeds. Seber, 350 S.W.3d at 646–47. An
easement appurtenant benefits the property to which it is attached; it cannot be
separated from the owner’s rights in the land, and it passes with the property. See
Drye, 364 S.W.2d at 203. Although an easement appurtenant passes by a deed’s use
of the word “appurtenant,” it is usually held that such an easement passes even
without such an express reference in the deed. See Holmstrom v. Lee, 26 S.W.3d
526, 531 (Tex. App.—Austin 2000, no pet.).

      A warranty deed will pass all of the estate owned by the grantor at the time of
the conveyance unless there are reservations or exceptions that reduce the estate
conveyed. Day & Co., Inc. v. Texland Petroleum, Inc., 786 S.W.2d 667, 668 (Tex.
1990). An easement created by reference to a plat is an appurtenance which cannot
be separated from the owner’s rights in the land and passes with the property. Drye,
364 S.W.2d at 203. An owner who wishes to reserve a right or easement from
conveying with the property must make such reservation by clear language.
Holmstrom, 26 S.W.3d at 531. Although an “exception” can refer to any “mere

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exclusion from the grant,” a “reservation” must “always be in favor of and for the
benefit of the grantor.” Perryman v. Spartan Texas Six Capital Partners, Ltd., 546
S.W.3d 110, 119 (Tex. 2018) (quoting Pich v. Lankford, 302 S.W.2d 645, 650 (Tex.
1957)).

      The words “exception” and “reservation,” though at times used
interchangeably, each has its own separate meaning. Klein v. Humble Oil & Refining
Co., 67 S.W.2d 911, 915 (Tex. Civ. App.—Beaumont 1934), aff’d, 86 S.W.2d 1077
(Tex. 1935). A reservation is the creation of a new right in favor of the grantor.
Patrick v. Barrett, 734 S.W.2d 646, 647 (Tex. 1987). An owner who wishes to
reserve a right or easement from conveying with the conveyed property must make
the reservation by clear language. Holmstrom, 26 S.W.3d at 531. An exception, by
contrast, operates to exclude some interest from the grant. Wenske v. Ealy, 521
S.W.3d 791, 806 (Tex. 2017).

      The issue raised by appellants is whether the “exception” in the deeds to
appellees acted to reserve the right to grant access to the Access Easement.
Appellants argue that by excepting validly existing easements in the deeds to
appellees Cook reserved the right to convey use of the Access Easement to others.
Appellees argue that to reserve the right to convey use of the easement to others
Cook was required to expressly reserve that right in the deeds.

      Recognizing that “separate ownership of long narrow strips of land, distinct
from the land adjoining on each side, is a fruitful source of litigation and disputes,”
the Supreme Court of Texas developed a rule with respect to the legal construction
of conveyances like Cook’s to appellees: “[I]t is presumed that a grantor has no
intention of reserving a fee in a narrow strip of land adjoining the land conveyed
when it ceases to be of use to him, unless such fee is clearly reserved.” Cantley v.
Gulf Prod. Co., 143 S.W.2d 912, 915 (Tex. 1940) (presuming that language

                                          9
“keeping” thirty-foot-wide road easement did not reserve title to strip of land
underlying easement in absence of evidence of clear intention to do so). In other
words, “[w]hen an instrument conveys land definitely described in the instrument
and then excepts from the conveyance a road, railroad right-of-way or canal right-
of-way occupying an easement on, over or across the land conveyed, the instrument
conveys the fee to the entire tract, subject to such right-of-way, unless the deed
clearly indicates that the grantor intended to reserve the strip.” Moore v. Rotello, 719
S.W.2d 372, 375–76 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.)
(concluding that “save and except” language in deed was not express reservation of
interest in property, it had no other effect than to say that grant was burdened with
railroad right-of-way, and deed conveyed fee title to entire tract of land).

      There is no disagreement that the right-of-way at issue here is a 60-foot-wide
strip of land that adjoins the Subdivision lots that were conveyed in the deeds to
appellees. Appellants believe the “exception” language was sufficient to indicate
Cook’s intention to reserve an interest in the Access Easement. We disagree. In the
absence of an express reservation of the Access Easement in the deeds to appellees,
we apply the Cantley presumption and determine that the deeds are reasonably
susceptible to only one construction–i.e., the construction that the express right to
grant access to the easement was not reserved by Cook. See Boulanger ex rel.
Westlum Tr. v. Waste Mgmt. of Texas, Inc., 403 S.W.3d 1, 7 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied). We therefore conclude that the deeds unambiguously
conveyed title to all of the land described therein, including use of the Access
Easement.

      Appellants rely on Haines v. McLean, 276 S.W.2d 777, 782 (Tex. 1955) to
support their argument that the exclusive rights to the Access Easement were
excluded from Cook’s grant of title to the lots and, therefore, did not pass to the

                                          10
grantees. Our holding is not inconsistent with the supreme court’s decision in
Haines, in which the court held:

      An instrument of conveyance which conveys land definitely described
      in such instrument, and then excepts from such conveyance a road,
      railroad right of way, canal right of way, etc., as such, occupying a mere
      easement on, over, or across the land conveyed, conveys the fee to the
      entire tract, and the exception only operates to render the conveyance
      or grant subject to the easement.

Haines, 276 S.W.2d 777, 782 (quoting Lewis v. East Texas Finance Co., 146 S.W.2d
977, 980 (Tex. 1941)).

      Our holding is consistent with cases interpreting the effect of a deed that
excepts from a conveyance a right of way, road, or easement. See Haines, 276
S.W.2d at 782; Lewis, 146 S.W.2d at 980; Moore, 719 S.W.2d at 375–76; Teri Rd.
Partners, Ltd. v. 4800 Freidrich Lane L.L.C., No. 03-13-00221-CV, 2014 WL
2568488, at *6 (Tex. App.—Austin June 4, 2014, pet. denied) (mem. op.) (“An
exception that merely refers to an encroachment on the property, as opposed to
specifically reserving the conveyance of title to the property underlying the
encroachment, does no more than say that the property conveyed is burdened by the
encroachment.”).

      For the foregoing reasons, we conclude the conveyance from Cook to
appellees included the Access Easement and did not reserve a right in Cook to grant
access to the easement to others. Therefore, the trial court did not err in granting
appellees’ summary judgment and denying appellants’ cross-motion for summary
judgment.




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                                   CONCLUSION

      We overrule appellants’ issues and affirm the trial court’s judgment.



                                      /s/    Margaret “Meg” Poissant
                                             Justice



Panel consists of Chief Justice Frost and Justices Bourliot and Poissant (C.J. Frost
concurring).




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