                                   NO. 07-04-0389-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  MARCH 8, 2005
                          ______________________________

                 DENNIS WYNN FISHER and wife, JEAN M. FISHER,

                                                                     Appellants
                                            v.

      DEFORD PROPERTIES, a partnership, HOMER H. DEFORD, individually,
           and DEFORD LUMBER CO., a limited partnership,

                                                                     Appellees
                        _________________________________

           FROM THE 173rd DISTRICT COURT OF HENDERSON COUNTY;

                 NO. 91A-495; HON. JACK H. HOLLAND, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

      Appellants Dennis Wynn Fisher and his wife Jean M. Fisher (the Fishers) appeal

from a take-nothing judgment entered in their lawsuit against appellees DeFord Properties,

Homer H. DeFord and DeFord Lumber Co. (collectively referred to as “DeFord”). In that

lawsuit, the Fishers sought an injunction to prevent DeFord from interfering with their use

of a 30 foot wide easement across the property of DeFord and damages from past
interference with the use of that easement.1 In two issues, the Fishers contend 1) the

evidence is legally and factually insufficient to support the trial court’s conclusion that they

“did not sustain their burden of proof by a preponderance of the evidence and did not

establish any measure of damages with a reasonable degree of certainty,” and 2) the trial

court erred in refusing to enter additional findings of fact and conclusions of law. We affirm

the judgment of the trial court.

        The Veterans Land Board of Texas owns a 40-acre tract of land in Henderson

County which is surrounded by land owned by DeFord. The Land Board also has a 30-foot

easement across the property of DeFord by which to gain access to the 40-acre tract of

land. The Fishers have a contract for deed with the Veterans Land Board for the 40 acres.

No improvements are currently situated on the property.                    The Fishers complain of

interference with their use of the easement during the years 1985 through 1991.

                             Issue 1 - Sufficiency of the Evidence

        In their first issue, the Fishers argue that the evidence does not support the trial

court’s findings of fact. The trial court found that neither DeFord nor its agents, servants,

or employees committed any acts that interfered with or hindered the use and benefit of the

easement. More specifically, the court found that DeFord did not:

        a. place hay bales, farm equipment or other obstructions on the easement
        which interfered with Plaintiffs’ use thereof:

        b. construct a tank on lands owned by Defendants that diverted water onto
        the easement way;




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          DeF ord counterclaimed against the Fishers, and the court ordered that DeFord take nothing on the
cou nterclaim. That portion of the c ourt’s judgm ent has not been a ppe aled.

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       c. construct a barn or other improvements on the boundary line of the
       easement that interfered with Plaintiffs’ use thereof;

       d. remove any trees adjoining or within the easement or recontour . . .
       Defendants’ land in any way that resulted in changing or rechanneling the
       flow of water in any way such as to destroy the easement way and interfere
       with Plaintiffs’ use thereof.

       A trial court’s findings of fact have the same weight, force, and dignity as a jury’s

verdict. Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 314 (Tex. App.–Amarillo

2001, pet. denied). To determine if the evidence is legally sufficient to support a finding,

all the record evidence and inferences must be viewed in a light favorable to the finding,

and if anything more than a scintilla of evidence exists, the finding is legally sufficient. Id.

In a factual sufficiency review, we review all the evidence and reverse only if the finding is

so against the great weight and preponderance of the evidence as to be manifestly unjust.

Id. at 314-15.

       Homer DeFord testified that 1) he and his employees trimmed some overhanging

limbs on trees which belonged to him but never cut down any trees from the easement area

or trimmed brush on the easement, 2) he cleaned and enlarged a tank which existed on the

left side of the easement when he bought his land, but the elevation of the tank is lower

than the easement and does not divert water onto the easement, 3) he and his employees

never changed the contour of the land, 4) the first or second year he stored some hay

along the easement which took up four feet of the 30-foot easement, but never did so again

after the Fishers complained, 5) an eight foot wide fertilizer truck was parked on the

easement one time for a day or two, 6) he never did anything to his land or the adjoining

area that created a problem on the easement and he never interfered with the easement



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rights, 7) because the Fishers left the gate open, he installed locks on the gate but gave

the Fishers a key, and 8) he was not required to maintain the easement.

       David Anderson, who worked as ranch foreman for DeFord during the relevant

years, testified that 1) the land was never recontoured, 2) he used a bulldozer to clear

some brush around a tree but there was no change to the flow of the water on the land,

3) he trimmed a hanging limb and also observed the Fishers trimming trees, 4) the barn is

built off of the easement, 5) the fence is built on the edge of the easement and does not

interfere with its use, 6) he provided the Fishers with a lock so they had access to the

easement, 7) he parked a fertilizer truck on the easement on one or two occasions, 8) he

did not plant any trees on the easement, and 9) the water edge from the tank does not

reach the easement. The trial court also had photographs before it from which to observe

the location of the barn, fence, and tank, the condition of the easement, and the location

of trees.

       Dennis Fisher testified that he had to cut trees and install a concrete crossing to

make the easement passable. Although his testimony as to acts of interference was

contradictory to some if not most of the evidence presented by DeFord, in a bench trial, the

trial court is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Sterquell v. Scott, 140 S.W.3d 453, 461 (Tex. App.–Amarillo 2004, no pet.);

Ponce v. Sandoval, 68 S.W.3d 799, 806 (Tex. App.–Amarillo 2001, no pet.). The trial court

also resolves inconsistencies in the evidence. Ponce v. Sandoval, 68 S.W.3d at 806. The

evidence cited above constitutes more than a scintilla of evidence to support the trial court’s

findings. Furthermore, when the record is considered as a whole, it is not so against the



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great weight and preponderance of the evidence as to be manifestly unjust. Therefore, the

sufficiency issues are overruled.

           Issue 2 - Additional Findings of Fact and Conclusions of Law

       In their second issue, the Fishers complain that the trial court failed to enter

additional requested findings of fact and conclusions of law. We overrule the issue.

       The findings and conclusions sought by the Fishers contradict those actually entered

by the trial court. It is clear that a trial court does not err in refusing to issue additional

findings that are encompassed within its former findings but contradict them. Asai v. Vanco

Insulation Abatement, Inc., 932 S.W.2d 118, 121 (Tex. App.–El Paso 1996, no writ). That

is the circumstance here.

       Accordingly, the judgment of the trial court is affirmed.



                                                   Brian Quinn
                                                     Justice




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