                              NUMBER 13-07-272-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


TIMOTHY R. O’LEARY,                                                         Appellant,

v.

BRENT J. COLEMAN, M.D.,                                                      Appellee.


  On appeal from the 197th District Court of Cameron County, Texas.


                         MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Garza and Benavides
                Memorandum Opinion by Justice Garza

       This suit involves a dispute over the existence of an easement burdening property

in the town of South Padre Island. In an attempt to sell a parcel of bay-front property and

to extinguish any encumbrances on the property, appellee, Brent Coleman, M.D., filed a

declaratory judgment and trespass to try title action against appellant, Timothy O’Leary,

seeking to declare O’Leary’s alleged easement invalid. In response, O’Leary filed a

general denial and a counterclaim requesting a judicial declaration that he had a valid
easement over Coleman’s property. By three issues, O’Leary contends that the trial court

erred in granting Coleman’s traditional motion for partial summary judgment because: (1)

he raised material fact issues as to his claim for an easement by estoppel; (2) he raised

material fact issues with regard to his claim for an easement by implication; and (3) he

established an easement as a matter of law within the context of the deed to Coleman’s

property. We reverse and remand for proceedings consistent with this opinion.

                            I. FACTUAL AND PROCEDURAL BACKGROUND

        This dispute pertains to three lots and a forty-foot pier located on or near Laguna

Madre in South Padre Island, Texas. Coleman is the owner of Lot 1, a bay-front lot on the

Laguna Madre. Coleman acquired Lot 1 by warranty deed from Warren Lee Walsh and

Carolyn L. Walsh on or about June 1, 1992. On or about January 10, 1997, O’Leary

acquired title to Lots 3 and 4—located inland from Lot 1 along Mars Street—by warranty

deed from Richard J. O’Leary.

        Attached to the southwestern-most corner of Lot 1 is O’Leary’s pier, which extends

forty feet into the Laguna Madre and is supported by pillars sunk into the sea floor.

O’Leary has owned, used, and maintained this pier for at least eighteen years.1 In order

to access the pier, O’Leary must walk from Mars Street across the “southwestern-most

corner of Lot 1 for about six to ten feet.”

        On September 29, 1995, Coleman granted O’Leary permission in writing to cross

over his property to access the pier. Specifically, Coleman’s written permission (“Right of

Way agreement”) provided, in relevant part:

        Mr. Timothy O’Leary has been given Right of Way to the dock extending
        from the edge of my property to the Laguna Madre. The use, maintenance
        1
          O’Leary contends that the subm erged land supporting the pier is subject to a lease he has with the
State of Texas which requires him to pay a yearly lease fee.
                                                     2
        and liability of this structure is solely his responsibility. . . .

The document reflects that it was recorded in the Cameron County public records on

August 17, 2004, and that it was received by the Texas General Land Office on May 10,

1996.

        This conflict arose on October 29, 2004, when Coleman provided O’Leary with a

letter terminating permission to use Lot 1 to access the pier. At this time, Coleman notified

O’Leary of his intention to sell the property and his desire to remove any potential

encumbrances on the property.

        On April 1, 2005, Coleman filed a petition for declaratory judgment and an

application for a temporary restraining order and injunction. In his petition, Coleman (1)

sought an interpretation of the Right of Way agreement by the trial court; (2) asserted that

O’Leary had become a trespasser by continually using his property to access the pier; (3)

contended that he lost two sales of the property because O’Leary slandered his title to Lot

1, resulting in at least $100,000 in damages; and (4) argued that he had suffered

irreparable harm because O’Leary refused to recognize the revocation of the Right of Way

agreement and continued to trespass on his property.2 Coleman also argued that the Right

of Way agreement constituted a licensing agreement, not an easement, thereby

temporarily allowing O’Leary to cross over his property to access the pier. Because he

merely granted O’Leary a license to cross over his property, Coleman asserted that he

could revoke the license at any time.

        On June 3, 2005, Coleman filed a motion for partial summary judgment as to his


        2
          Because of the irreparable nature of the harm Colem an claim ed to have sustained, he requested
injunctive relief, an ex parte tem porary restraining order, and a tem porary injunction to prevent O’Leary from
crossing over his property to access the pier in his petition. The record contains an agreed tem porary
restraining order signed by the trial court on May 3, 2005.
                                                       3
declaratory judgment action advancing the same licensing argument made in his petition

for declaratory judgment. Further, Coleman noted that as a result of O’Leary’s continuing

trespass, he suffered irreparable harm that could not be readily calculated but required

judicial intervention to mitigate damages.

        Subsequently, on July 26, 2005, O’Leary filed his first amended answer and

counterclaim, denying all of the allegations contained in Coleman’s petition and asserting

that he had acquired an easement by estoppel or by implication to cross over Coleman’s

property to access the pier. O’Leary contended that from 1987 to 2005, he and his family

continuously traveled across the southwestern-most corner of Lot 1 for purposes of ingress

to and egress from the pier.3 O’Leary also argued that he and his predecessors-in-interest

spent money on the State’s leasing fees, maintenance costs, taxes, insurance premiums,

and improvements for the pier in reliance on promises and assurances made by both the

Walshes and Coleman that they could use the southwestern-most corner of Lot 1 to

access the pier.

        On July 29, 2005, Coleman filed an amended motion for partial summary judgment

asserting the same contentions made in his original motion for partial summary judgment

and adding grounds addressing O’Leary’s counterclaim that he had an easement by

estoppel. Specifically, Coleman stated that the trial court could look to the Right of Way

agreement to determine the rights of the parties and that the Right of Way agreement
        3
          O’Leary notes that he first acquired an interest in Lots 3 and 4 on Septem ber 28, 1987, through
Dwight Parks, who acquired the property as trustee for O’Leary. O’Leary contended that at this tim e, the
grantors of the property, Jack and Martha Burkholder, advised him that the “owners of Lots 3 and 4, Block
138, enjoyed an easem ent across Lot 1 . . . to gain access to a dock which extended into the Laguna Madre
and had its footings on the southwest corner of Lot 1 of Block 138.” O’Leary also noted that the City of South
Padre Island forced the Burkholders to locate the dock’s footings off of city property to Lot 1 and that
Colem an’s predecessors-in-interest assured the Burkholders that they and subsequent owners of Lots 3 and
4 would have the right to use Lot 1 to gain access to the pier. O’Leary asserted that he would not have bought
Lots 3 and 4 without that prom ise.



                                                      4
contemplated that O’Leary would be responsible for the maintenance and the liability of the

dock; therefore, O’Leary “cannot now complain about his reliance on a promise when he

assumed responsibility to maintain and insure the dock.” Additionally, Coleman contended

that (1) O’Leary did not provide sufficient evidence to establish that he was the owner of

the dock, and (2) O’Leary did not “allege or prove that the dock itself was constructed by

the owner of Lots 3 and 4 in reliance on some promise from the owners of Lots 1 and 2 to

grant some kind of access or easement.”

       On August 3, 2005, the trial court conducted a hearing on Coleman’s amended

motion for partial summary judgment, Coleman’s petition for declaratory and injunctive

relief, and O’Leary’s amended answer and counterclaim. On January 11, 2006, the trial

court granted Coleman’s motion for partial summary judgment and made the following

findings: (1) the Right of Way agreement was terminated by Coleman’s letter dated

October 29, 2004; therefore, O’Leary was no longer licensed to use Lot 1 to access the

pier; (2) O’Leary was guilty of trespass; (3) O’Leary slandered Coleman’s title; therefore,

Coleman was entitled to damages to be determined by the finder of fact; and (4) Coleman

was entitled to reasonable and necessary attorney’s fees in the amount of at least $7,000.

       On January 29, 2007, Coleman filed a motion to sever his declaratory judgment

action from the underlying slander of title and damages case. The trial court granted

Coleman’s motion to sever on February 9, 2007, and assigned the declaratory judgment

action a new cause number. This appeal ensued.

                                 II. STANDARD OF REVIEW

       The function of summary judgment is to eliminate patently unmeritorious claims and




                                            5
defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep't of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Casso v. Brand, 776 S.W.2d 551, 556

(Tex. 1989)); Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.–Corpus Christi 2003, no

pet.). We review de novo a trial court's grant or denial of a traditional motion for summary

judgment. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005) (citing

Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137 (Tex. 2004)); Alaniz,

105 S.W.3d at 345.

       Under a traditional motion for summary judgment, the movant must establish that

no material fact issue exists and that it is entitled to judgment as a matter of law. TEX . R.

CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Alaniz,

105 S.W.3d at 345; Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi

2002, pet. denied). After the movant produces evidence sufficient to show it is entitled to

summary judgment, the non-movant must then present evidence raising a fact issue. See

Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). We “must examine the entire record

in the light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.

2006) (per curiam); see City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

                                          III. ANALYSIS

1. Easement by Estoppel

       In his first issue, O’Leary contends that the trial court erred in granting Coleman’s

motion for summary judgment because he had established an easement by estoppel

burdening Lot 1. Specifically, O’Leary argues that his affidavit chronicling the existence of




                                                6
the alleged easement was sufficient to raise a fact issue. O’Leary further argues that the

Right of Way agreement was not a license and was executed for the sole purpose of

satisfying the State of Texas’s requirement that O’Leary have a property interest in bay-

front property before it leased the submerged land upon which the pier sits. Finally,

O’Leary asserts that Coleman is estopped from denying the existence of the alleged

easement because Coleman cannot “with one breath, demand that Defendant [O’Leary]

repair and make improvements to the pier, and, with his next breath, deny Defendant’s

right to enjoy the pier. Equitable estoppel’s chief purpose is to prevent behavior like

Plaintiff’s [Coleman’s].” Conversely, Coleman contends that O’Leary failed to raise a fact

issue with the trial court as to his easement by estoppel claim and that the Right of Way

agreement was a license that governed use of Lot 1 to access the pier, which could be

revoked at any time. Coleman also argues that an easement by estoppel cannot be

predicated upon passive acquiescence alone and that an easement for pleasure and

recreation alone is not favored at common law.

      A. Applicable Law

      “The doctrine of easement by estoppel has not been clearly defined and its

application depends upon the unique facts of each case.” Stallman v. Newman, 9 S.W.3d

243, 246 (Tex. App.–Houston [14th Dist.] 1999, pet. denied); see Wilson v. McGuffin, 749

S.W.2d 606, 610 (Tex. App.–Corpus Christi 1988, writ denied); see also Ross v. Womack,

No. 13-04-571-CV, 2006 Tex. App. LEXIS 10656, at **17-18 (Tex. App.–Corpus Christi

Dec. 14, 2006, no pet.).4 The Texas Supreme Court first enunciated the rationale for
      4
          In reviewing secondary authority pertaining to easem ents by estoppel, we have found the following:

      An easem ent by estoppel m ay also exist in a passageway over a boundary strip as a result
      of longstanding reciprocal use of the strip by the adjoining owners as a passageway.



                                                     7
easement by estoppel in Harrison & Co. v. Boring, 44 Tex. 255 (Tex. 1875):

        The owner of land may create an easement by a parol agreement or
        representation which has been so acted on by others as to create an
        estoppel in pais. As where he has by parol agreement granted a right of
        such easement in his land, upon the faith of which the other party has
        expended moneys which will be lost and valueless if the right to enjoy such
        easement is revoked, equity has enjoined the owner of the first estate from
        preventing the use of it.

Id. at 267. In essence, the alleged servient estate may be estopped to deny the existence

of an easement by making representations that have been acted upon by the owner of the

alleged dominant estate. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209

(Tex.1962).

        In order to create an easement by estoppel, the following elements must exist: (1)

a representation was communicated, either by words or action, to the promisee; (2) the

communication was believed; and (3) the promisee relied on the communication. Storms

v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979). An easement by estoppel is binding on the

successors in title to the servient estate if reliance upon the existing easement continues.


                One who attem pts to create an easem ent by estoppel m ust show that a
        representation was com m unicated to the prom isee, the representation was believed, and
        there was reliance upon such a com m unication. For exam ple, an easem ent m ay be created
        by estoppel where a vendor represents to a purchaser that an easem ent exists, in favor of
        the prem ises proposed to be sold, over the vendor’s other realty, and the purchase relies on
        that representation, but the conveyance subsequently m ade does not m ention such an
        easem ent. Sim ilarly, an easem ent by estoppel is created when a landlord voluntarily
        im poses an apparent servitude on his or her property, and another person, acting reasonably,
        believes that the servitude is perm anent and in reliance upon that belief does som ething that
        he or she would not have done otherwise or refrains from doing som ething that he or she
        would have done otherwise.

                The reliance that m ust be shown to warrant a finding that an easem ent has been
        created by estoppel requires a showing of a detrim ent to the person relying on the easem ent,
        which m ay be determ ined from the surrounding circum stances, including the effect on the
        easem ent user if the easem ent is revoked or rem oved. Reliance m ay be shown by an
        expenditure other than upon the servient estate.

25 A M . J U R . 2 D Easements and Licenses in Real Property § 14 (2007) (citations om itted).



                                                       8
Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.–San Antonio 1996, writ denied).

      B. Discussion

      The record contains an affidavit from O’Leary, which was attached to his first

amended answer and counterclaim.          In his affidavit, O’Leary made the following

contentions:

      2. Mr. Brent Coleman’s predecessors in title (Mr. & Mrs. Walsh), gave Mr. &
      Mrs. Burkholder, who were my predecessors in title, an easement over Lot
      1, Block 138, in favor of Lots 3 and 4, so that my predecessors could locate
      the footings of their dock on Lot 1, and have access across the southwestern
      corner of Lot 1, to get to the dock and to maintain the dock. After obtaining
      that agreement from the owner’s of Plaintiff’s [Dr. Coleman] property, the
      Brukholders [sic] built the dock footings on Plaintiff’s land. My family and I
      have crossed Plaintiff’s property to get to the dock for the last eighteen years
      without objection and with the full knowledge, acquiescence and consent of
      Mr. Coleman. Crossing Plaintiff’s property is the only way to get to my dock.

O’Leary also noted that Coleman had granted him an easement through the Right of Way

agreement, that the purpose of the Right of Way agreement was to satisfy a requirement

of the State of Texas “to secure a written statement from Mr. Coleman acknowledging the

easement rights before the State would continue to give me a lease for the State land that

is submerged under the Laguna Madre under my dock,” and that the State of Texas’s

General Land Office has recognized the existence of the easement across Lot 1 for use

and maintenance for eighteen years.

      The record also contains an “AFFIDAVIT CERTIFYING EASEMENT” filed in the

public records of Cameron County by O’Leary in August 2004. In this document, O’Leary

characterizes the Right of Way agreement as granting an easement and notes that the

Texas General Land Office has recognized and accepted this easement.

      O’Leary has not provided any written documentation of the original agreement


                                             9
between the Walshes and the Burkholders establishing the alleged easement. However,

Texas case law supports the notion that for easements, the doctrine of equitable estoppel,

or estoppel in pais as it is sometimes called, operates as an exception to the statute of

frauds which requires a writing for all transactions involving land to prevent injustice and

to protect innocent parties from fraud. See Scott v. Cannon, 959 S.W.2d 712, 720 (Tex.

App.–Austin 1998, pet. denied) (citing Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979);

Drye, 364 S.W.2d at 209)); see also 25 AM . JUR . 2D Easements and Licenses in Real

Property § 14 (2007).

         We are unable to determine whether the Walshes, predecessors-in-title of Lot 1, the

servient estate, intended to convey a mere license or an easement to the Burkholders,

predecessors in title of Lots 3 and 4, to access their pier.5 However, the record clearly

demonstrates that some agreement or representation was made (1) to allow for the pier

to be attached to Lot 1 when the Walshes owned Lot 1 and (2) for continuous passage

over Lot 1 to access the pier that lasted for at least eighteen years. In addition, Coleman

made an agreement with O’Leary granting O’Leary right of way across Lot 1 to access the

pier.6       Agreements, such as these, may be binding upon successors-in-title if the
         5
         O’Leary characterizes the pier as the dom inant estate rather than Lots 3 and 4 in order to preserve
his argum ent that an easem ent by im plication exists. A dom inant estate is an estate that benefits from an
easem ent. B LAC K ’S L AW D IC TIO N AR Y 449 (7th ed. 2000); see 25 A M . J U R . 2d Easements and Licenses in Real
Property § 1 (2007) (“[A] ‘dom inant estate,’ that has right to use land of another . . . .”). Therefore, the pier
and Lots 3 and 4 would m ost aptly be considered the dom inant estates because O’Leary’s fam ily has traveled
over Lot 1 to get to and from the pier and Lots 3 and 4. Clearly, Lots 3 and 4 benefit from the alleged
easem ent over Lot 1 through usage of the pier and the intrinsic value of the pier is tied to the ability of the
O ’Learys, the owners of Lots 3 and 4, to use the pier. W ithout access to the pier, O’Leary’s pier would be
rendered worthless unless the pier was som ehow m oved to another piece of bay-front property. As previously
m entioned, Lots 3 and 4 are not bay-front property. Moreover, the record does not reflect that O’Leary owns
any bay-front property.

        6
          Colem an attem pts to characterize the Right of W ay agreem ent as a license that is revocable at any
tim e. However, we need not determ ine the true character of the Right of W ay agreem ent. W e need only
determ ine whether som e representation was m ade that an easem ent existed and that O’Leary believed the
representation and relied upon on it. See Drye v. Eagle Rock Ranch, Inc., 364 S.W .2d 196, 209 (Tex.1962)



                                                        10
successors-in-title continue to rely upon the existence of the alleged easement. See

Stallman v. Newman, 9 S.W.3d 243, 246 (Tex. App.–Houston [14th Dist.] 1999, pet.

denied) (“An easement by estoppel, once created, is binding upon successors in title if

reliance upon the existence of the easement continues.”) (citing Holden v. Weidenfeller,

929 S.W.2d 124, 131 (Tex. App.–San Antonio 1996, writ denied)).

        O’Leary has demonstrated that the Burkholders, the predecessors-in-interest of Lots

3 and 4, relied on the agreement by moving the pier from city land to the Walshes’ land

and that his family has relied on the agreement by using Lot 1 to access the pier for

eighteen years.         In addition, Coleman did not object to O’Leary’s usage of the

southwestern-most portion of Lot 1 to access the pier from 1992 to 2004.7 O’Leary has

paid to maintain and insure the pier and paid the State of Texas leasing fees for locating

the pier in the submerged waters of the Laguna Madre. It is clear that O’Leary presented

sufficient evidence establishing that he believed and relied on the agreement made by the

Walshes and the Burkholders with respect to the pier.

        Therefore, we conclude, viewing the evidence in the light most favorable to the non-

movant and disregarding all contrary evidence and inferences, see Zapata v. Children’s

Clinic, 997 S.W.2d 745, 747 (Tex. App.–Corpus Christi 1999, pet. denied), that O’Leary

has raised a genuine issue of material fact as to the nature of the representation, either by


(establishing the essential elem ents for an easem ent by estoppel); see also Storms v. Tuck, 579 S.W .2d 447,
451 (Tex. 1979) (sam e). Essentially, we are exam ining the conduct of the parties prior to the execution of the
Right of W ay agreem ent.


        7
         W e do note that Texas case law is clear that an easem ent by estoppel m ay not be predicated upon
passive acquiescence alone. See Stallman v. Newman, 9 S.W .3d 243, 248 (Tex. App.–Houston [14th Dist.]
1999, pet. denied); see also Scott v. Cannon, 959 S.W .2d 712, 721 (Tex. App.–Austin 1998, pet. denied)
(passive acquiescence "for no m atter how long a period" will not estop landowner from denying existence of
easem ent across his land).



                                                      11
words or actions, communicated to the promisee—the Burkholders. See TEX . R. CIV. P.

166a(c); see also Ross v. Womack, 2006 Tex. App. LEXIS 10656, at *20. Coleman

cannot undermine the agreement made between the Walshes and the Burkholders by

issuing the Right of Way agreement to recharacterize the agreement as a license when the

prior conduct of the parties appears to give rise to an easement by estoppel. We further

conclude that the conduct supported by O’Leary’s summary judgment evidence constitutes

more than mere silence or acquiescence on the part of Coleman.8 Accordingly, we sustain

O’Leary’s first issue.

2. Easement by Implication

        In his second issue, O’Leary argues that the record contains some evidence

establishing the elements of an easement by implication—continuous and apparent use,

reasonable necessity, and unity of ownership between the dominant and servient estates.

See Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984). Because of this,

O’Leary contends that fact issues exist and that the trial court erred in granting Dr.

Coleman’s motion for summary judgment. On the other hand, Dr. Coleman asserts that

        8
           In support of his contention that an easem ent by estoppel cannot be predicated upon passive
acquiescence alone, Colem an relies heavily on this Court’s holding in Schilab v. Dierlam, No. 13-03-00185-
CV, 2004 Tex. App. LEXIS 7260, at **9-10 (Tex. App.–Corpus Christi Aug. 12, 2004, no pet.) (m em . op.).
However, this case is factually distinguishable from the instant case. In Schilab, we concluded that the trial
court did not err in granting Dierlam ’s m otion for sum m ary judgm ent as to the claim m ade by
appellants— Gerald Schilab, C.B. W right, Mary W right, Carl W illiam s, and Carroll Edge— that an easem ent
by estoppel existed because appellants failed to present any evidence that an express representation was
com m unicated to them that an easem ent existed. Id. at *11. The appellants contended that an easem ent
by estoppel was created by “silence and acquiescence” on the part of Dierlam and her predecessors-in-title
in the face of the appellants’ and their predecessors’ use of the road at issue. Id. at *9. In the instant case,
O’Leary has presented evidence dem onstrating that an agreem ent between the W alshs and the Burkholders
governed the placem ent of and access to the pier. O’Leary contends that the Right of W ay agreem ent
constitutes a recognition by Colem an of O’Leary’s easem ent over the southwestern-m ost corner of Lot 1 to
access the pier. O’Leary also presents affidavit testim ony dem onstrating that he m aintained and insured the
pier and paid leasing fees to the State of Texas for the pier in reliance on the agreem ent m ade between the
W alshs and the Burkholders and the written perm ission granted by Colem an. Clearly, O’Leary is not relying
solely on passive acquiescence to establish an easem ent by estoppel; therefore, Schilab is not persuasive
in this dispute.



                                                      12
there was never common ownership of Lots 1, 3, and 4, thus undermining O’Leary’s

easement by implication contention. Further, Coleman argues that O’Leary’s summary

judgment evidence does not establish that the prior titleholders of Lot 1 conveyed a

property interest to the prior titleholders of Lots 3 and 4.

       A. Applicable Law

       The creation of easements may be by an express grant, by implication, by estoppel,

by prescription, by public dedication, by reservation in a conveyance of land, or by the

purchase of land with reference to a map or plat showing abutting roads or streets. See

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

v. Spann, 671 S.W.2d 909, 911 (Tex. App.–Corpus Christi 1984, writ ref’d n.r.e.). In order

to maintain an implied easement appurtenant, meaning an easement interest which

attaches to the land and passes with it, it was incumbent upon O’Leary as the party

claiming such easement to prove the following elements: (1) unity of ownership between

the dominant and servient estates; (2) apparent use of the easement at the time the

dominant estate was granted; (3) continuous use of the easement, so that the parties must

have intended its use to pass by grant with the dominant estate; (4) reasonable necessity,

rather than a mere convenience, of the easement to the use and enjoyment of the

dominant estate. See Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex. 1966); Vinson v.

Brown, 80 S.W.3d 221, 228-29 (Tex. App.–Austin 2002, no pet.); see also Koonce, 663

S.W.2d at 452; Westbrook v. Wright, 477 S.W.2d 663, 665-66 (Tex. Civ. App.–Houston

[14th Dist.] 1972, no writ).

       Furthermore, the requirements for the establishment of such an easement by




                                              13
implication must be strictly adhered to. Exxon Corp. v. Schutzmaier, 537 S.W.2d 282, 285

(Tex. Civ. App.–Beaumont 1976, no writ) (noting that “[t]he use of such an easement is

limited to those uses which are reasonably necessary and convenient and as little

burdensome to the servient estate as possible, for the use of the right granted” and that

easements by estoppel have not been applied with the same strictness and conclusiveness

as easements by implication); Westbrook, 477 S.W.2d at 665-66; Johnson v. Faulk, 470

S.W.2d 144, 148 (Tex. Civ. App.–Tyler 1971, no writ).

       B. Discussion

       In support of his claim for an easement by implication, O’Leary refers to an affidavit

attached to his first amended answer and counter-claim. In his affidavit, O’Leary notes that

he and his family have used Lot 1 to access the pier for eighteen years, a use which has

been apparent and continuous. Furthermore, O’Leary notes that “[c]rossing Plaintiff’s

[Coleman’s] property is the only way to get to my dock.” O’Leary also attached a map

depicting Lots 1, 3, 4, and the pier to demonstrate that the pier cannot be accessed from

Lots 3 and 4 without crossing over Lot 1. O’Leary, however, failed to present evidence

establishing the first element for an implied easement—unity of ownership between the

dominant and servient estates. See Koonce, 663 S.W.2d at 452 (“To establish unity of

ownership[,] the claimant must prove prior to severance, his grantor owned the dominant

and servient estate as a unit or single tract.”). Previously, we noted that the dominant

estate consists of Lots 3, 4, and the pier. O’Leary did not present the trial court with

evidence demonstrating common ownership of Lots 1, 3, 4, and the pier. Moreover,

O’Leary did not present evidence demonstrating common ownership of either Lot 1 and

the pier or Lots 3 and 4 and Lot 1. Because O’Leary failed to produce evidence creating


                                             14
a fact issue as to the first element for an implied easement, we need not address the

remaining elements, and we conclude that the trial court did not err in granting Coleman’s

motion for summary judgment as to O’Leary’s easement by implication contention. See

TEX . R. CIV. P. 166a(i); see also Koonce, 663 S.W.at 452. Accordingly, we overrule

O’Leary’s second issue.

3. Coleman’s Deed to Lot 1

       In his third issue, O’Leary notes that Lot 1 was conveyed to Coleman by a warranty

deed stating that the conveyance was subject to all “[v]isible and apparent easements on

or across the property herein described.” O’Leary argues that this language, the fact that

Coleman knew that the pier belonged to O’Leary, and the fact that the pier could only be

reached by crossing Lot 1, supports a finding that O’Leary had an easement over Lot 1 as

a matter of law. Coleman counters by arguing that O’Leary’s third issue was not properly

preserved and, alternatively, that O’Leary does not have standing to claim benefits under

the deed to Lot 1 since O’Leary was not a party to the deed or its warranties.

       A. Applicable Law

       The primary duty of a court when construing a deed is to ascertain the intent of the

parties from the four corners of the document. Luckel, 819 S.W.2d at 461-62. “The parties

to an instrument intend every clause to have some effect and in some measure to

evidence their agreement.” Id. at 462 (quoting Altman, 712 S.W.2d at 118). As a result,

when seeking to ascertain the intent of the parties, a court attempts to harmonize all parts

of the deed. Id. (citing Altman, 712 S.W.2d at 118). Even if different parts of the deed

appear contradictory or inconsistent, a court must strive to harmonize all of its parts and




                                            15
to construe the instrument so as to give effect to all of its provisions. Id. (citing Benge v.

Scharbauer, 259 S.W.2d 166, 167 (Tex. 1953)).

       An easement is considered an interest in land; therefore, the creation and transfer

of such an interest is subject to the statute of frauds, unless the easement is imposed by

operation of law, i.e. easements created by means other than a writing. See Drye, 364

S.W.2d at 203 & n.5 (noting that “a license, under some conditions, may rise to the dignity

of an easement and must be in writing”); see also Schilab v. Dierlam, No. 13-03-00185-CV,

2004 Tex. App. LEXIS 7260, at *6 (Tex. App.–Corpus Christi Aug. 12, 2004, no pet.)

(mem. op.). In other words, O’Leary must demonstrate that the alleged easement was

expressly conveyed in compliance with the statute of frauds to establish an easement as

a matter of law. See Drye, 364 S.W.2d at 203; see also Ross, 2006 Tex. App. LEXIS

10656, at **16-17; Schilab, 2004 Tex. App. LEXIS 7260, at *6.

       B. Discussion

       As a preliminary matter, we note that O’Leary did raise this issue with the trial court

in his response to Coleman’s motion for partial summary judgment; therefore, this issue

has been preserved for appeal.9 See TEX . R. CIV. P. 166a(c) (“Issues not expressly


       9
           In his response to Colem an’s m otion for partial sum m ary judgm ent, O’Leary noted that:

       W hen Colem an purchased his property, the very first item excepted from the deed was the
       following:

                  1. Visible and apparent easem ents on or across the property herein described;

                  ....

               Since Mr. Colem an knew that the Deed that gave him his rights in Lot 1 was
       specifically m ade subject to visible and apparent easem ents on or across the property, Mr.
       Colem an always understood that the O’Leary’s were entitled to cross the very southwestern-
       m ost corner of his property as necessary to access that dock. He never objected from 1992
       through 2004.



                                                      16
presented to the trial court by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.”). However, O’Leary does not have

standing to claim a benefit derived from the warranty deed between the Walshes and

Coleman. See S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex. 2007); see also

Haug v. Carter, No. 03-03-00476-CV, 2004 Tex. App. LEXIS 6817, at *21 (Tex.

App.–Austin July 29, 2004, pet. denied) (noting that “[a] person who is not a party to a

contract will still have a cause of action to enforce the contract if it was made for his or her

benefit,” but “[t]he person claiming to be a third-party beneficiary must establish the

existence of a contract and standing as a third-party beneficiary”).

       Standing is a component of subject-matter jurisdiction, and we thus consider the

appellees' standing under the same standard by which we review subject-matter

jurisdiction generally. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). Subject-matter jurisdiction presents a question of law; we review the district

court's decision de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.

1998). The general test for standing for individuals requires that there "(a) shall be a real

controversy between the parties, which (b) will be actually determined by the judicial

declaration sought.” Bd. of Water Eng'rs v. City of San Antonio, 155 Tex. 111, 283 S.W.2d

722, 724 (1955).

       In the instant case, O’Leary would not be properly characterized as a third-party

beneficiary because he was not a party to the deed conveying Lot 1 from the Walshes to

Coleman even though he attempts to derive a benefit from the deed on appeal. See

Canfield v. Countrywide Home Loans, Inc., 187 S.W.3d 258, 263-64 (Tex. App.–Beaumont

2006, no pet.) (applying third party beneficiary analysis within the context of a deed of trust


                                              17
and warranty deed conveying property); Haug, 2004 Tex. App. LEXIS, at **20-24 (applying

third party beneficiary analysis to a conveyance of easements located on Lake Travis).

The Texas Supreme Court has held that there is a presumption against conferring third-

party beneficiary status on non-contracting parties. See S. Tex. Water Auth., 223 S.W.3d

at 306 (citing MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.

1999)). In determining whether a third party may enforce or challenge a contract between

others, it is the contracting parties' intent that controls. See Corpus Christi Bank & Trust

v. Smith, 525 S.W.2d 501, 503-04 (Tex. 1975).

       The supreme court further noted that the intent to confer a direct benefit upon a third

party "must be clearly and fully spelled out or enforcement by the third party must be

denied." MCI Telecomms. Corp., 995 S.W.2d at 651. Incidental benefits that may flow

from a contract to a third party do not confer the right to enforce the contract. Id. at 652.

“A third party may only enforce a contract when the contracting parties themselves

intended to secure some benefit for the third party and entered into the contract directly for

the third party's benefit.” S. Tex. Water Auth., 223 S.W.3d at 306 (citing MCI Telecomms.

Corp., 995 S.W.2d at 651; Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002)). In

establishing that the contracting parties intended to confer a benefit to the third party, the

third party must benefit more than incidentally. Id. In other words, the third party must be

either a donee or creditor beneficiary. MCI Telecomms. Corp., 995 S.W.2d at 651. A

person is a donee beneficiary if the performance promised will come to him as a pure

donation. Id. If performance will come to satisfy a duty or legally enforceable commitment

owed by the promisee, then the third party is considered a creditor beneficiary. Id.

       The record reflects that a contract—the deed—existed, but O’Leary has not


                                             18
presented any evidence indicating that the parties to the deed—the Walshes and

Coleman—intended to confer a benefit to him. The record indicates that the Walshes and

Coleman entered into the deed for the purpose of conveying Lot 1 to Coleman, not for the

purpose of conveying an easement to O’Leary. The benefit O’Leary derives from the deed

is incidental, at best. Moreover, it is noteworthy that the deed makes reference to an

easement for public utilities, an easement “in favor of Cameron County Fresh Water

Supply District Number One (1),” and an easement and right of way executed by L.C.

Guentel to Central Power and Light Company. However, the deed does not explicitly

reference O’Leary’s alleged easement. Therefore, because O’Leary has not proven that

the parties intended to confer more than an incidental benefit to him and because O’Leary

would not be considered a third party beneficiary, we conclude that O’Leary does not have

standing to claim benefits under Coleman’s deed. Accordingly, we overrule O’Leary’s third

issue.

                                       IV. CONCLUSION

         Because O’Leary has raised a material fact issue as to his first issue pertaining to

an easement by estoppel, we reverse and remand for proceedings consistent with this

opinion.

                                                   _______________________
                                                   DORI CONTRERAS GARZA,
                                                   Justice

Memorandum Opinion delivered and
filed this the 8th day of May, 2008.




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