Opinion filed October 25, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-10-00310-CV
                                       __________

                     TOM AND MARIE McKENNA, Appellant

                                              V.

                          J. DANIEL CALDWELL, Appellee


                          On Appeal from the 278th District Court

                                    Walker County, Texas

                                 Trial Court Cause No. 25035


                                         OPINION
       Tom and Marie McKenna (McKenna) appeal the summary judgment entered in favor of
J. Daniel Caldwell (Caldwell) in a dispute over an express easement. McKenna argues that the
trial court erred when it granted summary judgment because the issue of whether the terms of the
easement prohibit a gate or a cattle guard is a question of fact that cannot be resolved by
summary judgment. Alternatively, McKenna argues that the trial court granted greater relief
than requested when it ordered the removal of all gates from the easement and when it prohibited
any future obstructions across the easement. Finally, McKenna complains that the evidence was
insufficient to support the award of attorney’s fees to Caldwell. We reverse and remand.
                                        Background Facts
       Both parties own real property that is located in the Alonzo Marsh Survey in Walker
County, Texas.    Through two separate conveyances, Caldwell and his brother, George L.
Caldwell, acquired 57.12 acres. In the deeds of sale to the Caldwell brothers, the grantors
reserved a 40-foot access easement across the southern boundary of the property. That easement,
though not at issue, is still in use by another neighbor and Caldwell to cross McKenna’s property
to the public road. Four years after the Caldwell brothers acquired the 57.12 acres, Caldwell
executed a partition deed in which he conveyed the southern half of the property to George and
Jo Ann Caldwell. He reserved a 30-foot access easement along the eastern border to provide
access to his otherwise landlocked property. The partition deed contains the following language:
               This conveyance is subject to an easement upon, over and across a thirty
       (30) foot strip of land adjacent to the east boundary line of the South one-half
       (1/2) of the above described 37.12 acres to be used in common with Grantor, his
       heirs and assigns, for purposes of providing a perpetual free, uninterrupted and
       unobstructed easement for access, ingress and egress to and from the north one-
       half (1/2) of said 57.12 acres.

Seven years after the partition, Jo Ann Caldwell, then a widow, deeded the southern half of the
original 57.12 acres to McKenna, subject to all existing recorded encumbrances.
       Prior to the date of the partition deed, and while the land was jointly owned by the
Caldwell brothers, McKenna used the southern parcel and raised cattle with Caldwell on both
tracts. During the time that McKenna and Caldwell raised cattle together, Caldwell installed a
gate across the south end of the easement where it met the 40-foot access easement that provided
access to the public road. McKenna enclosed a portion of the southern half for use as a hay field.
A portion of the hay field fence bordered a section of the easement. When Caldwell stopped
raising cattle, McKenna installed a cattle guard and a gate across the northern end of the
easement where it meets Caldwell’s property. The purpose was to prevent McKenna’s cattle
from roaming onto Caldwell’s land. Caldwell stated that the cattle guard and gate were never an
issue because the gate was left open.
       McKenna originally filed suit seeking a declaratory judgment and an injunction
preventing Caldwell from leaving the gate open and from harming or destroying the gate.
Caldwell also filed suit seeking a declaratory judgment and an injunction preventing McKenna
from obstructing the easement. Caldwell also asserted claims for trespass and negligence,


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requesting damages caused by the trespass of McKenna’s cattle and damages resulting from
Caldwell’s vehicle hitting the gate. The cases were consolidated by the trial court. Caldwell
filed a motion for partial summary judgment, arguing that the terms of the easement prohibited
gates as a matter of law.
          McKenna’s summary judgment evidence showed that Caldwell filled in the cattle guard,
requiring McKenna to close the gate to prevent his cattle from roaming onto Caldwell’s property.
The summary judgment evidence also showed that Caldwell’s vehicle was damaged when he ran
into the closed gate.
          The trial court granted partial summary judgment in favor of Caldwell, who nonsuited his
remaining claims. Thus, the trial court’s order is final and reviewable on appeal. Ritzell v.
Espeche, 87 S.W.3d 536, 538 (Tex. 2002).
                                        Standard of Review
          We review the trial court’s grant of summary judgment de novo, looking only to the
evidence presented to the trial court. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 215 (Tex. 2003). When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, indulging every reasonable inference, and we resolve any doubts in
the nonmovant’s favor. Id. Any evidence favoring the moving party, Caldwell, will not be
considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing
Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
          Caldwell filed a traditional motion for summary judgment, asserting that there were no
genuine issues of material fact. In a traditional summary judgment motion, the moving party has
the burden of showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Knott, 128 S.W.3d at 215–16.
                                         Express Easement
          In the first point, McKenna asserts that the trial court erred when it granted summary
judgment in favor of Caldwell. McKenna argues that a genuine issue of material fact exists
because the language of the easement does not specifically address the use of gates or cattle
guards.
          An easement is a nonpossessory interest in land that authorizes its holder to use the
property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700
(Tex. 2002). The holder or dominant estate may only make such use of the easement as is

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“reasonably necessary[] to fairly enjoy the rights expressly granted,” lest the easement
effectively become a possessory land interest.      Id. at 701.   When considering an express
easement, we look to the language reserving it to determine the scope of the easement. Id. at
700–01. Applying basic principles of contract construction and interpretation, we give the terms
of the easement their plain and ordinary meaning when they are not expressly defined. Id. at
701. We read the terms of an easement as a whole to determine the parties’ intentions and to
carry out the purpose behind the easement’s creation. DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1
S.W.3d 96, 101 (Tex. 1999).
       Any ambiguities in the language or parties’ intent are construed against the drafting party,
and we adopt the interpretation that is the least burdensome to the non-drafting party. Houston
Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 665 (Tex. 1964); Boerschig v. Sw. Holdings, Inc., 322
S.W.3d 752, 760 (Tex. App.—El Paso 2010, no pet.); CenterPoint Energy Houston Elec. LLC v.
Bluebonnet Drive, Ltd., 264 S.W.3d 381, 388–89 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied). “A latent ambiguity arises when a contract which is unambiguous on its face is applied
to the subject matter with which it deals and an ambiguity appears by reason of some collateral
matter.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520
(Tex. 1995). If the contract is ambiguous, the court must “determine the true intentions of the
parties, for that will resolve the ambiguity.” Fox v. Parker, 98 S.W.3d 713, 719 (Tex. App.—
Waco 2003, pet. denied). “This determination involves fact issues.” Id.
       When an easement has only one reasonable interpretation after applying the rules of
contract construction, we must construe it as a matter of law. Marcus Cable, 90 S.W.3d at 700.
Because the easement does not specifically address gates or cattle guards, we must look to the
terms of the reservation and give them their ordinary and generally accepted meaning.
       Both parties’ arguments turn on the interpretation of the phrase “free, uninterrupted and
unobstructed.” Free is defined as “not subject to the constraint of another”; “unburdened.”
BLACK’S LAW DICTIONARY 734 (9th ed. 2009). An interruption is defined as a “break in the
period of possession of land.” Id. at 896. An obstruction is defined as “something that impedes
or hinders.” Id. at 1183.
       The reservation of the easement appears to be unambiguous on its face. It is to remain
free of all obstructions, without breaking the flow of Caldwell’s ingress and egress. Yet, an



                                                4
ambiguity arises when the reservation is applied to the subject matter of the actual easement and
the collateral matter of McKenna’s use of his property for cattle.
         The summary judgment evidence is conflicting; however, we take as true all evidence
favorable to the nonmovant.1 The summary judgment evidence shows that, at the time of the
partition deed, there was already a gate at the southern entrance of the easement. Most cattle
guards would not be considered an “interruption” or an “obstruction,” and Caldwell
acknowledged that the cattle guard was never an issue. Yet, Caldwell filled in the cattle guard
that McKenna used to keep his cattle from roaming onto Caldwell’s property. The trial court’s
final judgment prohibiting any and all obstructions across the easement could be read to include
cattle guards, leaving McKenna no way to maintain his preexisting use of the property: raising
cattle without the cattle roaming onto Caldwell’s property or the public road.
         It is a question of fact whether, when the easement was created, the parties intended the
access easement to be free of gates or cattle guards. See Reaves v. Lindsay, 326 S.W.3d 276, 282
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating that, where the language of an express
easement does not specifically address the issue of whether gates and cattle guards can be
installed across the easement, the rights of the dominant estate must be balanced against the
burden to the servient estate).2 The summary judgment evidence reflects that the easement was
entered into with knowledge that McKenna was raising cattle with Caldwell. Because Caldwell
drafted the partition deed, including the easement language, it should be construed against him.
         Caldwell urges us to determine his easement rights as a matter of law, but “[w]hether the
grantee of a right of way is entitled to a way unobstructed by gates or bars depends upon the
terms of the grant, the provision for which it was made, the nature and situation of the property,
and the manner in which it has been used.” Arden v. Boone, 221 S.W. 265, 266 (Tex. Comm’n
App. 1920, holding approved); see Gerstner v. Wilhelm, 584 S.W.2d 955, 958 (Tex. Civ. App.—
Austin 1979, writ dism’d); Carleton v. Dierks, 203 S.W.2d 552, 556–57 (Tex. Civ. App.—
Austin 1947, writ ref’d n.r.e.); Burns v. McDaniel, 158 S.W.2d 826, 827 (Tex. Civ. App.—


         1
           We review all the summary judgment evidence in favor of the nonmoving party, McKenna. Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (stating that the court reviews a summary judgment de novo and takes “as true
all evidence favorable to the nonmovant”).
         2
           Cf. Knight v. Buckbriar, No. 04-01-00539-CV, 2002 WL 1285292 (Tex. App.—San Antonio June 12, 2002, no pet.)
(mem. op., not designated for publication) (holding as a matter of law that the easements in question were unambiguous where
they specifically stated no barriers of any kind were to be erected, other than the two gates already in existence, that would
interfere with the free flow of access).

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Eastland 1942, no writ). While Caldwell argues that any obstruction is prohibited by the terms
of the easement, McKenna points out that Caldwell himself installed a gate across the easement
and that the manner in which McKenna uses the land has not changed since Caldwell reserved
his easement.
       McKenna recognizes that the owner of the servient estate may not interfere with the use
of an easement for the purpose for which it was granted. Ferrara v. Moore, 318 S.W.3d 487,
490 (Tex. App.—Texarkana 2010, pet. denied). But, he points out that Texas law also holds that
the holder of an easement may not unreasonably interfere with the use of the servient estate.
Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974); Reaves, 326 S.W.3d at 282; Ferrara,
318 S.W.3d at 490; Lamar Cnty. Elec. Coop. Ass’n v. Bryant, 770 S.W.2d 921, 923 (Tex. App.—
Texarkana 1989, no writ); San Jacinto Sand Co. v. Sw. Bell Tel. Co., 426 S.W.2d 338, 345 (Tex.
Civ. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). Therefore, “[a]s a general rule, the
questions of whether the use of an easement by the dominant estate is reasonably necessary and
convenient and of whether the use is as little burdensome as possible on the servient estate are
questions of fact for the trial court or jury.” Reaves, 326 S.W.3d at 282.
       In a recent appeal from the grant of summary judgment, the Seventh Court of Appeals
applied a balancing test where the express terms of the easement did not address the matter of
gates. Greenwood v. Lee, No. 07-11-00404-CV, 2012 WL 4475441, at *11 (Tex. App.—
Amarillo Sept. 28, 2012, no pet. h.). There, the dominant estate owners failed to show that their
claim to gate-free passage over the easement was reasonably necessary and convenient and that
their claimed right placed the least possible burden on the servient estate. Id. at *11–12. The
court arrived at its decision after considering the nature of the properties at issue and the purpose
of the easement. Id. at *11 (citing Gerstner, 584 S.W.2d at 958).
       We conclude that a question of fact exists as to whether, when the easement was created,
the parties intended the access easement to be free of gates or cattle guards. What may be
considered a proper and reasonable use, as well as what may be necessary to the easement
holder’s beneficial use and enjoyment, is a question of fact. Magnolia Pipeline Co. v. McCarter,
52 S.W.2d 663, 666 (Tex. Civ. App.—Beaumont 1932, no writ); Murray v. Dickson, 123 S.W.
179 (Tex. Civ. App.—Dallas 1909, no writ).
       Summary judgment is inappropriate where, based on the record, reasonable jurors could
reach different conclusions as to a particular material fact. Whether a gate or cattle guard across

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the northern terminus of the easement is permitted, when Caldwell had already installed a gate
across the southern terminus, is a question of fact. Whether the language of the easement allows
for a gate or cattle guard depends on the intent of the parties. There is evidence that a gate
existed at the time the easement was granted—one installed by Caldwell. The parties’ intent is
clearly ambiguous. Because Caldwell did not meet his burden of showing that there were no
genuine issues of material fact and that he was entitled to judgment as a matter of law, summary
judgment was inappropriate. The first point of error is sutained. Accordingly, we need not reach
the merits of McKenna’s second or third point of error. TEX. R. APP. P. 47.1.
                                                     This Court’s Ruling
         The judgment of the trial court is reversed, and the cause is remanded to the trial court for
further proceedings consistent with this opinion.



                                                                        TERRY McCALL
                                                                        JUSTICE


October 25, 2012
Panel3 consists of: Wright, C.J.,
McCall, J., and Hill.4




         3
           Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
         4
             John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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