                                    NO. 07-08-0025-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                   JUNE 16, 2009
                          ______________________________

                            PEGGY G. PENNEY, APPELLANT

                                              V.

                           DEBORAH MANGUM, APPELLEE
                        _________________________________

             FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY;

             NO. 017-220803-06; HONORABLE FRED W. DAVIS, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Peggy G. Penney, appeals the entry of a declaratory judgment declaring

that a 30 foot implied easement by necessity existed in favor of Deborah Mangum across

a one acre tract owned by Penney. Through two issues, Penney alleges that the evidence

is legally and factually insufficient to support the trial court’s judgment. Disagreeing with

this contention, we will affirm the judgment of the trial court.
                           Factual and Procedural Background


       The property at issue was originally part of a 7.97 acre tract owned by Mangum.

The tract of land is located in Tarrant County, Texas and fronted on Farm to Market Road

1187. In October 2003, Mangum sold a one acre tract out of the 7.97 acre tract to her

sister, Penney. This one acre tract fronted on FM 1187 and was the only portion of the

entire tract that had access to a public road or highway. At the time of the original sale and

purchase, the evidence indicated that Penney was contemplating purchasing the entire

tract. Later, Penney decided to purchase only an additional 1.97 acre tract located directly

south of her original one acre tract. The remaining five acres are directly south of the 1.97

acre tract and are owned by Mangum.


       A survey was prepared of the 1.97 acre tract. This survey reveals that the property

is surrounded by private lands and the only access to public roads or highways is on the

north side of the 1 acre tract. The record at trial revealed that, at some point in time,

Penney erected a gate on the one acre tract. The record further reflected that Penney had

never denied Mangum access to the five acre tract or the 1.97 acre tract. However,

because of the gate and a subsequent fence that Penney erected on the 1.97 acre tract,

Mangum filed a declaratory judgment suit requesting the trial court to declare that there

existed an easement by necessity across the one acre tract in favor of Mangum. After the

suit was filed, Penney ceased making payments on the 1.97 acre tract.


       All issues were submitted to the trial court in a bench trial. At the conclusion of the

trial, the trial court ruled that an easement for ingress and egress was granted to Mangum.


                                              2
Thereafter, at the request of Penney, the trial court filed findings of fact and conclusions

of law. Finding of fact number 12 stated, “That Plaintiff should have a right of ingress and

egress to her 6.97 acres, and the only point this can occur is through the northeast corner

of current property owned by the Defendant.” The trial court then issued conclusions of

law awarding a 30 foot easement of 347.6 feet in length along the eastern edge of the

property owned by Penney. It is from the above judgment that Penney appeals contending

that, the evidence is legally and factually insufficient to support the judgment entered.


                                    Standard of Review


       Findings of fact in a case tried to the court have the same force and dignity as a

jury’s verdict upon jury questions. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994). When a non-jury trial is conducted with a court reporter, these findings are

reviewed for legal and factual sufficiency of the evidence the same as jury findings. See

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).


       Under the legal sufficiency standard, we must credit evidence that supports the

judgment if a reasonable fact finder could, and we must disregard contrary evidence unless

a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005). If the evidence falls within the zone of reasonable disagreement, we may not

invade the fact finder’s role. See Id. at 822. The fact finder alone determines the credibility

of the witnesses, the weight to give their testimony, and whether to accept or reject all or

part of that testimony. See Id. at 819. Unless there is no favorable evidence to support




                                              3
the challenged finding or if contrary evidence renders supporting evidence incompetent or

conclusively establishes the opposite of the finding, we must affirm. See Id. at 810-11.


       In considering the factual sufficiency of the evidence, we must examine the whole

record to determine whether the evidence supports the finding of the fact finder. See

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003). The mere

fact that we might have reached a different conclusion on the facts does not authorize us

to substitute our judgment for that of the fact finder. See Richmond Condominiums v.

Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646, 658 (Tex.App.–Fort Worth 2008,

no pet.).


                                          Analysis


       By her petition for declaratory relief, Mangum was requesting a judicial declaration

that she had an implied easement by necessity across the property of Penney. To be

entitled to an implied easement by necessity Mangrum had to prove three elements: 1)

unity of ownership prior to severance, 2) access must be a necessity and not a mere

convenience, and 3) the necessity must exist at the time of severance of the dominant and

servient estates. See Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984). In her

appeal, Penney is not challenging the first element. Accordingly, we must examine the

evidence regarding the second and third elements.


       The record contains a survey of the entire 1.97 acres. This survey reflects that FM

1187 is the only designated public road or highway that connects to the subject property.

In addition, an aerial photograph of the entire 7.97 acre tract was introduced into evidence.

                                             4
This photograph showed two possible roads that appeared to dead end on the west

property line of the 1.97 acre and five acre tracts. Further testimony was introduced that

indicated that these roads were part of a private development and were not dedicated to

the use by the general public. Therefore, the only apparent access to the property was

from FM 1187 on the north side of Penney’s property. Further, Mangum testified to this

fact during the presentation of her case. Penney argues that she has never denied

Mangum access. According to Penney, this defeats the necessity of access at the time

of severance. However, Penney misunderstands the element. The fact that she has not

heretofore denied access is not the controlling issue. Her licensing permissive use does

not defeat the necessity of the easement. See Bains v. Parker, 143 Tex. 57, 182 S.W.2d

397, 399 (1944). The record clearly shows that at the time of severance the only access

to Mangum’s property was from FM 1187. Further, as the only access, access from FM

1187 is not just a matter of convenience but rather of necessity. Under this state of the

record we cannot say that there is no favorable evidence supporting the trial court’s

judgment, and neither can we say that contrary evidence renders supporting evidence

incompetent or conclusively establishes the opposite of the finding. See City of Keller, 168

S.W.3d at 822. Therefore, we must overrule Penney’s legal sufficiency issue.


       When we review the entire record under the standard of review for factual

sufficiency, we come to the same conclusion. The evidence is factually sufficient to

support the judgment. See Golden Eagle Archery, Inc., 116 S.W.3d at 761-62. We

therefore, overrule Penney’s issue regarding factual sufficiency.




                                             5
                                Conclusion


Having overruled Penney’s issues, we affirm the judgment of the trial court.




                                         Mackey K. Hancock
                                              Justice




                                     6
