      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-02-00576-CV



   Ronald L. Doll and Paradise Cove Marina and Yacht Club, L.L.C./Margaret R. Cain
      Hurst; Arthur Rhodes; Darrell Hamric, Jr.; The Colonnetta Family Limited
                 Partnership; Preston M. Smith; Carolyn M. Smith; and
                              Henry D. Smith, Appellants

                                                 v.

  Margaret R. Cain Hurst; Arthur Rhodes; Darrell Hamric, Jr.; The Colonnetta Family
      Limited Partnership; Preston M. Smith; Carolyn M. Smith; and Henry D.
                 Smith/Ronald L. Doll and Paradise Cove Marina and
                            Yacht Club, L.L.C., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
          NO. 93-12407, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                             M E M O R A ND U M O P I N I O N


               When the owner of a marina on Lake Travis attempted to keep surrounding lakefront

property owners from using his beach property for recreational purposes, a suit for declaratory and

injunctive relief was filed. The marina owner also provoked a title dispute with another lakefront

homeowner. The two suits were consolidated and the issues were tried to a jury. The jury found

(1) that the lakefront homeowners had an easement across the beach property for recreational

purposes, (2) that the other homeowner had established title to the disputed tract by adverse

possession, and (3) that the marina owner did not trespass in clearing a path across that homeowner’s
property. All parties appeal. The marina owner challenges the sufficiency of the evidence, certain

jury instructions, and other matters. The homeowners challenge the jury’s failure to find that the

marina owner trespassed, and other matters. We hold that the evidence is legally and factually

sufficient to support the jury’s verdict, overrule all other issues asserted on appeal, and affirm the

trial court’s judgment in all respects.


                                          BACKGROUND

               Margaret R. Cain Hurst and Arthur Rhodes, Darrell Hamric, Jr., The Colonnetta

Family Limited Partnership, Preston and Carolyn Smith, and Henry D. Smith (collectively, “the

homeowners”) own individual lakefront lots along the shores of Lake Travis. Ronald L. Doll and

Paradise Cove Marina and Yacht Club, L.L.C. (collectively, “Doll”) own a large tract of land to the

north and west of the homeowners’ lots. In the northern part of his property, Doll operates a marina.

The western portion of Doll’s tract is the beach property that lies between Lake Travis and the lots

owned by the homeowners. Because of the variable levels of Lake Travis, the beach property is

sometimes entirely underwater. When the lake level is up, the homeowners do not need to cross the

beach property to get to the water; however, when the lake is down and the beach property exposed,

the homeowners must cross it to access the lake.


The Area History

               In the mid 1940s, August Brill (Brill Sr.) and his son Arno Brill (Brill Jr.) owned

adjacent tracts of land on the shores of Lake Travis. In 1944, Brill Sr. filed a plat map designating

a portion of his land “the Arno Brill Third Subdivision.” Apparently this was part of a joint



                                                  2
undertaking with his son, who that same year platted “the Arno Brill Second Subdivision” out of his

adjacent land. Both plat maps indicate that the subdivided lots are “lake tracts”1 and show the

subdivided lots bordering Lake Travis. In April 1945, Brill Sr. conveyed lots 21 and 22 out of the

third subdivision to the predecessors in title to Cain Hurst and Rhodes, Hamric, and Colonnetta.2

The following month Brill Sr. conveyed the beach property and the unplatted parcels of the land

surrounding the third subdivision3 to Brill Jr.


The Third Subdivision Homeowners

                Although there are no express easements in their chains of title, the homeowners and

their predecessors in title had historically used the beach property for recreational purposes such as


       1
           The plat maps are titled:

                                            ARNO BRILL
                                        SECOND SUBDIVISION
                                           LAKE TRACTS
                                       TRAVIS COUNTY, TEXAS

                                           ARNO BRILL
                                        THIRD SUBDIVISION
                                           LAKE TRACTS
                                       TRAVIS COUNTY, TEXAS

       2
         Lot 21 was further subdivided. All the appellees, except the Smiths, derive their title
through lots 21 and 22.
       3
          The deed from Brill Sr. to Brill Jr. contained the following attempt to reserve an easement
across the beach property for the benefit of the third subdivision lot owners:

           Save and except, also, from this conveyance an easement for the benefit of all
           persons and future owners of the Lots out of said subdivision enumerated above,
           over the land lying between the Lake front lines of the said lots and the waters of
           Lake Travis.

                                                   3
swimming, sunbathing, fishing, and boat docking. In 1981, Doll purchased the marina and initiated

efforts to exclude the homeowners and their neighbors from using the beach area. After numerous

lawsuits arose, in 1993 Doll sued Cain Hurst, Hamric, and Colonnetta4—all of whom owned

lakefront homes in the third subdivision—seeking declaratory and injunctive relief to bar the

homeowners from using the beach property.

                A short time later, Doll decided to set up a “park” and charge admission to the beach

property. He erected an eight-foot tall chainlink fence running in front of the third-subdivision

homeowners’ lots—between them and the beach area.5 The homeowners were granted a temporary

injunction ordering Doll to remove the fence, but the court allowed the fence poles to remain in place

pending the trial on the merits of this case.


The Smiths

                In 1975, Preston Smith and his father Henry Smith purchased a 1.42-acre tract in a

small unplatted area lying between two sections of the third subdivision. The Smiths built a cabin

on this tract and used the beach area for recreational purposes just as the third-subdivision

homeowners did. In the late 1980s, Preston Smith and his wife Carolyn decided to purchase an

adjoining parcel of land, which had been advertised as a one-acre tract. When the tract was surveyed

prior to closing it was discovered that the metes and bounds description in the original 1947 deed

from Brill Jr. did not include the bottom .45 acres of this property. As a result, at closing the tract



       4
           Doll added Rhodes as a defendant in 1995 by amended petition.
       5
          Doll testified that he planned to add a gate to the fence and give to the homeowners a key
so that they could exercise their ingress and egress rights, which Doll conceded they possessed.

                                                  4
was conveyed as two separate parcels, one .45-acre tract and one .678-acre tract. There is no

indication that the property had ever before been treated as separate tracts. There is rockwork,

terracing, and a path extending from the upper .678-acre portion down onto the lower .45-acre

portion. The Smiths’ predecessors in title had paid property taxes on one full tract comprised of all

the land since the 1960s.

               In 1993, Doll contacted the Smiths and claimed that he owned the lower .45-acre

tract. A short time later, Doll bulldozed a path from an area road through the Smiths’ property to

the lakeshore in order to clear an easement.6 The path ran more or less along the northwestern edge

of the upper .678-acre tract and bordered the 1.42-acre tract that Preston and Henry Smith had

purchased in 1975. The Smiths then filed suit, seeking damages for trespass and a declaratory

judgment that they had acquired title to the .45-acre tract by adverse possession, and that they

possessed a recreational easement entitling them to use of the beach property.


Jury Verdict

               In 1996, the Smiths’ suit was consolidated with Doll’s suit against the third-

subdivision homeowners, and the parties were realigned. The case was tried to a jury, which found

that all the homeowners had acquired (1) an implied easement, (2) a negative easement or servitude

arising from a general plan or scheme of development, (3) an easement by estoppel, and (4) an

easement by prescription, entitling them to use the beach property for recreational purposes. The


       6
           The deed from Arno Brill to the Smiths’ predecessors in title states “there is reserved
hereby to the grantors herein, their heirs and assigns, an easement 20 foot in width along the west
line of said tract . . . for the purpose of going to and from the above reserved roadway to the waters
of Lake Travis.”

                                                  5
jury also found that the Smiths had established title to the disputed .45-acre tract by adverse

possession and that Doll did not trespass upon the Smiths’ property by clearing the path.

               On appeal, Doll claims that there is no evidence or factually insufficient evidence to

support the jury’s findings that the homeowners have acquired a recreational easement across the

beach property, and that the Smiths have acquired title to the .45-acre tract by adverse possession.

The homeowners also appeal, claiming that there is legally and factually insufficient evidence to

support the jury’s failure to find that Doll trespassed when clearing the path across the Smiths’

property.


                                          DISCUSSION

               To review the evidence under a no-evidence challenge, we consider all the evidence

in the light most favorable to the prevailing party, indulging every reasonable inference in that

party’s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.

1998). We will uphold the finding if more than a scintilla of evidence supports it. Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). Evidence amounts to more than a scintilla

if reasonable minds could arrive at the finding given the facts proved in the particular case. See

Crye, 907 S.W.2d at 499; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). When

reviewing a challenge to the factual sufficiency of the evidence, we must consider, weigh, and

examine all of the evidence in the record. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445

(Tex. 1989). The jury finding should be set aside only if the evidence is so weak, or the finding so

contrary to the great weight of the evidence, as to be clearly wrong and manifestly unjust. See Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

                                                 6
Recreation on the Beach

               The jury found that the homeowners had established their entitlement to use the beach

area for recreational purposes under theories of implication from a general scheme of development,

implied easement, easement by estoppel, and easement by prescription. Each of these theories was

submitted in a separate question. In his third point of error, Doll claims that the evidence is both

legally and factually insufficient to support the jury’s finding that the homeowners’ property and the

beach property were part of a general plan or scheme of development entitling the homeowners to

use the beach property.

               In Texas, land-use restrictions in the form of equitable servitudes may be created by

implication from a general plan of development covering a tract divided into a number of lots. See

Selected Lands Corp. v. Speich, 702 S.W.2d 197, 198-200 (Tex. App.— Houston [1st Dist.] 1985,

writ ref’d n.r.e); Lehmann v. Wallace, 510 S.W.2d 675, 680 (Tex. App.—San Antonio 1974, writ

ref’d n.r.e.); cf. Evans v. Pollock, 796 S.W.2d 465, 466 (Tex. 1990). A purchaser who takes with

constructive notice of those restrictions is bound by them. See Selected Lands, 702 S.W.2d at 199;

Lehmann, 510 S.W.2d at 680-81. In many cases such a general plan is established by inserting

substantially uniform covenants in each deed out of a common development. See Evans, 796 S.W.2d

at 466 (quoting Miner v. Lynchburg, 129 S.E.2d 673, 679 (Va. 1963)); Lehmann, 510 S.W.2d at 680.

However, a general development plan may be established in various other ways such as by

implication from a filed map, or by parol representations made in sales brochures, maps, advertising,

and oral statements on which the purchaser relied in making his purchase. Lehmann, 510 S.W.2d

at 680; see also Selected Lands, 702 S.W.2d at 199-200.



                                                  7
               Doll argues that there is no evidence or factually insufficient evidence to support the

jury’s finding that the homeowners’ lots and the beach property were part of a general plan that

affords the homeowners recreational access to the beach property.7 We disagree. The filed plat

maps of the Arno Brill second and third subdivision alone constitute more than a scintilla of

evidence establishing a general scheme of development encompassing the homeowners’ right to

recreational use of the beach property.8 Both plats describe the properties as “Lake Tracts.”

Moreover, the words “Lake Travis” are written immediately adjacent to the western boundary of the

lots. The maps clearly show typical “lakefront property.” Normally, the benefit of owning such a

lot is the ability to make use of the property bordering the lake. It is clear that anyone buying a lake

tract after viewing either of the plat maps would feel enormously deceived upon being told that he

lacks the right to recreate along the lakeshore when the lake drops to a certain level. The plat-map

representations of the lots as lakefront property were likely made for the purpose of inducing the

purchasers of the lots to pay higher prices. See Lehmann, 510 S.W.2d at 680 (citation omitted).

               Additionally, Nancy Bible, a third subdivision homeowner and an old friend of Brill

Jr., testified that an earlier owner of the marina and beach property once attempted to stop her from

cleaning up the beach area in front of her home. She discussed the matter with Brill Jr., who



       7
           Doll stipulated at trial that the homeowners have the bare right to cross the beach property
to get to and from the waters of Lake Travis.
       8
         The evidence indicates that the two subdivisions were part of a joint undertaking by Brill
Sr. and Brill Jr. The Brills used the same surveyor to prepare the subdivision plats for both
subdivisions. The surveyor worked from a single work file. Two of Brill Sr.’s successive
bookkeepers notarized various deeds conveying lots from each subdivision. Moreover, separate
deeds each conveying lots from different subdivisions sometimes contained nearly identical
language.

                                                   8
indicated that he would speak with the marina owner. The marina owner never again troubled Bible

about her use of the beach property. After the incident, the Bibles built a boat dock on the beach

property, which Brill Jr. himself occasionally used. Bible testified that Brill Jr. lived in the area for

the rest of his life, and that during his lifetime the beach area contained several boat docks and

ramps. Bible’s testimony certainly constitutes some evidence that the Brills intended the beach

property in their subdivisions to be used by the homeowners for recreational purposes.

                The Brills evidenced their intent to inaugurate a general plan of development for the

benefit of themselves and the purchasers of their “lake tracts” in yet another way. Each deed

conveying a lot out of the two subdivisions contained a restriction against using the lot for

commercial purposes, such as selling bait or renting boats. Apparently, the Brills envisaged a

mutually beneficial development plan, where they would grant lake access to the lot owners, and

such owners would serve as captive customers for the marina Brill Jr. owned and operated. It is

noteworthy that in some of the subdivision deeds the Brills explicitly restricted grantees from placing

buildings other than boat docks, and from conducting any commercial activities on the beach

property; however, such deeds specifically stated “these restrictions do not include the right to fish,

hunt or use and enjoy said tract of land as a place of recreation.” Unfortunately, it appears that the

Brills did not use attorneys because this restrictive language is absent from some of the deeds out

of the subdivisions, including those in these homeowners’ chains of title. Nonetheless, this deed

language, when combined with the plat-map representations and the testimony of Nancy Bible, is

strong evidence that the Brills intended to grant to the purchasers of their lake tracts the right to use

the beach property for recreational purposes.



                                                   9
                It is apparent from the record that the homeowners, as well as the Brills and their

successors in title, had the mutual benefit of this implicit arrangement for many years. It is also clear

that Doll had notice of this arrangement when he purchased the marina. We find legally and

factually sufficient evidence in the record to support the jury’s finding that the homeowners’ property

and the beach property were part of a general plan or scheme of development entitling the

homeowners to use the beach property for recreational purposes. We overrule Doll’s third point of

error.

                Apparently impressed by the homeowners’ case, the jury found, in separate questions,

that the homeowners had also established their entitlement to use the beach area for recreational

purposes under theories of implied easement, easement by estoppel, and easement by prescription.

Because we have held that the record contains legally and factually sufficient evidence to support

one of the homeowners’ theories, we need not address the other three. See Tex. R. App. P. 47.1

(opinions must be as brief as practicable). We therefore do not consider Doll’s first, second, fourth,

and fifth points of error.


Adverse Possession

                In his sixth and seventh points of error, Doll claims that there is no evidence or

factually insufficient evidence to support the jury’s findings that the Smiths obtained title to the .45-

acre tract by adverse possession. The jury found, in answers to separate questions, that the Smiths

had acquired title to the tract under both the five and ten-year adverse-possession statutes. See Tex.

Civ. Prac. & Rem. Code Ann. §§ 16.025-.026 (West 2002). The ten-year statute provides: “A person

must bring suit not later than 10 years after the day the cause of action accrues to recover real

                                                   10
property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the

property.” See id. § 16.026(a). The statute defines “peaceable possession” as “possession of real

property that is continuous and is not interrupted by an adverse suit to recover the property”;

“adverse possession” is defined as “actual and visible appropriation of real property, commenced and

continued under a claim of right that is inconsistent with and is hostile to the claim of another

person.” See id. § 16.021.

               The Smiths did not begin to exercise dominion over the tract until July 1990 when

they acquired the deed from their predecessor in title, Ben McCullough. Therefore, to establish their

adverse-possession claim, they had to “tack” their period of adverse possession to McCullough’s,

which they were entitled to do under section 16.023 of the civil practice and remedies code. See id.

§ 16.023 (West 2002).9 Doll claims that there is insufficient evidence that McCullough ever asserted

an adverse claim. He relies primarily on the lack of any affirmative testimony stating that

McCullough was asserting an adverse claim. We are not moved by Doll’s argument. Tax bills and

receipts entered into evidence show that McCullough and his predecessors in title paid taxes on both

the .45- acre tract and the .678-acre tract, treating the two as a single property, dating back as early

as the 1960s. In 1988, McCullough advertised both tracts for sale as a single piece of property.

Moreover, continuous paths, rockwork, and terracing going from the upper .678-acre tract down




       9
         Section 16.023 of the civil practice and remedies code provides: “To satisfy a limitations
period, peaceable and adverse possession does not need to continue in the same person, but there
must be privity of estate between each holder and his successor.” See Tex. Civ. Prac. & Rem. Code
Ann. § 16.023 (West 2002).

                                                  11
through the lower .45-acre tract indicate an assertion of ownership by treating the two tracts as a

single property.

                The use to which land is best adapted is the type of use required to establish title

through adverse possession. See Carter v. Ruth, 275 S.W.2d 126, 131 (Tex. Civ. App.—Beaumont

1955, no writ); Moran v. Moseley, 164 S.W. 1093, 1094 (Tex. Civ. App.—Austin 1914, no writ).

The record contains legally and factually sufficient evidence that the Smiths and their predecessors

in title treated the two tracts as a single property, paid taxes on the whole parcel, used the lower

lakefront tract for recreational purposes and thereby asserted an adverse claim to the .45-acre tract

for the required ten-year period. We overrule Doll’s seventh point of error.10

                In his eighth point of error, Doll argues that the trial court erred by failing to include

in its adverse-possession jury instructions the elements of exclusive and continuous possession. We

review a trial court’s refusal to submit a jury instruction under an abuse of discretion standard. See

Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995). A trial court abuses its discretion when it acts

in an unreasonable and arbitrary manner, or without reference to any guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). This Court may not

reverse for abuse of discretion merely because we may disagree with the decision of the trial court.

Id. at 242. The rules of civil procedure require a trial court to “submit such instructions and

definitions as shall be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. The trial


        10
           Having determined that there is sufficient evidence to support the jury’s finding that the
Smiths acquired title to the disputed tract under the ten-year statute, we need not address Doll’s sixth
point of error challenging the jury’s finding that the Smiths acquired title to the tract under the five-
year statute. Nor do we need to address the homeowners’ third point of error asserting that the jury’s
failure to find that the Smiths acquired the tract by deed was against the great weight and
preponderance of the evidence.

                                                   12
court is given wide latitude to determine the propriety of explanatory instructions and definitions.

H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). Parties are not entitled to have

every single statement of law which might be helpful to their case submitted to the jury as an

instruction or definition. General Res. Org. v. Deadman, 907 S.W.2d 22, 30 (Tex. App.—San

Antonio 1995, writ denied).

               The court’s charge tracked the language of the adverse-possession statute, asking

whether the Smiths and those under whom they claim held the land by peaceable and adverse

possession, and defining “peaceable possession” as “possession of real property that is continuous

and is not interrupted by an adverse suit to recover the property” and “adverse possession” as “actual

and visible appropriation of real property, commenced and continued under a claim of right that is

inconsistent with and is hostile to the claim of another person.” We note initially that a requirement

that the adverse possession be “continuous” is included in the court’s definition of “peaceable

possession.” However, the court’s charge does not explicitly state that the adverse possession must

be “exclusive.” Doll claims that this omission rises to the level of an abuse of discretion. We

disagree.

               In an early case discussing the exclusivity requirement the supreme court has stated:


       An adverse possession, in order to ripen into title, must be exclusive,— that is, the
       claimant must hold possession of the land for himself, as his own, and not for
       another. That which tends to prove the exclusiveness of a possession differs in no
       material respect from that which goes to prove the other elements of an adverse
       holding. Indeed, “exclusive possession” simply means that the disseisor must show
       an exclusive dominion over the land and an appropriation of it to his own use and
       benefit.
Carter v. Holmes, 113 S.W.2d 1225, 1226 (Tex. 1938) (quoting 1 Am. Jur. Adverse Possession

§ 140 (1936)). The trial court could have concluded that the exclusivity requirement was fairly

                                                 13
encompassed by the notion of appropriation contained in the statutory definition of adverse

possession. Cf. Terrill v. Tuckness, 985 S.W.2d 97, 110 (Tex. App.—San Antonio 1998, no pet.)

(“Adverse possession isn’t about who uses the property more or for better purposes; it’s about

whether one party ousts another from his legally held land. In other words, exclusive possession is

required.”). Where, as here, liability is asserted based upon a provision of a statute or regulation, the

court’s charge should track the language of the provision as closely as possible. See Spenser v. Eagle

Star Ins. Co., 876 S.W.2d 154, 157 (Tex. 1994). In this case, the trial court followed the language

of the statutes precisely. We cannot say that in doing so it acted without reference to guiding rules

or principles. Cf. Green v. Blanks, 342 S.W.2d 141, 143-44, 147 (Tex. Civ. App.—Austin 1960,

writ ref’d n.r.e.) (submission to jury tracking statutory language of predecessor to current adverse-

possession statute “was a proper method of submitting the question”). We overrule Doll’s eighth

point of error.


Injunctive Relief

                  At the conclusion of the trial, the court enjoined Doll from preventing or unreasonably

interfering with the homeowners’ non-exclusive right to use the beach for “recreational activities

such as fishing, sunbathing, picnicking, camping, and boat launching.” It also enjoined Doll from

“erecting, constructing or placing a fence or barrier of any type on the [b]each [p]roperty between

[the homeowners’] properties and the waters of Lake Travis” and ordered Doll to immediately

“remove the fence poles and all concrete and debris associated therewith, which are situated on the

beach property . . . [and to] restore the [b]each [p]roperty . . . to the same condition that existed prior

to the construction of the fence.” The court also enjoined the homeowners from preventing or


                                                    14
unreasonably interfering with [Doll’s] non-exclusive use of the beach property. Doll apparently

believes that he still has the right to erect his fence and challenges the trial court’s order that he

remove the fence poles, claiming that “[t]he issue of whether or not Doll’s intention to erect a fence

with gates was an unreasonable interference with the rights of the [homeowners’] . . . of ingress and

egress to the waters of Lake Travis was an issue for the jury.” In their appeal, the homeowners claim

that the injunction prohibiting them from unreasonably interfering with Doll’s non-exclusive use of

the beach property is vague and is not based on the evidence.

               The grant or refusal of a permanent injunction is ordinarily within the trial court’s

sound discretion. On appeal, review of the trial court’s decision is limited to the question of whether

the court’s grant of injunctive relief constituted a clear abuse of discretion. South Texas College of

Law v. Texas Higher Educ. Coordinating Bd., 40 S.W.3d 130, 139 (Tex. App.—Austin 2000, pet.

denied); Risk Managers Int’l, Inc. v. State, 858 S.W.2d 567, 569-70 (Tex. App.—Austin 1993, writ

denied).

               Although a party to an equitable action has the right to a trial by jury, only ultimate

issues of fact are submitted for jury determination. The jury does not determine the expediency,

necessity, or propriety of equitable relief. Shields v. State, 27 S.W.3d 267, 272 (Tex. App.—Austin

2000, no pet.); State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979). The decision to

grant an injunction based on ultimate issues of fact found by the jury is for the trial court itself

exercising its chancery powers. Shields, 27 S.W.3d at 272; Texas Pet Foods, 591 S.W.2d at 803.

The jury’s findings on issues of fact are binding; however, equitable principles and the appropriate

relief to be afforded by equity are only to be applied by the court itself. See Shields, 27 S.W.3d at




                                                  15
272. Because the court alone fashions equitable relief, it is not always confined to the literal findings

of the jury in designing the injunction. Id.

                The jury found that the homeowners had the right to use the beach property for

recreational purposes. It was the court’s role to grant and fashion injunctive relief in support of this

finding. Because the order requiring Doll to remove his fenceposts is undoubtedly a remedy based

on the ultimate findings of the jury, we cannot say that the court abused its discretion in issuing the

injunction. Doll’s ninth point of error is overruled.

                The homeowners’ argument in their first point of error is slightly different. They

claim that the injunction prohibiting them from unreasonably interfering with Doll’s right as the fee

owner of the beach property is based on legally and factually insufficient evidence and is vague,

overbroad, and in conflict with their recreational easement rights. Whether there is evidence to

support the issuance of the injunction is, of course, relevant to the issue of whether the trial court

abused its authority in granting it. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

However, the record does contain evidence that Doll and the homeowners had been involved in

several altercations over the use of the property, that Cain Hurst or her guests may have removed or

damaged Doll’s fence posts and survey stakes, and that Cain Hurst’s guests may have exposed

themselves to Doll’s children at one time. The court’s injunction was not issued without an

evidentiary basis.

                Nor do we find the injunction to be overly vague or in conflict with the homeowners’

rights. An easement gives a dominant right over the servient land, in this case the beach property,

to the extent necessary for the enjoyment of the easement. See Stout v. Christian, 593 S.W.2d 146,

150 (Tex. Civ. App.—Austin 1980, no writ) (quotation omitted). The dominant owners, in this case

                                                   16
the homeowners, must make reasonable use of their rights so as to not unreasonably interfere with

the rights of the servient owner, Doll. See id. As the fee simple owner of the servient estate, Doll

may use his property in the same manner as any other fee simple property owner, subject only to the

homeowners’ dominant right to use the beach for recreational purposes. The injunction is neither

vague nor overbroad; it simply requires that the homeowners not exceed their recreational easement

rights and not interfere with Doll’s rights in the beach property. The record evidence reveals a great

deal of animosity between Doll and the homeowners, particularly Cain Hurst. The court did not

abuse its discretion by concluding that cross injunctions were needed to prohibit the parties from

interfering with one another in the lawful use of their property. We overrule the homeowners’ first

point of error.11

Trespass

                In their fourth point of error, the homeowners claim that there is no evidence or

factually insufficient evidence to support the jury’s failure to find that Doll had trespassed on the

Smiths’ land in the process of clearing a path across their property to the lake. A challenge to the

legal sufficiency of the evidence by a party who has the burden of proof at trial will be sustained only


        11
            In their second point of error, the homeowners claim that the trial court abused its
discretion by failing to include in its judgment certain conclusions of law, including that “the
easements and rights of [the homeowners and] their . . . successors and assigns regarding the use of
the [b]each [p]roperty . . . run with the land and are appurtenant to [the homeowners’] properties,”
and that “[the homeowners’] properties are the dominant estate, and the [b]each [p]roperty owned
by [Doll] is the servient estate.” We disagree. The judgment itself provides that the homeowners
as well as their “successors and assigns” are entitled to use the beach property for recreational
purposes—indicating the appurtenant nature of the easements granted. See McDaniel v. Calvert, 875
S.W.2d 482, 484 (Tex. App.—Fort Worth 1994, no writ); cf. Davis v. Skipper, 83 S.W.2d 318, 321-
22 (Tex. 1935) (equitable servitude cannot exist without a benefitted estate in land); Reagan Nat’l
Adver. v. Capital Outdoors, Inc., 96 S.W.3d 490, 495-96 (Tex. App. Austin—2002, pet. filed)
(same). We overrule the homeowners’ second point of error.

                                                  17
when the record contains no evidence to support the jury’s adverse finding and conclusive evidence

establishing a contrary proposition. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001).

A challenge to the factual sufficiency of the evidence by a party who has the burden of proof at trial

will be sustained only if the adverse finding is so against the great weight and preponderance of the

evidence that it is clearly unjust. Id. We review a “failure to find” under the same standard as we

review jury findings. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 647 (Tex. 1988).

The trial court instructed the jury that:


                In determining whether a trespass has been committed, you are instructed that
        a “trespass” is any act which exceeds or passes beyond the bounds of any rights
        which have been legally granted. For example, where one enters another’s property
        under the authority of an expressed or conditional right but exceeds the expressed or
        conditional right, that person becomes a trespasser as to such unauthorized actions.
        A conditional or restricted consent to enter land creates a privilege to do so only
        insofar as the condition or restriction is complied with.


See Murphy v. Fannin County Elec. Coop., 957 S.W.2d 900, 903-04 (Tex. App.—Texarkana 1997,

no pet.) (identical instruction proper). The jury was also instructed that “in determining the question

of trespass, you are instructed that the owner of an easement may use the easement to the limits . . .

contained in the grant . . . [and] the owner of an easement may prepare and improve it to an extent

reasonably calculated to promote the purpose for which it was created.” See Baer v. Dallas Theater

Ctr., 330 S.W.2d 214, 219 (Tex. Civ. App.—Waco 1959, writ ref’d n.r.e.) (citations omitted).

                As mentioned above, the deed from Brill Jr. to the Smiths’ predecessors in title states

“there is reserved hereby to the grantors herein, their heirs and assigns, an easement 20 foot in width

along the west line of said tract . . . for the purpose of going to and from the above reserved roadway

to the waters of Lake Travis.” Doll bulldozed a path from an area road through the Smiths’ property

                                                  18
to the lakeshore in order to clear the easement. At trial, Preston Smith testified that Doll’s path went

“out of the easement limits,” and that the path was passable by foot before Doll cleared it. The

Smiths also introduced photographs depicting the path Doll had cleared, some showing that trees had

been cut down.12 Doll testified that he “stayed well within [the] 20 feet of the easement,” and that

prior to clearing the land, he could not have walked across the easement.

                Making all inferences in favor of the verdict, as we must, we cannot say that there is

no evidence supporting the jury’s failure to find that Doll had trespassed on the Smiths’ land in the

process of clearing his easement; nor can we say that the Smiths conclusively established a contrary

proposition. The evidence is legally sufficient. Moreover, after reviewing all the evidence, we

cannot say that the jury’s failure to find in favor of the Smiths is so against the great weight and

preponderance of the evidence as to be clearly unjust. The jury was entitled to believe Doll’s

testimony that he needed to clear the easement in order to make it passable and that he did not clear

any land outside the easement boundaries. See Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852,

862 (Tex. App.—Austin 2001, pet. denied) (“the jury is the sole judge of the credibility of witnesses

and is entitled to accept or reject any testimony it wishes, as well as to decide what weight to give

the testimony”). We overrule the homeowners’ fourth point of error.13


        12
           Doll testified that he did not cut any trees down on the easement, but did allow “brush,
trees, and whatever” from clearing done at nearby construction sites to be pushed onto “[his]
property.”
        13
          The homeowners also claim in this point of error that the trial court abused its discretion
by instructing the jury that “[i]n determining the question of trespass, you are instructed that the
owner of an easement may prepare and improve it to an extent reasonably calculated to promote the
purpose for which it was created.” We cannot say that this instruction is unreasonable, arbitrary, or
made without reference to any guiding rules or principles. See, e.g., Baer v. Dallas Theater Ctr., 330
S.W.2d 214, 219 (Tex. Civ. App.— Waco 1959, writ ref’d n.r.e.).

                                                  19
Attorney’s Fees

               In their fifth point of error, the homeowners claim that the trial court erred in failing

to award them their attorney’s fees in connection with their declaratory-judgment claims. Section

37.009 of the civil practice and remedies code provides: “In any proceeding under this chapter, the

court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex.

Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997). A prevailing party in a declaratory-judgment

action is not entitled to attorney’s fees simply as a matter of law; entitlement depends upon what is

equitable and just and the trial judge’s power is in that respect discretionary. McCarthy Bros. Co.

v. Continental Lloyds Ins. Co., 7 S.W.3d 725 (Tex. App.—Austin 1999, no pet.) (quotation omitted).

We will not reverse a trial court’s decision regarding whether to award attorney’s fees absent an

abuse of that discretion. Id. Reversal for an abuse of discretion in these circumstances is justified

only when the trial court’s decision was arbitrary and unreasonable. Id. (quotation omitted).

               The homeowners did prevail in their counterclaims to establish easements across the

beach property. However “the award of attorney’s fees in declaratory-judgment actions is clearly

within the trial court’s discretion and is not dependent on a finding that a party ‘substantially

prevailed.’” Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618,

637 (Tex. 1996). Because the jury failed to find Doll guilty of any actionable wrong, and only

encumbered his property by various easements, it was within the trial court’s discretion to determine

that awarding the homeowners their attorney’s fees would not be equitable and just.14 Cf. Sunday


       14
           The homeowners spend much of their brief arguing that the trial court erred in concluding
that an award of attorney’s fees to the homeowners would run afoul of the rule that a party may not
use a counterclaim seeking a declaratory judgment resolving disputes already pending before the
court as a vehicle for the recovery of attorney’s fees. See Thomas v. Thomas, 902 S.W.2d 621, 626

                                                 20
Canyon Prop. Owners Ass’n v. Annett, 978 S.W.2d 654, 659 (Tex. App.—Amarillo 1998, no pet.)

(no abuse of discretion in failing to award either side attorney’s fees when court could conclude that

both parties had legitimate rights to pursue). We overrule the homeowners’ fifth point of error.


                                            CONCLUSION

                The evidence establishing the homeowners’ rights to use the beach property for

recreational purposes is legally and factually sufficient, as is the evidence that the Smiths acquired

title to the disputed .45-acre tract of land by adverse possession, and the evidence that Doll is not

liable to the Smiths for trespass. The court did not abuse its discretion in granting injunctive relief

to all parties or in declining to assess attorney’s fees. Having overruled all points of error necessary

to dispose of this appeal, we affirm the trial court’s judgment in all respects.




                                                 Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: August 14, 2003




(Tex. App.—Austin 1995, writ denied); however, the court’s findings and conclusions clearly make
this an alternative rationale, “in addition to” its discretionary determination of the equities, for failing
to award the homeowners their attorney’s fees and we therefore do not address it. The same is true
of the court’s conclusion that the homeowners cannot recover their attorney’s fees for defense of
Doll’s claims.

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