                                   NO. 07-06-0150-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  AUGUST 21, 2008
                          ______________________________

                       THOMAS EVERETT ALLEN, APPELLANT

                                            V.

              BARBARA ALLEN AND ANDREW SIDNEY ALLEN, III, AND
                   JAN YATES BOULTINGHOUSE, APPELLEES
                     _________________________________

              FROM THE 33RD DISTRICT COURT OF LLANO COUNTY;

             NO. 13,883; HONORABLE GUILFORD L. JONES, III, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       The motions for rehearing of appellees Barbara Allen and Andrew Allen and Jan

Yates Boultinghouse are denied. We withdraw our opinion of April 15, 2008, and substitute

the following opinion. The judgment issued April 15, 2008, remains in place.


       This declaratory judgment action concerning access to land was partially resolved

by summary judgment with the remaining issues tried by jury. In its judgment, the trial court

declared a north-south road across appellant Thomas Everett Allen’s property a public road
and an east-west way across the same land an easement by prescription and estoppel in

favor of appellees Barbara Allen and Andrew Allen. We reverse and render in part and

remand in part.


                                         Background


       Barbara Allen’s parents James and Ella Johnson owned some 1300 acres of ranch

land in Llano County, Texas. After James Johnson died, the land was divided among their

three children. Barbara’s tract, some 457 acres, is referred to in this litigation as the “Barker

Hill Pasture.” By a 1970 deed, Barbara’s mother Ella Johnson conveyed a life estate in the

Barker Hill Pasture to Barbara, and the remainder interest to Barbara’s son Andrew Allen.

Barbara Allen and Andrew Allen were plaintiffs in the trial court.


       Directly west of the Barker Hill Pasture lies a 3500-acre tract of ranch land owned by

appellant, who is referred to in his brief, and in this opinion, as Tommy Allen.1 This property

includes land Tommy inherited from his parents Tom and Iva Allen as well as property he

purchased. Collectively we refer to this property as the “Allen property.” North of the Allen

property lies the Yates Ranch which at the time of trial was operated by Jan Boultinghouse,

as executor of the estate of her father, Mack Yates.


       At the heart of this dispute is the issue of passage across the Allen property to the

Yates Ranch on the north and the Barker Hill Pasture on the east. A road known in this



       1
         Appellees Barbara Allen and Andrew Allen are not related to appellant Thomas
Everett “Tommy” Allen. Because of their shared surname, we find it necessary for clarity
and brevity to refer to them by their given names.

                                               2
litigation as County Road 216A (CR-216A) traverses the Allen property in a north-south

direction, terminating at the gate of the Yates Ranch. Branching off CR-216A and heading

east approximately eight-tenths of a mile to the fence line separating the Allen property and

the Barker Hill Pasture is a way known in this litigation as the Barker Hill Pasture Road.


       Near the point where it enters the southwest corner of the Allen property, Tommy

placed a gate on CR-216A during the late 1980s (the “1987 gate”). Near the center of the

Allen property, but south of the intersection of CR-216A and the Barker Hill Pasture Road,

Tommy earlier installed another gate on CR-216A (the “1974 gate”). At the point CR-216A

reaches the Yates Ranch is a third gate, the “Yates gate.”


       When the Johnson land was divided, Barbara’s sister Millie Ward received a tract

lying to the south of the Barker Hill Pasture. Llano County Road 217A enters Millie Ward’s

tract and from that road a way exists northwesterly into the Barker Hill Pasture.


       In 1970, Andrew and his father, Sidney Allen, demolished a building in Austin and

used some of the salvaged materials to construct a small house on the Barker Hill Pasture.

At trial there was testimony, over objection, that during 1970, as Andrew and his father

worked on the house, Tom Allen asked if help was needed cutting limbs “over there on your

road.” There was testimony that it was often necessary to cut limbs to permit travel along

Barker Hill Pasture Road. Before his death in 1981, Sidney Allen also constructed a “bunk

house” and cabin for deer hunters, both in proximity to the cabin built in 1970. Barbara later

made additional improvements to the property, which served family gatherings and later was

used by deer hunters.


                                              3
       Tom Allen died in 1971 and in 1974 Tommy began locking the 1974 gate with

concern for the welfare of his elderly mother, Iva Allen, who lived on the Allen property.

When Tommy later acquired property to the south, along CR-216A, and installed the 1987

gate, he moved the lock from the 1974 gate to the 1987 gate. Andrew and Barbara did not

oppose the lock and they received access by a combination and later, as the lock changed,

a key. However, the arrangement proved less than satisfactory as locks disappeared.


       There also was testimony that after Tom Allen’s death Iva Allen referred on at least

one occasion to the Barker Hill Pasture Road as “your way” when she asked Andrew to pick

up her mail as he went to town.


       According to Andrew, during 1990 he and Barbara encountered Tommy at the 1987

gate and complained about the locked gate. Also according to Andrew, Tommy told them

“Your way to go is down by [Millie Ward’s].” Andrew responded that he and Barbara

possessed an easement over the Barker Hill Pasture Road. Thereafter, Tommy retained

control of the gate and its access to the Allen property.


       Andrew further testified he and Tommy had another conversation at the gate in 2002.

This time Tommy said he might have to sell his property and if this occurred Andrew and

Barbara could no longer use the Barker Hill Pasture Road. This conversation prompted the

suit by Barbara and Andrew.


       In their suit, Barbara and Andrew sought a declaration that CR-216A was a public

road and an easement in their favor existed over the Barker Hill Pasture Road. They also



                                             4
sought temporary and permanent injunctive relief assuring their right to use CR-216A and

the Barker Hill Pasture Road.


      Boultinghouse intervened in her representative capacity seeking declaratory and

injunctive relief to ensure use of CR-216A. She joined Llano County as a defendant,

asserting it refused to keep the road open for the public and provide maintenance.


      On the cross motions for summary judgment of Boultinghouse and Tommy, the court

entered an interlocutory order declaring CR-216A a public road dedicated by statutory

proceeding of the Llano County commissioners court in 1932. The remaining issues were

tried by jury which found Barbara and Andrew possessed a prescriptive easement and

easement by estoppel over the Barker Hill Pasture Road. It also found no portion of CR-

216A was abandoned. The court entered a judgment conforming its summary judgment

order and the jury’s findings. Tommy timely appealed. Llano County did not appeal.


                                         Issues


      Tommy presents four issues, three containing multiple sub-parts, challenging: (1)

the grant of summary judgment that CR-216A is a county road; (2) the judgment of an

easement by prescription in favor of Barbara and Andrew; (3) the judgment of an easement

by estoppel in favor of Barbara and Andrew; and (4) the award of attorney’s fees in favor

of Boultinghouse, Barbara, and Andrew.




                                           5
Issue One: The Cross-motions for Summary Judgment


       Boultinghouse moved for a partial summary judgment declaring that CR-216A, as it

traverses Tommy’s property, is a public road of the third class. Tommy filed a cross-motion

seeking a declaration that no public roadway exists on his property, and as to the claims of

Barbara and Andrew, that no easement by prescription or estoppel exists on the Barker Hill

Pasture Road.     Tommy filed a separate response to Boultinghouse’s motion and

Boultinghouse and Barbara and Andrew each filed responses to Tommy’s motion. The trial

court rendered judgment in favor of Boultinghouse and denied Tommy’s motion. On

appeal, Tommy contends the court erred by granting summary judgment for Boultinghouse.

He does not also assert that judgment should have been rendered on the grounds he

presented.


       The movant for summary judgment has the burden of showing there is no genuine

issue of material fact and she is entitled to summary judgment as a matter of law. Tex. R.

Civ. P. 166a(c). Reviewing a summary judgment, we take evidence favorable to the

nonmovant as true, and indulge every inference and resolve every doubt in the nonmovant’s

favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A

defendant “who conclusively negates at least one essential element of a cause of action is

entitled to summary judgment on that claim.” IHS Cedars Treatment Ctr. of Desoto, Tex.,

Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citing Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002)). A plaintiff moving for summary judgment on her own cause




                                             6
of action must conclusively prove each element of the cause of action. MMP, Ltd. v. Jones,

710 S.W.2d 59, 60 (Tex. 1986) (per curiam).


       When parties file cross motions for summary judgment, and one motion is granted

and the other denied, the appellate court reviews the summary judgment evidence

presented by both sides and determines all questions presented. Comm’rs Court of Titus

County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). If the issue raised is based on undisputed

and unambiguous facts, then the reviewing court may determine the question presented as

a matter of law. Gramercy Ins. Co. v. MRD Invs., Inc., 47 S.W.3d 721, 724

(Tex.App.–Houston [14th Dist.] 2001, pet. denied). However, if resolution of the issue rests

on disputed facts, summary judgment is inappropriate, and the reviewing court should

reverse and remand for further proceedings. Id.


       Boultinghouse’s motion for partial summary judgment asserted that “the extension

of County Road No. 216-A as it traverses across defendant Thomas Everett Allen’s property

was designated as a public road of the 3rd class by the Llano County Commissioners court

in 1932[.]” By its summary judgment order, the trial court denied Tommy’s motion in its

entirety and partially granted Boultinghouse’s motion, finding the summary judgment proof

established the following:


       County Road 216-A was established as a 3rd class road in the 1932 County
       Commissioners’ Court proceedings and, unless abandoned, remains a 3rd
       class public county road;




                                             7
        The identification of County Road 216-A in the 1932 County Commissioners
        (sic) Court proceedings was sufficient to establish the course of the roadway
        through the property currently owned by Defendant Thomas Everett Allen;


        When dedicated, a sufficient public purpose existed for County Road 216-A;


        The part of County Road 216-A that traverses the property currently owned
        by Defendant Thomas Everett Allen was not, as a matter of law, statutorily
        abandoned by the alleged locking of the gates by Defendant Thomas Everett
        Allen in approximately 1988.


        The summary judgment record contains copies of maps2 showing a road, bearing the

designation of a county road numbered 216-A, entering the Allen property on its south

property line and continuing in a northerly direction. As we perceive the issues presented,

there is no dispute that such a road exists at least through part of the Allen property, or that

it bears the designation CR-216A.3 But the trial court’s summary judgment order declares

more.       It declares, inter alia, that CR-216A was established in the “1932 County

Commissioners court proceedings,” and that the identification of the road in those 1932

proceedings was sufficient to establish its course through Tommy’s property. We do not

here engage in a collateral review of the adequacy of the 1932 proceedings to establish a

county road.4 Addressing Tommy’s challenge to the summary judgment granted


        2
        For example, an excerpt of a Llano County Appraisal District map was appended
as an exhibit to Tommy’s motion for partial summary judgment.
        3
        Having said that, we note that we are unable to find in the summary judgment
record any evidence showing when, or by what procedure, the designation CR-216A came
to be applied to that road as it traverses the Allen property.
        4
         Tommy’s brief contains the argument the order of the commissioners court
reflected in the record of the 1932 proceedings as contained in the summary judgment
record was void, and thus subject to collateral attack. We do not reach that argument.

                                               8
Boultinghouse, we merely examine the summary judgment evidence to determine whether

it conclusively proves the facts declared in the court’s summary judgment order. MMP, Ltd.,

710 S.W.2d at 60.


       Applicable statutes governing creation of a public county road in effect in 1932

stated, in pertinent part:


       Art. 6705. Petition.-The commissioners court shall in no instance grant an
       order on an application for any new road, or to discontinue an original one, or
       to alter or change the course of a public road, unless the applicants have
       given at least twenty days notice by written advertisement of their intended
       application, posted up at the court house door of the county and at two other
       public places in the vicinity of the route of such road. All such applications
       shall be by petition to the commissioners court, signed by at least eight
       freeholders in the precinct in which such road is desired to be made or
       discontinued, specifying in such petition the beginning and termination of such
       road, provided an application to alter or change a road need not be signed by
       more than one freeholder of the precinct.


       Art. 6706. Preliminary survey.-All roads ordered to be made shall be laid out
       by a jury of freeholders in the county, to be appointed by the commissioners
       court. Said jury shall consist of five persons, a majority of whom may
       proceed, with or without the county surveyor, as ordered by the
       commissioners court, to lay out, survey and describe such road to the
       greatest advantage to the public, and so that the same can be traced with
       certainty. They shall make written report of their proceedings to the next term
       of said court, and the field notes of such survey or description of the road
       shall be included therein, and, if adopted, shall be recorded in the minutes of
       said court.
Tex. Rev. Civ. Stat. Ann. articles 6705, 6706 (Vernon 1925).


       The summary judgment record includes a copy of a 1932 petition to the

commissioners court calling for establishment of a public road of the 3rd class; a sworn

statement regarding notice; a statement granting the petition and appointing a jury of view;


                                             9
the report of the jury of view; and an order establishing the road. W. J. Everett, Tommy’s

grandfather, then owner of the part of the Allen property that Tommy inherited, was among

the petitioners and was a member of the jury of view. The petition contains the notation

“Cedar Hollow road,” and the order says the road “shall be known as Cedar Hollow road No.

___[.]”


          The petition contains the following description of the course of the proposed public

road:


          Beginning at Allen Riley’s place approximately two miles from Lone Grove on
          the Lone Grove and Baley Head road, thence approximately one-half mile
          across Riley’s property, thence approximately one-half mile across
          Schneider’s property; thence approximately 200 yards across Mrs. Whitt’s
          property; thence approximately 2 miles across Roger’s property, then
          approximately three and one-half miles across Everett’s property, and ending
          at the San Saba County line, the whole distance being approximately six and
          one-half miles.


          The report of the jury of view contains a list of landowners who, according to the

report, “have relinquished the right of way for said road, as will be seen from Conveyances

hereto attached.” The list also includes a “description of land” for each landowner who

relinquished right of way for the road, but that description includes only the original grantee,

acreage and abstract number for each tract. The summary judgment record contains no

“Conveyances hereto attached,”5 nor does it contain field notes or any further description

of Cedar Hollow road.



          5
        In her brief, Boultinghouse explains that “for reasons we will never know, no
conveyances were attached to the report.” Andrew testified at trial he spent three days
searching for the conveyances in the Llano County clerk’s office but was unsuccessful.

                                               10
       We find the documents from the 1932 commissioners court proceedings contained

in the summary judgment record fail to show conclusively either that CR-216A was

established in those proceedings, or that the identification of the road in those 1932

proceedings was sufficient to establish the course of CR-216A through Tommy’s property.6

We turn to the remainder of the summary judgment evidence to determine if conclusive

proof, nevertheless, exists.


       For her claim that Cedar Hollow road and CR-216A as it crosses Tommy’s property

are synonymous, Boultinghouse offered the opinion of Terry Baughman, a title examiner

for Highland Lakes Title Company. In her affidavit, Baughman averred that by reviewing

the Llano County deed records she located the properties of the parties named in the 1932

record and the Allen property. She then compared the Cedar Hollow road description in the

1932 record with a current map of CR-216A and concluded the roads are the same, at least

as they cross the Allen property.


       An expert's testimony will support summary judgment only if it is “clear, positive and

direct, otherwise credible and free from contradictions and inconsistencies, and could have



       6
         Our conclusion is supported by case law concerning the sufficiency of road
descriptions. See Jameson v. Erwin, 91 S.W.2d 1129, 1130-31 (Tex.Civ.App.–Fort Worth
1936, no writ) (report of jury of view and order of approval insufficient because of indefinite
description of road’s terminus and absence of field notes); Hill v. Taylor County, 294 S.W.
868, 870 (Tex.Civ.App.–Eastland 1927, no writ) (description of road insufficient; jury of
view’s report not in compliance with statute); Currie v. Glasscock County, 183 S.W. 1193,
1194-95 (Tex.Civ.App.–El Paso 1916, writ ref’d) (description sufficient). We reiterate,
however, that our conclusion on this issue is not that the road made the subject of the 1932
proceeding was not statutorily established a county road. That question is not before us.
The scope of our review here is, of course, limited to evidence contained in the summary
judgment record.

                                              11
been readily controverted.” Tex. R. Civ. P. 166a(c); Anderson v. Snider, 808 S.W.2d 54,

55 (Tex. 1991) (per curiam) (summary judgment may be granted on the “uncontroverted

testimony of an expert witness if the subject matter is such that a trier of fact would be

‘guided solely by the opinion testimony of experts, if the evidence is clear, positive and

direct, otherwise credible and free from contradictions and inconsistencies, and could have

been readily controverted.’”).


       Baughman does not explain how, based on the summary judgment record before us,

she was able to compare the Cedar Hollow road description we have quoted with a current

map, which she did not attach to her summary judgment affidavit, and opine the road

contemplated by the 1932 record is CR-216A as it crosses the Allen property. "An expert's

simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis

of his statements to link his conclusions to the facts." Earle v. Ratliff, 998 S.W.2d 882, 890

(Tex. 1999); see Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) (conclusory

statements by an expert are not sufficient to support or defeat summary judgment).


       We conclude that Baughman’s affidavit is no evidence that the 1932 Cedar Hollow

road and CR-216A, as it existed at the time of the summary judgment proceeding, are one

and the same.


       Boultinghouse also offered her own affidavit. This affidavit provides some evidence

supporting her contention that a locked gate was installed on CR-216A during the late

1980s. But her testimony that “[a]s far as I can remember the road has been where it is

now” is no evidence that CR-216A and Cedar Hollow road are synonymous. We find the


                                               12
affidavit testimony of Boultinghouse does not provide conclusive proof of any ultimate fact

in issue.


       Boultinghouse’s summary judgment proof also included a nineteen-page excerpt

from the record of the testimony of Gordon Hodges, Llano County road supervisor, at the

hearing of Barbara and Andrew’s request for a temporary injunction in this case.

Boultinghouse offered the excerpt as proof that the county maintained CR-216A from 1976

to 1988, that maintenance ceased when Tommy placed a gate on the road, and the county

had not abandoned CR 216-A. While Hodges’ testimony supplies some evidence of the

bases offered, it is not conclusive proof of the ultimate facts on which Boultinghouse sought

summary judgment. Moreover, Hodges also testified he was not aware of any third class

roads in Llano County, he could not say that CR-216A was “a legal county road,” the

commissioners formerly maintained many private roads, and it was the opinion of county

commissioner Parker that CR-216A was a private road.


       As her final piece of summary judgment evidence, Boultinghouse offered responses

to requests for admissions she propounded on defendant Llano County. We find these

responses do not support Boultinghouse’s motion for summary judgment. In a suit against

multiple defendants, evidence in the form of responses to requests for admissions made

by one defendant is not admissible against other defendants. See Texas Supply Center,

Inc. v. Daon Corp., 641 S.W.2d 335, 338 (Tex. App.–Dallas 1982, writ ref’d n.r.e.) (applying

former Rule 169); Tex. R. Civ. P. 198.3.7


       7
       Further, in response to a request for admission served by Boultinghouse, Llano
County denied that CR-216A extended onto Tommy’s property. Thus, were the County’s

                                             13
       We also look to Tommy’s summary judgment evidence as cross-movant to determine

if it supplies conclusive proof supporting the court’s declarations. See Knighton v. IBM

Corp., 856 S.W.2d 206, 208 (Tex.App.–Dallas 1993, writ denied) (when considering cross-

motions, trial court can rely on one party's evidence to supply missing proof in other party's

motion).


       Tommy’s evidence consists of his affidavit with attached maps. The affidavit denies

that CR-216A was or is a county road. It avers CR-216A was maintained for a time by

Llano County under an agreement between Tommy’s parents and the county whereby the

county removed caliche from two pits on the Allen property in consideration for maintaining

CR-216A, and avers the county ceased maintenance of CR-216A on depletion of the

caliche. Tommy’s proof does not address the location of Cedar Hollow road and whether

it was established as a county road. Tommy’s summary judgment evidence provides no

evidence on which the court could conclusively reach the declarations in its summary

judgment order.


       Boultinghouse responded to Tommy’s motion for summary judgment with an

amended version of her affidavit filed in support of her motion for summary judgment, the

excerpt from the temporary injunction hearing testimony of Gordon Hodges, which was

attached to her motion for summary judgment, the affidavits of Barbara and Andrew, the

affidavit of David Yates, and another copy of the 1932 record.




responses binding on Tommy, this denial controverts the fundamental basis of
Boultinghouse’s motion for summary judgment.

                                             14
       Barbara avers in her affidavit that CR-216A was formerly known as Cedar Hollow

road, by 1928 CR-216A was “a well maintained road, and in use by the general public,” and

CR-216A remains in the same location today as in 1928.           But such averments are

inconsistent with the 1932 commissioners court proceeding by which a jury of view was

appointed to lay out a road. Indulging every inference and resolving any doubts in Tommy’s

favor, as we must, we cannot find Barbara’s affidavit testimony conclusively establishes the

facts declared in the trial court’s summary judgment order.


       Because the trial court’s summary judgment order expressly declared CR-216A to

have been established through the 1932 exercise of the statutory procedure, we do not

address Boultinghouse’s other grounds for establishment, by dedication or prescriptive

easement. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993)

(when order on summary judgment explicitly specifies the ground relied on for summary

judgment ruling, summary judgment can be affirmed only if the theory relied on by the trial

court is meritorious).


       We find the summary judgment record does not conclusively prove that CR-216A

was established in the 1932 proceedings, or that those proceedings established its course

through the Allen property. We sustain Tommy’s first issue.




Issue Two: Legal and Factual Sufficiency of the Evidence of Prescriptive Easement




                                            15
       By part of his second issue, Tommy contends there is no evidence or insufficient

evidence of exclusivity or adversity to support the jury’s affirmative answer to question one

finding a prescriptive easement in favor of Barbara and Andrew.


       An appellant attacking the legal sufficiency of an adverse finding on an issue on

which he did not have the burden of proof must demonstrate there is no evidence to support

the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In deciding a

no-evidence challenge we determine whether there is evidence that would enable

reasonable and fair-minded people to reach the verdict under review. City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Accordingly we must: (1) credit all favorable

evidence that reasonable jurors could believe; (2) disregard all contrary evidence except

that which they could not ignore; (3) view the evidence in the light most favorable to the

verdict; and (4) indulge every reasonable inference that would support the verdict. Id. But

if the evidence allows only one inference, we may not disregard it. Id.


       As distinguished from establishment of a road by express or implied dedication,

where the focus is on the intent or actions of the alleged easement's grantor, an easement

by prescription rests on the claimant's adverse actions under color of right. Scott v.

Cannon, 959 S.W.2d 712, 721 (Tex.App.–Austin 1998, pet. denied). An easement by

prescription is established by the open, notorious, hostile, adverse, uninterrupted, exclusive

and continuous use of the servient estate for a period of more than ten years, and the

absence of any of these elements is fatal to the prescriptive claim. Davis v. Carriker, 536

S.W.2d 246, 250 (Tex.Civ.App.–Amarillo, 1976, writ ref’d n.r.e.). Use of property with the



                                             16
owner's express or implied permission or license will never ripen into a prescriptive

easement no matter how long the use continues. Vrazel v. Skrabanek, 725 S.W.2d 709,

711 (Tex. 1987); Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626-27 (1950).


       The use of the property must be exclusive, in that the claimant excluded or attempted

to exclude all other persons, especially the property owner, from using the same land for

the same purpose. Scott, 959 S.W.2d at 721-22. “It has long been the law in Texas that

when a landowner and the claimant of an easement both use the same way, the use by the

claimant is not exclusive of the owner's use and therefore will not be considered adverse.”

Brooks v. Jones, 578 S.W.2d 669, 673 (Tex.1979); Vrazel, 725 S.W.2d at 711 (exclusivity

not met when landowner and claimant both used the road); cf. Minh Thu Tran v. Macha,

213 S.W.3d 913, 915 (Tex. 2006) (citing Brooks with approval for this proposition in adverse

possession case). Joint continuous use, without a legally adverse or hostile act, is not

sufficient. Mack v. Landry, 22 S.W.3d 524, 532 (Tex.App.–Houston [14th Dist.] 2000, no

pet.). Moreover, the owner of the servient estate must have actual or constructive notice

that there was an adverse and hostile claim against the property. Scott, 959 S.W.2d at 721.


       Barbara and Andrew acquired their interests in the Barker Hill Pasture in 1970 and

have regularly used the Barker Hill Pasture Road to reach their property. There was also

some evidence that their predecessor in title, Barbara’s mother, used the Barker Hill

Pasture Road. Barbara and Andrew never requested permission to use the road nor was

their use expressly barred. Barbara never saw Tommy or his parents on the road. Andrew

testified he did not know if Tommy used Barker Hill Pasture Road but could not contradict



                                            17
Tommy if he testified that he used the road. Tommy testified no one tried to exclude him

from the Barker Hill Pasture Road, which he said was the only access to the east side of

his pasture. He used the road when coming from the south and his deer hunt lessees used

it to reach the east side of his property. Barker Hill Pasture Road also provided access to

a communications tower. When asked about his exclusive use of the road Andrew agreed

that he did not attempt to fence the road and that it was available for use by anyone on

Tommy’s property. Andrew could name no measures he undertook to prevent others from

using the road.


      Andrew claimed a right to use Barker Hill Pasture Road beginning when he was

approximately age eight in the early 1950s because his father and grandfather used the

road and they cut limbs along the way. Andrew did not notify anyone of this claim until his

1990 conversation with Tommy at the 1987 gate. At that time, Barbara and Andrew

complained of the locked gate, apparently precipitating Tommy’s statement, “your way to

go is down by [Millie Ward’s].” It was then Andrew told Tommy he and Barbara had an

easement over the Barker Hill Pasture Road.


      Thereafter, on their trips from Austin to the Barker Hill Pasture during the 1990s,

Barbara and Andrew continued using the Barker Hill Pasture Road. And problems with the

locked gate persisted. At times, Barbara and Andrew found obstructions such as logs on

the Barker Hill Pasture Road, which they removed. For a time, Tommy left the gate key in

a mailbox but at other times the key could not be located. It was then necessary for

Barbara and Andrew to call Tommy to come unlock the gate. At times, Tommy did not

engage the lock but left it on the gate. On two such occasions, Andrew removed the lock

                                            18
and had a locksmith make a duplicate key. According to Andrew, in 2002 he and Tommy

had another conversation at the gate. This time Tommy said he might have to sell his

property and if this occurred Barbara and Andrew could no longer use the Barker Hill

Pasture Road. This led Barbara and Andrew to file suit.


       Barbara and Andrew contend the ten-year prescriptive limitation period began in

1990 when Andrew told Tommy he and Barbara possessed an easement. Relying on

Scott, 959 S.W.2d at 717-18, they argue this was a sufficient independent act establishing

hostility and adversity and removing the case from the long-standing Texas rule that joint

use of a way with the property owner is fatal to the claim of a prescriptive easement

because it is consistent with permissive use in a non-adverse manner. Brooks, 578 S.W.2d

at 673-74; Stallman v. Newman, 9 S.W.3d 243, 246 (Tex.App.–Houston [14th Dist.] 1999,

pet. denied); Wilson v. McGuffin, 749 S.W.2d at 606, 610 (Tex.App.–Corpus Christi 1988,

writ denied); Hudson v. Gaines, 501 S.W.2d 734, 738 (Tex.Civ.App.–Corpus Christi 1973,

no writ).


       In Scott, the Scotts filed an affidavit in the Hays County clerk’s office in 1964,

claiming a road across the Cannons’ property was public. 959 S.W.2d at 717-18. The

Cannons discovered the affidavit in 1972 and informed the Scotts that the road was not

public but took no further action. Id. Subsequent joint use by the Scotts and Cannons was

not disputed. However, the Scotts argued their facts did not fall under the general rule that

joint use is fatal to a prescriptive easement because the discovery of the affidavit claim in

1972 placed the Cannons on notice of the Scotts’ claim of right to use the road. The Austin



                                             19
court agreed, finding the Scotts’ claim of right transformed a permissive use into an adverse

use, and together with evidence of their subsequent use of the road, “created the adversity

needed to begin the [ten-year] prescriptive period.” Id. at 723. Because the Cannons took

no action from 1972 until the lawsuit was filed in 1996, the appellate court determined a

limited prescriptive easement was established. Id.


       Scott is readily distinguishable from the facts at hand. Assuming, without deciding,

that Andrew’s statement to Tommy on one occasion that he claimed an easement is the

type of “distinct and positive assertion” required to establish adversity of use under Scott

and Wiegand v. Riojas, 547 S.W.2d 287, 291 (Tex.Civ.App.–Austin 1977, no writ), the

evidence of Andrew and Barbara’s use of the Barker Hill Pasture Road after the 1990

statement is nothing like that described in Scott. There, the Scotts had unfettered use of

the disputed road after the 1972 assertion of their claim of right, while the Cannons decided

it was “‘a good time to keep quiet.’” 959 S.W.2d at 722-23. Here, after Andrew told Tommy

he claimed an easement, it is undisputed Tommy kept the gate leading into the Allen

property locked. Initially Tommy used a combination lock and provided Barbara the

combination. But after the lock disappeared it was replaced with a keyed lock. At times

Tommy provided keys to the lock for Andrew and Barbara, at other times it was necessary

for them to call Tommy to unlock the gate, and on two or three occasions Andrew made a

key without Tommy’s knowledge. But even the broadest reading of the Scott case will not

support the creation of a prescriptive easement in favor of Andrew and Barbara by virtue

of their entry onto the Allen property through Tommy’s locked gate. See Wiegand, 547




                                             20
S.W.2d at 290 (hostile claim created by removing fence and cutting locks interrupted by

subsequent fencing and locked gate).


       We find the evidence legally insufficient to sustain the jury’s finding of prescriptive

easement. Accordingly, we do not conduct a factual sufficiency review. Tommy’s second

issue is sustained.


Sub-issue 3.A: Admissibility of Statement of Tom Allen


       In sub-issue 3.A., Tommy complains the trial court erred when it allowed Andrew to

testify that in his presence Tom Allen referred to the disputed road as “your road,” as such

was hearsay evidence, was not disclosed in discovery, and was a violation of the “Dead

Man Statute.” Tex. R. Evid. 601(b). The court overruled the objections finding the

statement admissible as a declaration against pecuniary interest. Tex. R. Evid. 803(24).


       Rulings concerning the admissibility of evidence are committed to the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of

discretion. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). A trial court

does not abuse its discretion if it reaches the right result, even for the wrong reason.

Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex.App.–Dallas 1992, orig. proceeding).


       Tommy contends Barbara and Andrew failed to disclose the statement of Tom Allen

in response to an interrogatory. However, this is not the objection Tommy made at trial.

Rather Tommy objected that Barbara and Andrew failed to disclose “the factual basis

supporting their claims,” an objection which generally tracks the language of a request for


                                             21
disclosure. See Tex. R. Civ. P. 194.2 (c) (party may inter alia obtain the factual bases of

the responding party’s claims). Responding to the objection, counsel for Barbara and

Andrew read for the trial court what was apparently his clients’ response to a request for

disclosure. Because the objection now urged was not presented to the trial court, it was not

preserved for our review. Tex. R. App. P. 33.1(a).


       Turning to the hearsay objection, Barbara and Andrew claimed an easement by

prescription and estoppel.    Proof of an easement by estoppel requires proof of a

representation relied upon by the claimant. Barbara and Andrew offered the statement of

Tom Allen as proof of a representation on which they relied. That Tom Allen made the

statement is thus an operative fact. Not being offered to prove the truth of the matter

stated, but simply that the statement was made, Andrew’s testimony was not hearsay. See

Cherokee Water Company v. Forderhause, 727 S.W.2d 605, 614 (Tex.App.–Texarkana

1987), rev'd on other grounds, 741 S.W.2d 377 (Tex. 1987) (testimony of operative fact not

hearsay).


       Finally, Tommy concedes the “Dead Man Statute” is not applicable to these facts and

we agree. See Tex. R. Evid. 601(b).


       Finding the statement of Tom Allen admissible as an operative fact, we do not

consider whether it was properly admitted as a declaration against pecuniary interest.


       Because Tommy conditioned this sub-issue on a claim of wrongly admitted evidence,

and as we find the trial court did not abuse its discretion in admitting the evidence, we do



                                            22
not reach the remainder of the issue which challenges the legal sufficiency of the remaining

evidence. We overrule Tommy’s Sub-issue 3.A.


Sub-issue 3.B.: Factual Sufficiency of Evidence Supporting
                Easement by Estoppel Finding


       In sub-issue 3.B., Tommy challenges the factual sufficiency of the evidence

supporting the jury’s implied findings of a representation and reliance supporting an

easement by estoppel.


       In reviewing the factual sufficiency of the evidence, we first examine all of the

evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986), and, having

considered and weighed all of the evidence, set aside the verdict only if the evidence is so

weak or the finding is so against the great weight and preponderance of the evidence that

it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v.

Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Because the trier of fact is the sole judge of the

credibility of the witnesses and the weight given their testimony, Rego Co. v. Brannon, 682

S.W.2d 677, 680 (Tex. App.–Houston [1st Dist.] 1984, writ ref'd n.r.e.), we may not

substitute our opinion for the trier of fact merely because we might have reached a different

conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).


       An easement confers on one person the right to use the land of another for a specific

purpose. Hubert v. Davis, 170 S.W.3d 706, 710 (Tex.App.–Tyler 2005, no pet.). An

easement is a “liberty, privilege or advantage in land without profit, existing distinct from the

ownership of the soil.” Miller v. Babb, 263 S.W. 253, 254 (Tex. Comm'n App. 1924, judgm't


                                               23
adopted). It is a burden on one estate, the servient estate, for the benefit of another, the

dominant estate. Id.


       The statute of frauds generally requires a writing to establish an easement. Machala

v. Weems, 56 S.W.3d 748, 756 (Tex.App.–Texarkana 2001, no pet.); see Miller, 263 S.W.

at 254 (easement must be created by grant and not parol agreement). But the doctrine of

equitable estoppel provides an exception to prevent injustice and protect innocent parties

from fraud. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979); Machala, 56 S.W.3d at 756.

The essence of the doctrine of easement by estoppel is the owner of a servient estate may

be estopped to deny the existence of an easement by making representations that are

acted on by the owner of the dominant estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d

196, 209 (Tex. 1962).


       Easement by estoppel requires proof of three elements: (1) a representation of the

easement communicated, either by words or action, to the promisee; (2) the communication

was believed; and (3) the promisee relied on the communication. Storms, 579 S.W.2d at

452; Stallman, 9 S.W.3d at 246. “In order to create an easement by estoppel, something

must be said or done by the owner of the servient estate at the time of the grant of the

dominant estate that induces the acceptance of the grant.” Lakeside Launches, Inc. v.

Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex.App.–Austin 1988, writ denied). An

easement by estoppel is binding on the successors in title to the servient estate if reliance

on the existing easement continues. Holden v. Weidenfeller, 929 S.W.2d 124, 131

(Tex.App.–San Antonio 1996, writ denied).



                                             24
       The gravity of a judicial means of acquiring an interest in the land of another solely

by parol requires equitable estoppel be strictly applied. See Moore County v. Bergner, 526

S.W.2d 702, 706 (Tex.Civ.App.–Amarillo 1975, no writ). Thus, an estoppel should be

certain, precise and clear. See McAnally v. Friends of WCC, Inc., 113 S.W.3d 875, 879

(Tex.App.–Dallas 2003, no pet.) (citing Linney v. Wood, 66 Tex. 22, 17 S.W. 244, 246

(1886)) (estoppel by deed). Authority for application of the doctrine is “rare and nebulous”

outside a narrow band of cases consisting of those that concern: (1) the dedication of a

street, alley, or square; (2) an owner selling land with reference to a map or plat; and (3) a

seller of land who allows its purchaser to expend money on an alleged servient estate.

Drye, 364 S.W.2d at 209-10.


       We begin with Tommy’s challenge of the evidence supporting the representation

element. The charge defined easement by estoppel as inter alia requiring communication

of the existence of an easement to the claimants, Barbara and Andrew.


       In 1970, Andrew and his now-deceased father constructed a cabin in the Barker Hill

Pasture. They hauled the materials over CR-216A and the Barker Hill Pasture Road. After

construction began, Tom Allen asked Andrew and his father if they needed help “cutting

some limbs over there on your road.”        Following the death of Tom Allen, Iva Allen

telephoned Andrew on one or more occasions, asking that when he went to town he not “go

out your way” but instead come to her house and pick up mail for delivery to the post office.

Barbara and Andrew assert these two statements were representations of their ownership




                                             25
of an easement across the Barker Hill Pasture Road and in reliance on the statements they

expended additional sums improving the cabin and out buildings on the Barker Hill Pasture.


      Barbara and Andrew further argue Tommy is estopped to deny an easement

because his predecessors in title silently watched Barbara and other members of her family

use the Barker Hill Pasture Road since 1929 and make valuable improvements to the

Barker Hill Pasture.   They conclude, therefore, Tommy’s “predecessors in title were

estopped to deny use of the road to [Barbara and Andrew]. When Tommy Allen inherited

the servient estate, he inherited the burdens that had existed since before 1929.”


      Andrew testified of a right to use the Barker Hill Pasture Road, as opposed to a

permissive use, existing since his childhood in the early 1950s. The right Andrew claimed

originated in use of the road by his father and grandfather. Andrew first communicated his

claimed right to another through his above noted conversation with Tommy at the gate in

1990. Barbara recalled as an eleven-year-old, in 1929, traveling by horseback from Barker

Hill Pasture over a road that, for this discussion, we assume is Barker Hill Pasture Road.

She did not ask permission because, according to Barbara, it “was the only way I could get

up there.”


      Barbara and Andrew did not improve the Barker Hill Pasture Road although it

appears Andrew, his father, and grandfather cut tree limbs along the way. Tom Allen was

aware Andrew and his father constructed a cabin on the Barker Hill Pasture and Iva Allen

was aware that Barbara and Andrew sometimes spent time in the cabin or on their property.




                                           26
        The Barker Hill Pasture road was not used exclusively by Barbara and Andrew.

Rather, it was Tommy’s only access to the east side of his pasture and was used by his

hunting lessees. Tommy testified his family and the family of Andrew and Barbara had

always permissively passed across the ranch property of one another. Use of the Barker

Hill Pasture Road by Barbara and Andrew depended on their access to CR-216A. We have

already noted Tommy’s control of access to the Allen property during the 1990s.


        Barbara and Andrew live in Austin and the record does not point clearly to the

regularity of their presence at the Barker Hill Pasture. During the 1980s, Barbara believed

she averaged fifteen to twenty visits a year. Andrew recalled frequent trips to the Barker

Hill Pasture including summers and the Christmas holidays. Between 1970 and 1981

Sidney Allen maintained cattle on the Barker Hill Pasture which sometimes required daily

trips. During the early 1980s, Barbara depended on Andrew for transportation to the Barker

Hill Pasture for extended visits.


        According to Andrew, prior to 1970 his family used the Barker Hill Pasture Road or

the route through Millie Ward’s place to access the Barker Hill Pasture. After 1970, they

exclusively used the Barker Hill Pasture Road. It was not disputed that the way through

Millie Ward’s property was longer and the terrain rougher than via the Barker Hill Pasture

Road.


        Barbara and Andrew rely on this court’s decision in Wallace v. McKinzie, 869 S.W.2d

592 (Tex.App.–Amarillo 1993, writ denied). There the McKinzies claimed an easement by

estoppel over a 400-yard road that was the exclusive means of ingress and egress to their


                                            27
landlocked property. The evidence at trial revealed for over seventy years the McKinzies

used this road without objection from the Wallaces and the Wallaces never notified the

McKinzies they could not use the road. Based on this evidence this court held:


      [T]hrough their permissive and acquiescing behavior, the Wallaces have
      engaged in representations by their conduct. This evidence alone constitutes
      legally sufficient evidence (i.e., some evidence) to support the jury’s finding
      that the Wallaces made a representation to the McKinzies that certain rights
      exist to use the Wallaces’ property.


869 S.W.2d at 596.


      The holding embodies a crucial distinction between McKinzie and the case at bar.

In McKinzie the jury was charged that the first element of easement by estoppel, the

representation element, was, “the landowner or a predecessor to his interest makes a

representation to the adjacent landowner or a predecessor to the adjacent landowner’s

interest that certain rights exist to use the landowner’s property.” 869 S.W.2d at 595

(emphasis supplied). The jury was not asked if the McKinzies relied on a representation

by the Wallaces that the McKinzies possessed an easement over the access road. As

Chief Justice Reynolds’ dissenting opinion in the case makes clear, because there was no

objection to the charge, the parties were left with an implied jury finding that a

representation of the existence of “certain rights” sufficed to create an easement.8 869

S.W.2d at 599-600 (Reynolds, CJ, dissenting).




      8
          A “right” to use the property, of course, could include a mere license.

                                              28
       Here, the court defined the representation element of easement by estoppel as, “a

representation that an easement exists is communicated by the landowner to the person

claiming the easement.” The charge does not define easement and instructs the jury that

a representation may be verbal or by conduct, but “[a]cquiescence alone is not sufficient.”

Importantly, the jury was compelled to find the existence or not of an easement, not simply

a right of use over the Allen’s property for access to the Barker Hill Pasture.


       Andrew and Barbara contend the silent acquiescence by Tommy and his family to

their family’s use of the Barker Hill Pasture Road combined with the “your road” and “your

way” statements of Tom and Iva Allen provide factually sufficient evidence supporting the

existence of an easement by estoppel. We disagree. We decline to apply the holding of

McKinzie in this case for the reasons we have discussed. We find the “your road” and “your

way” statements insufficient as representations that an easement existed.          Having

considered and weighed all of the evidence, we find the evidence supporting the existence

of an easement by estoppel, under the court’s charge, to be so weak as to make the jury’s

finding clearly wrong and unjust. Garza, 395 S.W.2d at 823.


       We sustain Tommy’s sub-issue 3.B, and do not reach his remaining arguments

under issue three.


Issue 4: Attorney’s Fees


       By his fourth issue, Tommy challenges the award of attorney’s fees to Barbara,

Andrew, and Boultinghouse. The trial court awarded attorney’s fees to the plaintiffs and

intervener on their claims for declaratory relief. See Tex. Civ. Prac. & Rem. Code Ann. §

                                             29
37.009 (Vernon 1997). In a declaratory judgment action, attorney’s fees may be awarded

as are “equitable and just.” Id. Because we reverse and remand the status of CR-216A

question, raised by motion for summary judgment, render judgment that no easement by

prescription exists, and remand for retrial the question of easement by estoppel, we sustain

Tommy’s fourth issue and vacate the award for attorney’s fees. The question of what, if

any, amount of attorney’s fees to award the parties is remanded to the trial court for

determination on retrial.


                                        Conclusion


       Having sustained Tommy’s issues 1, 2, 3.B. and 4, we reverse and render in part and

remand in part for proceedings consistent with this opinion.




                                                 James T. Campbell
                                                     Justice




                                            30
