Rancho Viejo Cattle Company, Ltd. and Rancho Viejo Waste Management, LLC. v. ANB Cattle Company, Ltd. ( 2021 )


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  •                                Fourth Court of Appeals
    San Antonio, Texas
    OPINION
    No. 04-20-00143-CV
    RANCHO VIEJO CATTLE COMPANY, LTD. and Rancho Viejo Waste Management, LLC,
    Appellants
    v.
    ANB CATTLE COMPANY, LTD.,
    Appellee
    From the 49th Judicial District Court, Webb County, Texas
    Trial Court No. 2014CVQ-000162-D1
    Honorable Jose A. Lopez, Judge Presiding
    Opinion by:       Irene Rios, Justice
    Sitting:          Patricia O. Alvarez, Justice
    Irene Rios, Justice
    Beth Watkins, Justice
    Delivered and Filed: September 29, 2021
    AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND
    REMANDED IN PART
    This case stems from competing motions for summary judgment concerning the authority
    to build certain improvements on the surface estates of Surveys 112 and 2366 in Webb County,
    Texas (the “disputed tracts”). Appellants Rancho Viejo Cattle Company, Ltd. (“RVCC”) and
    Rancho Viejo Waste Management, LLC (“RVWM”) (collectively “Rancho Viejo”) challenge the
    trial court’s declaratory judgment in favor of appellee, ANB Cattle Company, Ltd. (“ANB”),
    regarding the parties’ respective rights to the disputed tracts. The trial court declared Rancho Viejo
    has no legal authority to use the disputed tracts as solid waste landfill facilities without the
    04-20-00143-CV
    authorization and consent of ANB because: (1) ANB owned the disputed tracts as a cotenant with
    Rancho Viejo; (2) the use and possession of the disputed tracts is limited to hunting and grazing;
    and (3) Rancho Viejo has a fiduciary obligation not to impair, inhibit, or destroy ANB’s ability to
    obtain benefits from the surface estate of the disputed tracts in the development of the underlying
    mineral estates. We determine whether: (1) ANB owns the disputed tracts as a cotenant; (2) a
    restrictive covenant exists that limits the use of the disputed tracts to hunting and grazing only;
    (3) Rancho Viejo is a fiduciary to ANB for matters that do not involve mineral operations; and
    (4) the trial court erred in its declaration regarding Rancho Viejo’s legal authority to use the
    disputed tracts as solid waste landfill facilities without the authorization and consent of ANB. We
    affirm in part, reverse and render in part, and reverse and remand for further proceedings consistent
    with this opinion.
    BACKGROUND
    The surface estate of the Yugo Ranch was wholly owned by C.Y. Benavides, Sr.
    (“C.Y. Sr.”) and consisted of approximately 22,000 acres in Webb County, Texas. In 1969—and
    over the next twenty years—C.Y. Sr. began conveying the Yugo Ranch to his two sons, Carlos Y.
    Benavides, Jr. (“Carlos”) and Arturo N. Benavides (“Arturo”).
    Carlos and Arturo ultimately held title to their portions of the divided Yugo Ranch through
    entities that each brother owned, RVCC and ANB, respectively. Eventually, the entire surface
    estate of the 22,000-acre Yugo Ranch was divided into two tracts: the northern half being owned
    by ANB—the ANB Ranch—and the southern half being owned by RVCC—the RVCC Ranch.
    ANB is wholly owned by members of Arturo’s family, and RVCC is wholly owned by members
    of Carlos’s family.
    The Benavides family had a practice of retaining shared interests in mineral rights
    regardless of how ownership of the surface estate was divided. Therefore, most of the mineral
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    04-20-00143-CV
    estate underlying the ANB Ranch and RVCC Ranch was either owned by the Benavides Family
    Mineral Trust or owned jointly by Carlos and Arturo. However, portions of the ANB Ranch and
    the RVCC Ranch are “mineral classified lands.” Mineral classified land is property that was
    owned by the State of Texas (“the State”), and the surface was later conveyed to the public while
    the mineral estate was reserved by the State. See James D. Shields, Comment, Leasing Lands
    Subject to the Tex. Relinquishment Act, 13 St. Mary’s L.J. 868, 871 (1982) (“Mineral rights were
    not retained by the [S]tate in any lands sold to the public except when the land had been classified
    as mineral land at the time of sale, or when the land was sold with an express reservation of the
    minerals by the [S]tate.”).
    Carlos and Arturo could not share the minerals underlying the mineral classified lands
    because the minerals are owned by the State. Under the Relinquishment Act of 1919, however,
    the owner of the surface estate still derives benefits from the minerals developed on mineral
    classified lands even though the State owns those minerals. See id. at 870 (“In consideration for
    acting as the [S]tate’s agent, the owner [of the soil] is entitled to [surface-use payments in an
    amount equal to] ‘an undivided fifteen-sixteenths of all oil and gas which has been undeveloped.’”
    (quoting TEX. NAT. RES. CODE ANN. § 52.171)). “The Act provides that ‘the owner of the soil’ is
    the [S]tate’s agent authorized to lease oil and gas under any surveyed and unsurveyed public free
    school and asylum lands sold with a mineral classification or mineral reservation.” Shields, supra,
    at 870. The lessee of the mineral rights would remit the surface-use payments directly to the
    surface owner. TEX. NAT. RES. CODE ANN. § 52.172. “Although the surface owner has no title to
    the oil and gas, he benefits as if he were fee owner.” Shields, supra, at 884.
    Carlos and Arturo had a mutual desire to share in the surface-use payments derived from
    the production of the State’s minerals underlying the mineral classified lands on the ANB Ranch
    and the RVCC Ranch. However, one must be the surface owner of the mineral classified lands in
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    04-20-00143-CV
    order to receive the surface use payments. Thus, ANB had to have an ownership interest in the
    surface estate of the mineral classified lands on the RVCC Ranch to be entitled to surface-use
    payments on those tracts. Similarly, RVCC had to have an ownership interest in the surface estate
    of the mineral classified lands on the ANB Ranch to be entitled to surface-use payments on those
    tracts. Therefore, in 1990, the parties decided to cross-convey undivided interests of all mineral
    classified lands on their respective ranches (“the 1990 Cross-Conveyance”). The disputed tracts
    in this case—although originally wholly owned by RVCC—were mineral classified lands that
    were subject to the parties’ 1990 Cross-Conveyance.
    In 1998, ANB and RVCC executed a stipulation (“the 1998 Stipulation”) to amend and
    clarify their respective property holdings of the mineral classified lands that were cross-conveyed
    in the 1990 Cross-Conveyance. Among other things, the 1998 Stipulation created additional
    duties, allocations, and responsibilities between the parties “in connection with” oil, gas, and
    mineral operations on mineral classified lands. The underlying lawsuit centers around the rights
    and obligations conferred to the parties under the 1990 Cross-Conveyance and the 1998
    Stipulation.
    In 2011, RVCC conveyed 1,100 acres of the RVCC Ranch to RVWM. 1 The disputed tracts
    were at least partially included in the 1,100-acre conveyance.
    RVWM subsequently filed for a permit to construct a municipal solid waste landfill and
    recycling center (the “Landfill”) with the Texas Commission on Environmental Quality. RVWM
    concedes its original permit application included plans to construct two landfill disposal units on
    the disputed tracts. The Texas General Land Office (“GLO”) and ANB complained that the
    proposed landfill disposal units would prevent the development of minerals on the disputed tracts.
    1
    RVCC and RVWM are both wholly owned by Carlos’s family and are each an appellant in this appeal.
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    04-20-00143-CV
    In response, RVWM amended its application to exclude the disputed tracts from the Landfill.
    Although the Landfill was no longer within the boundaries of the disputed tracts, RVWM, in its
    application, proposed to use the disputed tracts for floodwater management to prevent floodwater
    from inundating the Landfill. Specifically, RVWM committed to building a berm across the
    disputed tract to change the 100-year floodplain and divert floodwater away from the Landfill.
    RVWM also proposed to build groundwater monitoring wells. RVWM asked the GLO if the
    amended application would prevent the development of the State’s minerals on the disputed tracts.
    The GLO responded that the planned surface use of Survey 112 should not adversely affect the
    production and development of minerals. 2 The GLO did not file an objection to the amended
    application.
    While ANB contested RVWM’s application at the State Office of Administrative Hearings,
    ANB simultaneously filed the underlying suit against Rancho Viejo seeking judicial declarations
    regarding its rights to the disputed tracts under the 1990 Cross-Conveyance and the 1998
    Stipulation. Specifically, ANB requested the trial court render declaratory judgment that “RVCC
    and RVWM are prohibited from including [the disputed tracts] in the proposed municipal solid
    waste facility, and further that RVCC and RVWM are prohibited from constructing on [the
    disputed tract] any structures or appurtenances associated with such municipal waste facility,
    including, but not limited to, tank dams, floodwater retention ponds and reservoirs and drainage
    channels.” In its petition, ANB claims it is entitled to the declaration because Rancho Viejo’s
    proposed use of the disputed tracts is a violation of: (1) ANB’s property rights as a cotenant of the
    disputed tracts; (2) restrictive covenants in the 1990 Cross-Conveyance; and (3) Rancho Viejo’s
    fiduciary duty to ANB.
    2
    Even though RVWM requested the GLO’s input on Survey 112 and Survey 2366, the GLO did not mention Survey
    2366 in its response.
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    04-20-00143-CV
    Rancho Viejo filed an answer and counterclaim seeking a declaratory judgment that:
    (1) ANB does not own the disputed tracts as a co-tenant; (2) the exclusive use and possession of
    the disputed tracts is not restricted to hunting and grazing only; (3) Rancho Viejo does not owe
    ANB a fiduciary duty for matters other than mineral operations on the disputed tracts and have no
    duty to account to ANB for proceeds that are not derived from mineral operations on the disputed
    tracts; and (4) Rancho Viejo has the exclusive right to use, possess, and enjoy the surface of the
    disputed tracts.
    The parties filed competing motions for summary judgment on their respective requests for
    declaratory relief. In its motion for summary judgment, ANB requested the trial court issue a
    declaration that Rancho Viejo has no legal authority to use the disputed tracts as the site for solid
    waste landfill facilities without the prior authorization and consent of ANB and the GLO. ANB’s
    request was based on arguments that ANB owns the disputed tracts as a cotenant and Rancho
    Viejo’s proposed use of the disputed tracts: (1) would be a violation of the purported covenants
    restricting the use of the disputed tracts to hunting and grazing; (2) would violate ANB’s legal
    rights in the disputed property 3 and be a violation of Rancho Viejo’s fiduciary duty to ANB by
    preventing ANB from receiving potential benefits from the development of the underlying mineral
    estate; (3) would subject ANB to significant, potential environmental and property tax liability;
    and (4) requires consent from the GLO as owner of the underlying mineral estate. 4
    Rancho Viejo, in its traditional motion for summary judgment, requested the trial court
    issue a declaration that: (1) ANB does not own the surface estate of the disputed tracts as a
    3
    In its summary judgment motion, ANB argued: “Besides violating the restrictive covenant, using the surface of [the
    disputed tracts] as the site of highly regulated solid waste landfill facilities would materially and adversely transform
    the character of those Mineral Classified Lands and deprive ANB of the contemplated benefits arising from the use of
    the surface estates in connection with the development of the mineral estates.”
    4
    On appeal, ANB abandoned its “potential environmental and property tax liability” and “GLO consent” arguments,
    and we do not consider them here. See Cantu v. Guerra & Moore, LLP, 
    448 S.W.3d 485
    , 489 n.3 (Tex. App.—San
    Antonio 2014, pet. denied); see also Holy Cross Church of God in Christ v. Wolf, 
    44 S.W.3d 562
    , 566 (Tex. 2001).
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    04-20-00143-CV
    cotenant; (2) the 1990 Cross-Conveyance did not contain restrictive covenants restricting Rancho
    Viejo’s use of the surface estate to hunting and grazing only; and (3) ANB’s affirmative defenses
    of estoppel by deed, estoppel by contract, and section 23.004 of the Texas Property Code do not
    prohibit Rancho Viejo’s intended use of the disputed tracts. 5 The trial court granted ANB’s motion
    for summary judgment and denied Rancho Viejo’s motion for summary judgment.
    The trial court’s judgment includes the following declarations:
    1. [ANB] is a cotenant in the surface estates of [the disputed tracts];
    2. [Rancho Viejo has] no legal authority to use [the disputed tracts] as sites for solid
    waste landfill facilities without [ANB]’s authorization and consent;
    3. [Rancho Viejo’s] exclusive use and possession of the surface estates of [the
    disputed tracts] is limited to hunting and grazing purposes; and
    4. As fiduciaries of [ANB], [Rancho Viejo has] no legal authority to impair, inhibit,
    or destroy [ANB]’s ability to obtain its share of the contemplated benefits from the
    surface use of [the disputed tracts] in the development of the underlying mineral
    estates[.]
    On appeal, Rancho Viejo argues the trial court erred in granting ANB’s motion for
    summary judgment and denying Rancho Viejo’s motion for summary judgment. Specifically,
    Rancho Viejo argues ANB did not meet its summary judgment burden to prove, as a matter of law,
    that Rancho Viejo has no legal authority to use the disputed tracts as sites for solid waste landfill
    facilities without the authorization and consent of ANB. 6 As sub-issues, Rancho Viejo challenges
    declarations one, three, and four, and argues: (1) ANB is not a cotenant in the disputed tracts;
    (2) Rancho Viejo’s possession and use of the disputed tracts is not limited to hunting and grazing
    purposes; and (3) Rancho Viejo owes ANB a fiduciary duty only for surface use of the disputed
    tracts in connection with oil, gas, and other mineral operations.
    5
    On appeal, Rancho Viejo abandoned its “affirmative defense” arguments, and we do not consider them here. See
    Cantu, 448 S.W.3d at 489 n.3; see also Wolf, 44 S.W.3d at 566.
    6
    It appears that the trial court’s second declaration regarding Rancho Viejo’s legal authority to build solid waste
    landfill facilities is based on its first, third, and fourth declarations.
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    04-20-00143-CV
    STANDARD OF REVIEW
    We review a trial court’s ruling on a summary judgment motion de novo. Tarr v.
    Timberwood Park Owners Ass’n, Inc., 
    556 S.W.3d 274
    , 278 (Tex. 2018). To prevail on a
    traditional summary judgment motion, the movant must show that no genuine issue of material
    fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident
    Life & Accident Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 215–16 (Tex. 2003). In reviewing a trial
    court’s summary judgment ruling, we take as true all evidence favorable to the nonmovant,
    indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. Knott,
    128 S.W.3d at 215.
    When competing summary judgment motions are filed, each movant has the burden of
    establishing its entitlement to judgment as a matter of law. Tarr, 556 S.W.3d at 278. When both
    parties move for summary judgment and the trial court grants one party’s motion for summary
    judgment—while denying the other party’s motion for summary judgment—the unsuccessful
    party may appeal both the grant of the prevailing party’s motion and the denial of its own motion.
    Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 
    253 S.W.3d 184
    , 192 (Tex. 2007).
    Typically, in such a case, a reviewing court should review both parties’ summary judgment
    evidence, determine all questions presented, and render the judgment the trial court should have
    rendered. Valence Operating Co. v. Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005).
    DISCUSSION
    We address each of Rancho Viejo’s sub-issues and determine whether the trial court erred
    in declarations one, three, and four. Then, we address whether ANB established, as a matter of
    law, that Rancho Viejo has no legal authority to use the disputed tracts as sites for solid waste
    landfill facilities without the authorization and consent of ANB.
    -8-
    04-20-00143-CV
    SUB-ISSUE 1(A): COTENANCY
    Rancho Viejo argues it retained the rights of possession and use of the disputed tracts in
    the 1990 Cross-Conveyance. Therefore, Rancho Viejo argues, ANB is not a cotenant in the
    disputed tracts because it never took possession of the disputed tracts and, consequently, never
    obtained all the rights associated with a fee simple owner. ANB argues that Rancho Viejo
    conveyed an undivided one-half fee simple interest in the disputed tracts, and ANB simultaneously
    contracted the exclusive use and possession of the disputed tracts back to Rancho Viejo.
    (a) Relevant Portions of the 1990 Cross-Conveyance
    Under the 1990 Cross-Conveyance, Rancho Viejo and ANB conveyed an “undivided one-
    half interest in [all mineral classified lands] lying within the . . . Yugo Ranch . . . [to] be owned in
    fee simple by Rancho Viejo Cattle Company, Ltd., as to an undivided one-half (1/2) interest and
    by ANB Cattle Company, Ltd., as to an undivided one-half (1/2) interest.”
    The 1990 Cross-Conveyance further clarified:
    RANCHO VIEJO CATTLE COMPANY, LTD. . . . and ANB CATTLE
    COMPANY, LTD. . . . do hereby cross-convey an undivided one-half interest in
    the [mineral classified lands] . . . so that all [those] lands . . . lying within the
    Pescadito or Yugo Ranch . . . will be owned in fee simple by Rancho Viejo Cattle
    Company, Ltd., as to an undivided one-half (1/2) interest and by ANB Cattle
    Company, Ltd., as to an undivided one-half (1/2) interest.
    Further down, the 1990 Cross-Conveyance reiterated:
    RANCHO VIEJO CATTLE COMPANY, LTD. . . . does hereby GRANT, SELL,
    ASSIGN, and CROSS-CONVEY unto ANB CATTLE COMPANY, LTD., an
    undivided one-half (1/2) interest in any part of each of those [mineral classified
    lands] located within the above described Pescadito or Yugo Ranch . . . , the fee
    title to which now appears of record as now owned entirely by Rancho Viejo Cattle
    Company, Ltd. . . . .
    Under this granting clause, the disputed tracts would now be jointly owned by Rancho
    Viejo and ANB in fee simple with each holding an undivided one-half fee simple interest in the
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    04-20-00143-CV
    property. ANB argues this establishes, as a matter of law, that ANB owns the disputed tracts as
    cotenants.
    Rancho Viejo disagrees.          Rancho Viejo contends ANB has a non-possessory, non-
    usufructuary 7 interest in the disputed tracts because the Cross-Conveyance restricts ANB’s right
    to possess and use the disputed tracts. Essentially, Rancho Viejo argues RVCC conveyed the right
    to dispose the disputed tracts but reserved the right to possess and use the disputed tracts. The
    portion of the 1990 Cross-Conveyance Rancho Viejo cites to support its argument reads:
    This conveyance is made expressly subject to . . . the agreement of the parties that
    the Limited Partnership [which was previously the exclusive owner of the particular
    mineral classified land] shall remain in exclusive possession of said lands and shall
    have the exclusive right to continue to occupy all portions of any of such
    surveys . . . for hunting and grazing . . . .
    (b) Applicable Law
    Property as a ‘bundle of rights’ is the right to use, posses, and dispose of the object or
    interest. United States v. Gen. Motors Corp., 
    323 U.S. 373
    , 377–78 (1945). “Some of the key
    rights in American jurisprudence that make up the bundle of property rights include the rights to
    possess, use, transfer and exclude others.” See Evanston Ins. Co. v. Legacy of Life, Inc.,
    
    370 S.W.3d 377
    , 383 (Tex. 2012). “Invoking illustrations propounded in first year property law,
    we liken the property here at issue, that is, the legal relationship[] created by the [1990 Cross-
    Conveyance], to a bundle of sticks.”              Day v. Day, 
    896 S.W.2d 373
    , 376 (Tex. App.—
    Amarillo 1995, no writ). Fee ownership is the right to possess the entire bundle of sticks. Id.; see
    also Gen. Motors Corp., 
    323 U.S. at 377
    –78 (holding a fee simple is the interest comprising the
    entire group of rights—the right to use, possess, and dispose—associated with the property).
    7
    A “usufructuary” is “a person who has the right to the benefits of another’s property[.]” Usufructuary, BLACK’S
    LAW DICTIONARY (11th ed. 2019).
    - 10 -
    04-20-00143-CV
    “A cotenancy is formed when two or more persons share the unity of exclusive use and
    possession in property held in common.” Laster v. First Huntsville Props. Co., 
    826 S.W.2d 125
    ,
    129 (Tex. 1991). Unity of possession in the property can be achieved through a party’s right of
    possession.    Fielding v. White, 
    32 S.W. 1054
    , 1055 (Tex. App.—Austin 1895, writ ref’d).
    “Generally, when more than one individual jointly owns a property, the relationship between the
    owners is a ‘joint tenancy’ or ‘cotenancy.’” Rife v. Kerr, 
    513 S.W.3d 601
    , 612–13 (Tex. App.—
    San Antonio 2016, pet. denied); Wagenschein v. Ehlinger, 
    581 S.W.3d 851
    , 857 (Tex. App.—
    Corpus Christi–Edinburg 2019, pet. denied) (“Texas recognizes two types of co-tenancies which
    may be deeded: a tenancy in common and a joint tenancy.”).
    (c) Analysis
    Here, Rancho Viejo conveyed “an undivided one-half interest in the [disputed tracts] . . .
    in fee simple” to ANB in the 1990 Cross-Conveyance. Because a fee simple interest includes the
    entire “bundle of sticks,” the 1990 Cross-Conveyance conferred upon ANB the right to use,
    possess, and dispose the disputed tracts. See Day, 896 S.W.2d at 376. Thus, ANB obtained the
    right to use and possess the disputed tracts upon the execution of the 1990 Cross-Conveyance.
    This right to use and possess the disputed tracts was sufficient to create a cotenancy between
    Rancho Viejo and ANB for the surface estate of the disputed tracts. See Laster, 826 S.W.2d at
    129. Contrary to Rancho Viejo’s argument, it is irrelevant that ANB did not ever actually have or
    take possession of the disputed tracts because ANB only needed a right to possession in order to
    satisfy the unity of possession necessary to create a cotenancy. See Fielding, 32 S.W. at 1055; see
    also 2 TIFFANY REAL PROP. § 426 (3d ed. 2020) (“The unity of possession means unity of right of
    possession and not possession in fact.”); Cline v. Henry, 
    239 S.W.2d 205
    , 208 (Tex. App.—Dallas
    1951, writ ref’d n.r.e.) (“An essential element of cotenancy is the present right of possession.”).
    - 11 -
    04-20-00143-CV
    Therefore, ANB and Rancho Viejo became cotenants upon the execution of the 1990 Cross-
    Conveyance.
    Although ANB, as a cotenant, had the right to possess and use the disputed tracts, the
    parties contractually agreed to give Rancho Viejo exclusive use and possession of the disputed
    tracts in the 1990 Cross-Conveyance. See Gulf, C. & S. F. Ry. Co. v. Wheat, 
    3 S.W. 455
    , 457
    (Tex. 1887) (indicating an agreement where one cotenant “is permitted to have the exclusive use
    and possession of a part of the land which they together own” is allowed under the law). However,
    this arrangement did not change the nature of the tenancy. See First Baptist Church of Fort Worth
    v. Baptist Bible Seminary, 
    347 S.W.2d 587
    , 591 (Tex. 1961) (“Words in a deed showing the
    purpose of the grant and the use to which the property is to be put do not change the effect of the
    conveyance or limit the grant.”).
    Moreover, Rancho Viejo has not pointed us to any authority showing the severability of
    rights associated with a surface estate. Rancho Viejo claims ANB only holds an interest in the
    disputed tracts that is sufficient to entitle ANB to surface-use payments under the Relinquishment
    Act. However, no such tenancy exists in Texas. See Wagenschein, 581 S.W.3d at 857 (“Texas
    recognizes two types of co-tenancies which may be deeded: a tenancy in common and a joint
    tenancy.”). While we have found ample authority supporting the severability of rights associated
    with mineral estates, we have not found any authority supporting the severability of rights
    associated with surface estates. Cf. Hysaw v. Dawkins, 
    483 S.W.3d 1
    , 9 (Tex. 2016) (“The mineral
    estate is comprised of five severable rights . . . .”); French v. Chevron U.S.A. Inc., 
    896 S.W.2d 795
    , 797 (Tex. 1995); Altman v. Blake, 
    712 S.W.2d 117
    , 118 (Tex. 1986). As such, Rancho
    Viejo’s position—that it conveyed to ANB a tenancy where the rights to possession and use were
    severed and reserved—is not supported by the law and we decline to create new law here to support
    the severability of surface estate rights.
    - 12 -
    04-20-00143-CV
    Therefore, we hold the trial court did not err in its declaration that ANB is a cotenant in the
    disputed tracts.
    SUB-ISSUE 1(B): RESTRICTIVE COVENANTS
    Rancho Viejo argues the trial court erred in declaring Rancho Viejo’s exclusive use and
    possession of the disputed tracts is limited to hunting and grazing. Specifically, Rancho Viejo
    argues the 1990 Cross-Conveyance gave RVCC the right to hunt and graze the disputed tracts to
    the exclusion of ANB, and the trial court improperly construed this right to hunt and graze as a
    restriction precluding all other uses of the disputed tracts. Thus, Rancho Viejo argues a restrictive
    covenant was not created by the 1990 Cross-Conveyance. In contrast, ANB argues the 1990 Cross-
    Conveyance creates a restrictive covenant restricting Rancho Viejo’s use of the property to hunting
    and grazing only.
    (a) Relevant Portions of the 1990 Cross-Conveyance
    The entire clause purportedly creating the restrictive covenant states:
    This conveyance is made expressly subject to the rights of the State of Texas in and
    to each of the [mineral classified lands] and to the agreement of the parties that the
    Limited Partnership which is a co-owner of any portion of any of the [mineral
    classified lands] which lies within [that limited partnership’s ranch] shall remain in
    exclusive possession of said lands and shall have the exclusive right to continue to
    occupy all portions of [the mineral classified lands] lying within [that limited
    partnership’s ranch] for hunting and grazing purposes in consideration of that
    partnership paying the ad valorem taxes due on such acreage and that the other
    limited partnership shall, likewise, have exclusive possession of any portion of the
    [mineral classified lands] which lie within [that limited partnership’s ranch] for
    hunting and grazing purposes in consideration of that partnership paying the ad
    valorem taxes on that portion of the [mineral classified lands] lying within [that
    partnership’s ranch].
    Rancho Viejo argues this clause merely clarified the parties’ respective rights to possess
    and use the mineral classified lands within their respective ranches for hunting and grazing.
    - 13 -
    04-20-00143-CV
    (b) Applicable Law
    “A ‘restrictive covenant’ is a negative covenant that limits permissible uses of land.”
    RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.3(3) (AM. L. INST. 2000). “Such covenants limit
    the use an owner or occupier of land can make of their property.” Tarr, 556 S.W.3d at 279. “The
    law recognizes the right of parties to contract with relation to property as they see fit, provided
    they do not contravene public policy and their contracts are not otherwise illegal.” Curlee v.
    Walker, 
    244 S.W. 497
    , 498 (Tex. 1922). “And while our jurisprudence does not favor restraints
    on the free use of land, [the Texas Supreme Court has] previously acknowledged that restrictive
    covenants can enhance the value of real property.” Tarr, 556 S.W.3d at 279 (citing Davis v. Huey,
    
    620 S.W.2d 561
    , 565 (Tex. 1981)). “Accordingly, when land is sold, the agreed-to covenants enter
    into and become a part of the consideration.” Tarr, 556 S.W.3d at 279 (internal quotations and
    alterations omitted). “So the courts have always treated unambiguous covenants as valid contracts
    between individuals.” Id. at 280. Therefore, “restrictive covenants are subject to the general rules
    of contract construction.” Pilarcik v. Emmons, 
    966 S.W.2d 474
    , 478 (Tex. 1998).
    “Whether a restrictive covenant is ambiguous is a question of law for the court to decide
    by looking at ‘the covenants as a whole in light of the circumstances present when the parties
    entered the agreement.’” Tarr, 556 S.W.3d at 280 (quoting Pilarcik, 966 S.W.2d at 478). “Like
    a contract, covenants are unambiguous as a matter of law if they can be given a definite or certain
    legal meaning.”    Pilarcik, 966 S.W.2d at 478 (internal quotations and alterations omitted).
    However, “if the covenants are susceptible to more than one reasonable interpretation, they are
    ambiguous.” Id. “Mere disagreement over the interpretation of a restrictive covenant does not
    render it ambiguous.” Tarr, 556 S.W.3d at 280.
    “A paramount concern when construing covenants is giving effect to the objective intent
    of the drafters of the restrictive covenant as it is reflected in the language chosen.” Tarr,
    - 14 -
    04-20-00143-CV
    556 S.W.3d at 280. “Accordingly, courts must examine the covenants as a whole in light of the
    circumstances present when the parties entered the agreement, giving the words used in the
    restrictive covenant the meaning which they commonly held as of the date the covenant was
    written, and not as of some subsequent date.” Id. (internal quotations, citations, and alterations
    omitted). “Words used in a restrictive covenant may not be enlarged, extended, stretched, or
    changed by construction, but will be given their commonly accepted meanings.” Buckner v. Lakes
    of Somerset Homeowners Ass’n, Inc., 
    133 S.W.3d 294
    , 297 (Tex. App.—Fort Worth 2004, pet.
    denied); see also Tarr, 556 S.W.3d at 280 (internal quotations omitted) (“[T]he words in a
    covenant may not be enlarged, extended, stretched[,] or changed by construction.”).
    A restrictive covenant should be liberally construed to give effect to its purpose and intent.
    TEX. PROP. CODE ANN. § 202.003(a); see also Tarr, 556 S.W.3d at 280 (alterations omitted)
    (“[W]e have continuously called for a covenant’s enforcement if it is ‘confined to a lawful purpose
    and is within reasonable bounds and the language employed is clear.’” (quoting Davis, 620 S.W.2d
    at 565)). “However, doubts should be resolved in favor of the free and unrestricted use of the
    premises, and any ambiguity must be strictly construed against the party seeking to enforce the
    restrictive covenant.” Buckner, 
    133 S.W.3d at 297
    ; see also Tarr, 556 S.W.3d at 280 (internal
    quotations, citations, and alterations omitted) (“[C]ovenants restricting the free use of property are
    not favored, because the right of individuals to use their own property as they wish remains one of
    the most fundamental rights that individual property owners possess.”).
    (c) Analysis
    The disputed clause is a not a covenant restricting the use of the land. First, the clause was
    intended to allocate or contract possession and use of the mineral classified lands between the two
    owners. The clause dictates which partnership would have possession of each of the co-owned
    tracts. The clause goes on to state that the partnership in possession “shall have the exclusive right
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    04-20-00143-CV
    to continue to occupy [the land in possession] for hunting and grazing purposes.” The italicized
    phrase highlights the parties’ intent to clarify their respective rights after the execution of the
    Cross-Conveyance by expressly stating the party who had already been grazing and hunting on the
    respective mineral classified lands will be able to continue grazing and hunting without
    interference by the party not in possession.
    ANB argues the phrase regarding hunting and grazing must be a restrictive covenant
    because any other interpretation would cause this phrase to be surplusage. See Ewing Constr. Co.,
    Inc. v. Amerisure Ins. Co., 
    420 S.W.3d 30
    , 37 (Tex. 2014) (“[I]nterpretations of contracts as a
    whole are favored so that none of the language in them is rendered as surplusage.”). ANB’s
    argument is premised on the notion that there was no need to clarify Rancho Viejo’s right to use
    the property for hunting and grazing once it was established that Rancho Viejo had exclusive
    possession of the disputed tracts. ANB’s argument follows that one who has exclusive possession
    obviously has exclusive use of the property. However, the clause draws a distinction between
    possession and use. While the first part of the clause—stating which party “shall remain in
    exclusive possession of said lands”—focuses on the parties’ respective possession, the second part
    of the clause—stating which party “shall have the exclusive right to continue to occupy [said land]
    for hunting and grazing purposes”—focuses on the parties’ use.
    Here, the disputed language clarifies the party in possession would not have to account to
    the party not in possession for the profits derived from the historical use of the disputed tracts. 8
    For example, under this interpretation, it is clear that Rancho Viejo does not have to make grazing
    and hunting lease payments to ANB to compensate for ANB’s ownership, or right to possession,
    of the disputed tracts. By extension, Rancho Viejo would not have to account to ANB for any
    8
    The affidavit of Carlos Y. Benavides, III, that was included in the summary judgment evidence, indicates the RVCC
    Ranch was historically used for hunting and grazing.
    - 16 -
    04-20-00143-CV
    leasing profits derived from the disputed tracts should Rancho Viejo lease the disputed tracts to a
    third party for hunting and grazing. This interpretation is in line with the actual text of the clause
    and gives a definite and certain meaning to the entire clause.
    Next, there is no restrictive language in the clause restricting the use of the disputed tracts.
    While there are no magic words to create a restrictive covenant, there must be some indication that
    the parties intended the use of the property to be restricted. See, e.g., Vill. of Pheasant Run
    Homeowner’s Ass’n, Inc. v. Kastor, 
    47 S.W.3d 747
    , 750 (Tex. App.—Houston [14th Dist.] 2001,
    pet. denied) (“It is the duty of [the reviewing court] . . . to review the wording of the restrictive
    language and determine therefrom, the intent of the drafter.”). “[W]e afford contract language its
    plain, ordinary meaning, unless the instrument indicates terms have been used in a technical or
    specialized sense.” Exxon Mobil Corp. v. Ins. Co. of Penn., 
    568 S.W.3d 650
    , 657 (Tex. 2019).
    Here, the clause states Rancho Viejo has an “exclusive right to continue to occupy [the
    disputed tracts] . . . for hunting and grazing purposes.” The disputed clause uses the word “right”
    rather than a restricting word such as “only,” “restricted,” or “limited.” A “right” is “[s]omething
    that is due to a person by just claim, legal guarantee, or moral principle.” Right, BLACK’S LAW
    DICTIONARY (11th ed. 2019). ANB attempts to convert Rancho Viejo’s “right” to use the disputed
    tracts for grazing and hunting purposes into a restriction requiring Rancho Viejo to use the disputed
    tracts for grazing and hunting purposes only. However, the clause simply gives Rancho Viejo a
    claim or legal guarantee to hunt and graze on the disputed tracts. Rancho Viejo’s interpretation
    gives effect to the entire clause without stretching the meaning of the words. ANB’s interpretation
    requires us to add words to the clause in order to give effect to its meaning. We cannot read a
    restrictive covenant into a clause where none exists. See Tarr, 556 S.W.3d at 280 (internal
    quotations omitted) (“[T]he words in a covenant may not be enlarged, extended, stretched or
    changed by construction.”).
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    04-20-00143-CV
    The only word in the clause that could conceivably be construed as a restriction is
    “exclusive.” However, we do not read the word “exclusive” as excluding the party in possession
    from exercising all rights except hunting and grazing, i.e., to the exclusion of other rights. It is
    clear the parties intended the rights to be exclusive to the party in possession, i.e., to the exclusion
    of the party not in possession. Moreover, the word “exclusive” is used two other times in the same
    paragraph and each time it is referring to the party’s rights to the exclusion of the party not in
    possession.
    The disputed clause allocated possession and clarified which party would have the
    exclusive use of the mineral classified lands for grazing and hunting. Under the plain language of
    the 1990 Cross-Conveyance, Rancho Viejo will continue to exclusively use the disputed tracts for
    hunting and grazing without benefit to—or interference from—its cotenant, ANB. Further, the
    construction of the disputed clause would have to be enlarged, extended, stretched, and changed
    to give effect to ANB’s interpretation.        Although restrictive covenants should be liberally
    construed to give effect to the purpose and intent of the clause, doubts about whether a restrictive
    covenant exists should be resolved in favor of the free and unrestricted use of the premises.
    Buckner, 
    133 S.W.3d at 297
    .
    Therefore, we hold the trial court erred in declaring that Rancho Viejo’s exclusive use and
    possession of the disputed tracts is limited to hunting and grazing purposes, and hold the 1990
    Cross-Conveyance does not restrict Rancho Viejo’s use of the disputed tracts to hunting and
    grazing only.
    SUB-ISSUE 1(C): FIDUCIARY DUTY
    The trial court’s judgment contained a declaration stating: “As fiduciaries of [ANB],
    [Rancho Viejo has] no legal authority to impair, inhibit, or destroy [ANB’s] ability to obtain its
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    04-20-00143-CV
    share of the contemplated benefits from the surface use of [the disputed tracts] in the development
    of the underlying mineral estates.”
    Rancho Viejo concedes the 1998 Stipulation creates a fiduciary relationship between
    Rancho Viejo and ANB. 9 However, Rancho Viejo argues the fiduciary duty is limited to
    operations in connection with oil, gas, or mineral development. In its summary judgment response,
    Rancho Viejo argued the fiduciary duty it owes to ANB is akin to the duty an executive rights
    holder owes to a non-executive rights holder in connection with oil, gas, or mineral development.
    See Lesley v. Veterans Land Bd. of Tex., 
    352 S.W.3d 479
    , 487 (Tex. 2011) (internal quotations and
    alterations omitted) (“The executive right is the right to make decisions affecting the exploration
    and development of the mineral estate, but it is most commonly exercised by executing oil and gas
    leases.”); see also KCM Fin. LLC v. Bradshaw, 
    457 S.W.3d 70
    , 81 (Tex. 2015) (internal quotations
    omitted) (holding the duty of an executive rights holder to a non-executive is “to acquire every
    benefit for the non-executive that the executive would acquire for himself”). Therefore, Rancho
    Viejo argues, its fiduciary obligation to ANB cannot be a basis to support the trial court’s second
    declaration regarding Rancho Viejo’s lack of legal authority to build solid waste landfill facilities
    because the proposed improvements on the disputed tracts are not in connection with oil, gas, or
    mineral development.
    ANB disagrees with Rancho Viejo’s complaint—that Rancho Viejo only owes ANB a
    fiduciary duty for mineral-development purposes, but not for all purposes—because the trial
    court’s declaration “specifically ties Rancho Viejo’s fiduciary obligation to ‘the development of
    the underlying mineral estates.’” However, ANB also contends “Rancho Viejo’s proposed actions
    are exercises of its executive right,” indicating ANB agrees that the fiduciary duty is similar to the
    9
    Under the 1998 Stipulation, the party in possession of mineral classified lands owes a fiduciary duty to the party not
    in possession.
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    04-20-00143-CV
    duty an executive rights holder owes to a non-executive rights holder in jointly-owned mineral
    estates.     Finally, ANB argues Rancho Viejo’s proposed flood-control improvements and
    groundwater-monitoring stations would be a violation of Rancho Viejo’s fiduciary duty.
    Therefore, ANB argues, the trial court’s fourth declaration on fiduciary duty supports the trial
    court’s second declaration regarding Rancho Viejo’s lack of legal authority to build solid waste
    landfill facilities.
    (a) Relevant Portions of the 1998 Stipulation
    Article VIII of the 1998 Stipulation imposed a fiduciary duty upon the party that retained
    the executive rights to lease the minerals underlying the mineral classified lands:
    Furthermore, in connection with the surface use of these lands for oil, gas and/or
    other mineral operations, the limited partnership who has exclusive possession to
    such lands shall also have the exclusive right (executive rights) to negotiate and
    conclude all terms in connection with such surface matters, keeping the interest of
    the non-executive limited partnership in mind. The standard of conduct of the
    limited partnership with the exclusive/executive right shall be that of which a
    fiduciary owes to his beneficiary or principal and shall include the right to account
    to the non-exclusive/executive right holder immediately upon closing and/or
    receipt of funds and/or benefits attributable to any transaction in connection with
    the above matters.
    It is clear that “the above matters” language is referring to matters in connection with the
    executive rights related to oil, gas, and/or other mineral operations. The trial court interpreted this
    fiduciary obligation to prevent Rancho Viejo from “impair[ing], inhibit[ing], or destroy[ing]
    [ANB’s] ability to obtain its share of the contemplated benefits from the surface use of [the
    disputed tracts] in the development of the underlying mineral estates.”
    (b) Applicable Law
    “Whether a fiduciary duty exists is a question of law.” Nat’l Plan Adm’rs, Inc. v. Nat’l
    Health Ins. Co., 
    235 S.W.3d 695
    , 700 (Tex. 2007).             “There exists no fiduciary or agency
    relationship between cotenants, or tenants in common, in the absence of an agreement or contract
    - 20 -
    04-20-00143-CV
    providing for such.” Donnan v. Atl. Richfield, 
    732 S.W.2d 715
    , 717 (Tex. App.—Corpus Christi–
    Edinburg 1987, writ denied); see also In re Fender, 
    12 F.3d 480
    , 486 (5th Cir. 1994) (“Under
    Texas law, . . . there is no fiduciary or agency relationship (which might create such a duty)
    between cotenants unless they create it by agreement.”). Because there is no general fiduciary
    duty owed between cotenants, the only fiduciary obligations are those that arise from the
    agreement between the parties. See Nat’l Plan Adm’rs, Inc., 235 S.W.3d at 700 (requiring the
    reviewing court to determine the scope of the fiduciary duty by looking to agreements between the
    parties).
    (c) Analysis
    As mentioned above, both parties concede the 1998 Stipulation created a fiduciary
    relationship between the parties. The entire paragraph that creates the fiduciary relationship
    allocates the benefits and responsibilities “in connection with the surface use of [the disputed
    tracts] for oil, gas, and/or other mineral operations.” Moreover, the sentence preceding the creation
    of the fiduciary relationship refers to the allocation of Rancho Viejo’s exclusive right to exercise
    the executive rights as agent of the State under the Relinquishment Act. When read in context, it
    is clear the extent of the fiduciary duty between the parties is limited to matters involving the
    exercise of Rancho Viejo’s executive rights in connection with oil, gas, and mineral operations on
    the disputed tracts.
    Using general principles of contract construction—and under the backdrop that no general
    fiduciary relationship exists between cotenants—the subject matter of the fiduciary relationship
    created here goes no further than matters in connection with oil, gas, and mineral operations. URI,
    Inc. v. Kleberg Cnty., 
    543 S.W.3d 755
    , 764 (Tex. 2018) (internal quotations omitted) (“We . . .
    presume parties intended what the words of their contract say and interpret contract language
    according to its plain, ordinary, and generally accepted meaning unless the instrument directs
    - 21 -
    04-20-00143-CV
    otherwise.”). Because the trial court’s declaration creates fiduciary obligations broader than the
    obligations created by the 1998 Stipulation, we reverse the trial court’s fourth declaration.
    (d) Remand is the Appropriate Remedy
    Typically, when a trial court rules on the same issues in competing motions for summary
    judgment, a reviewing court should review both parties’ summary judgment evidence, determine
    all questions presented, and render the judgment the trial court should have rendered. Dorsett,
    164 S.W.3d at 661. However, in its traditional motion for summary judgment, Rancho Viejo did
    not request a declaration consistent with its interpretation of the fiduciary obligations under the
    1998 Stipulation from the trial court.
    Here, ANB’s motion for summary judgment requested the trial court declare: “As
    fiduciaries of ANB, [Rancho Viejo has] no legal authority to impair, inhibit, or destroy ANB’s
    ability to obtain its share of the contemplated benefits from the surface use of [the disputed tracts]
    in the development of the underlying mineral estates . . . .” Rancho Viejo contested the breadth of
    ANB’s proposed declaration, arguing the fiduciary obligations are limited to the negotiation of
    instruments in connection with the surface use of the disputed tracts for oil, gas, and/or other
    mineral operations. On appeal, Rancho Viejo requests a declaration that it does not owe a fiduciary
    duty to ANB for surface operations on the disputed tracts other than for negotiations involving oil,
    gas, and/or other mineral operations. However, Rancho Viejo’s motion for traditional summary
    judgment did not request such relief. We cannot grant greater relief than was requested from the
    trial court. See Horrocks v. Tex. Dep’t of Transp., 
    852 S.W.2d 498
    , 499 (Tex. 1993) (holding
    appellant is only entitled to the relief that was requested from the trial court); Desert Palm Props.,
    N.V. v. McFarlane, No. 01-92-00967-CV, 
    1994 WL 681737
    , at *14 (Tex. App.—Houston [1st
    Dist.] Dec. 8, 1994, writ denied) (mem. op., not designated for publication) (“A movant is not
    entitled to greater relief tha[n] it requests in its motion for summary judgment.” (citing McConnell
    - 22 -
    04-20-00143-CV
    v. Southside Indep. Sch. Dist., 
    858 S.W.2d 337
    , 342 (Tex. 1993))). Because the trial court’s
    fiduciary duty declaration is overbroad, and Rancho Viejo did not request a declaration consistent
    with its interpretation of the fiduciary obligations under the 1998 Stipulation, we reverse the part
    of the trial court’s judgment regarding the fiduciary obligations and remand the case for further
    proceedings consistent with this opinion.10
    ISSUE 1: LEGAL AUTHORITY TO BUILD SOLID WASTE LANDFILL FACILITIES
    In its summary judgment motion, ANB argued that Rancho Viejo has no legal authority to
    use the disputed tracts as the site for solid waste landfill facilities without the prior authorization
    and consent of ANB.             On appeal, ANB argues Rancho Viejo’s proposed flood-control
    improvements and groundwater-monitoring stations fall within the expansive definition of a “solid
    waste facility” under section 361.003(36) of the Texas Health and Safety Code. 11 As previously
    stated, the gravamen of ANB’s argument is that Rancho Viejo’s proposed surface use of the
    disputed tracts would: (1) require the consent of ANB as cotenants of the disputed tracts;
    (2) violate the purported restrictive covenants; and (3) be a violation of Rancho Viejo’s fiduciary
    duty under the 1998 Stipulation. The trial court’s judgment declared “[Rancho Viejo has] no legal
    authority to use [the disputed tracts] as sites for solid waste landfill facilities without [ANB’s]
    authorization and consent.” At summary judgment, ANB predicated its request for this declaration
    on the three theories mentioned above. The trial court did not state the basis for this declaration.
    10
    The parties urge us to determine if Rancho Viejo’s proposed surface uses of the disputed tracts would be a breach
    of fiduciary duty. However, ANB did not seek relief for a breach of fiduciary duty claim. Rather, ANB sought a
    declaration regarding the parties’ fiduciary obligations under the 1998 Stipulation. Accordingly, the issue of breach
    of fiduciary duty was not before the trial court when it rendered judgment. Therefore, we cannot address whether
    Rancho Viejo’s proposed surface use of the disputed tracts would be a breach of its fiduciary duty because that issue
    is not before us in this appeal. See Melody Home Mfg. Co. v. Barnes, 
    741 S.W.2d 349
    , 356 n.1 (Tex. 1987) (Gonzalez,
    J., concurring); State and Cnty. Mut. Fire Ins. Co. v. Rhodes, No. 04-96-00040-CV, 
    1997 WL 81257
    , at *3 (Tex.
    App.—San Antonio Feb. 26, 1997, no writ) (mem. op., not designated for publication).
    11
    Section 361.003(36) of the Texas Health and Safety Code defines a “solid waste facility” as “all contiguous land,
    including structures, appurtenances, and other improvements on the land, used for processing, storing, or disposing of
    solid waste.” ANB claims this definition includes the floodwater improvements Rancho Viejo proposes constructing
    on the disputed tracts.
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    04-20-00143-CV
    Therefore, we must review all three of ANB’s theories to determine whether ANB is entitled to
    the “no legal authority” declaration—as a matter of law—on any one of those theories. See Cantu,
    448 S.W.3d at 489; see also Knott, 128 S.W.3d at 216 (“[When] the trial court’s order does not
    specify the grounds for its summary judgment, we must affirm the summary judgment if any of
    the theories presented to the trial court and preserved for appellate review are meritorious.”).
    (a) Cotenancy
    We have already determined ANB owns the disputed tracts as a cotenant. The issue now
    is whether, as a matter of law, ANB’s status as a cotenant precludes Rancho Viejo from building
    the proposed floodwater improvements without ANB’s authorization and consent.
    As a general rule, “one tenant in common has a right to the use and enjoyment of the
    common estate within due bounds . . . .” Gillum v. St. Louis, A. & T. Ry. Co., 
    23 S.W. 717
    , 718
    (Tex. App.—Dallas 1893, no writ); see also NNN Cypresswood Dr. 25, LLC v. WBCMT 2007–
    C33 Office 9729, LLC, 
    517 B.R. 828
    , 832 (N.D. Ill. 2013) (citations omitted) (“Under Texas
    law, . . . [e]ach tenant in common has an equal right to possession and use of the property, and
    each has the responsibility to avoid acts that are prejudicial to his cotenants . . . .”).
    “To say that one tenant in common must have the consent of all his cotenants to use the
    common estate would in many instances be practically a denial of any benefit to him from such
    estate . . . .” Gillum, 23 S.W. at 718. If this were the case, “a partition of said estate would have
    to be had” before the tenant in common could receive any benefit from the estate “or exercise any
    individual control over his interest . . . .” Id. Thus, a cotenant has the right to improve real
    property without the consent of other cotenants. See Cleveland v. Milner, 
    170 S.W.2d 472
    , 476
    (Tex. [Comm’n Op.] 1943) (“As cotenant, his right to possess and improve the property was equal
    to that of [another cotenant] . . . .”); see also Cooper Co. v. Werner, 
    111 S.W.2d 823
    , 826 (Tex.
    App.—Austin 1937, no writ) (holding cotenants have equal rights to use the property for their own
    - 24 -
    04-20-00143-CV
    benefits); Gillum, 23 S.W. at 718 (“All tenants in common have a right to possession of the
    property, and a right to use and enjoy it. Each has a right to cultivate it, and reap the proceeds of
    such venture.”).
    A cotenant’s right to use the land is only limited by his or her obligation not to act with
    prejudice to other cotenants by wasting or despoiling the land. See Fielding, 32 S.W. at 1055
    (holding, when a cotenancy is created, “there springs into existence a reciprocal and mutual
    obligation and duty resting upon each co-owner, in dealing with the common estate, to observe the
    right of each other, and to abstain from acts in which benefit and profit may result to one to the
    injury of the other . . . .”); see also Grant v. Clouser, 
    287 S.W.3d 914
    , 920 (Tex. App.—Houston
    [14th Dist.] 2009, no pet.) (holding “[h]omestead rights can attach to property interests held by
    tenancy in common; however, such homestead rights may not prejudice the rights of a cotenant”);
    Gillum, 23 S.W. at 718 (holding a cotenant’s right to cut and sell timber from jointly owned land
    does not confer the right to “despoil the land of its timber[]—that is, to cut, waste, and destroy all
    the timber . . . growing thereon”).
    For ANB to be entitled to the “no legal authority” declaration solely on its status as a
    cotenant, ANB had to show that Rancho Viejo’s proposed use of the land would prejudice ANB.
    ANB did not present evidence in its motion for summary judgment that established, as a matter of
    law, Rancho Viejo’s proposed use of the land would prejudice ANB or waste or despoil the
    disputed tracts. Absent this showing, ANB has failed to meet its summary judgment burden and
    is not entitled to the “no legal authority” declaration—based solely on its status as a cotenant—as
    a matter of law.
    Furthermore, Rancho Viejo presented evidence that raised genuine issues of material fact
    on whether Rancho Viejo’s proposed use of the disputed tracts would prejudice ANB or waste or
    despoil the land. First—in its response to ANB’s motion for summary judgment—Rancho Viejo
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    04-20-00143-CV
    provided the affidavit of Terry D. Payne, a petroleum engineer. Payne’s affidavit analyzes how
    Rancho Viejo’s proposed use would affect the disputed tracts and concludes: “Based on my review
    and understanding of the planned surface use of [the disputed tracts], there should be no
    impediment to the existing, or potential future, oil and gas development.” 12 Payne’s position is
    supported by the GLO’s response to Rancho Viejo’s inquiry on whether Rancho Viejo’s proposed
    surface use of the disputed tracts would inhibit the State’s ability to develop minerals. In an email
    attached to Ranch Viejo’s summary judgment response, the GLO opined: “The existing planned
    surface use of Survey 112 should not adversely affect the development of oil and gas.” 13
    Further, Rancho Viejo presented the affidavit of Carlos Y. Benavides, III. The affidavit
    states RVCC conveyed portions of its interest in the disputed tracts to RVWM. According to the
    affidavit, RVWM leases those portions back to RVCC and “[t]he Surface Lease allows [RVCC]
    to conduct agriculture operations, including grazing, raising and keeping cattle, and raising and
    keeping exotic game, and to conduct hunting operations on [the disputed tracts].” The affiant
    continues, “[RVWM’s] proposed surface operations on [the disputed tracts], including
    construction of flood[-]control features . . . , are not inconsistent with, and will not prevent,
    12
    In support of this statement, Payne further attested in his affidavit that:
    [O]il and gas is currently being produced from beneath Survey 112 by two (2) active gas wells . . . .
    With regard to future development, in the unlikely event a potential pad location was
    unavailable for the drilling of a potential future well, the drilling of a well from an alternative pad
    site using directional drilling could access the potential target. I have reviewed the drilling practices
    of oil and gas operators in the area of [the disputed tracts]. Considering a circular study area with a
    radius of 20 miles around the subject property (the distance from the subject property to Laredo),
    well permit data from the Railroad Commission of Texas shows there have been 580 non-vertical
    wells drilled in this area. Consistent with industry trends, where more and more wells are drilled as
    non-vertical wells, the area around [the disputed tracts] is routinely developed using directional
    drilling.
    13
    Although the GLO’s response only expressly mentioned Survey 112, Rancho Viejo’s inquiry asked: Whether the
    State believed “Rancho Viejo’s proposed surface construction of flood control features on State Mineral Classified
    Tracts 112 and 2366 located in Webb County, Texas . . . will negatively impact potential development or production
    of any of the State’s minerals in Surveys 112 and 2366?”
    - 26 -
    04-20-00143-CV
    [RVWM and RVCC’s] continued use of [the disputed tracts] for hunting and grazing and
    agricultural purposes.” Finally, the affidavit states that “[RVWM and RVCC] do not intend to
    change the current use of [the disputed tracts] for hunting, grazing, and agricultural purposes.”
    Under the appropriate standard of review, this evidence raises genuine issues of material
    fact on whether Rancho Viejo’s proposed use of the property prejudices ANB or wastes or despoils
    the land. See Knott, 128 S.W.3d at 215 (holding the reviewing court takes as true all evidence
    favorable to the nonmovant, indulging every reasonable inference, and resolving any doubts in the
    nonmovant’s favor when reviewing a summary judgment). Because this evidence raises genuine
    issues of material fact regarding Rancho Viejo’s right to build flood-control improvements and
    ground-water monitoring stations on jointly owned property, the mere fact that ANB is a cotenant
    is not—on its own—sufficient to support the trial court’s “no legal authority” declaration as a
    matter of law.
    (b) Restrictive Covenant
    Because we hold the 1990 Cross-Conveyance does not contain restrictive covenants
    limiting Rancho Viejo’s use of the disputed tracts to hunting and grazing, this theory does not
    support the trial court’s second declaration regarding Rancho Viejo’s lack of legal authority to
    build solid waste landfill facilities. Therefore, ANB is not entitled to the second declaration on
    this ground.
    (c) Fiduciary Duty
    Because we hold the trial court’s fiduciary duty declaration is overbroad and must be
    reversed, this theory cannot support, as a matter of law, the declaration regarding Rancho Viejo’s
    lack of legal authority to build solid waste landfill facilities without ANB’s authorization and
    consent. Moreover, the trial court’s fiduciary declaration merely stated, as fiduciaries, Rancho
    Viejo has no legal authority to impair, inhibit, or destroy ANB’s ability to obtain its share of the
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    contemplated benefits from the surface use of the disputed tracts in the development of the
    underlying mineral estates. It did not address whether the alleged fiduciary duty would require
    ANB’s consent for Rancho Viejo’s proposed surface use of the disputed tracts. Therefore, the
    fiduciary duty declaration cannot support the trial court’s second declaration.
    (d) Remand is the Appropriate Remedy
    When both parties move for “summary judgment on the same issues and the trial court
    grants one motion and denies the other, as here, the reviewing court considers the summary
    judgment evidence presented by both sides, determines all questions presented, and if the
    reviewing court determines that the trial court erred, renders the judgment the trial court should
    have rendered.” Dorsett, 164 S.W.3d at 661. “However, if resolution of the issues rests on
    disputed facts, summary judgment is inappropriate, and the reviewing court should reverse and
    remand for further proceedings.” Gramercy Ins. Co. v. MRD Invs., Inc., 
    47 S.W.3d 721
    , 724 (Tex.
    App.—Houston [14th Dist.] 2001, pet. denied) (citing Coker v. Coker, 
    650 S.W.2d 391
    , 394–95
    (Tex. 1983)); see also Stokwitz v. Tinajero, No. 04-19-00773-CV, 
    2020 WL 7364656
    , at *4 (Tex.
    App.—San Antonio Dec. 16, 2020, no pet.) (mem. op.) (remanding case with competing summary
    judgment motions for further proceedings when resolution of an issue rested on disputed facts).
    Here, ANB’s status as a cotenant is the only ground before us that may support the trial
    court’s second declaration regarding Rancho Viejo’s lack of legal authority to build solid waste
    landfill facilities on the disputed tracts. However, the summary judgment evidence raises genuine
    issues of material fact on whether Rancho Viejo’s proposed surface uses of the disputed tracts
    would prejudice ANB, or waste or despoil the land. Thus, the resolution of whether ANB—as a
    cotenant—can prevent Rancho Viejo’s proposed surface uses of the disputed tracts rests on
    disputed facts. Therefore, the trial court erred in granting summary judgment on Rancho Viejo’s
    legal authority to build solid waste landfill facilities on the disputed tracts. Accordingly, we
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    04-20-00143-CV
    reverse the trial court’s second declaration and remand the case for further proceedings consistent
    with this opinion. See Stokwitz, 
    2020 WL 7364656
    , at *4.
    ISSUE 2: RANCHO VIEJO’S SUMMARY JUDGMENT
    In its second issue, Rancho Viejo briefly argues the trial court erred in denying its motion
    for traditional summary judgment, and requests this court reverse the trial court’s judgment and
    render judgment containing declarations antithetical to those declarations issued by the trial court.
    See Tex. Mun. Power Agency, 253 S.W.3d at 192 (“Although the denial of summary judgment is
    normally not appealable, we may review such a denial when both parties moved for summary
    judgment and the trial court granted one and denied the other.”). Specifically, Rancho Viejo asks
    this court to render judgment that: (1) ANB does not own the disputed tracts as cotenants; (2) the
    1990 Cross-Conveyance does not contain a restrictive covenant restricting the use of the disputed
    tracts to hunting and grazing only; and (3) Rancho Viejo does not owe ANB a fiduciary duty for
    surface operations on the disputed tracts other than for mineral operations.
    As explained above, we conclude ANB owns the disputed tracts as a cotenant and the 1990
    Cross-Conveyance does not contain restrictive covenants limiting Rancho Viejo’s use of the
    disputed tracts to hunting and grazing only. We render judgment accordingly.
    As to the fiduciary duty issue, we cannot grant greater relief than Rancho Viejo requested
    from the trial court in its motion for summary judgment. In its motion for summary judgment,
    Rancho Viejo did not request a declaration from the trial court regarding its fiduciary duty.
    Because Rancho Viejo failed to request this relief in the trial court, we cannot render judgment in
    Rancho Viejo’s favor on this issue. See Horrocks, 852 S.W.2d at 499 (holding remand is
    appropriate when the prevailing party did not lay the appellate predicate for rendition because it
    failed to request appropriate relief from the trial court).
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    04-20-00143-CV
    CONCLUSION
    We, therefore, affirm the trial court’s judgment in part, upholding summary judgment in
    favor of ANB on its declaratory judgment claim that ANB Cattle Company, Ltd. is a cotenant in
    the surface estates of the disputed tracts, Surveys 112 and 2366 in Webb County, Texas. However,
    we reverse and render judgment that:
    •    Rancho Viejo’s use of the surface of Surveys 112 and 2366 in Webb County, Texas,
    is not restricted to hunting and grazing only.
    The trial court’s judgment also declared: “As fiduciaries of [ANB Cattle Company, Ltd.],
    [Rancho Viejo Cattle Company, Ltd. and Rancho Viejo Waste Management, LLC] have no legal
    authority to impair, inhibit, or destroy [ANB Cattle Company, Ltd.’s] ability to obtain its share of
    the contemplated benefits from the surface use of Surveys 112 and 2366 in Webb County, Texas,
    in the development of the underlying mineral estates[.]” We conclude the trial court erred and
    reverse this part of the trial court’s judgment and remand for further proceedings consistent with
    this opinion.
    Finally, the trial court’s judgment declared: “[Rancho Viejo Cattle Company, Ltd. and
    Rancho Viejo Waste Management, LLC] have no legal authority to use Surveys 112 and 2366 in
    Webb County, Texas, as sites for solid waste landfill facilities without [ANB Cattle Company,
    Ltd.’s] authorization and consent[.]” Because resolution of the issue regarding Rancho Viejo’s
    legal authority to construct solid waste landfill facilities on the disputed tracts depends on disputed
    facts, the trial court erred in granting summary judgment on this issue. Accordingly, we reverse
    this part of the trial court’s judgment and remand for further proceedings consistent with this
    opinion.
    Irene Rios, Justice
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