edwin-j-carpenter-and-john-lawson-meyer-appellantscross-appellees-v ( 2006 )

OPINION HEADING PER CUR

                                NO. 12-05-00210-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EDWIN J. CARPENTER AND

JOHN LAWSON MEYER, §          APPEAL FROM THE 354TH

APPELLANTS AND

CROSS-APPELLEES

V.        §          JUDICIAL DISTRICT COURT OF

JESSE MORRIS, JR. AND

REBECCA MORRIS,          §          RAINS COUNTY, TEXAS

APPELLEES AND

CROSS-APPELLANTS

MEMORANDUM OPINION

            Edwin J. Carpenter and John Lawson Meyer have filed a motion for rehearing, which is denied.  However, we withdraw our opinion of July 19, 2006 and substitute the following opinion in its place. 

            This appeal arises out of a dispute between adjoining land owners over the use of Private Road 5302 (the “road”) in Rains County.  Carpenter and Meyer complain, in two issues, that the trial court erred in failing to declare that the road is a public road and in failing to find that Carpenter has an easement by estoppel over the road where it crosses the land of Jesse and Rebecca Morris.  The Morrises, by cross-appeal, contend that the trial court erred when it determined Meyer has an easement by estoppel over the road as it crosses their land.  We reverse the trial court’s judgment in part, render a take nothing judgment for the Morrises against Meyer, and affirm the remainder of the judgment. 

                                    Background

            On January 21, 2003, Carpenter and Meyer filed a suit for declaratory judgment against the Morrises and Jessie and Lenora Boyd seeking to have the road declared a public road or, in the alternative, asserting easement rights in the road.  A bench trial followed.  The evidence showed that the road’s history dates back to the 1940s.  During the 1940s and 1950s, R.L. Meyer owned acreage in Rains County that had access to C.R. 1300 (the “county road”) by the road and one located to the north of it.  James Arnold and Annie Johnson testified at trial that the road at issue before us had been used by the public in the 1940s and 1950s.  The record was silent as to this road in the 1960s until Paul Stinson testified to its nonuse when he and his brother-in-law Leland Robinson purchased the land over which it ran in 1968. 

            Stinson testified that the road was covered with vegetation and could not be driven over in a vehicle when they bought the property.  Stinson said that he used equipment from his construction business to clean up the road in 1971 and make it passable.  He placed gravel on the road and put up a metal gate where it joined the county road.  He said he locked the gate and that only family of the two owners and their invitees used the road.  The land the road passes over was sold by Stinson and Robinson in separate tracts to the Morrises and the Boyds.  The Morrises and the Boyds continued to maintain the road as it passed over their respective tracts.  Evidence at trial showed that fences surrounding the road on all sides had been maintained since 1971. 

            Carpenter and Meyer inherited their land from Maurita Carpenter in 2000.¹ Jesse Morris described the only time that he had seen Meyer use the road, which was at a time when Maurita Carpenter still owned the land.  He explained that, on July 4, 1996, he had noticed Meyer and his wife, along with another couple, when they drove up to the gate.  He testified that Meyer told him he and the others wanted to walk to his aunt’s tract.  Meyer said that it was easier for them, particularly the ladies, to walk to his aunt’s land on the road rather than enter from the northern side of the tract, where there was more brush.  Morris said he then gave Meyer a key to the gate and that the foursome walked down the road.  Meyer testified without detail that Morris gave him a key and he thought that was in 1997. He thought Boyd might have given him a key sometime after 1998.

            With regard to Carpenter’s use of the road, Morris sent him the following letter:

November 8, 2001

            Edwin J. Carpenter

            10431 Robindale Dr.

            Dallas, Texas 75238-2228

            Mr. Carpenter:

            You were notified by telephone on or about May 18, 2000 to cease and desist trespassing on my property (this includes the Private Road #5302 itself as well as the land at the end of said road). Despite this notification, you have continued to enter and to attempt to enter my private property on several occasions, including but not limited to April 21, 2001 and November 3, 2001. 

I simply cannot allow your continued trespass upon my property.  I insist that you immediately and permanently cease and desist from entering and trespassing upon my property.  Should you make any further attempt to enter my property, I will pursue all legal remedies available to me, including filing formal charges against you for criminal trespass under Texas Penal Code § 30.05 for any past and future unlawful entries upon my property.

You have no right of access to your property through mine; your right of access is through other parcels of land which, along with yours, were included in the Meyers/Bass family property from which yours was severed as a result of inheritance and through which access to your property has been achieved for perhaps the last 70 to 100 years.

            Sincerely,

            /s /

            Jesse Morris, Jr.

            Following the trial, the trial court stated in findings of fact and conclusions of law that (1) the road is not a public road, having been abandoned if it had ever been a public road; (2) Meyer had acquired an easement by estoppel from Morris due to furnishing him a key and not denying him permission to use the road; and (3) Carpenter had not developed facts that would establish an easement by estoppel in the road for him against Morris.  The trial court entered judgment based on these findings of fact and conclusions of law.  The trial court also granted both Carpenter and Morris an easement over the road as it crossed over the Boyds’ land. 

            Carpenter and Meyer then filed an appeal of the judgment.  The Morrises followed with their cross-appeal.  The Boyds did not appeal the judgment and are not parties to this appeal. 

Standard of Review

            Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s answer to jury questions.  Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).  The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a jury question.  Id.  Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence; they will not be reversed unless they are erroneous as a matter of law.  Texas Dep’t of Pub. Safety v. Stockton, 53 S.W.3d 421, 423 (Tex. App.–San Antonio 2001, pet. denied).

            When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).  In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.  Id.  If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law.  Id.  The issue should be sustained only if the contrary proposition is conclusively established.  Id.

            When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242.  The reviewing court must consider and weigh all of the evidence and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that the verdict is clearly wrong and unjust.  Id.

            If an appellant is attacking the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate on appeal that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).  Evidence is legally insufficient when, among other things, there is a complete absence of  evidence of a vital fact.  See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  The reviewing court views the evidence in the light most favorable to the verdict, indulging every reasonable inference that would support it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  The reviewing court must credit evidence that supports the verdict if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not.  Id. at 827. The fact finder is the sole judge of the credibility of the witnesses and the weight to give their testimony.  Id. at 819.

            Abandonment of Public Road

            In their first issue, Carpenter and Meyer contend that the trial court erred in failing to declare that the road is a public road.  They argue that the disputed road was dedicated to public use by implication due to the conduct of the Morrises’ and the Boyds’ predecessors in title.

            In its first finding of fact, the trial court found that, if the road was ever a public road, it had long since been abandoned.  In its first conclusion of law, the trial court held that the road is not a public road.   In support of their first issue, Carpenter and Meyer show us evidence in the record that the road was used by the public prior to 1960.  However, a road subject to public use can be abandoned.  See Lindner v. Hill, 691 S.W.2d 590, 952 (Tex. 1985).  Abandonment of a public road can be either by statute or common law.  See Rutledge v. Staner, 9 S.W.3d 469, 471 (Tex. App.–Tyler 1999, pet. denied). 

            A common law abandonment is made up of two elements: (1) acts of relinquishment and (2) the intention to abandon.  Maples v. Henderson County, 259 S.W.2d 264, 267 (Tex. Civ. App.– Dallas 1953, writ ref’d n.r.e.).  Both elements must be shown by the parties asserting the abandonment, though intention may be inferred from the conduct of the parties. Id. Stinson’s testimony established that the road was grown over and in nonuse when he reconstructed it in 1971 for use as a private drive by members of his and the Robinsons’ families. Stinson’s testimony also established that the road was fenced when he rebuilt it in 1971.  The only use of the road by anyone other than family members of the road’s owners was the occasional and infrequent use by members of the Meyer family.  The testimony showed that members of the Meyer family had access to their tracts of land by other means.²  The evidence supports a common law abandonment of the road. Carpenter and Meyer did not establish as a matter of law that the road had not been abandoned.  See Francis, 46 S.W.3d at 241.  Further, the finding of abandonment is not against the great weight and preponderance of the evidence.  See id. at 242.  Thus, even if the road had been a public road at one time, it is not presently a public road.  Therefore, the trial court did not err in failing to declare the road a public road. Carpenter and Meyer’s issue one is overruled. 

Easement by Estoppel

            In their second issue, Carpenter and Meyer contend that the trial court erred when it did not grant Carpenter an easement by estoppel over the portion of the road that is on the Morrises’ land.  In two cross-issues, the Morrises contend that the trial court erred when it granted an easement by estoppel over their land to Meyer. 

            An easement confers upon 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 has been further defined as a “liberty, privilege or advantage in land without profit, existing distinct from the ownership of the soil.”  Id.  Easements consist of two characteristics pertinent to our discussion: 1) an easement is a burden on one estate, the servient estate, for the benefit of another, the dominant estate, and 2) an easement is a nonpossessory interest in land that is not revocable at will.  Id.

            Three elements are necessary to the creation of an easement by estoppel: (1) a representation was communicated, either by word or action, to the promissee; (2) the communication was believed; and (3) the promissee relied on the communication.  Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.–San Antonio 1996, writ denied).  The exact nature and extent of the doctrine of easement by estoppel have not been clearly defined.  Mack v. Landry, 22 S.W.3d 524, 528 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (op. on reh’g).  Acquiescing behavior by the owner of a servient estate may be conduct that can create an easement by estoppel.  See Wallace v. McKinzie, 869 S.W.2d 592, 596 (Tex. App.–Amarillo 1993, writ denied).  Equitable estoppel in the context of an easement arises when one is not permitted to disavow his conduct that induces another to act detrimentally in reliance upon it.  See id. at 595.

            The trial court found that there is no evidence that a representation had been made to a predecessor in title to the property now owned by Carpenter that could be the basis of an easement by estoppel.  In its additional findings, the trial court found that no representation was made to Carpenter or to a predecessor in title to his property that could be the basis of an easement by estoppel in favor of Carpenter.  Further, the trial court found that Morris affirmatively told Carpenter he did not give his permission to use the road.  In its additional conclusion of law, the trial court stated that Carpenter did not acquire an easement by estoppel on the Morrises’ land.

            Carpenter stated that Morris had never made any representation to him about using the road.  Therefore, the first element of easement by estoppel was not present.  Nevertheless, Carpenter contends that his aunt, Maurita Carpenter, had access to the road and that he should continue to have access. However, there is nothing in the record to indicate that Morris had ever represented to Maurita Carpenter that she could use the road over his land.  Carpenter has therefore failed to present any evidence that a representation was made which showed that an easement by estoppel was created by Morris. Further, even if a representation had been made to either Carpenter or his aunt, there was no detrimental reliance shown by Carpenter, because no improvements were ever made on his tract. Carpenter has not established as a matter of law any element of an easement by estoppel on the Morrises’ land. See Francis, 46 S.W.3d at 241; Holden, 929 S.W.2d at 131.  The conclusion that Carpenter did not acquire an easement by estoppel in the Morrises’ land is not erroneous as a matter of law.  Further, the fact findings supporting that conclusion are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.  See Francis, 46 S.W.3d at 242.  Carpenter and Meyer’s second issue is overruled.

            The trial court found that Jesse Morris gave Meyer a key to locked gates in 1997 or 1998 and has not denied permission to Meyer to use the road on his property.  The trial court concluded that Meyer acquired an easement by estoppel from Morris’s conduct.

            The only evidence in the record regarding any representation made by Morris to Meyer regarding use of the road at issue is testimony that Morris gave Meyer a key to the gate. Morris’s testimony described the incident that he said occurred on July 4, 1996.  On that day, Meyer represented to Morris that he was taking his wife and another couple for a walk on his Aunt Maurita’s land.  Meyer told Morris that it would be much easier if they could walk on the road instead of entering from the north side, which had heavier vegetation. Morris told Meyer that he did not mind their walking on the road and gave him a key to the gate that blocked the road.  Meyer testified that Morris gave him a key to the gate.  He thought it was in 1997, but did not elaborate on the details of the incident. 

            Meyer produced no evidence establishing that he had made any improvements to the adjoining tract after Morris gave him the key to the gate. Indeed, the land did not yet belong to Meyer.  Thus, the third element of detrimental reliance necessary to establish an easement by estoppel was not shown.  See Holden, 929 S.W.2d at 131.

            Further, there is a basic flaw in the reasoning that this incident created an easement.  Whether the year was 1996 as testified to by Morris, or 1997 as testified to by Meyer, Meyer only asked Morris for permission to go onto his aunt’s land, rather than his own land.  The only representation made by Morris to Meyer involving the use of the road over Morris’s land was that he could walk on Maurita Carpenter’s land on that day. Meyer’s land was not involved.  As stated earlier, a basic characteristic of an easement is that it is a burden on one estate of land for the benefit of another estate of land.  Morris’s act of giving Meyer a key could not result in accrual of a benefit in Maurita Carpenter’s land.

            Morris’s act of furnishing the key to Meyer is more in the nature of giving a license in real estate rather than creating an easement.  A license merely confers a privilege to do some act or acts upon the land without conveying any interest in or title to the land itself. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex. App.–El Paso 1993, no pet.).  A license in real estate is revocable at will.  Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex. 1962) .  Morris and Boyd could have changed the locks on the gate at any time.  Morris had made no representation to Meyer that would have required him to give Meyer a new key to the gate.  There is no evidence to establish the elements of an easement by estoppel in favor of Meyer against the Morrises.  See Havner, 953 S.W.2d at 711; Holden, 929 S.W.2d at 131.  The trial court’s conclusion that Meyer acquired an easement by estoppel from Morris’s conduct is erroneous as a matter of law.  See Stockton, 53 S.W.3d at 423.  The Morrises’ first cross-issue is sustained.  We need not address their second cross-issue.  See Tex. R. App. P. 47.1.

Conclusion

            Having overruled the two issues of Carpenter and Meyer and sustained the Morrises’ first cross-issue, the judgment granting the nonexclusive easement by estoppel for Meyer against the Morrises is reversed and a take nothing judgment is rendered for the Morrises against Meyer for all relief requested. The remainder of the judgment is affirmed.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered August 31, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

Hoyle, J., not participating.

(PUBLISH)

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¹ In 1961 R.L. Meyer deeded part of his land to his daughter, Maurita Carpenter.

² The testimony from Carpenter and Meyer was that the road made it easier for them to reach their respective tracts.