Opinion issued December 5, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00993-CV
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SHELDON LINDSAY AND ELAINE LINDSAY, Appellants
V.
WILLIAM REAVES AND LINDA REAVES, Appellees
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Case No. 2006V-0037
MEMORANDUM OPINION
A jury determined that William and Linda Reaves could place a fence and
gates on their property along the easement held by Sheldon and Elaine Lindsay. In
two issues, the Lindsays argue the jury’s determination was legally insufficient
because an implied easement prohibited the construction of the fence and gates.
We affirm.
Background
The Reaveses own property along F.M. Road 2502 in Austin County. The
Lindsays own adjoining property and access F.M. Road 2502 through an easement
along the Reaveses’ property. Both properties were once owned by Everett Luhn,
and the easement was created when he divided and sold the properties. In 2006,
the Reaveses sought to fence and gate their property, including the easement, for
the purpose of raising cattle.
The Lindsays brought suit, seeking a declaratory judgment to prevent the
installation of fences and gates along the easement. The Reaveses counterclaimed,
seeking a declaratory judgment establishing their right to install gates and fences.
The parties filed cross-motions for summary judgment, disputing whether an
express or implied easement prevented the installation of the fence and gates. The
trial court ruled in favor of the Lindsays and the Reaveses appealed. On appeal,
we held that a fact issue existed for both the express and implied easement
theories. 1
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Reaves v. Lindsay, 326 S.W.3d 276, 282–83 (Tex. App.—Houston [1st Dist.]
2010, no pet.)
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We remanded the case, and the matter was brought to trial before a jury.
The jury determined that the Reaveses were permitted to construct fences and gates
along the easement. The Lindsays now appeal.
Legal Sufficiency
In two issues, the Lindsays argue the jury’s determination was legally
insufficient because an implied easement prohibited the construction of the fence
and gates. In their first issue, they argue the trial court should have granted their
motion for directed verdict. In their second issue, they argue the trial court should
have granted their motion for judgment notwithstanding the verdict (JNOV). The
Reavses argue that the Lindsays have waived this issue because the jury was never
asked to consider whether an implied easement prevented the construction of the
fence and gates.
A. Standard of Review
We review a trial court’s ruling on a motion for directed verdict or a motion
for judgment notwithstanding the verdict under a legal-sufficiency standard. City
of Keller v. Wilson, 168 S.W.3d 802, 823–24 (Tex. 2005); City of Houston v.
Proler, 373 S.W.3d 748, 754 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We
must determine whether there is any evidence of probative force to raise a fact
issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co., 140
S.W.3d 681, 684 (Tex. 2004); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 21
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(Tex. App.—Houston [1st Dist.] 2009, pet. denied). In reviewing the sufficiency
of the evidence in support of the judgment, we “must credit favorable evidence if
reasonable jurors could, and disregard contrary evidence unless reasonable jurors
could not.” City of Keller, 168 S.W.3d at 827. “A directed verdict is warranted
when the evidence is such that no other verdict can be rendered and the moving
party is entitled, as a matter of law, to judgment.” B & W Supply, 305 S.W.3d at
21.
A trial court may grant a motion for JNOV if a directed verdict would have
been proper, and it may disregard any jury finding on a question that has no
support in the evidence. TEX. R. CIV. P. 301. In reviewing the rendition of JNOV,
the reviewing court must determine whether there is any evidence upon which the
jury could have made the finding. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.
2003).
B. Waiver
The Lindsays sought to prevent the construction of the fence and gates under
two theories: (1) they were prohibited under the express easement, and (2) they
were prohibited under the implied easement. In our earlier opinion, we held,
“When an express easement is stated in general terms, the easement ‘implies a
grant of unlimited reasonable use such as is reasonably necessary and convenient
and as little burdensome as possible to the servient owner.’” Reaves v. Lindsay,
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326 S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting
Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974)). We also held,
In order to establish an easement by implied grant, the party asserting
its existence must show that (1) there was unity of ownership between
the dominant and servient estate when the two were severed; (2) at the
time the dominant estate was granted, there was apparent use of the
easement; (3) use of the easement before the severance was
continuous, indicating an intent by the owners to pass the easement by
grant with the dominant estate; and (4) the easement must be
reasonably necessary to the use and enjoyment of the dominant estate.
Id. at 283 (citing Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d
916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).
While these inquiries are similar, they focus on different things. Under an
express easement theory, the focus is on the terms of the express easement and a
further implied use is created as is reasonably necessary and convenient for that
express easement. Id. at 282. In contrast, under an implied easement theory, the
focus is on an apparent use that is reasonably necessary to the use and enjoyment
of the dominant estate. Id. at 283.
The only matter submitted to the jury was whether the express easement
allowed or prohibited the construction of the fence and gates along the easement.
The jury instructions included the language of the express easement and asked the
jury to consider the easement’s language in determining whether the fence and
gates could be constructed. The jury was not asked to make any determination on
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any of the elements for implied easement. The Reaveses argue this establishes that
the Lindsays have waived the issue.
Pursuant to Rule 279 of the Texas Rules of Civil Procedure, “[a] claim is not
waived . . . when the evidence conclusively establishes the elements of the offense,
even if none of the elements of the offense is submitted to the jury for
consideration.” Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (citing TEX. R. CIV. P. 279). “Jurors are not
free to reach a verdict contrary to [the] evidence; indeed uncontroverted issues
need not be submitted to a jury at all.” City of Keller, 168 S.W.3d at 814–15.
“Thus, when the evidence conclusively establishes a claim, the claim may be part
of the judgment, even if no jury question on the claim was submitted.” VR Elec.,
Inc., 276 S.W.3d at 677.
Here, the Lindsays moved for a directed verdict and for a JNOV, claiming
that they had established as a matter of law that the fence and gates were prohibited
under an implied easement. This was sufficient to preserve their legal-sufficiency
arguments on appeal. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991).
C. Analysis
To prevail on their implied easement claim, the Lindsays were required to
establish that (1) there was unity of ownership between the dominant and servient
estate when the two were severed; (2) at the time the dominant estate was granted,
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there was apparent use of the easement; (3) use of the easement before the
severance was continuous, indicating an intent by the owners to pass the easement
by grant with the dominant estate; and (4) the easement must have been reasonably
necessary to the use and enjoyment of the dominant estate. Reaves, 326 S.W.3d at
283.
Prior to trial, the parties stipulated to the following:
2. Unity of Ownership. There was unity of ownership between the
Luhn Estate [the relevant portion now owned by the Reaveses] and
the Atkerson Estate [now owned by the Lindsays] when the Atkerson
Estate was severed from the Luhn Estate and the Easement was
created.
3. Use of Roadway at Time Created. At the time and since the time,
the Atkerson Estate was severed from the Luhn Estate, the easement
has been used as a roadway, open and unobstructed without any gates
or cattleguards.
The Lindsays rely on these stipulations along with the testimony of Della Naquin
for their argument that their implied easement claim was established as a matter of
law. Naquin testified that her mother and father-in-law had bought what is now the
Lindsays’ property. The express easement at issue was created with this sale.
Naquin testified that, other than the gate and fence that separates the Lindsays
property from the Reaveses property, there had never been any fence or gate along
the easement. She also testified as follows:
Q. All right. And at that time, was the road necessary to get to the
house?
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A. Yes. That is the only way to get to it.
Even assuming an “apparent use of the easement” can be established by
showing the absence of certain improvements, we hold that the record does not
establish as a matter of law the existence of the implied easement the Lindsays
assert. The Lindsays argue that the implied easement prohibits fences, gates, or
other obstructions being placed on or along the road. They have presented no
evidence, however, that an easement prohibiting fences or gates is “reasonably
necessary to the use and enjoyment of the dominant estate.” Reaves, 326 S.W.3d
at 283. Naquin testified that the road was necessary for the use and enjoyment of
the dominant estate. That is not in dispute, however. The road is part of the
express easement, not the implied easement the Lindsays claim to exist. Naquin
did not testify that the lack of fences or gates was necessary for the use and the
enjoyment of her parents’ property.
We overrule the Lindsays’ two issues.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
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