Bobby Holly and Dolores Holly v. Newberry Ranches of Texas LLC

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-20-00572-CV

Bobby HOLLY and Dolores Holly,
Appellants

v.

NEWBERRY RANCHES OF TEXAS LLC,
Appellee

From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 34257
Honorable Enrique Fernandez, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice

Delivered and Filed: August 31, 2022

REVERSED AND REMANDED

This appeal involves a dispute over access to a road in Val Verde County. Appellants, the

Hollys, appeal a final judgment rendered by the trial court, declaring a road through their property

abutting appellee Newberry Ranches of Texas LLC’s property, is a public road and Newberry

Ranches has an easement over the road. The Hollys argue the trial court erred by (1) granting

summary judgment in Newberry Ranches’ favor because fact issues remain regarding whether the

road is a public road and Newberry Ranches has an easement over the road, and (2) granting

Newberry Ranches’ attorney’s fees and costs along with a permanent injunction in its final
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judgment. The trial court’s judgment is reversed, the injunction is dissolved, and the case is

remanded to the trial court for further proceedings consistent with this opinion.

BACKGROUND

The Hollys own approximately 1,500 acres in Val Verde County, which they acquired

through two warranty deeds in 2004 and 2005. Both deeds reference, in their metes and bounds

description, a “county-maintained gravelled road” known as Pumpville-Langtry Road—also

known as Arledge Road. 1 In 2012, the Hollys protested the inclusion of Arledge Road in the Val

Verde County road map. That same year, a jury of view report declared Arledge Road was not a

county road and recommended removing it from the county road map. 2 The Val Verde County

Commissioner’s Court adopted this report and ordered Arledge Road removed from the county

road map. In mid-2017, Newberry Ranches purchased an approximately 10,000-acre ranch in Val

Verde County from Leanne and William H. Higgins. This ranch abuts Arledge Road.

In November 2018, Newberry Ranches sued the Hollys seeking, among other things, a

declaratory judgment from the trial court, declaring Arledge Road a public road and Newberry

Ranches has a residual easement over the road. The Hollys maintained locks on the road granting

access to neighbors, including Newberry Ranches. Newberry Ranches, however, alleged the

Hollys changed those locks in early November 2018 and did not provide Newberry Ranches a key

to the new locks. Newberry Ranches further claimed the road is its primary means of access to the

ranch. Shortly after filing suit, Newberry Ranches was granted a temporary restraining order, and

the Hollys were ordered to remove the locks on the road. The trial court granted Newberry Ranches

1
Because the parties use Arledge Road, we will refer to the road as Arledge Road.
2
A jury of view “consist[s] of five property owners who have no interest in the outcome of the protest to determine,
by a majority vote after a public hearing and an examination of the county’s road maintenance records and other
information, the validity of the county’s claim of the existence of a public interest in the road.” TEX. TRANSP. CODE
§ 258.002(b).

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a temporary injunction the following month enjoining the Hollys from restricting access to the

road without providing Newberry Ranches with combinations or keys to the locks.

Newberry Ranches moved for traditional summary judgment in 2019, seeking a declaration

Arledge Road is a public road, and it has a residual easement as an abutting landowner to this road.

The trial court granted Newberry Ranches’ motion, declared Arledge Road a public road and

Newberry Ranches has a residual easement over the road, and permanently enjoined the Hollys

from barring Newberry Ranches’ use of the road. Following a bench trial, the trial court also

granted Newberry Ranches $62,234.66 in attorney’s fees and costs.

This appeal followed.

THE STATUS OF ARLEDGE ROAD

The Hollys argue the trial court erred when it granted summary judgment for Newberry

Ranches because genuine issues of material fact exist as to whether Arledge Road is a public road.

Newberry Ranches argues it conclusively established Arledge Road is a public road because it

showed there was an implied dedication of the road for public use, and the Hollys did not raise a

fact issue about whether Arledge Road is a public road.

A. Standard of Review

We review the trial court’s order granting summary judgment de novo. Energen Res. Corp.

v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022) (internal quotation marks omitted). To prevail on a

motion for traditional summary judgment, the movant must show no material fact issues exist and

it is entitled to judgment as a matter of law. Rosetta Res. Operating, LP v. Martin, No. 20-0898,

2022 WL 1434662, at *3 (Tex. May 6, 2022) (citing TEX. R. CIV. P. 166a(c)). We take as true all

evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts

in the nonmovant’s favor. Energen, 642 S.W.3d at 509 (internal quotation marks omitted).

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B. Dedication of Public Roads

A public road may be established by dedication of a private road for public use. Mattox v.

Grimes Cty. Commissioners’ Ct., No. 01-14-00535-CV, 2015 WL 5076291, at *6 (Tex. App.—

Houston [1st Dist.] Aug. 27, 2015, pet. denied) (mem. op.). “Whether a road has been dedicated

for public use is a question of fact.” Hayes v. Anderson County, 315 S.W.3d 170, 174 (Tex. App.—

Tyler 2010, pet. denied). Dedication may be established by common law or by statute. Mattox,

2015 WL 5076291, at *6 & n.11. “Common law dedications can be either expressed or implied.

An implied dedication occurs when there is some act or course of conduct from which the law will

imply an intent to dedicate the land.” Hayes, 315 S.W.3d at 173 (citation omitted).

To demonstrate an implied dedication, a party must show (1) a competent landowner’s acts

induced a belief they intended to dedicate the road to public use, (2) the public relied on those acts

and will be served by the dedication, and (3) there was an offer and acceptance of the dedication.

Tice v. Hunt, No. 11-08-00099-CV, 2010 WL 1948602, at *3 (Tex. App.—Eastland May 13, 2010,

no pet.) (mem. op.); see Shelton v. Kalbow, 489 S.W.3d 32, 44 (Tex. App.—Houston [14th Dist.]

2016, pet. denied). A party contending there was an implied dedication must present some

evidence to support each element. County of Real v. Sutton, 6 S.W.3d 11, 14 (Tex. App.—San

Antonio 1999, pet. denied). The owner’s donative intent “may not be inferred from evidence that

shows only that the public used the road for a long time without [the owner’s] objection.” Payne

v. Doty, No. 11-10-00181-CV, 2011 WL 6260370, at *2 (Tex. App.—Eastland Dec. 15, 2011, no

pet.) (mem. op.); see Tice, 2010 WL 1948602, at *3 (“Generally, one must show more than an

owner’s omission or failure to act or acquiesce in order to show donative intent.”); see also Mattox,

2015 WL 5076291, at *6 (“The preparation and recordation of a map or plat showing streets or

roadways does not, standing alone, constitute a dedication as a matter of law.”).

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However, if “the origin of the land use and the ownership of the land at the time it

originated cannot be shown, one way or the other, due to the lapse of time,” then “evidence of long

and continued use by the public raises a presumption of dedication by the owner.” Payne, 2011

WL 6260370, at *2; see Hayes, 315 S.W.3d at 174. But “[t]here must be some evidence of an

additional factor that implies a donative intent when considered in light of the owner’s

acquiescence in the public’s use of the roadway.” Hayes, 315 S.W.3d at 174. This evidence may

include, among other things, (1) permitting public authorities to grade, repair, or otherwise

improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a

means of access to the parcels; (3) an express representation by the owner of a road to a land

purchaser that the road is reserved for public use; or (4) fencing off the roadway from the remainder

of the land. Scown v. Neie, 225 S.W.3d 303, 310 (Tex. App.—El Paso 2006, pet. denied); see Tice,

2010 WL 1948602, at *3.

Beginning August 31, 1981, the legislature abolished the common law implied dedication

as a means of establishing a particular road traversing private property was indeed a public road.

Tice, 2010 WL 1948602, at *3 n.1. “However, the statute was not made retroactive.” Id.

C. Application

As indicated above, Newberry Ranches argues Arledge Road was made a public road by

implied dedication, and the Hollys contend there is a fact issue as to whether there was an implied

dedication of Arledge Road. To determine whether Newberry Ranches is correct and taking into

consideration the legislature’s abolishment of the common law implied dedication doctrine, we

must decide whether the summary judgment evidence conclusively shows Arledge Road was

impliedly dedicated to the public prior to August 31, 1981. See id.

In support of their motion for summary judgment, Newberry Ranches did not present any

evidence demonstrating the origin of the land use or road or that it could not show its origin “due

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to the lapse of time.” See Payne, 2011 WL 6260370, at *2; Tice, 2010 WL 1948602, at *3; cf. Steel

v. Wheeler, 993 S.W.2d 376, 379 (Tex. App.—Tyler 1999, pet. denied) (concluding evidence in

record demonstrated origin of road could not be shown due to lapse of time where witnesses could

not testify as to who owned property when public use began). Instead, Newberry Ranches

presented the following evidence of the road’s “long and continued use” before 1981. Val Verde

County Commissioner Gustavo Flores stated in a 2012 affidavit he had personal knowledge of the

road dating back to 1979, and to his knowledge, it was never a county road. Newberry Ranches

also included a hearing transcript of Flores’s testimony during the injunction hearing. During the

hearing, Flores testified, after reviewing post-1981 county maps, the road had been a public road.

On cross-examination he testified what he meant was Arledge Road is “a public road within the

property owners.” He did not clarify what that meant. In an affidavit, Billy R. Foster—a person

who worked in Val Verde County for sixty years and was personally familiar with the road—stated

he, as well as the public, considered Arledge Road a public county road. The predecessor-in-

interest to Newberry Ranches’ ownership interest in property abutting Arledge Road—Leanne

Higgins—asserted she had been familiar with the road since 1968 and stated Arledge Road was a

county road.

At most, this evidence constitutes conclusory assertions, and other than these conclusory

assertions, there was no evidence of long and continued use before 1981. See Mercer v. Daoran

Corp., 676 S.W.2d 580, 583 (Tex. 1984) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112

(Tex.1984)); cf. Payne, 2011 WL 6260370, at *2 (concluding evidence in record demonstrated

road was public road with long and continued use including evidence of use of road for over

century, title insurer’s familiarity with road beginning in 1965, late 1940s map, county

commissioners meeting minutes dating back to 1888 recognizing road as public road and

appropriating money for road maintenance). Because Newberry Ranches did not meet its burden,

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no presumption of an implied dedication applies to the road. See Hayes, 315 S.W.3d at 174; cf.

Payne, 2011 WL 6260370, at *2; Steel, 993 S.W.2d at 379.

Even assuming the presumption applied, Newberry Ranches was required to prove an

additional factor that implied a donative intent, such as permitting public authorities to grade,

repair, or otherwise improve the roadway. See Scown, 225 S.W.3d at 310. Foster stated the road

was previously maintained by the county, and he personally witnessed maintenance conducted on

it “as far back as 1960.” Higgins explained she personally observed maintenance performed on the

road “as far back as 1971.” However, Flores stated in his affidavit Arledge Road was not regularly

or routinely maintained by the county. Newberry Ranches also included as evidence the 2012 Val

Verde County Commissioners’ Order adopting the jury of view’s report. In its report, the jury of

view denied Arledge Road was a county road and removed it from the County Road Map. The

adopted report provided the basis for its decision as “a failure of Val Verde County to establish

continuous maintenance of said road by beginning before September 1, 1981.”

Because we must take as true all evidence favorable to the nonmovant, indulge every

reasonable inference, and resolve any doubts in the nonmovant’s favor, Newberry Ranches failed

to establish there was no material fact issue as to an additional factor that implied a donative intent.

Accordingly, Newberry Ranches failed to establish there was no material fact issue as to donative

intent, and therefore failed to establish it was entitled to judgment as a matter of law based on

Arledge Road being a public road by implied dedication. Because Newberry Ranches failed to

establish Arledge Road is a public road by implied dedication, the trial court’s order granting

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Newberry Ranches summary judgment on its declaratory judgment claim that Arledge Road is a

public road was rendered in error. 3

EASEMENT OVER ARLEDGE ROAD

The Hollys argue fact issues exist on Newberry Ranches’ claim of the road as a “residual”

easement. Newberry Ranches argued, in the alternative, it conclusively established it had a residual

easement permitting access to and use of the road because it purchased its ranch abutting the road

and therefore acquired a property interest in it.

“Unlike a possessory interest in land, an easement is a nonpossessory interest that

authorizes its holder to use the property for only particular purposes.” Ohio Dev., LLC v. Tapatio

Springs Homeowners Ass’n, No. 04-18-00523-CV, 2019 WL 6333474, at *2 (Tex. App.—San

Antonio Nov. 27, 2019, pet. denied). “An easement may also be created by the purchase of land

with reference to a map or plat showing abutting roads or streets.” 4 Id. (internal quotation marks

omitted); see State v. Delany, 197 S.W.3d 297, 299 (Tex. 2006) (“Texas has long recognized that

property abutting a public road has an appurtenant easement of access guaranteeing ingress to and

egress from the property.”). “Nevertheless, an easement may not create a right or interest in a

grantee’s favor which the grantor himself did not possess.” Tapatio Springs, 2019 WL 6333474,

at *2 (internal quotation marks omitted) see id. (“It is elementary that one corporation cannot

dedicate land owned by another or grant easements over land not owned by it.” (internal quotation

marks omitted)); see also Delany, 197 S.W.3d at 299 (“However, easements of access do not

guarantee access to any specific road absent a specific grant.” (internal quotation marks omitted)).

3
Because Newberry Ranches failed to establish there was no material fact issue as to whether Arledge Road was a
public road, we need not consider whether the road was abandoned or whether Newberry Ranches is barred by res
judicata or the statute of limitations from challenging the commissioner’s court’s findings. See TEX. R. APP. P. 47.1.
4
Newberry Ranches uses the term “residual easement” to describe this easement.

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Because we have concluded a material fact issue exists regarding whether Arledge Road is

a public road, the only remaining issue is whether Newberry Ranches obtained some other type of

easement appurtenant over the road when it acquired the property. Newberry Ranches’ contention

is its easement over Arledge Road is created by its purchase of its ranch with reference to a map

or plat showing its property abutting Arledge Road, the road is a public road, and this easement

transferred from the Higgins to Newberry Ranches when it purchased the property in 2017. 5

Newberry Ranches did not contend the Hollys provided the easement or Higgins with an express

easement appurtenant. 6 Nor does it contend its easement was created by implication, necessity,

estoppel, or prescription. 7 See, e.g., Progressive Cty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921

(Tex. 2005) (“summary judgment cannot be affirmed on grounds not raised in the trial court”).

Because Newberry Ranches failed to carry its burden of establishing there was no genuine issue

as to any material fact on whether Arledge Road is a public road by implied dedication, it is not

entitled to judgment as a matter of law on its declaratory judgment claim that it had a residual

easement over Arledge Road. See Rosetta, 2022 WL 1434662, at *3; TEX. R. CIV. P. 166a(c).

In sum, we reverse the trial court’s grant of summary judgment in favor of Newberry

Ranches and remand the case to the trial court for further proceedings consistent with this opinion.

PERMANENT INJUNCTION AND ATTORNEY’S FEES

Because we reverse the trial court’s summary judgment for Newberry Ranches and remand

for further proceedings, we also dissolve the permanent injunctive relief granted in support of the

trial court’s grant of summary judgment in favor of Newberry Ranches. See, e.g., BCH Dev., LLC

5
Newberry Ranches does not contend the road is its sole means of access to the ranch only its “primary access.”
6
Newberry Ranches focused the remainder of its argument on its contention that Arledge Road was not abandoned in
2012 by order of the Val Verde County Commissioner’s Court.
7
In fact, Newberry Ranches specifically denied it made any argument in its traditional motion for summary judgment
it had an easement by implication or necessity.

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v. Lakeview Heights Addition Prop. Owners’ Ass’n, No. 05-17-01096-CV, 2019 WL 2211479, at

*12 (Tex. App.—Dallas May 21, 2019, pet. denied) (mem. op.) (reversing summary judgment and

dissolving injunction granted on summary judgment); Zgabay v. NBRC Prop. Owners Ass’n, No.

03-14-00660-CV, 2015 WL 5097116, at *3 (Tex. App.—Austin Aug. 28, 2015, pet. denied) (mem.

op.) (same). Likewise, we reverse the trial court’s award of attorney’s fees and costs in favor of

Newberry Ranches and remand the issue of attorney’s fees and costs for further proceedings. See,

e.g., BCH, 2019 WL 2211479, at *12 (reversing summary judgment and reversing award of

attorney’s fees and remanding issue for further proceedings); Zgabay, 2015 WL 5097116, at *3

(same); Friedman v. Atl. Funding Corp., 936 S.W.2d 38, 42 (Tex. App.—San Antonio 1996, no

pet.) (“Since we hold that the trial court improperly granted [] summary judgment, we also reverse

the trial court’s award of attorney’s fees.”).

CONCLUSION

The trial court’s judgment granting Newberry Ranches’ summary judgment motion and

awarding it attorney’s fees is reversed, the permanent injunction is dissolved, and the case is

remanded to the trial court for further proceedings consistent with this opinion.

Luz Elena D. Chapa, Justice

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