dissenting.
Because the record in this case does not contain any evidence that an easement was “necessary” at the time of the severance by partition in 1925—much less conclusive evidence of this essential element of the Sisters’ cause of action—I must respectfully dissent to the majority’s judgment reversing the trial court’s judgment and rendering judgment in favor of the Sisters.
Procedural Background
At the Sisters’ request, the trial court filed findings of fact and conclusions of law in support of its judgment. In its conclusions of law, the trial court ruled the Sisters had not carried their burden of proving that “the necessity existed at the time of the severance....” Although the Sisters requested additional and amended findings, they did not ask the court to find that Texaco did not have any legal access to Tract 19 at the time of the severance.
*633Necessity at the Time of Severance
The Sisters seek an easement of necessity through an implied reservation in Texaco’s conveyance of its undivided interest in Tract 18 to the Ellisons’ predecessor in title. See Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, 167 (1952) (implied grant “in favor of parcel granted,” while implied reservation “in favor of one remaining in ownership of grantor”). Therefore, the Sisters bore the burden of proving not only unity of ownership and present necessity but also “historical necessity,” ie., an easement was necessary at the time of the severance. Id.; see also Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944). An easement of necessity through an implied reservation is necessary only when the claimant has no other legal access from his property to a public road. Bains, 182 S.W.2d at 399-400. Necessity is a mixed question of “law and fact and accordingly for the factfinder in the ordinary case.” Mitchell, 246 S.W.2d at 168.
Standard of Review
My first point of disagreement with the majority’s opinion is its statement that “[wjhether the Sisters are entitled to an easement by necessity is a question of law,” reviewable de novo.
As expressly stated in Mitchell, whether an easement is “necessary” is a mixed question of “law and fact and accordingly for the factfinder in the ordinary case.” Mitchell, 246 S.W.2d at 168. Therefore, if a jury finding of necessity is not supported by any probative evidence, a judgment in the plaintiff’s favor must be reversed and a judgment in favor of the defendant rendered, unless the interest of justice dictates a remand for a new trial. Id. at 169.
The fact finder in Mitchell was a jury, while the fact finder in this case was the trial court. However, this distinction does not affect the applicable standard of review for two reasons. First, a trial court’s findings are governed by the same standards for sufficiency review as those that govern jury findings. E.g., Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Second, the erroneous designation of a finding of fact as a conclusion of law is not controlling on this court. E.g., Ray v. Farmers State Bank, 576 S.W.2d 607, 608 n. 1 (Tex.1979).
In this case, therefore, the trial court’s conclusion that the Sisters faded to carry their burden of proving historical necessity should be treated as a finding of fact and subjected to the same sufficiency standards of review applied to jury findings. However, because the fact finder in this case concluded the Sisters did not carry them burden of proving historical necessity, unlike in Mitchell, the standards to be applied are those applicable to a jury’s refusal to find an essential fact in favor of the party with the burden of proving that fact, i.e., a “non-finding.” See generally, W. Wendall Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary’s L.J. 1041, 1135-36, 1138-39 (1993).
In short, for the Sisters to obtain a reversal of the trial court’s judgment, they must demonstrate that at least one of the trial court’s “non-findings” is “so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.” Id. To obtain a rendition of judgment in their favor, the Sisters must demonstrate they proved each of the elements of their cause of action as a matter of law. Id.
Necessity at the Time of Severance
My second point of disagreement with the majority’s opinion is its statement that the Sisters met their burden of proving historical necessity because the undisputed evidence establishes that, at the time of the severance, “[Tjract 19 could not be accessed from a public road without an easement over [Tjract 18.” This may well be true. But it is immaterial. The test, as set forth in Bains, is not whether the Sisters had access to their land from a public road but whether, at the time of the severance in 1925, Texaco had any legal and not merely permissive right “to pass over any of the surrounding tracts, whether by prescription, necessity, or other-wise_” Bains, 182 S.W.2d at 399; see, e.g., Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 643 (1958); Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950); Payne v. Edmonson, 712 S.W.2d 793, 796 (Tex. *634App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.); Ward v. Slavecek, 466 S.W.2d 91, 92-98 (Tex.Civ.App.—Waco 1971, no writ); Grobe v. Ottmers, 224 S.W.2d 487, 488-89 (Tex.Civ.App.—San Antonio 1949, writ ref'd n.r.e.); see also Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex.1966) (explaining that way of necessity denied in Duff and Othen because plaintiffs had other legal access to their property). And, as to this essential element of their cause of action, the Sisters introduced no evidence. There is, therefore, no basis for reversing the trial court’s judgment, much less rendering judgment in favor of the Sisters.
For these reasons, I would affirm the trial court’s judgment and must respectfully dissent.