Ferrara v. Moore

BAILEY C. MOSELEY, Justice,

concurring and partial dissenting.

I concur in part and dissent in part with the majority opinion. My dissent is restricted to the finding that Ferrara does not possess the right to erect a gate or gates across the easement itself.8

*498Both the dominant tract owned by the Moores and the subservient tract owned by Joseph Ferrara were originally parts of a called 111.29-acre tract which belonged to Brian Hayes and wife, Donna Hayes, and James Watson and wife, Rebecca Watson (“Hayes, et al”). Hayes, et al. made four conveyances on August 1, 1984, out of the 111.29-acre tract to the Texas Veterans Land Board. Among these conveyances was the tract which eventually came to be owned by Ferrara.9 The portion of the tract which remained after those four conveyances is the one sold twenty-five years later to the Moores.

Each of these conveyances followed the same format. Each makes reference to an “Exhibit A” for the description of the property to be conveyed. These deeds each also recite,

[T]here is also conveyed to Grantee, its successors and assigns, a non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed and described herein. This access easement is more particularly described in Exhibit “B” which is attached hereto and made a part hereof for all purposes.

Within each of those exhibit Bs, after the description of the easement being conveyed, they continue by stating — seemingly almost as an afterthought — that the tract being conveyed is “subject to the following described easement” followed by a metes and bounds description of the portion of the conveyed tract which is subject to an easement. No purpose for the easement is recited and no further description of the rights granted or retained is contained in the documents.10

An easement is an interest in real estate that authorizes the holder of the dominant estate to use property for a particular purpose. Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (citing Marcus Cable, 90 S.W.3d at 700). The meanings of easements are interpreted in the same fashion and under the same basic principles that are applied to the construction of a contract. Marcus Cable, 90 S.W.3d at 700; DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 100 (Tex.1999); Koelsch, 132 S.W.3d at 497. “When a contract is not ambiguous, the construction of the written instrument is a question of law for the court.” MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex.1999). “The primary con*499cern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous.” Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). Accordingly, the intent of the parties, as expressed in the grant, determines the scope of the interest conveyed. Marcus Cable, 90 S.W.3d at 700-01; Koelsch, 132 S.W.3d at 497-98. To interpret the parties’ intentions adequately and to discern the scope of the rights conveyed to the easement holder, one must focus on the terms of the granting language. See Marcus Cable, 90 S.W.3d at 701 (citing Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664-65 (Tex.1964)). An easement “should be interpreted to give effect to the intention of the parties ascertaining from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.” Id. We rely solely on the written terms of the easement unless the language is ambiguous. Koelsch, 132 S.W.3d at 498. When the terms of the grant of an easement are not defined, we are to apply their “plain, ordinary, and generally accepted meaning.” Marcus Cable, 90 S.W.3d at 701. The rules regarding construction of deeds generally apply in the construction of easements. Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 149 n. 3 (Tex.App.-Austin 1998, no pet.).

Any grant of an easement necessarily carries with it the right to do such things as are reasonably necessary for the full enjoyment of the easement granted. Harris v. Phillips Pipe Line Co., 517 S.W.2d 361 (Tex.Civ.App.-Austin 1974, writ ref'd n.r.e.). We must take into account that

[ejvery easement carries with it the right of doing whatever is reasonably necessary for the full enjoyment of the easement itself. Extent of such incidental rights depends upon the purpose and extent of the grant itself. Such right is limited and must be exercised in such a reasonable manner as not injuriously to increase the burden upon the owner of the fee. Nothing passes by implication as incidental to a grant except what is reasonably necessary to its fair enjoyment. What is reasonably necessary for the full enjoyment of the easement will be determined by a construction of the language of the express grant, considered in the light of the surrounding circumstances.

Bland Lake Fishing & Hunting Club v. Fisher, 311 S.W.2d 710, 715-16 (Tex.Civ.App.-Beaumont 1958, no writ) (emphasis added).

How could the prohibition against gates being installed at the entrance and exit of the roadway across Ferrara’s land increase the burden on the subservient estate? The tract imposed with the easement (i.e., the subservient estate) here is not a small residential building lot but is, rather, rural acreage. One would expect that one of the uses to which people could be commonly expected to place such acreage tracts is the pasturage of livestock. Should Fer-rara (or some subsequent owner of the tract) desire to raise livestock but is prohibited from erecting gates where the easement enters and exits his property, he may well be required to either fence off the entire easement property from the balance of the tract (which would effectively deny the owner of the subservient estate from the reasonable use of the portion of the tract subject to the easement) or go to the expense of installing and maintaining cattle guards on the roadway easement. Given the paucity of direction in the wording of the easement itself, such a requirement would unreasonably burden the own*500er of the subservient estate.11 Granted, there is no evidence that such pasturage use is now intended or that a future owner has such use in mind, but that lack of evidence is irrelevant; this example is employed solely to demonstrate that the prohibition against gates does increase the burden on the subservient estate. If the lack of evidence of that potential intended use is important, it would likewise be important that there is no evidence of the existence or nonexistence of gates on the roadway at the time the easement was created. Such evidence of either situation is not relevant to a determination of the rights granted under the easement. What is important is what the easement says.

The Moores rely on (and the majority cites) Gerstner v. Wilhelm, 584 S.W.2d 955, 957 (Tex.Civ.App.-Austin 1979, writ dism’d), for the proposition that the trial court had the authority to enjoin Ferrara from putting gates across the easement as it enters and exits his property. However, in contrast to the easement the Moores claim here, the easement in Gerstner called for “the free and uninterrupted use, liberty and easement of passing in and along a certain passageway or road across the said premises ... and being 40 feet in width and to use such passageway or road at all times in common with the Grantee .... ” Id. This case is distinguishable from Gerstner in two respects: (1) in this case, there was no such expansive or delineated grant of rights in the easement as in Gerstner, and (2) unlike this case, Gerstner dealt with an ambiguous grant of easement. In Gerstner, the trial judge provided an instruction to the jury (not quoted in the opinion) as to the meaning of “free and uninterrupted.” The opinion in Gerstner does recite that, “Because of the language of the easement and the factual circumstances surrounding the grant, the court properly entered judgment that Gerstner remove the fences and gates.” Id. at 959 (emphasis added). Since the issue of the easement was submitted to the jury in the Gerstner case to make factual determinations, it must have been deemed to have been an ambiguous grant because juries have no role in ruling on issues of law. In the circumstance in which there is an ambiguity, any such ambiguity is to be resolved against the grantor. Dwyer, 374 S.W.2d at 665. Further, where an instrument is capable of two reasonable constructions, it will be strictly construed against the author. Harris, 517 S.W.2d at 364. Here, the Moores stand in the shoes of Hayes, et al., the drafter of the easement.

One should point out that in the case at bar here, neither side alleges that any ambiguity exists in the grant of the easement. Under contract law (which, as pointed out above, applies as to easements), if ambiguity of the instrument is not pled, then its construction is solely a question of law and not of fact; questions of law are reviewed de novo. Eastman Software, Inc. v. Tex. Commerce Bank, Nat’l Ass’n, 28 S.W.3d 79, 84 (Tex.App.-Texarkana 2000, pet. denied).

Because the grant is in general terms, the grantees’ dominant estate is entitled only to rights sufficient to effect the purpose of the easement. See Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974). As to implication of easement rights not specifically granted by the instrument creating the easement, a court can “imply *501only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman, 514 S.W.2d at 903). “Nothing passes by implication as incidental to a grant of an easement except what is reasonably necessary to its fair enjoyment.” Kearney & Son v. Fancher, 401 S.W.2d 897, 903 (Tex.Civ.App.-Fort Worth 1966, writ ref'd n.r.e.).

The Moores brought this suit and it was their burden to provide evidence to support each portion of their claim. Although they fully established their right to an easement, they failed to provide evidence that fully-aceessible gates could not be erected across it. To imply that the easement which the Moores own dictates that there be a prohibition against gates (to which the Moores would have full access) erected across it is to violate the constraint against imposing a greater burden than is reasonably necessary to effect the ingress and egress purposes of the easement.

The easement here does not specifically grant the dominant estate the right to an easement “free and uninterrupted” by gates. The grant provides only for ingress and egress to the dominant estate. To find a grant of unrestricted passage, therefore, it would be necessary to read terms into the four corners of the document which do not exist (i.e., the right to drive a car the length of the easement without having to get out and open a gate); this cannot be done under the circumstances of this case. See id.; Marcus Cable Assocs., 90 S.W.3d at 700; Koelsch, 132 S.W.3d at 498.

Accordingly, I believe the trial court erred in enjoining Ferrara from erecting gates on the easement so long as the owner of the Moores’ tract were given access rights through those gates.

. When looking at the final judgment granted by the trial court, it is necessary for the pur*498pose of this dissent to presume certain things. The judgment states that it finds that an easement exists over and across the real estate described on Exhibit "A" as an easement appurtenant to the realty described in Exhibit “B.” Neither such exhibit was attached to the judgment. It is assumed that Exhibit "A” was supposed to be a description of the portion of a roadway which traveled across the tract of land belonging to Ferrara and that Exhibit “B” was supposed to contain a description of the land acquired by the Moores.

. The fifth and final tract remained owned by Hayes, et al. until it was sold by them to the Moores in 2009. During the intervening period, Hayes, et al. sold rocks and gravel from the remaining tract.

. In challenging the right of the Moores to cross his land, Ferrara puts himself in much the same position of the man who cuts off the limb upon which he is standing. In order for Ferrara to gain access to a public road, Fer-rara must rely on easements across two other tracts of land created by deeds almost identical to the one upon which the Moores rely in attempting to establish their right of way over Ferrara's lands. Had Ferrara been successful in combating the Moores' attempt to enforce the easement, he would have been hard pressed to insist that the easement granting him access over his neighbors' property was effective to grant him access to his own tract. “What is sauce for the goose is sauce for the gander.” Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 451 (Tex.1998).

. In this day of the automobile, when one need not leave their car to purchase food to eat or obtain money from our banks (and by some news accounts, even to be married), we tend to think that it is necessary for us to do everything from our automobiles. I maintain, however, that it is not unreasonable to exit from an automobile and open a gate. Doing everything from the confines of our cars falls among the luxuries of our society.