dissenting.
Deducing that there is no more than a scintilla of evidence to support the jury’s finding of an equitable easement, I respectfully dissent. I would sustain the Wallaces’ properly preserved first point of error, reverse the trial court’s judgment, and render judgment that the McKinzies take nothing by their action.
The judgment decreeing the McKinzies’ equitable easement is founded upon the jury’s 10 to 2 answer to the submitted third question, which is reproduced in the majority opinion and need not be repeated here. The submission apparently was patterned after, but not in complete conformity with, the doctrine of estoppel in pais as applied to easements involving land in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962). Generally, the doctrine operates to estop a landowner from denying the existence of an easement on his property when he has made a representation granting, or confirming the existence of, an easement to another who believed the representation and relied upon it to his detriment. Id. at 209, 211; Storms v. Tuck, 579 S.W.2d 447, 451-52 (Tex.1979).
In support of the theory of easement by estoppel, A.D. McKinzie testified that he had a conversation with Bert Wallace, the Wallace children’s grandfather, about the roadway; but, by using a motion in limine and timely trial objections, the Wallaces prevented the jury from hearing the words of the conversation which, the McKinzies candidly concede, were hearsay.1 McKinzie acknowl*599edged that he believed what he was told.2 After the conversation, McKinzie cut brush, tried to keep water from running down the road, and made improvements to his property. At some undesignated time and place, he also reached an agreement with Bilby Wallace, the Wallace children’s father, to interlock two locks placed on the gate across the county road at the eastern boundary of section 43, because “they have to use it and we have to use it.”
Using the first of their four points of error to contend the evidence was legally insufficient to support the jury’s affirmative finding of an equitable easement, the Wallaces assert no evidence exists that any representation was made to the McKinzies, or upon which they relied to their detriment. In presenting the point, the Wallaces recognize that it is sustainable only if the evidence and reasonable inferences supporting the answer, viewed in its most favorable light, amounts to nothing more than a scintilla. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). Evidence offered to prove a vital fact amounts to no more than a scintilla, and in legal effect is no evidence, when it is so weak that it merely creates a mere surmise or suspicion of the existence of the fact sought to be proved. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
Of course, the burden of proving an estop-pel and the essential elements thereof is on the party asserting it, and the failure to prove any one or more of the elements is fatal. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834, 838 (Tex.1968). The testimony of AD. McKinzie furnishes the only evidence of the representation element of equitable estoppel submitted to the jury. His testimony of and references to the representation were recorded, except for the intervening objections, rulings, a reiterated question, and unreferenced questions and answers, in this order:
Q (by the McKinzies’ counsel) Now, I’m not asking you the words spoken, but did you have a conversation with Mr. Bert Wallace about the roadway?
⅜ ‡ ⅜ ⅝: ⅛: ⅜
A (by AD. McKinzie) Yes.
Q Okay. And after that conversation, what did you do then?
A Well, I went ahead with my chores and cut brush and tried to keep the water from running right down the road.
⅜ ⅜ ⅜ ⅝: ⅝ #
Q All right. Now following that time, did you also make improvements to your property?
A Yes.
⅝ ⅜ ¾: ⅜ ⅜ ⅜
Q Well, whatever was said to you by Mr. Wallace in your mind, not the words said, but did you believe what was told you?
A Yes.
Admittedly, no other testimony illuminates the conversation between A.D. McKinzie and Bert Wallace.
At least since 1875, a parol representation creating an easement by estoppel in pais requires the grant of a right to such easement in the owner’s land. Harrison v. Boring, 44 Tex. 255, 267-68 (1875). However, in the present cause, a different representation, viz., “that certain rights exist to use the landowner’s property,” was submitted to the jury and, absent an objection to the form of the submission, this representation binds the parties. Allen v. American National Insurance Company, 380 S.W.2d 604, 609 (Tex.1964). Thus, the submitted representation is the one subjected to the no evidence contention.
Nevertheless, the bare “conversation with Mr. Bert Wallace about the roadway” neither evidences nor produces a legitimate inference “that certain rights exist to use the landowner’s property” so as to create an equitable easement in the 400-yard road. Without more, the substance of the unexplained “conversation ... about the roadway,” rather *600than being the grant of the alleged easement, could as reasonably have been the condition of the road, or some aspect of it. Or, more reasonably, the conversation about the roadway could have concerned the continued permissive use of the road by the McKinzies. That reasonable interpretation of the conversation at least has some support in the record, for Bert Carol Wallace testified that the road is used by the Wallaces to check on their fences, by hunters he has allowed in there, and by the McKinzies, the people working for them and hunters to whom they had given permission. He said, “The use has been permissive all these years,” but he was not willing to give the McKinzies an easement. Conformably, A.D. McKinzie testified that both he and the Wallaces used the road, and his use was not hostile to the Wallaces. Of course, use of the roadway by the McKin-zies and their invitees does not estop the Wallaces to deny the existence of the alleged easement. Haskins v. Winters, 641 S.W.2d 603, 607 (Tex.App.—Dallas 1982, writ ref'd n.r.e.).
Obviously, as the foregoing discussion illustrates, the testimony of the “conversation with Mr. Bert Wallace about the roadway” does no more than raise a surmise or suspicion of the substance of the conversation. As such, under the authorities previously cited, it is, in legal contemplation, no evidence of a grant of certain rights in the roadway which would constitute an easement by estoppel. The wise policy of the law does not permit a citizen to be deprived of his property upon mere surmise or suspicion. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898).
To sustain the jury’s finding of an equitable easement, the majority relies most heavily on the Wallaces “permissive and acquiescing behavior” — i.e., they never objected to the McKinzies’ use of the road for seventy years, and never told the McKinzies they could not use the road — as legally sufficient evidence to support the jury’s finding that the Wallaces made a representation to the McKinzies that certain rights exist to use the Wallaces’ property. However, the McKin-zies’ claim of an easement was neither submitted to the jury, nor defended on appeal, on the theory of the Wallaces’ permissive and acquiescing conduct; rather, the claim was submitted to the jury, and defended on appeal, on the theory of a representation that certain rights exist to use Wallaces’ property.
Moreover, without more than a “conversation ... about the roadway,” the conduct of the Wallaces before and after the conversation cannot aid the McKinzies in their claim of an easement by representation. At most, the Wallaces’ conduct merely shows that the McKinzies’ use of the roadway was permissive, thereby constituting only a license, which could not and did not ripen into an equitable easement. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 627 (1950). Thus, the failure of the McKinzies to show more than a surmise or suspicion of the representation of an easement upon which they rely is fatal to their cause of action. Barfield v. Howard M. Smith Company, 426 S.W.2d at 838.
Consequently, I would sustain the Wallac-es’ first point of error, reverse the judgment, and render a take-nothing judgment, the judgment the trial court should have rendered. Tex.R.App.P. 80(b)(3). This disposition of the appeal would pretermit the addressing of the Wallaces’ remaining three points.3 Tex.R.App.P. 90(a).
. Neither the time nor the place of the conversation is shown in the record.
. An objection by the Wallaces was sustained, but the court was not requested to, and did not, instruct the jury to disregard the testimony.
. Because it should not be necessary to address the remaining points, the lack of their address in this dissent is not to be taken as an agreement with the majority's disposition of them.