concurring.
This case is about a picturesque cover placed over an existing bridge on private land. Long ago, appellant, Brookshire Katy Drainage District (“the District”), constructed a drainage canal across the land pursuant to an express .easement with prior landowners. Around that time, the District built the bridge across the canal. Appellees, Lily Gardens, LLC, Richard E. Flueckiger, and Kenneth B. Leudeck (“the Landowners”), who operate an outdoor-venue business on the land, placed the cover on the bridge in the belief that it enhances their business. The District brought this action to compel the Landowners to remove the cover from the *662bridge. The district court and a panel of this Court have both ruled in favor of the Landowners, determining that the cover may remain.
The History of the Bridge and Cover
In 1962, the District obtained an easement for a drainage ditch approximately 10 feet deep that runs across the entire width of the property. The ditch divides the front portion from the back part of the property. To allow ingress and egress from the back portion of the property that is otherwise inaccessible due to the ditch, the District built the bridge over 30 years ago. The bridge has never affected drainage in any way. In 2004, the Landowners purchased this property with the intention of beautifying it for use as a facility to host weddings. To beautify the bridge, the Landowners constructed a cover that is 24 feet long and 20 feet wide. The cover consists of a triangular-shaped roof and two sides, which conceal the unattractive steel guardrails that support the bridge. A large vehicle can travel over the bridge and under the cover without any impediment such as walls or doors. The lowest portion of the bridge cover is approximately 10 feet above the ground, and no portion extends below the bridge.
In October 2006, a voluminous amount of rain besieged the land in one of the wettest months in recorded history, but the waters flowed unimpeded by the bridge cover. The prior owner of the land said that in the past 25 years, he never saw the level of the water rise above the banks of the ditch, even during Tropical Storm Allison. The Landowners’ engineer expert opined that the bridge cover would have “no real effect” on the drainage waters.
The Terms of the Private Easement
This lawsuit is not about easements granted to public utilities in general because this easement was the product of a private contract between the District and prior landowners. Rather, this lawsuit is about a particular bridge cover and whether it violates the particular contractual and legal rights of an easement holder, the District. Under the parties’ contract, the District has the right to “abate other obstruction, upon said canal right of way, that may injure, endanger, or interfere with the construction, operation, maintenance and repair of said drainage canal.” Under the law, the District has the right to reasonable use and enjoyment of its easement right, and the Landowners must not engage in any activity that interferes with that right. See Still v. Eastman Chem. Co., 170 S.W.3d 851, 854 (Tex.App.-Texarkana 2005, no pet.) (citing Harris County v. S. Pac. Transp. Co., 457 S.W.2d 336, 340 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ)).
The Landowners do not deny that the contract prohibits them from activities that may interfere with the District’s use of the drainage canal, nor that the law prohibits them from interfering with the District’s use and enjoyment of its easement rights. What the Landowners dispute is whether the bridge cover in issue actually may or does interfere with these rights. Because the District put forth no evidence of such interference or the potential for such interference, we affirmed the trial court’s judgment in favor of the Landowners.
Although it concedes that the cover does not currently interfere with its reasonable use and enjoyment of the easement, the District asserts that in the future, the cover might create a drainage problem or might make it difficult to remove the culverts, which are metal pipes inside the canal, because the bridge cover might interfere with access. The District, however, presented no evidence showing how the *663cover — as compared to the bridge — might interfere in any way with the District’s ability to construct, operate, maintain, or repair the drainage canal. The cover simply made what was already there prettier.
The examples given in the amicus briefs concerning how the cover might interfere with the easement in the future illustrate the evidentiary failure that occurred here. One amici contends that the cover might prevent a baekhoe from moving onto the bridge and reaching down into the culverts to remove debris. It also states that equipment might need to be located on the bridge in order to replace existing culverts. However, the District presented no evidence of this. Had an expert provided an affidavit averring to the reasonable possibility that these things might occur, the trial court and the panel of this Court likely would have ruled in its favor. Instead, the evidence shows the cover is above ground level and has never affected the drainage canal in any way despite heavy rain. No mention of the possible need for heavy equipment is in evidence. Although the use of the word “may” in the contract indicates a low standard, proof is still required. Even had the District established that this easement is forward looking due to the use of the word “may,” the evidence would remain deficient to show how the cover might reasonably affect the easement in the future.
Furthermore, the parties could have negotiated a contract that precluded construction of any structure on or near the easement. Cf. Pan Am. Gas Co. v. Lobit, 450 S.W.2d 877, 880 (Tex.Civ.App.-Houston [1st Dist.] 1969, writ ref'd n.r.e.) (pipeline easement provided that subservient estate owner could not build or construct any obstruction, building or other structure over or on right-of-way); Okan Pipeline Co. v. Eiland, 394 S.W.2d 548, 550 (Tex.Civ.App.-Eastland 1965, writ ref'd n.r.e.) (gasoline easement prohibited constructing “any obstruction, building, engineering works, or other structure over said pipe line”). This particular contract does not absolutely disallow structures; rather, the plain language of the contract implicitly allows structures as long as they may not interfere with the canal.
No-Evidence Review
In her dissent from denial of en banc review, Justice Keyes objects to the application of the no-evidence standard, rather than the traditional summary judgment standard, in review of this appeal. It is well-established in this Court that, when a party moves for both traditional and no-evidence summary judgment, we first review the trial court’s summary judgment under the no-evidence standard of Texas Rule of Civil Procedure 166a©.1 Justice *664Keyes recognizes this practice, but argues that the practice is problematic in instances where the issue is a “pure question of law.” Without commenting on the merits of Justice Keyes’s analysis, I respectfully disagree that the case at bar presents “purely legal issues.” As demonstrated above, this case necessarily depends on a determination of whether the bridge cover in issue hinders or may hinder the District’s use of its easement. This is necessarily a fact-specific inquiry subject to the presentation of evidence by the parties.
In fact, while the original opinion in this case, which Justice Keyes endorses, ostensibly applied a traditional summary judgment standard, it too looked to the District’s evidence to determine the issue of whether the bridge cover may impede the District’s use of the easement. The pivotal distinction between the opinion issued on rehearing and the original opinion is not found in interpretation of the contract or easement law, but in the determination of whether the testimony in Raymond Dol-lins’s affidavit constitutes competent evidence that the bridge cover may interfere with the District’s maintenance and operation of the drainage system.
Finally, Justice Keyes asserts that “[t]he problem with granting a no-evidence summary judgment on a purely legal issue is, as the court in the Cone case acknowledged, that, even if a motion for summary judgment is presented as a no-evidence motion, the law must be construed before it can be determined what the elements of the applicable law are as to which the non-movant must produce proof.” I respectfully disagree that this approach is problematic in this case, nor do I read Cone as identifying a “problem” rather than merely observing common practice. See Cone v. Fagadau Energy Corp., 68 S.W.3d 147, 156 n. 4 (Tex.App.-Eastland 2001, pet. denied) (“the court must determine the law which is applicable to the case with respect to any no-evidence motion for summary judgment in order to determine if the summary judgment evidence raises a genuine issue of material fact. The fact that a dispute exists with respect to the applicable law does not prevent the court from performing its function of analyzing the non-mov-ant’s evidence to determine if it raises a fact issue.”). . Courts are routinely, if not always, put to the task of determining legal issues in deciding no-evidence motions for summary judgment. To decide whether a plaintiff has put forth evidence of the elements of a tort, the court must necessarily determine what those elements are. Granting summary judgment on the basis of a failure to present evidence of an element that the law does not impose is error. See, e.g., Moreno v. Quintana, 324 S.W.3d 124, 136-37 (Tex.App.-El Paso 2010, pet. denied) (reversing no-evidence summary judgment where movant alleged no evidence of malice but malice was not element of non-movant’s claim); Villarreal v. Wells Fargo Brokerage Services, LLC, 315 S.W.3d 109, 127 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (reversing no-evidence summary judgment where only element identified by movants as entitling them to summary judgment was not element of claim on which summary judgment was granted); Baker v. City of Robinson, 305 S.W.3d 783, 793 (Tex.App.-Waco 2009, pet. denied) (sustaining error with respect to traditional and no-evidence summary judgment on statutory fraud claim on basis of absence of intent to deceive because intent to deceive is element of common law fraud but not statutory fraud claim pled). The primary distinction between traditional and no-evidence motions for summary *665judgment is not whether the court must decide legal issues to rule on the motion— both motions require the court to act as arbiter of the law — but, rather, whether the legal issues in the case dictate the outcome without regard to any evidentiary issue.
The Consequences of This Decision
The terms of this private contract do not absolutely disallow structures. They limit only those obstructions that may injure, endanger, or interfere with the construction, operation, maintenance and repair of the drainage canal. That some construction can coexist with a free flowing drainage canal is evident from the District’s own bridge, which sits above the easement without obstruction or interference. This decision is case specific. We examine the facts in light of the existing bridge and the absence of any summary judgment evidence explaining how the cover might affect the easement beyond any effect by the bridge.
This case does not meet the en banc standard for review. See Tex.R.App. P. 41.2(c). Nothing is extraordinary about this case, there are no consequences beyond the particular interpretation of this private contract, and this decision does not conflict with any other. See id. Despite the dire consequences predicted by government entities, this case comes down to one government entity’s evidentiary failure in one case — nothing more. This Court’s holding does not diminish the rights of public entities to abate obstructions that the evidence demonstrates in reasonable likelihood may impair or impede the use of the easement. For these reasons, I concur in the denial of en banc consideration and submit that the petition for review should be denied. See id.; Tex.R.App. P. 56.1(a).
Conclusion
I concur with the denial of en banc consideration.
A majority of the justices of the Court voted to overrule the motion for en banc reconsideration.
En banc court consists of Justices JENNINGS, KEYES, ALCALA, HIGLEY, BLAND, SHARP, MASSENGALE, BROWN, and WILSON. Chief Justice RADACK not participating.Justice ALCALA, concurring in the denial of en banc reconsideration.
Justice MASSENGALE, concurring in the denial of en banc reconsideration.
Justice JENNINGS, dissenting from the denial of en banc reconsideration, joined by Justice KEYES.
Justice KEYES, dissenting from the denial of en banc reconsideration, joined by Justice JENNINGS.
Justice WILSON, dissenting from the denial of en banc reconsideration.
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