John T. Unger and Kathy J. Welch v. Francis Landry and Wife, Tamarra Landry

Opinion issued January 06, 2005 In The Court of Appeals For The First District of Texas NO. 01-03-01331-CV JOHN T. UNGER AND KATHY J. WELCH, Appellants V. FRANCIS LANDRY AND WIFE, TAMARRA LANDRY, Appellees On Appeal from the 335th District Court Burleson County, Texas Trial Court Cause No. 23,581 MEMORANDUM OPINION This is a real property dispute concerning the scope and use of an easement. The holders of the dominant estate, appellees, Francis and Tamarra Landry, brought suit against the holders of the servient estate, appellants, John Unger and Kathy J. Welch (“Unger”). The parties filed cross motions for summary judgment, and the trial court granted summary judgment in favor of the Landrys. In three issues, Unger contends that the trial court erred in granting the Landrys’ motion for summary judgment and in denying Unger’s motion for summary judgment. Specifically, Unger contends that the trial court erred (1) in finding that the Landrys were entitled to free and uninterrupted use of the entire width of the easement, (2) in finding that improvements constructed by Unger must be removed, and (3) in awarding attorney’s fees to the Landrys rather than to Unger. We affirm.BACKGROUNDThis dispute concerns a 286-acre tract in Burleson County on County Road 205. In 1961, Garwood Gerdes acquired the tract and subdivided it into smaller parcels. Only one parcel had direct access to the county road—96 acres known as the Royal C. Fisher parcel (“Fisher”). The other parcels were interior to Fisher and could only access the county road over Fisher. In 1962, Gerdes executed a warranty deed in favor of the Veterans Land Board (“VLB”) in which he set out a 30-foot wide easement appurtenant along the eastern edge of the Fisher parcel. In 1986, the VLB executed a grant titled, “Conveyance of Easement” (“Conveyance”), in favor of Caldwell National Bank, as a supplement to the 1962 easement. It is the language in the Conveyance that is the subject of this suit. In 1993, the Landrys acquired one of the interior parcels and an interest in the easement. In 2001, Unger purchased the Fisher tract and constructed approximately 1900 feet of perimeter fence along and within the edge of the easement—encroaching approximately 13 to 17 feet into the easement. In addition, Unger relocated a drainage culvert and posted a “No Trespassing” sign within the easement. The Landrys brought suit to enjoin Unger’s interference with the easement. The Landrys moved for partial summary judgment on the ground that, as a matter of law, the Landrys are entitled to “free and uninterrupted use” of the entire 30-foot easement, as expressed by the metes and bounds description in the Conveyance. Subsequently, Unger moved for summary judgment on the grounds that the express terms of the easement limit the Landrys’ use to a certain roadway within the metes and bounds description. Further, Unger asserted that the improvements did not interfere with the Landrys’ permitted use of the easement for ingress and egress. The trial court found that, as a matter of law, the Landrys have free and uninterrupted use of the entire 30-foot easement and granted partial summary judgment to the Landrys. After a hearing, the trial court ordered Unger to remove the fence, culvert, and sign within 60 days of the final judgment. In addition, the court permanently enjoined Unger from making any further improvements within the easement. Further, attorney’s fees were awarded to the Landrys.Standard of ReviewWe review a trial court’s granting of a summary judgment de novo. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). A summary judgment is properly granted only when a movant establishes that there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a disputed material fact precluding summary judgment, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Tex. R. Civ. P. 166a; Nixon, 690 S.W.2d at 549. The usual presumption that the judgment is correct does not apply to summary judgments. See Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). When, as here, both parties have moved for summary judgment and the trial court grants one and denies the other, we review all the evidence, determine all questions presented, and render the judgment the trial court should have rendered. FM Props., 22 S.W.3d at 872; Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). The issue presented here is whether an express easement described by metes and bounds defines the boundaries of an easement over the less specific description, “in and along a certain roadway now across a certain tract of land.” This is a question of law, not fact. See Koelsch, 132 S.W.2d at 497. Thus, we determine whether the trial court properly rendered summary judgment as a matter of law. See id.; Tex. R. Civ. P. 166a(c). Scope and Use of the Easement In his first and second issues, Unger contends that the trial court failed to properly limit the Landrys’ use of the easement to the roadway and failed to properly allow Unger’s use of the easement because his improvements are not inconsistent with and do not unreasonably interfere with the Landrys’ permitted use of the roadway. A. The Scope of the Easement The Conveyance granted free and uninterrupted use, liberty, privilege and easement of passing in and along a certain roadway now across a certain tract of land . . . said easement being perpetual and over and across the following described tract of land, to wit: [metes and bounds description of a 30-foot easement across Fisher] together with free ingress, egress, regress to and for [the Landrys’ predecessors in interest], its successors and assigns, for such use as shall be necessary or convenient at all times and seasons forever, in, along, upon and out of said way, in common with the said Grantors [Unger’s predecessors in interest], their heirs, successors and assigns. (Emphasis added.) At issue are the words, “in and along a certain roadway now across a certain tract of land.” Unger asserts that this language indicates that the easement is limited to the roadway as it existed when the easement was granted on May 28, 1986. Unger contends that the trial court erroneously expanded the easement beyond its intended scope when it granted the Landrys the use of the entire 30-foot easement as described by the metes and bounds. In essence, Unger contends that the metes and bounds description was not the intended grant; rather, the roadway was the intended grant, and the metes and bounds description was intended merely as an aid in locating the roadway. In determining the scope of the Landrys’ easement, it must be remembered that their rights do not solely arise from necessity or convenience; rather, they arise from an express grant in a recorded instrument. See Williams v. Thompson, 256 S.W.2d 399, 403 (Tex. 1953). When considering the terms of an express easement, we apply basic principles of contract construction and interpretation. Marcus Cable Assoc., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). The intent expressed in the grant by the contracting parties determines the scope of the easement. Id. at 700-01. The express terms in the easement are given their generally accepted meaning. Id. at 701. “Nothing passes by implication ‘except what is reasonably necessary’ to fairly enjoy the rights expressly granted.” Id. (quoting Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974)). In carrying out the purpose for which the easement was created, we read the terms of the easement as a whole. Koelsch, 132 S.W.3d at 498. Unless the language is ambiguous, we rely solely on the written instrument. Id. Neither party argues that the descriptive provision of the Convenyance is ambiguous; rather, they disagree over its construction and interpretation. When a contract is not ambiguous, its construction is a question of law for the court. MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). Both parties urge us to determine the scope of the easement as a matter of law. See Marcus, 90 S.W.3d at 703. Here, the express terms of the grant give the Landrys the full right to use the entire width of a metes and bounds description encompassing 30 feet of the eastern edge of the servient estate. There are no words in the grant specifically limiting the Landrys’ use to a specific roadway then in use or to that part of the easement which may be necessary or convenient. See Williams, 256 S.W.2d at 400, 405 (finding no such limitation in similar deed language that allowed use of “the streets, alleys and roads running through said property . . . more carefully described as [metes and bounds]”). Indeed, the grant provides “free ingress, egress, regress to and for . . . such use as shall be necessary or convenient at all times and seasons forever, in, along, upon and out of said way.” (Emphasis added.) When, after applying established rules of contract construction, an easement is open to only a single, reasonable and definite interpretation, we must construe it as a matter of law even though the parties offer different interpretations of the easement’s terms. See Marcus, 90 S.W.3d at 703. The Texas Supreme Court has held that the rights of the dominant estate are paramount, to the extent of the grant, to the rights of the servient estate. See Williams, 256 S.W.2d at 403 (citing Murray v. Dickson, 123 S.W.2d 179 (Tex. Civ. App.—Dallas 1909, no writ), for the proposition that “the owner of a way, whose limits are defined in the grant, has not only the right of free passage over the traveled part but also over such portions of the way as he thinks proper or necessary”). In Williams, the court held that the holder of the dominant estate had the right to use the entire 30 feet described in the grant for a roadway because “it follows logically, in the absence of restrictive words in the grant, that the grantee can fit the entire width for use.” Id. at 404-05 (quoting Rotch v. Livingston, 40 A. 426, 427 (Me. 1898)). As far as width is concerned, an easement holder’s “right to make a road is as wide as his right to a road.” Id. at 404 (quoting Rotch, 40 A. at 432). In sum, the language in the easement, properly construed, does not permit an indefinite road description to govern. Where a grantor specifically conveys by metes and bounds, “there can be no controversy over what land is specifically conveyed.” Southern Pine Lumber Co. v. Hart, 340 S.W.2d 775, 780 (Tex. 1960). A more general description will not control. Id. We cannot disregard the express metes and bounds description. Because the easement here can be given a definite meaning, we interpret it as a matter of law to encompass the boundaries set in the metes and bounds description of the easement. See Marcus, 90 S.W.3d at 703. 2. Use of the Easement by the Servient Estate Unger contends that he should be allowed to use the land within the easement for any purpose not inconsistent with the Landrys’ use. Unger contends that the construction of the fence, the re-location of culvert pipe and drainage ditches, and the erection of a “No Trespassing” sign in no way impede the Landrys’ use of the roadway; thus, the improvements should be allowed. Unger contends that the trial court failed to consider whether he has unreasonably interfered with the Landrys’ present use of the roadway. However, where a use does not serve the express purpose of an easement, it is an unauthorized presence—a trespass—whether or not it results in any noticeable burden on the servient estate. See id. Moreover, the evidence shows that the fence, buried culvert pipe, and re-routed drainage ditch are permanent in nature and encroach on the easement. See Pagenstecher v. Biasiolli, 267 S.W.2d 576, 577 (Tex. App.—San Antonio 1954, no writ). These encroachments could be made the basis of an impairment of the easement by prescription. Id. Under such circumstances, a suit for injunction will lie without a showing of actual interference. See id. We overrule appellant’s first and second issues. Attorney’s Fees In his third issue, Unger contends that the trial court erred in awarding attorney’s fees to the Landrys rather than to Unger. Section 37.009 of the Texas Civil Practice and Remedies Code provides that, in a declaratory action, the trial court has discretion to award costs and reasonable and necessary attorney’s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997). We will not reverse the award absent a clear showing of an abuse of that discretion. Knighton v. Int’l Bus. Mach. Corp., 856 S.W.2d 206, 210 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Unger does not contend that the fees awarded to the Landrys were inequitable or that the amount awarded was not supported by the evidence; rather, Unger contends that the Landrys simply should not have prevailed, so they should not have been awarded attorney’s fees. Because the Landrys have prevailed upon their declaratory cause of action and have provided evidence of reasonable and necessary attorney’s fees, we hold that the trial court properly awarded attorney’s fees to the Landrys. We overrule appellants’ third issue. CONCLUSION As no issue of material fact remains, we find that summary judgment was properly granted as a matter of law. We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Nuchia, Hanks, and Higley.