Gerald Schilhab, Mrs. C. B. Wright, Mary Wright, Carl Williams, and Carroll Edge v. Virginia Dierlam

Schilhab, et al. v. Dierlam NUMBER 13-03-00185-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG GERALD SCHILHAB, MRS. C. B. WRIGHT, MARY WRIGHT, CARL WILLIAMS, AND CARROLL EDGE, Appellants, v. VIRGINIA DIERLAM, Appellee. On appeal from the 135th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Castillo Memorandum Opinion by Justice Hinojosa Appellee, Virginia Dierlam, filed the underlying suit in the district court of Victoria County seeking declaratory and injunctive relief to bar appellants, Gerald Schilhab, C. B. Wright, Mary Wright, Carl Williams, and Carroll Edge, from using a roadway on her property. The trial court declared that appellants had no right of easement over the roadway and granted summary judgment in favor of appellee. In a single issue, appellants contend the trial court erred in granting appellee’s motion for summary judgment because there exists: (1) an easement by estoppel, (2) an easement by prescription, or (3) an easement by implied dedication to public use. We affirm the trial court’s order granting summary judgment. A. Factual Background Appellee is the owner of a 1,379.98 acre tract of land out of a larger tract known as the “McFadden Ranch.” Appellants own property that is adjacent to the McFadden Ranch. Until 1913, the San Antonio River was the southwest boundary line of the McFadden Ranch. In approximately 1903, appellee’s predecessor in title, J.M. McFadden, made changes to the river bank and dammed up the mouth of nearby Cushman Bayou. In 1913, a substantial flood occurred in the area. The lands on the southwest side of the river were flooded and the flow of the San Antonio River was altered. As a result of this change in direction, several landowners’ access to their lands was blocked by the river. A lawsuit by several of the landowners adjoining the McFadden Ranch followed. These landowners claimed that as a result of McFadden’s changes to the river bank, their properties were damaged. After the conclusion of the trial of the lawsuit, the parties entered into a settlement agreement which called for the payment of various amounts to the plaintiff landowners. After the river course was changed by the flood, appellants and their predecessors-in-title began using a roadway through the McFadden Ranch for ingress and egress to their property. Appellants and their predecessors-in-title used the subject roadway from approximately 1913 until 1977 without any complaint or restriction from the various owners of the McFadden Ranch. Appellants and their predecessors-in-title used the subject roadway during the management of the ranch by J.M. McFadden, his son, A.M. McFadden, his grandson, Claud McCan, and his great-grandson, C.K. McCan, Jr. In 1977, C.K. McCan, Jr. locked a gate across the road temporarily, but then reopened access to appellants and their predecessors. After acquiring title to the ranch, appellee continued allowing appellants access to the roadway for approximately ten years. However, problems arose regarding appellants’ alleged abuse of the roadway. Unable to resolve these problems, appellee instructed her attorney to notify appellants that she was withdrawing her permission to use the road. Appellee then blocked appellants’ access to the roadway and filed the underlying suit. B. Standard of Review We review the grant of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.–Corpus Christi 2000, pet. denied). To prevail on a traditional motion for summary judgment and place the burden on the nonmovant to raise a genuine issue of material fact, the movant must conclusively establish, by proper summary judgment evidence, all essential elements of the claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The movant has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In deciding whether there is a genuine issue of material fact, all evidence favorable to the nonmovant will be taken as true, and all reasonable inferences made, and all doubts resolved, in the nonmovant’s favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). The nonmovant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). C. Permissive Easement Appellants contend the trial court erred in granting appellee’s motion for summary judgment because appellee failed to establish that the use of the roadway was permissive as a matter of law. In support of her motion for summary judgment, appellee attached copies of various documents evidencing her ownership of the property and an affidavit detailing the permissive use of the roadway. According to the affidavit, appellee allowed appellants to use the roadway for a period of years, after which she, by letter, withdrew her permission to use the road. Copies of the letters from appellee’s attorney to appellants, revoking permission, were also attached. In response, appellants produced copies of various papers pertaining to the Morrow v. McFadden lawsuit, none of which specifically address the road or easement in question. Appellants offered no evidence in support of their claim that “if the right to use the roadway was a permissive easement, it was due to the permission of J.M. McFadden before his death in 1916.” Uncontroverted evidence from an interested witness is sufficient to establish a matter conclusively if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. R. Civ. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Here, it is undisputed that appellee owned the property in question. Further, appellee’s summary judgment evidence established the absence of any express conveyance or grant of an easement made to appellants by her predecessors-in-title. Appellee further established her revocation of any permission to use the roadway across her property. Because an easement is considered an interest in land, the creation and transfer of that interest are subject to the statute of frauds, unless an easement is imposed by operation of law. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex. 1962). Without an express conveyance or grant of an easement sufficient to satisfy the statute of frauds, the burden shifted to appellants to bring forth evidence raising a question of fact as to whether an easement had been created by other means. D. Easement by Estoppel Appellants also contend that the continued use of the roadway created an easement by estoppel. Appellants assert that their rights to the roadway were established before appellee took possession of the property, and that appellee is bound by the acts of her predecessors. The doctrine of easement by estoppel has not been clearly defined, and its application depends on the unique facts of each case. Stallman v. Newman, 9 S.W.3d 243, 246 (Tex. App.–Houston [14th Dist.] 1999, pet. denied). “The doctrine of equitable estoppel or estoppel in pais is grounded on the condition that justice forbids one to gainsay his own acts or assertions.” Wallace v. McKinzie, 869 S.W.2d 592, 595 (Tex. App.–Amarillo 1993, writ denied). Essentially, estoppel in pais holds that the owner of a servient estate may be estopped to deny the existence of an easement by making representations that have been acted upon by the owner of the dominant estate. Drye, 364 S.W.2d at 209. The doctrine operates as an exception to the statute of frauds, which requires a writing for all transactions involving land in order to prevent injustice and protect innocent parties from fraud. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979). Each case in which equitable estoppel is sought to be applied must rest upon its own facts. Mack v. Landry, 22 S.W.3d 524, 528 (Tex. App.–Houston [14th Dist.] 2000, no pet.); North Clear Lake Dev. Corp. v. Blackstock, 450 S.W.2d 678, 684 (Tex. Civ. App.–Houston [14th Dist.] 1970, writ ref’d n.r.e.). Application of the doctrine has been “rare and nebulous” in circumstances other than the three circumstances described by the Texas Supreme Court in Drye: (1) a dedication of a street, alley, or square; (2) an owner selling land with reference to a map or plat; and (3) a seller of land who allows its purchaser to expend money on an alleged “servient” estate. Scott v. Cannon, 959 S.W.2d 712, 720 (Tex. App.–Austin 1998, pet. denied); see also Drye, 364 S.W.2d at 209-10. None of these circumstances exist here. Three elements are necessary to create an easement by estoppel: (1) a representation communicated, either by words or action, to the promisee; (2) the communication was believed; and (3) the promisee relied on the communication. Storms, 579 S.W.2d at 452; Stallman, 9 S.W.3d at 246. An easement by estoppel is binding on the successors in title to the servient estate if reliance upon the existing easement continues. Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.–San Antonio 1996, writ denied). Here, appellants assert that appellee’s predecessors-in-title “made various representations to [appellants] upon which they have relied.” However, appellants produced no summary judgment evidence to support their assertion that representations of the existence of an easement on the McFadden Ranch were ever communicated to appellants or their predecessors-in-title by appellee or her predecessors-in-title. Additionally, while it is undisputed that appellants have made improvements upon their property, the record contains no evidence that appellants made the improvements in reliance on any express promise. Instead, appellants contend that an easement by estoppel was created by the “silence and acquiescence” of appellee and her predecessors-in-title in the face of appellants’ and their predecessors’ use of the road. However, an easement by estoppel may not be predicated upon passive acquiescence alone. Stallman, 9 S.W.3d at 248; see also Scott, 959 S.W.2d at 721 (passive acquiescence “for no matter how long a period” will not estop landowner from denying existence of easement across his land). In the absence of a vendor/vendee relationship, there was no duty on appellee or her predecessors-in-title to caution or warn appellants or their predecessors-in-title that they should make no improvements upon their property without a secure right of ingress and egress appurtenant to their land. See Roberts v. Allison, 836 S.W.2d 185, 188 (Tex. App.–Tyler 1992, writ denied). Appellee and her predecessors made no misrepresentation, nor did they engage in overreaching conduct by their silence; they had no duty to speak. See Wilson v. McGuffin, 749 S.W.2d 606, 610-11 (Tex. App.–Corpus Christi 1988, writ denied). Unless there are extenuating circumstances, such as when a claimant’s use of the land is so extensive, open and hostile that a reasonable property owner would have voiced an objection, see Exxon Corp. v. Schutzmaier, 537 S.W.2d 282, 285-86 (Tex. Civ. App.–Beaumont 1976, no writ), an owner who did not sell the adjoining tract has no duty to object to what may appear to be only a permissive license to use the property. Wilson, 749 S.W.2d at 611. Thus, the owner’s silence will not be deemed a representation that an easement exists. Stallman, 9 S.W.3d at 246-47; Scott, 959 S.W.2d at 720-21; Roberts, 836 S.W.2d at 188; Wilson, 749 S.W.2d at 611. In the absence of any evidence of an express representation communicated to appellants, we conclude that no easement by estoppel was created by appellee’s passive acquiescence alone. E. Easement by Prescription Appellants next contend that they established a prescriptive right to an easement over appellee’s property between 1916 and 1970, when they used the road exclusively. A prescriptive easement may arise when a person uses the land of another for ten years or more in a manner that is open, notorious, continuous, exclusive, and under an adverse and hostile claim of right. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979); Scott, 959 S.W.2d at 721. In order to establish that the use is adverse and hostile, the claimant must intend to obtain a permanent right to use the property, not merely to obtain permission to do so. Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987). The owner of the servient estate must have actual or constructive notice that there was an adverse and hostile claim against the property. Scott, 959 S.W.2d at 721. Here, appellee was aware that appellants were using the property, but she maintains that they were using it with permission. The use of property with the owner’s express or implied permission or license cannot rise to the level of a prescriptive easement no matter how long the use continues. Vrazel, 725 S.W.2d at 711; Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626-27 (1950). Further, the use of the property must be shown to be exclusive, in that the claimant excluded or attempted to exclude all other persons, especially the property owner, from using the same land for the same purpose. Scott, 959 S.W.2d at 721-22. Evidence of a joint use with the property owner is fatal to the claim of a prescriptive easement because it is consistent with the owner’s having given permission for others to jointly use the land in a non-adverse manner. Brooks, 578 S.W.2d at 673-74; Stallman, 9 S.W.3d at 246; Wilson, 749 S.W.2d at 610; Hudson v. Gaines, 501 S.W.2d 734, 738 (Tex. Civ. App.–Corpus Christi 1973, no writ). Here, while appellants argue that they used the road exclusively between 1916 and 1970, they offer no evidence to support exclusive use. Further, appellee avers that she used the roadway in the same manner as appellants during the permissive period. In the absence of evidence showing that appellants’ use of the road was under a hostile claim of right and by a use which was exclusive of the landowner’s, we conclude that no prescriptive easement existed. F. Easement by Implied Dedication to Public Use Appellants’ final contention is that the roadway was dedicated to public use during the first twenty-five years of the twentieth century. Appellants argue that, at one time, the McFadden Ranch contained premises devoted to public use, and that the road was used by the public to access those premises. Again, appellants offered no summary judgment evidence in support of their contention. Use of a roadway by the general public, along with the owner of the roadway, does not, of itself, establish a public road by prescription. Hudson, 501 S.W.2d at 738. As long as the use of the roadway is consistent with the rights of the owner, the use will never ripen into a prescriptive right to the public, no matter how long the road is used by the public. Id. (citing O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 881 (1960)). The record contains no evidence of an express dedication of the roadway to public use. To show an implied dedication to public use, appellants must establish a clear and unequivocal intention on the part of appellee or her predecessors-in-title to dedicate the road to public use as well as the public’s acceptance of the same. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984); Greenway Parks Owners Ass’n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 241 (1958); Hudson, 501 S.W.2d at 738. There is nothing in the record showing an implied dedication to public use. Absent such evidence, appellants may not prevail on the basis of an implied dedication to public use. Because appellee has established that the use of the roadway was permissive only, and appellants have failed to present any evidence raising an issue of material fact regarding the existence of an easement across appellee’s property, we hold the trial court did not err in granting appellee’s motion for summary judgment. We overrule appellants’ sole issue. We affirm the trial court’s order granting appellee’s motion for summary judgment. FEDERICO G. HINOJOSA Justice Memorandum Opinion delivered and filed this the 12th day of August, 2004.