Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 6, 2013
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 10-04-04544 CV
Before McKeithen, C.J., Kreger and Horton, JJ.
STEVE McKEITHEN Chief Justice
Mike and Loretta Emmons appeal the trial court's declaratory judgment in favor of appellees Bobby Babak Badanfirouz, Katherine Badanfirouz, and Lawrence F. Hegar Jr. in a dispute over an express easement. Appellants argue the trial court erred in finding the easement did not allow them to maintain a gate on the property at issue. Finding no error, we affirm the trial court's judgment.
The Hegar family has owned certain real property (approximately 106 acres) in Montgomery County since the 1800s. In 1978, an express easement was granted by Robert Baker and his wife to the Hegars, so that they could access their property. The easement expressly conveyed to Hegar, among others:
The nonexclusive free and uninterrupted use, liberty and privilege of passage at all time for ingress and egress, both pedestrian and vehicular, together with the right to install and maintain water, power, telephone and other utilities, in, along, upon and across that certain tract or parcel of land . . . .
Lawrence Hegar inherited the property and owns an undivided interest in the property. He uses the property for recreational purposes and leases it out for hunting.
The Bakers sold approximately sixty-five acres (contiguous to the Hegars' property) to the Powells, who then sold the property in 2008 to the Badanfirouzes. The Badanfirouzes live on their property. Both the deed to the Powells and the deed to the Badanfirouzes expressly conveyed a 67.50-feet-wide road and utility easement, which is the same strip of land conveyed as an easement to Hegar.
In addition to conveying the dominant estate, the Bakers also sold the servient estate, and ultimately the Emmonses purchased the servient estate in 2003. The Emmonses reside on the property, which is contiguous to the properties owned by Hegar and the Badanfirouzes. The easement borders, but does not go through, the Emmonses' property.
After the Emmonses erected a gate across the easement, a dispute arose regarding whether the gate violates the easement language. Appellees sued appellants under the Declaratory Judgment Act and sought a judgment that the gate violates the easement's grant of "free and uninterrupted use, liberty and privilege of passage at all time for ingress and egress[.]" See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2008). Appellees sought a temporary and permanent injunction ordering appellants to remove the gate and all other obstructions, and prohibiting appellants from erecting any form of obstruction or interference with the future use of the easement by appellees and their successors, heirs, and assigns. In addition, appellees asserted claims for trespass to try title and intentional interference with property rights.
Appellants filed their answer and counterclaim against appellees for a declaratory judgment stating that the easement language allows appellants to construct a gate and that the gate currently constructed does not violate the terms of the easement. Appellants sought a permanent injunction "enjoining [appellees] to close the gate" when they entered and exited the easement. The trial court granted the appellees' application for temporary injunction and ordered appellants to leave the gate open pending final trial on the merits.
During the bench trial, Michael Emmons testified that the gate in question is never locked and is merely an "inconvenience." He explained that he has had problems with trespassers, vandals, and people dumping garbage on his property. He testified that since he has erected the gate these issues have been resolved. He admitted that he had not put a fence between his property and the easement but instead opted to construct the gate at issue here.
Powell, the prior owner of the Badanfirouzes' property and to whom the Bakers originally conveyed the easement, also testified. He explained that the easement was originally going to be dedicated as a county road and that no gates were in place or intended when he constructed the road to access his newly built residence in 1980. The easement was the only access to his property. Powell testified there ...