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Davis v. Garrett

Court of Appeals of Texas, Ninth District, Beaumont

August 3, 2017


          Submitted on April 25, 2017

         On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 14-09-09775-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.


          STEVE McKEITHEN Chief Justice

         Appellees Jacquelyn Garrett[1] and Albert Garrett filed a petition to establish a private easement on property owned by appellants, Mark Davis and Angelia Davis.[2]After a bench trial, the trial court signed a judgment establishing a private easement, in which it found that an easement existed, based upon express acknowledgment, by necessity, and by estoppel, and the trial court also determined that the easement's width is "equal to the width of a standard county road." In four appellate issues, the Davises argue that (1) the evidence was legally and factually insufficient to support the trial court's finding of easement by necessity and the trial court abused its discretion by granting a trial amendment for that cause of action; (2) the evidence was legally and factually insufficient to support the trial court's finding of an express easement and the evidence conclusively established that the parties never agreed that an easement existed on the land; (3) the trial court erred by finding an easement by estoppel because it was not supported by pleadings, was not requested in a trial amendment, and was not supported by legally and factually sufficient evidence; and (4) the trial court erred by altering the width of the easement because the Garretts did not request that relief and the evidence conclusively established that the parties agreed that the current road is fourteen feet wide. We affirm the trial court's judgment.


         In their petition to establish a private easement, the Garretts pleaded that the Davises had blocked them from the use of their property by erecting a gate and publicly stating that the Garretts do not have an easement. According to the Garretts' petition, prior to April 25, 1998, Sydney and Ruth Davis owned real property, comprised of Tract A and Tract B. The Garretts alleged that while Sydney and Ruth Davis owned the two tracts, they used Tract A to further the use of tract B by driving vehicles on a road through Tract A to access Tract B, and that "[t]his use of Tract A was necessary for the property owner to get the full use and enjoyment of Tract B." According to the Garretts' petition, Sydney and Ruth Davis sold Tract B to Mr. and Mrs. Wilbur Houdek, and Mrs. Houdek then sold Tract B to the Garretts in 1997. The Garretts pleaded that Sydney and Ruth Davis "failed to grant any easement for the continued use of Tract A for the [b]enefit of Tract B, despite the fact that the conveyance locked Tract B, leaving its owner no access to the public highway other than by crossing Tract A." (emphasis added) The Garretts' petition alleged that after Mrs. Houdek represented that an easement would exist on Tract A, the Garretts continued to use Tract A, and Mark and Angelia allowed the Garretts to drive on Tract A to reach Tract B. In addition, the Garretts asserted that their use of the easement had been open, notorious, and continuous for ten years or more before the date the Garretts' suit was filed. According to the Garretts' petition, appellants began to affirmatively interfere with the Garretts' use of the road in 2013, including erecting a gate that prevented the delivery of mail to the Garretts' home, blocking the road with vehicles, refusing to allow the fire department access to the property, and preventing the Garretts from repairing the road. The Garretts requested that the trial court declare their easement valid, permanently enjoin appellants and their agents, servants, and employees from interfering with the Garretts' use of the easement, and award the Garretts damages and costs of suit.


         Albert testified that he began renting this ten-acre property from an individual named Mrs. Houdek, and eventually purchased the property from her in 1997. The deed was recorded in 1998. According to Albert, in 1997 and 1998, he accessed the property by exiting from Daw Collins onto Davis Road and driving through some property owned by a paper mill. Albert explained that "at that time[, ] the road was the same from Daw Collins all the way to my property. Same consistency, same surface." According to Albert, the road was "composite asphalt and gravel." Albert testified that after he purchased the property in 1998, county equipment arrived to pave the road, and the county paved the road only halfway to his home and left the rest of the road as it was. Albert testified that he continued to use the road, just as he had before.

         According to Albert, if he does not have access to the subject road, he cannot access his property because it is "completely surrounded by a paper company tree farm[, ]" and the paper company is unwilling to sell any property for a road. Albert explained that the road at issue is "the quickest and only way" to reach a public road from his property. Albert testified that Mrs. Houdek purchased the property from Mr. and Mrs. Sydney Davis in 1963, [3] and Houdek used the same road to access the property. Albert testified that his wife, Jacquelyn, ran a dog and bird breeding business from the property for about ten years.

         Albert explained that since the case began, he transferred six acres to his son because his son's family came to live with Albert. Albert testified that the road now serves both pieces of property. Albert explained, "I need legal access so I can get a home improvement loan if I want one, so I can sell my property if I want. I tried to get a reverse mortgage and couldn't because I didn't have a defined legal access." Albert testified that when he moved onto the property, he thought he had actual access. Albert testified that his access to the road was blocked during the middle of 2012, when a gate was erected. Albert testified that in a previous petition he filed in Justice of the Peace Court, he described the road as fourteen feet wide.

         Albert explained that he is unaware of any written easement that gives him rights to the road, and that the deed to the property did not reference access to the road. In addition, Albert explained that when he bought the property, he never spoke to Sydney Davis or Mrs. Houdek about the subject road. Albert testified that he would not have purchased the property if he did not believe he had free and clear access. Albert testified that the Davises did not object to his use of the road or deny him access to the road until he put the property up for sale. Albert testified that when he realized he needed legal access to be able to sell the property, county engineers suggested to him that he get the Davises to sign an easement.

         After Albert's testimony, his counsel requested a trial amendment to add causes of action for easement by prescription and easement by necessity. The Davises' counsel objected to the addition of a cause of action for easement by necessity because he believed the case was about easement by prescription. The trial court granted Albert's counsel's request for a trial amendment. Albert's counsel rested after testifying regarding his attorney's fees.

         Mark testified that he has lived at the same location for thirty-two years, and he is the owner of record of the property pursuant to a deed. Mark denied that any written easement existed. Mark also testified that Albert bought part of the property from Mrs. Houdek, and he testified that he met Albert during that time. According to Mark, Albert initially rented the property, and when Mark found out that he was buying the property, Albert approached Mark and his father and asked if he could get an easement. Mark testified that he told Albert he would not sell or give him an easement, but that he could use the road to enter and exit the property. Mark explained that the power company has an eight-foot ...

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