Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 25, 2017
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 14-09-09775-CV
McKeithen, C.J., Kreger and Johnson, JJ.
McKEITHEN Chief Justice
Jacquelyn Garrett and Albert Garrett filed a petition to
establish a private easement on property owned by appellants,
Mark Davis and Angelia Davis.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.
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.
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.
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,  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.
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.
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.
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
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