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Gordon v. Demmon

Court of Appeals of Texas, Seventh District, Amarillo

April 23, 2019

JOHN B. GORDON AND RUTH A. GORDON, APPELLANTS
v.
JASON DEMMON AND JUTTA DEMMON, APPELLEES

          On Appeal from the 169th District Court Bell County, Texas Trial Court No. 249, 484-C, Honorable Gordon G. Adams, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          James T. Campbell Justice

         Appellants John B. Gordon and wife Ruth A. Gordon sued appellees Jason Demmon and wife Jutta Demmon to establish an easement allowing access to their landlocked property. They pled entitlement to an easement under various theories, including necessity. Mona Marie Counts and Joy Dale Nugent intervened in the suit seeking similar relief.[1] After a bench trial, the court declared two easements by necessity in favor of the Gordons and an easement by necessity in favor of Counts and Nugent. Dissatisfied with the extent of the relief granted, the Gordons appeal. Counts and Nugent did not join the appeal. The Demmons present a cross-point on appeal. We will overrule the Gordons' issues and the Demmons' cross-point and affirm the judgment of the trial court.

         Background

         During 1969 the Gordons contracted with William L. Bremser and his wife, Marleen L. Bremser, to buy an irregularly-shaped, 6.02-acre tract severed from the Bremser's larger tract. The Gordons satisfied the contract terms and title was conveyed to them by warranty deed in 1971. It is undisputed that the land the Gordons purchased is surrounded by land owned by others and does not abut a public road.

         From the time of their purchase, the Gordons used two routes to access their property. On the south and west side of their tract is a gravel road known as "South Road." Along the north side of the property is a way known as "Schrader Road." The center twenty-foot strip of Schrader Road is paved with what was described at trial as chip seal or old asphalt.

         In 2003, the Demmons acquired the tracts that contain Schrader Road and the South Road adjacent the Gordons' property. According to the Gordons, thereafter the Demmons began obstructing the Gordons' means of access from Schrader Road and the South Road by locking a gate on Schrader Road. In 2011, the Gordons filed suit to establish easements over Schrader Road and the South Road.

         Throughout trial the parties disputed the Gordons' request for two access routes to their land. According to the Gordons' testimony, the topography of the property is complicated by a canyon or ravine[2] running across its center, making Schrader Road the only means of access to the northern part and the South Road the only access on the south. Mr. Gordon testified it would be "very difficult" to get to the south side of the property without driving on the South Road, and said a forty-foot-deep "culvert - - gulch" made it "very impassible by vehicle" to go from the south side of the property to the north side. Mr. Demmon disputed the limited access the Gordons claimed, telling the court that from a point inside a gate on Schrader Road the Gordons could drive "anywhere on [their] property except for the ravine itself."

         The court's judgment granted the Gordons easements by necessity along both roads. The judgment limited both easements "to that portion of the described property reasonably required to permit the holder to accomplish the purpose of the easement, which is ingress and egress" to the Gordons' property. The easements were "no wider than reasonably necessary to afford" the Gordons "ingress and egress to their" property. On the Demmons' motion, the court granted a partial new trial solely to determine the scope and location of the easements it declared.

         At the partial new trial, Mr. Gordon testified at length of his future plans to develop his tract into a subdivision with private residences and recreational facilities such as tennis and volleyball courts, a picnic pavilion, a zip-line, and nature trails. Based on his claims that accessibility to parts of the tract was limited, he reiterated the necessity of a sixty- foot easement along Schrader Road and along South Road. Otherwise, he maintained, portions of his property would be inaccessible, costing him potential homesites.

         Mr. Gordon and Mr. Demmon disagreed over the feasibility of the Gordons' development plan.[3] According to Mr. Demmon, the "back half," or about two and one-half acres of the Gordons' land, is a flood zone which is not "buildable." The court also heard conflicting evidence regarding the need for use of the Demmons' property for ingress and egress by heavy equipment and truck traffic during the Gordons' possible future construction.

         The judgment which followed granted the Gordons an easement by necessity for the general purpose of ingress and egress covering Schrader Road "plus an additional 30 foot wide easement to access" the Gordons' property.[4] A second easement was granted along the South Road. Findings of fact and conclusions of law, following the new trial and final judgment, were neither requested nor filed.

         Jurisdiction

         On our own motion, we notified the parties of our concern that the Gordons' notice of appeal appeared untimely filed. We ...


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