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Burns v. Dimmit County

Court of Appeals of Texas, Fourth District, San Antonio

May 15, 2019

Alvin M. BURNS and I.M. Burns, Appellants
v.
DIMMIT COUNTY, TEXAS, Hakim Dermish, Roberto L. Ramirez, Edward Dryden, Eusebio Cantu Torres, Eusebio Torres, Jr., Gladiator Energy Services, LLC, Hope Balderas, Juan Morales Balderas, and Lucia Balderas Lopez, Appellees

          From the 293rd Judicial District Court, Dimmit County, Texas Trial Court No. 12-07-11738-DCV Honorable David Peeples, Judge Presiding [1]

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice

         This case involves a myriad of claims and counterclaims asserted by numerous parties against one another. All of the claims arise from disputes concerning the ownership, use, or control of streets, alleys, water lines, and pipelines in the unincorporated town of Catarina, Texas ("Townsite"). Because of the number and complexity of the issues, and because the case was tried before a visiting judge not based in Dimmit County, the trial was conducted in intermittent segments over the course of more than a year. In June 2016, the court signed a twenty-page final judgment, from which five parties have appealed in various respects.[2]

         The issues on appeal fall roughly into seven categories of claims: (1) attorney disqualification; (2) property rights in Townsite streets and alleys; (3) use and ownership of a water system underlying those streets and alleys; (4) statutory abandonment of various streets and alleys; (5) tortious interference with a prospective contract; (6) breach of contract; and (7) attorney's fees.

         Facts

         In 1925, Catarina Townsite Company filed a plat ("1925 Plat") in the Dimmit County real property records, creating Catarina Townsite. It granted to the public an easement to use the roads and alleys[3] depicted on the plat for "ordinary, non-profit, highway purposes." It reserved for itself the exclusive right or privilege to use those roads and alleys for any purpose for profit, and listed several examples of such uses. It also reserved the right to close or abandon any road or alley by obtaining the consent of the owners of property fronting the road or alley to be closed or abandoned.

         Two years later, Catarina Townsite Company executed a deed ("1927 Deed") conveying to Catarina Water Supply Company a 400-foot by 370-foot parcel of land ("Rectangle"). That deed also conveyed "all easements, rights, licen[ses] and privileges" Catarina Townsite Company owned or held to use Townsite roads and alleys

for the purpose of erecting, constructing, operating and repairing thereon and/or removing therefrom water mains and pipes, irrigation canals, flumes, pipes and/or ditches, and such other purposes as are incident, so far as the same are incident, to the operation of a water works and/or irrigation system to serve Catarina Townsite and adjacent lands.

         In addition, the 1927 Deed conveyed to Catarina Water Supply Company certain physical equipment (such as pipes and water mains) then owned by Catarina Townsite Company and used in connection with operating a water works and irrigation system.

         Shortly after the 1927 Deed was executed, the Townsite became an incorporated municipality. It ceased to function as an incorporated municipality at some later point in time. The record does not reveal precisely when that occurred, but it is undisputed that it was long before this litigation began.

         The Rectangle, physical equipment, and certain rights were conveyed to various owners over the course of the next three decades. In 1960, Merle Burns ("Merle") acquired the Rectangle, and "all appurtenances thereto belonging," by deed from its then-owners ("1960 Deed").[4] The 1960 Deed also conveyed to Merle certain physical equipment then being used in connection with a well located on the Rectangle. For the next few decades, Merle operated a water system to supply potable water to Townsite residents.

         In 1996 and 2004, Merle conveyed to Catarina Water Supply Corporation ("CWSC")[5]pipeline easements along and adjacent to specified Townsite streets and alleys ("Pipeline Transfer Easements"). Merle reserved the right to use the existing water lines in those easements "for the purpose of [his] personal use; however, [Merle] shall not use the existing pipeline to provide water for public use[, ] such use shall be limited to [Merle's] personal use and use for agricultural purposes." CWSC later conveyed the interests it acquired in the Pipeline Transfer Easements to Dimmit County. Merle ceased using his water system to supply potable water. He began instead to supply water to oilfield operators for purposes such as fracking.

         In 2011, Merle conveyed to his son, Alvin Burns ("Alvin"), all of his easement rights "as a successor of the Catarina Townsite Company to the roadway and alleyway easements" in the Townsite ("2011 Deed"). In addition to citing the use of those easements for erecting, constructing, operating and repairing and/or removing pipelines, water mains and pipes, the 2011 Deed recites that it conveys the right to use the easements for other purposes, such as telephone and telegraph lines, railroads and railway lines, and motor buses. In this deed, Merle reserved the right to use the water line easements "for [his] personal, commercial, and agricultural use."

         The 2011 Deed was corrected in 2014 ("2014 Correction Deed") to replace the description of the property being conveyed with a metes and bounds description of the Rectangle "together will all appurtenances thereto belonging," and a listing of physical equipment then being used in connection with a well located on the Rectangle. The 2014 Correction Deed expressly excepted from the conveyance the pipeline easements conveyed to CWSC in 1996. The 2011 Deed was again corrected in 2015 to append an exhibit which was previously omitted.

         The controversies in this case all stem from the parties' differing interpretations of what easements, rights, and privileges Merle and Alvin (collectively, "Burnses") own or possess as a result of the conveyances described above. The record is replete with testimony relating instances of Alvin preventing others' use of Townsite streets and alleys by physically blocking access, summoning the sheriff and threatening to have perceived trespassers arrested, employing verbal and physical intimidation, and, on at least one occasion, displaying a gun. The Burnses at one point asserted fee simple ownership of the Townsite streets and alleys, authority abandoned during the course of this litigation. They maintain, however, that they have exclusive rights to use Townsite streets and alleys for for-profit purposes, easement rights to obstruct those streets and alleys, and even the right to close or abandon those streets and alleys upon obtaining the consent of the adjacent landowners (which in some instances would be the Burnses, themselves).

         Alvin filed this lawsuit in 2012 against Dimmit County, Rosetta Resources, Inc. ("Rosetta"), CWSC, and others "for the continued and consistent criminal trespassing, interference, use and enjoyment and/or wrongful taking of [his] real property to wit . . . the public streets or roadways, easements and/or alleys or alleyways located in the townsite of Catarina, Dimmit County, Texas."

         Through various amended pleadings, counterclaims, and interventions, the lawsuit grew to encompass over a dozen parties and a multitude of causes of action. Pertinent to this appeal are claims for declaratory judgment asserted by the Burnses, Hope Balderas, Juan Morales Balderas, Lucia Balderas Lopez, Roberto Ramirez, Edward Dryden, and Hakim Dermish; claims of statutory abandonment of Townsite streets and alleys asserted by the Burnses; a claim for tortious interference with a prospective contract asserted against Alvin by Ramirez, Dryden, and Dermish; a claim for breach of contract asserted against Merle by Ramirez and Dryden; and claims by Dimmit County, Ramirez, Dryden, and Dermish for attorney's fees.

         Additional facts concerning the parties' claims, as well as the trial court's rulings on those claims, are discussed below in conjunction with the particular issues on appeal to which they relate.

         Discussion

         Attorney disqualification

         Alvin and Merle contend that the law firm of Langley & Banack, Inc. ("Langley & Banack") should have been disqualified from representing Dimmit County in this case. They further contend that, if this court sustains this issue, the judgment must be reversed and the entire case remanded for a new trial. We therefore address this issue first.

         Alvin initiated this lawsuit as sole plaintiff on July 23, 2012. In his original petition, he alleged that he was fee simple owner of Townsite streets, alleys, and easements. He also claimed certain property rights arising from a judgment in a previous case filed by Merle. Alvin complained that the named defendants wrongfully interfered with his asserted property rights in a variety of ways. He specifically alleged that Dimmit County caused him harm by informing landowners and potential landowners that Alvin does not have any right or claim to the disputed property (i.e., Townsite streets, alleys, and easements).

         Dimmit County filed its original answer on August 24, 2012. That answer was signed by an attorney with the law firm of Langley & Banack. Almost nine months later, on May 6, 2013, Alvin filed a motion to disqualify that law firm from representing Dimmit County, or any other defendant, in this lawsuit. In that motion, Alvin stated that it was "quite a shock" to see that Langley & Banack was representing Dimmit County because that firm previously represented Merle "in matters involving exactly the same issue: Burns' ownership of property rights in and to his lands within Catarina Townsite." In fact, Alvin alleged that Langley & Banack represented Merle on these issues specifically against Dimmit County. Alvin alleged that Langley & Banack should be disqualified under Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct because it previously represented Alvin and/or Merle in a substantially related matter and because its representation of Dimmit County was reasonably likely to involve revelation or use of Alvin's and/or Merle's confidential information to their disadvantage. See Tex. Disciplinary Rules Prof'l Conduct R. 1.05, 1.09, reprinted in Tex. Govt Code Ann., tit. 2, subtit. G, app. A.

         The trial court held a hearing on the motion to disqualify on June 20, 2013. Five days after that hearing, Alvin filed an amended motion to disqualify asserting the same grounds for disqualification.[6] Merle purported to join this motion "by way of intervention." Merle did not, however, file a plea in intervention until March 10, 2014, nine months later.

         The trial court heard additional evidence and argument on the disqualification issue on April 14, 2014. On April 23, 2014, the court signed an order denying the amended motion to disqualify. The court concluded in its amended findings of fact and conclusions of law that the contention that Langley & Banack had a conflict of interest or that it should have been disqualified was waived. The Burnses challenge the legal and factual sufficiency of the evidence to support the court's finding of waiver. Dimmit County counters that the court's ruling is reviewed for abuse of discretion.

         We agree that a trial court's decision on attorney disqualification is reviewed for abuse of discretion. BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 514 (Tex. App.-San Antonio 2013, pet. denied). This standard applies in the context of waiver as well as the merits of a motion to disqualify. See id. at 515 (court did not abuse its discretion by finding waiver motion to disqualify); HECI Expl. Co. v. Clajon Gas Co., 843 S.W.2d 622, 629 (Tex. App.-Austin 1992, writ denied) (same). "A trial court acts within its discretion when it correctly applies the applicable law and its decision is not unreasonable, arbitrary, or made without any reference to guiding rules or principles." Zaffirini, 419 S.W.3d at 514 (internal quotation marks omitted). One such guiding rule or principle, however, is that the decision be based on evidence:

Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion. The trial court does not abuse its discretion, however, if there is some evidence of a substantive and probative character to support the decision or if reasonable minds could differ as to the result.

Diaz v. Diaz, 350 S.W.3d 251, 254 (Tex. App.-San Antonio 2011, pet. denied) (citations omitted).

         The Burnses contend that the waiver issue is governed by Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003), in which the supreme court held that a physician's extended delay in filing a motion to dismiss after receiving an inadequate expert report did not result in a waiver of the right to file for dismissal. Id. at 157. The Burnses' reliance on that case is misplaced, though, because Jernigan did not concern attorney disqualification, a subject that the supreme court has determined requires a more exacting standard. See Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding) ("[C]ourts must adhere to an exacting standard when considering motions to disqualify [counsel] so as to discourage their use as a dilatory trial tactic.").

         "One of the requirements of that exacting standard is that a party who does not file a motion to disqualify opposing counsel in a timely manner waives the complaint. "In re Users Sys. Servs, Inc, 22 S.W.3d 331, 338 (Tex 1999) (orig proceeding) (Baker, J, concurring); see Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (orig. proceeding) ("A party who fails to file its motion to disqualify opposing counsel in a timely manner waives the complaint."). To determine waiver, the court considers "the length of time between when the conflict was apparent and when the motion was filed." Zaffirini, 419 S.W.3d at 514 (citing Vaughan, 875 S.W.2d at 690-91).

         The supreme court in Vaughan found that a six-and-a-half-month delay resulted in waiver of the right to file a motion to disqualify. Vaughan, 875 S.W.2d at 690. This court has found waiver based on delays of seven months, Zaffirini, 419 S.W.3d at 515, and even three months, Enstar Petroleum Co. v. Mancias, 773 S.W.2d 662, 664 (Tex. App.-San Antonio 1989, orig. proceeding).

         Alvin's motion to disqualify demonstrates that he was aware of Langley & Banack's possible conflict of interest immediately upon receiving Dimmit County's original answer in August 2014. In his motion, Alvin expressed that he was shocked when Langley & Banack filed an answer on behalf of Dimmit County because that firm had previously represented Merle "in matters involving exactly the same issue" against Dimmit County. Despite this shock, Alvin waited over nine months to move for disqualification.

         Alvin argues that his delay is excused because he was not aware of the extent of Langley & Banack's conflict of interest until he received certain discovery requests, and he moved for disqualification two months later. The starting point for assessing a party's delay is the point when a conflict of interest becomes apparent, not when the extent of that conflict is developed. See Zaffirini, 419 S.W.3d at 514. Indeed, the supreme court in Vaughan measured the period of delay from the date on which the complaining party became aware of the attorney's "possible conflict of interest." Vaughan, 875 S.W.2d at 690-91 (emphasis added).

         Alvin's assertion that he was not aware of the identity of issues in the two representations is belied by his own testimony at the disqualification hearing. Alvin acknowledged that he was intimately involved with Langley & Banack's prior representation of Merle. He even confirmed that he personally discussed with firm attorneys both the claims to Townsite streets and alleys the Burnses were asserting at that time and future potential adverse possession claims. The trial court could infer from this testimony that it was immediately apparent to Alvin that the firm's prior representation of Merle and the present lawsuit against Dimmit County involved a conflict of interest.[7] Because of his involvement with the prior representation, Alvin admittedly knew what property rights were at issue there. And, because he initiated the current litigation, he knew what property rights are at issue here.

         Alvin's own testimony demonstrates that he was aware of the asserted conflict of interest from the outset of this case, even before the suit was filed. Alvin testified that, approximately a week before he filed suit, he and his then-attorney appeared before the Dimmit County Commissioner's Court and told that court that it would be a conflict of interest for the county to hire Langley & Banack in this dispute. And, within weeks of receiving the answer Langley & Banack filed on Dimmit County's behalf, Alvin's attorney informed Langley & Banack that a conflict of interest existed. Yet no motion to disqualify was filed at that time.

         Alvin insists that "[t]here can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right." Jernigan, 111 S.W.3d at 156. Alvin recognized and openly asserted, both personally and through counsel, that a conflict of interest existed, yet failed to file a motion to disqualify for another nine months. In the meantime, the lawsuit progressed and Langley & Banack continued to participate on behalf of Dimmit County. Alvin's failure to assert his known right was inconsistent with an intent to rely upon that right and constitutes a waiver. See id.

         The record fully supports the trial court's ruling that Alvin waived the right to seek Langley & Banack's disqualification. The court did not abuse its discretion by denying his amended motion to disqualify. See Spears, 797 S.W.2d at 656 (reviewing trial court's refusal to grant disqualification for abuse of discretion).

         Merle's intervention and disqualification

         Merle argues that Alvin's nine-month delay in filing his motion to disqualify does not impact Merle's right to move for disqualification because he was not a party to the lawsuit at the time of the delay. See Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.-San Antonio 1995, no writ) ("To intervene, a party must file a written pleading."). This argument is disingenuous. Merle purported to join Alvin's amended motion to disqualify "by way of intervention." Nine months later, Merle filed a plea in intervention. Merle never filed any additional or amended motion to disqualify. If, as Merle contends, Alvin's actions in relation to moving to disqualify Langley & Banack cannot be imputed to Merle prior to the time he became a party to the lawsuit, then Merle has never effectively sought disqualification. If, however, Merle's assertion of disqualification derives from Alvin's, then, as discussed above, the trial court did not abuse its discretion by denying Alvin's amended motion to disqualify Langley & Banack. See Spears, 797 S.W.2d at 656. We overrule Merle's issue as to attorney disqualification.

         Easement appurtenant to the Rectangle

         Alvin contends that the 1927 Deed from Catarina Townsite Company to Catarina Water Supply Company not only conveyed the Rectangle but also created an easement appurtenant to that land. The trial court agreed and declared that "an easement appurtenant exists as to the Rectangle which permits its fee simple owner the right to use Townsite streets and alleys but only as is reasonably necessary to install and/or access, maintain and repair water lines/pipelines beneath such streets and alleys as limited by the Specific Purpose." The court defined "Specific Purpose," according to the language of the 1927 Deed, as "the operation of a water works and/or irrigation system to serve Catarina Townsite and adjacent lands." The court specifically declared that "such Specific Purpose does not extend to supplying or delivering water to third parties for oil field fracking or oil well operations."

         On appeal, Dimmit County asserts that the trial court erred by holding that an easement appurtenant exists; Alvin asserts that the court erred by limiting the scope of that easement. Resolving these issues requires examining the deeds in Alvin's chain of title to the Rectangle and, most particularly, the 1927 Deed. No party contends that any of these deeds are ambiguous.

         Construction of an unambiguous deed is a question of law which is reviewed de novo. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). "In construing an unambiguous deed, our primary duty is to ascertain the parties' intent as expressed by the words of their agreement." Medina Interests, Ltd. v. Trial, 469 S.W.3d 619, 622 (Tex. App.-San Antonio 2015, pet. denied) (citing Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002)). This basic rule of contract construction also applies to interpreting the terms of an express easement so that "[t]he contracting parties' intentions, as expressed in the grant, determine the scope of the conveyed interest." Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700-01 (Tex. 2002).

         "An easement is a non-possessory interest in another's property that authorizes the holder to use that property for a particular purpose." Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 646 (Tex. App.-Houston [14th Dist.] 2011, no pet.) (citing Marcus Cable, 90 S.W.3d at 700). "There are two types of easement: in gross and appurtenant. An easement appurtenant attaches to the land and passes with it, while an easement in gross is personal and attaches only to the grantee." Long Island Owner's Ass'n, Inc. v. Davidson, 965 S.W.2d 674, 684 (Tex. App.-Corpus Christi 1998, pet. denied); see Killam Ranch Props., Ltd. v. Webb Cty., 376 S.W.3d 146, 155 (Tex. App.-San Antonio 2012, pet. denied). Whether an easement is in gross or appurtenant is determined by interpreting the grant creating the easement. McDaniel v. Calvert, 875 S.W.2d 482, 484 (Tex. App.-Fort Worth 1994, no writ). Courts do not presume an easement to be in gross if it can fairly be construed to be appurtenant. Id.

         An easement appurtenant requires a dominant estate, to which the easement is attached, and a servient estate, "which is subject to the use of the dominant estate to the extent of the easement granted or reserved." Seber, 350 S.W.3d at 646 (citing Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962)). Because an express easement appurtenant is an interest in real property, it must be created in writing. Drye, 364 S.W.2d at 203. Alvin insists that he owns an express easement appurtenant; he makes no claim to any implied easement appurtenant.

         We begin our analysis with the 1927 Deed, the writing on which Alvin relies as the source of his claimed easement appurtenant. That deed provides that Catarina Townsite Company

does Grant, Sell and Convey unto Catarina Water Supply Company . . . [the Rectangle, as identified by its legal description] and all easements, rights, licen[ses] and privileges owned or held by Catarina Townsite Company, for the use of roadways and/or alleys situated in or near said Catarina Townsite, in Dimmit County, Texas, for the purposes of erecting, constructing, operating and repairing thereon and/or removing therefrom water mains and pipes, irrigation canals, flumes, pipes and/or ditches, and such other purposes as are incident, so far as the same are incident, to the operation of a water works and/or irrigation system to serve Catarina Townsite and adjacent lands; . . . .

(Emphasis added.)

         Relying on the emphasized language, Dimmit County argues that the 1927 Deed conveyed only such easements, rights, licenses and privileges as were "owned or held by Catarina Townsite Company" at the time the deed was executed. To determine what Catarina Townsite Company owned or held at that time, we look to the 1925 Plat by which the Townsite was created and in which Catarina Townsite Company's easements, rights, licenses and privileges were defined.

         The 1925 Plat contains the following language, which is broken into paragraphs for ease of reference:

[1] The public is hereby granted an easement for the use of the roadways and alleys shown on said plat or map, for ordinary, non-profit, highway purposes;
[2] provided, however, that no person (except CATARINA TOWNSITE COMPANY, its successors and assigns) shall ever have the right or privilege to use said roadways and/or alleys for any purpose for profit;
[3] provided, further, that CATARINA TOWNSITE COMPANY, for the sole use of itself, its successors and assigns, hereby expressly reserves and retains the exclusive right and privilege to use said roadways and/or alleys for the purpose of erecting, constructing, operating and repairing thereon and/or removing therefrom pipe lines, telephone and telegraph lines, electric light and power lines, water mains and pipes, railroads and railway lines, motor busses, sewer and drains, gas pipes and mains, irrigation canals and ditches and other such purposes as CATARINA TOWNSITE COMPANY, its successors and assigns, may desire;
[4] the said CATARINA TOWNSITE COMPANY hereby expressly reserves and retains the right to assign, from time to time, and so often as it desires, any and/or all of said rights and privileges[;]
[5] CATARINA TOWNSITE COMPANY reserves and retains the further right to, at any time and from time to time so often as it may desire, to close or abandon any street, road, alley or any part thereof upon obtaining the consent of the owner or owners, only, of lands fronting upon those parts of any such street, road, or alley which are so closed or abandoned.

         The first paragraph grants to the public an easement to use the Townsite's roads and alleys for ordinary purposes. Paragraphs two through five then identify and reserve to Catarina Townsite Company certain rights and privileges, including the exclusive right and privilege to use the roads and alleys for for-profit purposes (some such uses being enumerated in paragraph three) and the right to close or abandon any street, road, or alley, in whole or in part, by obtaining consent of the owners of lands fronting upon the portion to be closed or abandoned.

         No language in the 1925 Plat can fairly be construed as creating an easement appurtenant. See McDaniel, 875 S.W.2d at 484. First, there is no mention of any dominant estate.[8] See Drye, 364 S.W.2d at 207 (easement appurtenant requires a dominant estate). Second, use of Townsite roads and alleys for profit (including for such purposes as "erecting, constructing, operating and repairing thereon and/or removing therefrom pipe lines, . . . water mains and pipes, . . . irrigation canals and ditches") is explicitly identified as a "right or privilege" which Catarina Townsite Company specifically reserved "for the sole use of itself, its successors and assigns." Cf. id. (easement appurtenant attaches to land not person). Finally, Catarina Townsite Company reserved the right to assign its for-profit use rights or privileges whenever and as often as it desired. Cf. Killam Ranch, 376 S.W.3d at 155 (easement appurtenant passes with, and cannot be separated from, land).

         By virtue of the 1925 Plat, Catarina Townsite Company owned a personal right or privilege to use Townsite roads and alleys for for-profit purposes. Thus, the 1925 Plat created an easement. See Seber, 350 S.W.3d at 646 ("An easement is a non-possessory interest in another's property that authorizes the holder to use that property for a particular purpose."). Owned by Catarina Townsite Company and not attaching to any particular parcel of land, the easement was in gross rather than appurtenant. See Orange Cty., Inc. v. Citgo Pipeline Co., 934 S.W.2d 472, 476 (Tex. App.-Beaumont 1996, writ denied) ("The easement in question is an easement in gross, as opposed to an easement appurtenant, because it is not created to benefit nor does it benefit the possessor of any tract of land in his use of it as such possessor.").

         That the 1925 Plat created an easement in gross rather than an easement appurtenant is also demonstrated by the 1927 Deed. In that deed, Catarina Townsite Company conveyed its right to use Townsite roads and alleys only for one narrow purpose-operating a water works or irrigation system. It did not convey its right to use those roads and alleys for any other for-profit purpose, such as erecting power lines or operating a railroad. The fact that it carved out one limited aspect of its exclusive for-profit use rights supports the conclusion that Catarina Townsite Company's for-profit use of Townsite roads and alleys was a personal right and not an easement appurtenant to any Townsite property.

         We note that the fact that Catarina Townsite Company transferred part of its easement does not mean that the easement was not in gross. While easements in gross are ordinarily not transferable, "the parties may create an assignable easement in gross through an express assignment provision." Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 546 (Tex. App.- Houston [14th Dist.] 2007, pet. denied). That is precisely what Catarina Townsite Company accomplished in paragraph four above. In addition, Texas law recognizes the transferability of a commercial easement in gross. See Marcus Cable, 90 S.W.3d at 700 (recognizing assignability of utility easement provided assigned use does not exceed originally granted use); AIMCO Props., L.P. v. Time Warner Entm't-Advanced/Newhouse P'ship, No. 03-97-00340-CV, 1997 WL 590675, at *3 (Tex. App.-Austin Sept. 25, 1997, no pet.) (acknowledging authority that commercial easements in gross are assignable and noting absence of Texas authority unequivocally holding they are not). Catarina Townsite Company's for-profit use easement was a commercial easement and, for this additional reason, was transferable. However, unlike an easement appurtenant, that easement would not transfer by deed without any mention of it. Cf. Van De Putte v. Cameron Cty. Water Control & Improvement Dist. No. 7, 35 S.W.2d 471, 473 (Tex. Civ. App.-San Antonio 1931, no writ) (easement appurtenant passes with land even without mention).

         The plain language of the 1927 Deed clearly reflects that Catarina Townsite Company transferred to Catarina Water Supply Company only such easements, rights, licenses or privileges as already existed and were owned or held by Catarina Townsite Company at the time the deed was executed. Nothing in the 1927 Deed demonstrates an intent by the parties to create a new property interest, whether by easement or any other means. And, as just explained, what Catarina Townsite Company owned was a personal right or easement in gross to use Townsite roads and alleys for for-profit purposes, a portion of which is what was conveyed.

         In arguing for an easement appurtenant, Alvin appears to rely solely on the fact that the 1927 Deed conveys the Rectangle, which he identifies as a dominant estate, and also conveys rights to use Townsite roads and alleys, which he identifies as a servient estate. The mere fact that a deed references two properties is insufficient to satisfy the requirement that an express easement appurtenant be created in writing. See Drye, 364 S.W.2d at 203. Further, even if we were to construe the 1927 Deed as creating a new easement, it cannot fairly be construed as creating an easement appurtenant. See McDaniel, 875 S.W.2d at 484.

         Again, an easement appurtenant "attaches to the land of the dominant estate and not merely for the convenience of the owner thereof independent of the use of his land." Drye, 364 S.W.2d at 207. And such an easement, by definition, is one that benefits a specified parcel of land regardless of who owns it. Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.-San Antonio 1996, writ denied); see Killam Ranch, 376 S.W.3d at 155 (easement appurtenant benefits the property to which it is attached). Stated another way, an appurtenant benefit is the right to enjoy an easement "that can be held only by the owner or occupier of a particular unit or parcel" of land. Killam Ranch, 376 S.W.3d at 155 n.4. Use and enjoyment of the easement must therefore be connected to the land itself.

         Nothing in the 1927 Deed suggests that the right it conveys to use Townsite roads and alleys to operate a water works or irrigation system is in any way for the benefit of the Rectangle, regardless of who owns it, rather than for the benefit of Catarina Water Supply Company. The deed does not refer to any water source or equipment located on the Rectangle, [9] nor does it indicate that use of Townsite roads and alleys for purposes incident to operating a water works or irrigation system must necessarily be tied to any such water source or equipment. The deed plainly grants the right to use Townsite roads and alleys for purposes incident to operating a water works or irrigation system without regard to whether any portion of that system is actually located on the Rectangle. In fact, Alvin testified that the Burnses used a well located on property other than the Rectangle as a back-up to operate their water system.

         The Burnses state that an appurtenance is something that is "actually and directly necessary to the enjoyment of the property." Quoting Balcar v. Lee Cty. Cotton Oil Co., 193 S.W. 1094, 1095 (Tex. Civ. App.-Austin 1917, no writ). They then argue that the right to use Townsite streets and alleys to operate a water system must be an appurtenant easement because "no community can survive without access to water." This implies, however, that use of Townsite streets and alleys for this purpose is "actually and directly necessary to the enjoyment of" Townsite property generally. This argument undercuts, rather than supports, the contention that the easement is appurtenant to the Rectangle.

         The conclusion that the easement is in gross rather than appurtenant is not only dictated by the language of the 1927 Deed, it is supported by the Burnses' own actions. Alvin acknowledges that Merle, his predecessor-in-interest, previously "transferred some of his easement rights in Catarina's streets." If those easements were appurtenant to the Rectangle, Merle could not have transferred them without also conveying the Rectangle itself. See Killam Ranch, 376 S.W.3d at 155 (easement appurtenant cannot be separated from the land); Van De Putte, 35 S.W.2d at 473 (easement appurtenant cannot exist separate and apart from property to which it is appurtenant). In the 2011 Deed to Alvin, Merle again conveyed some of the easements but not the Rectangle. And, after correcting that deed to convey the Rectangle, Merle reserved certain easement rights, thus divorcing them from the Rectangle itself. Again, this would not be possible if the easements were appurtenant to the Rectangle. See Killam Ranch, 376 S.W.3d at 155; Van De Putte, 35 S.W.2d at 473. Thus, the Burnses' own conduct evidences their understanding, at least prior to this lawsuit, that any right they had or have in Townsite roads and alleys is not by virtue of an easement appurtenant to the Rectangle.[10]

         We hold that the trial court erred by construing the 1927 Deed as creating an easement appurtenant to the Rectangle. The portion of the judgment declaring the existence of an easement appurtenant to the Rectangle is reversed and judgment is rendered declaring that no such easement appurtenant exists. Because of this holding, we need not address the Burnses' contentions that the trial court improperly restricted their rights under the alleged easement appurtenant.

         Exclusive right to use Townsite streets and alleys for profit

         The trial court declared that the Burnses "do not own, hold, or possess any special or exclusive easement rights, including ones for profit, to use or enjoy the Townsite streets and alleys as successor to anyone, including Catarina Townsite Company." The Burnses assert that, as successors-in-interest to Catarina Townsite Company, they possess an exclusive right to use Townsite streets and alleys for profit and, particularly, to operate a water works to serve the Townsite and adjacent lands.

         Because no easement appurtenant to the Rectangle was created by the 1927 Deed, any right the Burnses may have acquired to use Townsite roads and alleys must have been expressly conveyed to them. Cf. Van De Putte, 35 S.W.2d at 473 (easement appurtenant passes with land even without mention). A review of the deeds in their chain of title to the Rectangle, however, reveals that Merle and Alvin do not possess any easement right (much less an exclusive right) to use Townsite roads and alleys to operate a water works or for any other purpose.

         In 1945, Catarina Water Supply Company conveyed the Rectangle to Natalia Vineyards, Inc. This deed includes a conveyance of "all easements, rights, licenses and privileges owned or held by Catarina Water Supply Company" for the use of Townsite roads and alleys for the same purposes as are delineated in the 1927 Deed. It also conveyed physical equipment "used in connection with or incident to the operation of a water works and irrigation system serving said 'Catarina ...


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