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Street v. Chance

Court of Appeals of Texas, Second District, Fort Worth

May 30, 2019

Wilson Street and Pamela Street, Appellants
v.
Chad L. Chance and Susan Chance, Appellees

          On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 18-6165-442

          Before Sudderth, C.J.; Gabriel, J., and Wallach, J. [1]

          MEMORANDUM OPINION

          Bonnie Sudderth, Chief Justice

         I. Introduction

         In June 2009, Appellants Wilson Street and Pamela Street bought 9898 Cottonwood Springs, Pilot Point, Texas, a 12.82-acre tract of land containing a 2, 700-square-foot home, a barn, and a pasture, to retire on and enjoy with their horses and dog. The dirt road extension from the paved portion of Cottonwood Springs runs past the Streets' fenced pasture and to the entrance to their property.

         Nine years later, Appellees Chad L. Chance and Susan Chance bought the 57.104-acre adjacent property; their deed states, "This instrument was prepared based on information furnished by the parties, and no independent title search has been made." The Chance property's metes-and-bounds description references a September 7, 2001 amending plat that shows the "Future Extension Cottonwood Springs" and references the recorded instrument under which the Chances' grantor was conveyed the property and in which the metes-and-bounds description also referenced the 2001 amending plat.

         After Chad told Wilson that he planned to build a gate across the dirt portion of Cottonwood Springs that the Streets had been using to access their home, the Streets sued, seeking an easement under multiple theories, a declaratory judgment, and a temporary restraining order, as well as a temporary injunction[2] to prevent the Chances from interfering with their use of the road. Several rule 11 agreements later, [3]the trial court held a hearing on the Streets' application for a temporary injunction and denied it.

         In a single issue in this accelerated interlocutory appeal, [4] the Streets appeal the denial of their application for temporary injunction. We reverse.

         II. Temporary Injunction

         A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (op. on reh'g). The issue before the trial court at a temporary injunction hearing is whether the applicant is entitled to preserve the status quo of the subject matter of the suit pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see Clint ISD v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (citing Butnaru, 84 S.W.3d at 204). On appeal, our consideration is limited to whether the trial court abused its discretion in deciding that issue. Davis, 571 S.W.2d at 862. An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence, id., and we may not substitute our judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204; see Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.-Houston [1st Dist.] 2011, no pet.).

         Accordingly, we do not review the merits of the underlying case, Mattox, 336 S.W.3d at 762, because the propriety of a temporary injunction against interference with an easement does not depend on the controversy's ultimate merits but rather on whether there is a bona fide dispute as to the easement's existence and whether injunctive relief is essential to preserve the continued exercise of that right pending the controversy's adjudication. Petty v. Winn Expl. Co., 816 S.W.2d 432, 433 (Tex. App.-San Antonio 1991, writ denied) (op. on reh'g) (quoting Richter v. Hickman, 243 S.W.2d 466, 468 (Tex. Civ. App.-Galveston 1951, no writ)); see Frey v. CST Props., LLC, No. 04-13-00450-CV, 2014 WL 783324, at *5 (Tex. App.-San Antonio Feb. 26, 2014, no pet.) (mem. op.) ("In our review, we may not assume that the evidence presented at the temporary injunction hearing will be the same as the evidence developed at trial, and we may not infringe on the applicant's right to a full trial by determining the merits of the underlying case.").

         To obtain an injunction to maintain the status quo, an applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. Where there is conflicting evidence on the probability of a right of recovery, a trial court's decision to deny an injunction cannot be held to be an abuse of discretion. Frey, 2014 WL 783324, at *7. An injury is "irreparable" if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. The "status quo" is the "last, actual, peaceable, non-contested status which preceded the pending controversy." Marquez, 487 S.W.3d at 555 (quoting In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (internal quotations omitted)).

         A. Easement[5]

         An easement does not convey title to property; instead, it is a nonpossessory interest that authorizes its holder to use the property for only particular purposes. Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007) (defining easement); see Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018) (same). Because it is an interest in land, an easement is subject to the statute of frauds and statute of conveyances, but there are exceptions for, among other things, easements by public dedication. Anderson v. Tall Timbers Corp., 378 S.W.2d 16, 23 (Tex. 1964).[6] And a purchaser is bound by every recital, reference, and reservation contained in or fairly disclosed by any instrument that forms an essential link in the chain of title under which he claims a piece of property and has a duty to investigate because he is charged with notice of the contents of those links. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982) (reciting that the rationale for the rule is that any description, recital of fact, or reference to other documents puts the purchaser on notice to investigate until "a complete knowledge of all the matters referred to and affecting the estate is obtained" (quoting Loomis v. Cobb, 159 S.W. 305, 307 (Tex. Civ. App.-El Paso 1913, writ ref'd))); see Tex. Prop. Code Ann. § 13.002 ("An instrument that is properly recorded in the proper county is (1) notice to all persons of the existence of the instrument; and (2) subject to inspection by the public."); Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 169 (Tex. 2013) (stating that the rule that a purchaser is deemed to have notice of all recorded instruments, not just the most recent ones, is the same as recited 30 years before in Westland Oil).

         A dedication for public use requires the following: (1) the person who makes the dedication must have the ability to do so, i.e., have fee simple title; (2) there must be a public purpose served by the dedication; (3) the person must make either an express or implied offer; and (4) there must be an acceptance of that offer. Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 532 (Tex. App.-Fort Worth 1983, no writ) (discussing presumption in favor of an intent to dedicate land to public use "when the origin of the use of a road by the public, and the ownership of the land at that time, are so shrouded in obscurity that no proof can be adduced to show the intention of the owner when the public use began"); see Gutierrez v. Cty. of Zapata, 951 S.W.2d 831, 837, 840 (Tex. App.-San Antonio 1997, no writ) ("The only requirement of an express dedication is the showing of a declaration or some express manifestation of the purpose to devote the land to the public use."); see also Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 256-57 (Tex. 1984) (holding that there was an implied dedication of the road for public use and an equitable easement to the road vesting in Zavala County when "[t]he uncontroverted evidence is that for over 30 years there ha[d] been continuous use of the road by the public generally" and that it had been used as a mail and school bus route). Compare Braun v. Braun, No. 04-09-00486-CV, 2010 WL 2513428, at *6 (Tex. App.-San Antonio June 23, 2010, pet. denied) (mem. op.) ("An express dedication occurs if an owner of land makes express reference in his plat description to a roadway not yet opened; this reference operates as an immediate dedication of the roadway to the public."), with Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 906 (Tex. App.-Houston [14th Dist.] 2016, no pet.) ("[M]erely recording a map or plat which shows streets or roadways, without more, does not constitute a dedication, as a matter of law, of such streets as public roadways.").

         Additionally, when a person purchases a lot with reference to a subdivision plat, he or she immediately acquires private rights of easement over the streets shown on such plat as abutting the purchased lot, whether or not such streets are ever accepted or opened by the public. Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966); see City of San Antonio v. Olivares, 505 S.W.2d 526, 530 (Tex. 1974) ("Texas courts have generally recognized that abutting property owners have private rights in existing streets and alleys in addition to their rights in common with the general public. This right is in effect a private right of ingress and egress[, ] . . . a right of passageway to and from the property."). In Olivares, the court, referencing Dykes, also noted that it had "consistently held that the conveyance of land by reference to a map or plat, upon which lots and streets are laid out, results in the purchaser or one holding under him, acquiring by implication a private easement in the alleys or streets shown on the plat." 505 S.W.2d at 530; see State v. Delany, 197 S.W.3d 297, 299 (Tex. 2006) ("Texas has long recognized that property abutting a public road has an appurtenant easement of access guaranteeing ingress to and egress from the property.").

         B. Temporary Injunction Hearing

         Before the hearing on the Streets' temporary injunction application began, the trial court admitted their first 20 exhibits and the Chances' exhibits 1-15 and 17-A through 17-D into evidence. Many of these exhibits were deeds illustrating the parties' chains of title.

         These documents reflect that One Terra Land LGM Inc. (OTL) acquired 319.6336 acres in September 1996 that was subject to-among other things-"[r]ights of third parties, if any, with respect to any portion of the property lying within the boundaries of any public or private road shown on the Survey." The record does not reflect what roads, if any, were present on the property at the time of OTL's acquisition, but in 1998, OTL filed a plat for 191.0250 acres out of the 319.6336 acre-tract, which it identified as the Butterfield Junction Addition. The plat shows the paved portion of Cottonwood Springs ending in a "temporary ...


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