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Amason v. Burrows

Court of Appeals of Texas, Sixth District, Texarkana

January 6, 2020


          Submitted: December 9, 2019

          On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 18C0763-202

          Before Morriss, C.J., Burgess and Stevens, JJ.


          Josh R. Morriss III Chief Justice

         In 2005, Garland "Skeet" Amason placed a locked gate across a road (the Road) that traverses his property from an intersection with County Road 3002 to property purportedly owned by Michelle Burrows.[1] Burrows claimed the Road as a public road and sued Amason for access to her property;[2] for a declaratory judgment that the Road was either a public road or that she had an implied easement across Amason's property; and for an injunction, damages, and attorney fees. After a period of discovery, Burrows moved for a traditional, partial summary judgment on the issues of whether the Road was a public road and whether she had an implied easement or an easement by estoppel. After a hearing, the trial court granted partial summary judgment and determined that the Road was a public road. The trial court later entered a final judgment, after a bench trial on damages, that reaffirmed its partial summary judgment that the Road was a public road, required Amason to remove all barriers on the Road, and awarded Burrows damages, attorney fees, and costs of court.

         In this appeal, Amason challenges the partial summary judgment that the Road was a public road, the admission of testimony from Burrows's damages expert, the award of damages, and the award of attorney fees and costs. We reverse the partial summary judgment because (1) the summary-judgment evidence did not establish as a matter of law that the Road was a public road and (2) the award of damages, attorney fees, and costs, predicated on the summary judgment, must be reversed.

         (1) The Summary-Judgment Evidence Did Not Establish as a Matter of Law that the Road Was a Public Road

         In support of her motion for partial summary judgment, Burrows produced evidence showing that Amason's and Burrows's respective parcels[3] were originally part of a larger tract of land that was partitioned by court-appointed commissioners in April 1905. In his affidavit, Jeffrey Wood, a registered professional land surveyor, stated that his review of a map of the west half of Bowie County, last copyrighted in 1952 (the 1952 map), [4] showed a secondary road running north and south into the Burrows property. He also testified that this secondary road was referred to as an access road in the 1994 deed by which Amason acquired ownership of his property. Wood stated his understanding that the secondary road had been in existence from the time of the 1952 map until 2017.

         Donald Ray Edson, by deposition, testified that he had worked in Bowie County for over thirty years for the Texas Forest Service. He looked at the Burrows property for Burrows's father, Hiram Burrows, to write a management plan, and also met Hiram at the property on occasions before and after trees were planted. He said he accessed the property by a county road, which he thought was "CR 3002." When he first accessed the property, there was no locked gate, but, sometime before he retired in 2012, there was a locked gate. On that occasion, he crossed over the fence and walked to the Burrows property, without asking permission. He described CR 3002 as paved at the beginning, then just dirt. He recalled the Burrowses cutting and clearing their property in the 1980's and then replanting it. He also recalled driving his truck to the Burrows property on the same road and thought that the equipment needed to harvest the trees would have used that same road. He never asked permission to use the road. He also testified that, if Burrows could not use the road, she would not have access to the Burrows property.

         Grady Epperson also testified by deposition. He stated that he had cut timber on the Burrows property two times. He accessed the property on a lane that turned off of the county road and led to the property. As far as he knew, the lane was a public road, and he did not recall asking permission to use it. He also testified that several people who worked for the Duffers[5] would use the lane to access their property. He thought that the "access road" and "public road" referenced in an unidentified deed was the road running up the west boundary of Amason's property. He thought he would have used the lane going to the Burrows property for a total of fifteen to twenty days while cutting timber. The second time he cut timber was in 2006 or 2007, at which time there was a gate on the Road. He went through the gate and did not recall asking permission.[6] He also testified that the 1952 map shows that there was an access road across Amason's property.

         In his deposition, Amason testified that he had met Burrows's parents a couple of times when they parked in his yard and walked down the lane to their property. He testified that what is now designated as CR 3002 has never been dedicated, that it runs across his land, and that he pays taxes on it. Bowie County paved CR 3002 between 2005 and 2008. He did not see a public access to the Burrows property on an unidentified Google map. He said he placed a lock on the gate across the Road in 2005, but let Epperson through the gate to cut timber.

         Burrows, by deposition, testified that she and her father used the Road to access their property beginning in the 1970s and that Hiram would have been using it since the 1950s. She stated that the Burrows property has always been used to grow pine trees. She maintained that, in February 2018, she accessed the Burrows property by climbing the gate across the Road, but also that the Road was a part of CR 3002. She also said that she accessed the Burrows property between four and six times in the 1990s. She assumed that each time she accessed the Burrows property that the Road was a part of CR 3002. CR 3002 was dirt and gravel until sometime in the 2000s.

         In support of his response to the motion for partial summary judgment, Amason filed his affidavit stating that he purchased his property in 1994 and had leased it for about fifteen years before that. He has lived in the immediate area his entire life. Amason stated that the road that is now known as CR 3002 begins as Farm to Market road (FM) 992 and ends at the concrete driveway to his residence. Before 9-1-1, there was no county road sign on that road. CR 3002 was paved by the county between 2006 and 2008 at his request. He describes the Road as a one-lane dirt and gravel road that intersects CR 3002 at a ninety-degree angle shortly before CR 3002 reaches the driveway to his residence. Amason averred that, while he was leasing the property, the Road was overgrown and washed out and traversable only with a tractor or heavy-duty vehicle. After he purchased the property, he graded the Road, installed culverts and drainage, and maintained the Road.

         Amason averred that he sold a tract of land between Amason's property and the Burrows property to Chad Duffer in 2017. The Duffer tract also needed access via the Road. Duffer and his lessees used the Road (to which he did not object) until Duffer built a road to State Highway 8. Amason stated that he used the Road to access his property, that the County has never maintained the Road, and that it has never been part of a postal or school bus route. He had never seen Burrows around his property until this lawsuit. He had seen her father one or two times when her father parked off CR 3002 and walked to the Burrows property. The only other person he saw associated with the Burrowses was Epperson, who ...

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