Betts v. Reed

• Decision Date: 06 July 2005
• Docket Number: No. 06-04-00081-CV.,06-04-00081-CV.
• Citation: 165 S.W.3d 862
• Parties: Carrie BETTS, Appellant, v. Hermon REED, Jr., Appellee.
• Court: Texas Supreme Court

165 S.W.3d 862

Carrie BETTS, Appellant, v. Hermon REED, Jr., Appellee.

No. 06-04-00081-CV.

Court of Appeals of Texas, Texarkana.

Submitted April 27, 2005.

Decided May 27, 2005.

Rehearing Overruled July 6, 2005.

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Frank D. Moore, Cooper, for appellant.

James R. Rodgers, The Moore Law Firm, LLP, Paris, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

This appeal arises from a dispute between two landowners, Carrie Betts and Hermon Reed, Jr., over a narrow road running across Betts' property and leading to Reed's property. This road is located in Red River County and is sometimes known as Tyson Road.¹ Contending the road had been a public road for at least ninety years, Reed filed a declaratory judgment action against Betts concerning the status of Tyson Road and sought damages for the denial of its use. The trial court found Tyson Road had been impliedly dedicated to public use, abandoned, and then acquired by Reed through prescription. Betts contends the evidence is legally and factually insufficient to support the finding that Reed established a private easement by prescription and to support the damages awarded. In response, Reed contends the evidence is sufficient to support the trial court's judgment under three separate theories: implied dedication, public prescription, or a private prescription. We affirm the trial court's judgment in part and reverse in part. There is sufficient evidence Tyson Road had been impliedly dedicated to public use, but the evidence is legally insufficient that it had been abandoned.

Factual Background

Several witnesses testified this narrow gravel road has been used by the public since at least the 1920s. At one time, several families used Tyson Road to access their homes. Permission was never sought from anyone, and there were no restrictions on who could use the road.

In 1964, Reed purchased 105 acres along Tyson Road, which is most of the property now accessible by that road. Initially, Reed paid taxes on only 103 acres because the county estimated that Tyson Road occupied the remainder of the acreage. However, the county's taxing authority started collecting taxes for the entire 105 acres eight to ten years ago. Reed uses his property primarily to graze cattle and to lease for deer hunting. Reed testified he has used Tyson Road continuously since 1964. He never asked permission to use the road. At some time, not shown by the record, a gate was erected across the road at some location, again not shown by the record, but apparently before reaching Reed's property.

Betts acquired her property along Tyson Road in 1990. She testified that she wanted to build a new house on the site of the road and that she had offered Reed an alternative route, which he refused to accept. Betts further testified she was aware before the acquisition of her property that Reed used Tyson Road.

Approximately one year before trial, Reed began to experience problems using the road. Although he had an alternative route through a neighbor's property to access his property, the alternative route was more difficult and much longer. Despite a temporary restraining order against Betts, the gate across the road was locked and debris was left on the road to inhibit its use.

Following a bench trial, the court found Tyson Road had been a public road that was abandoned for twenty years or more. The court further found that Reed had perfected a prescriptive easement. The court awarded damages of $6,950.00 and attorney's fees in the amount of $6,250.00 to Reed. Last, the court permanently enjoined Betts from interfering with Reed's use of the road and barred her from entry onto the road.

Standard of Review

We review de novo the trial court's legal conclusions. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996); Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex.App.-Texarkana 2000, no pet.). Although Betts requested findings of fact, the record contains no such findings and no notice of past due findings. "The failure to file a notice of past due findings of fact waives the right to complain about the trial court's failure to file findings of fact and conclusions of law." Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex.App.-Houston [14th Dist.] 2000, no pet.); see Ohio Cas. Group v. Risinger, 960 S.W.2d 708, 712 (Tex.App.-Tyler 1997, writ denied); see also TEX.R. CIV. P. 297.

In the absence of findings of fact and conclusions of law, we imply that the trial court found all facts necessary to support its judgment as long as they also are supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). However, those implied findings may be challenged on appeal for legal and factual sufficiency where the appellate record includes the reporter's and clerk's records. Id. We note that complaints concerning the sufficiency of the evidence in a nonjury trial may be made for the first time on appeal. TEX.R.APP. P. 33.1(d); TEX.R. CIV. P. 324; Regan v. Lee, 879 S.W.2d 133, 135 (Tex.App.-Houston [14th Dist.] 1994, no writ); see Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677-78 (Tex.1979).

When deciding a legal sufficiency point concerning a fact issue, we must consider all the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party's favor. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 888 (Tex.App.-Texarkana 2004, pet. denied). We disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). A no-evidence point will be sustained when: (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

When considering a factual sufficiency challenge to a jury's verdict, a court of appeals must consider and weigh all of the evidence, not just the evidence supporting the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). A court of appeals may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact-finder. Accordingly, the court of appeals may not pass upon the witnesses' credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Mar. Overseas Corp., 971 S.W.2d at 407. If we find the evidence insufficient, we must clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Tyson Road Was Impliedly Dedicated As a Public Road

Legally and factually sufficient evidence supports the trial court's finding that Tyson Road had become a public road through implied dedication. Since the origin of the road is "shrouded in obscurity," the long and continuous use of the road by the public creates a presumption of dedication. No evidence was introduced to rebut this presumption.

A property owner, under the common law, can either expressly or impliedly make known his or her intention to dedicate.² The essential elements of implied dedication are:

(1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) [the landowner] was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication.

Lindner v. Hill, 691 S.W.2d 590, 592 (Tex.1985) (quoting Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984)); see Machala v. Weems, 56 S.W.3d 748, 760 (Tex.App.-Texarkana 2001, no pet.); Stein v. Killough, 53 S.W.3d 36, 43 (Tex.App.-San Antonio 2001, no pet.). The determination of whether a public right-of-way has been acquired by dedication is a question of fact. Lindner, 691 S.W.2d at 591; Graff, 947 S.W.2d at 635.

As a general rule, the manifestation of an intent to dedicate must be something more than an omission, failure to act, or acquiescence on the part of the owner. Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 241 (1958); Gutierrez v. County of Zapata, 951 S.W.2d 831, 839 (Tex.App.-San Antonio 1997, no writ). "In order to constitute dedication by estoppel or implication there must exist a clear and unequivocal intention on the part of the landowner to dedicate the same to public use and an acceptance thereby by the public." Greenway Parks Home Owners Ass'n, 312 S.W.2d at 241. There must be some evidence in addition to the owner's acquiescence that implies a donative intent. Long Island Owner's Ass'n v. Davidson, 965 S.W.2d 674, 681 (Tex.App.-Corpus Christi 1998, pet. denied). The additional evidence may include, but is not limited to: (1) permitting public authorities to grade, repair, or otherwise improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels; (3) construction of...