Boerschig v. Sw. Holdings Inc.
| Decision Date | 29 September 2010 |
| Docket Number | No. 08-09-00071-CV.,08-09-00071-CV. |
| Parties | John P. BOERSCHIG, Appellant, v. SOUTHWESTERN HOLDINGS, INC., Appellee. |
| Court | Texas Court of Appeals |
322 S.W.3d 752
John P. BOERSCHIG, Appellant,
v.
SOUTHWESTERN HOLDINGS, INC., Appellee.
No. 08-09-00071-CV.
Court of Appeals of Texas,El Paso.
Aug. 11, 2010.
Rehearing Overruled Sept. 29, 2010.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Renea Hicks, Austin, TX, for Appellant.
Roy B. Ferguson, The Ferguson Law Firm, Marfa, TX, for Appellee.
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
John Boerschig appeals the trial court's judgment in favor of Southwestern Holdings, Inc. (SHI), stemming from his suit for trespass, injunctive, and declaratory relief. We affirm in part and reverse in part.
In the early 1900s, John A. Poole owned a sizeable ranch named La Cienega. 1 The northern portion of that ranch, now known as the McCracken Ranch, was later sold to the McCrackens in 1930. In 1950, Poole's son, Hart Greenwood, purchased La Morita, a western property adjacent to La Cienega.
Forty years later, SHI bought the Cibolo Creek Ranch, which abutted the northwest area of the McCracken Ranch, and developed the property into a resort. And in 1992, SHI bought La Morita and La Cienega, and renovated those properties into resorts, as well. Frances Harper, Greenwood's daughter, retained a portion of the original Poole ranch located to the east of La Cienega, and SHI later purchased a portion of that property as well in 2000, known as the Harper Ranch. 2
Meanwhile, ownership of the McCracken Ranch vested to McClurg and Kelly, and in 1999, they sold the ranch to Wolverine Ventures, who transferred the ranch to John Boerschig the following year. Boerschig now operates the ranch for cattle ranching and hunting. He later sued SHI over the use of two roads, namely, the Tinaja-China Road and the Morita Road, which as explained below, cross the parties's respective ranches.
From Highway 67, access to the McCracken Ranch and Cienega Ranch is had by the Tinaja-China Road, which first crosses the eastern part of the Cibolo Creek Ranch and then a portion of the McCracken Ranch. Prior to Ventures' purchase of the McCracken Ranch, SHI attempted to have the Presidio County Commissioners Court declare the Tinaja-China Road a public road, but the Commissioners Court declined, recommending that the private parties, that is, SHI and the owners of the McCracken Ranch, McClurg and Kelly, resolve the issue among themselves. Accordingly, in October 1993, the parties executed the following reciprocal easement:
For adequate consideration, the receipt and sufficiency of which is acknowledged and confessed, Southwestern hereby Grants and Conveys to McCracken, their heirs, successors and assigns, and McCracken hereby Grants and Conveys to Southwestern, its successors and assigns, an easement 30 feet in width for the purpose of ingress and egress to and from McCracken Tinaja China Ranch and Cibolo Creek-Cienega Ranch, respectively, over, across and upon the New Road described in this Agreement for its full length as described herein. Such easement shall be appurtenant to the McCracken Tinaja China Ranch and to the Cibolo Creek-Cienega Ranch, each such ranch being more particularly described on the attached Exhibit “A”.
Following the agreement, McClurg and Kelly never objected to SHI's or its guests' use of the road to access its resort at Cienega.
The Morita Road runs from an old fort located on La Cienega Ranch to another fort on La Morita Ranch. As the road passes through the Morita Canyon, the road crosses onto the McCracken Ranch for 2,200 feet. Prior to a survey completed in 2001, Boerschig simply assumed the entire road belonged to SHI as did all prior property owners in the area. Indeed, from 1950 to 1992, the road was not open to the public but used on a regular basis and exclusively by the Greenwoods, who also exclusively improved and maintained the road. Similarly, SHI used and maintained the road exclusively since it purchased the Cienega and Morita ranches, and Boerschig, prior to obtaining the survey, only used the road with SHI's permission.
The survey also concluded that a small portion of a fence that SHI erected in 1992 near the renovated buildings on La Morita was actually on the McCracken property.
Boerschig sued SHI, alleging, among other things, that: (1) SHI trespassed by using a portion of the Morita Road that was on his property; (2) SHI violated the express easement by using it for its invitees to access a resort rather than a ranch, and to access nonappurtenant properties; and (3) SHI trespassed by erecting a fence on the Morita Road. Boerschig moved for injunctive and declaratory relief, asking the court to declare that portion of the Morita Road his, to enjoin SHI's trespasses, and to determine the scope of the express easement. Boerschig further moved for damages based on permanent and temporary injuries, and exemplary damages. SHI generally denied the allegations, claimed it had an easement by estoppel, implication, or prescription on the Morita Road, alleged that Boerschig's fence claims were barred by standing and limitations, and also moved for declaratory relief concerning the language in the express easement.
SHI later counterclaimed that it had an implied easement by existing use or necessity across the Tinaja-China Road and that the express easement had been impliedly dedicated to the public. Boerschig moved for summary judgment on SHI's most recent counterclaims, contending that SHI failed to show any evidence that met the elements for an implied easement by existing use or necessity, that any implied easement terminated when the express easement was entered into, and that there was no evidence that the easement was impliedly dedicated to the public. Boerschig also filed a motion to dismiss SHI's counterclaim for implied public dedication, arguing that SHI lacked standing to bring such an action. In response, SHI asserted that there were genuine issues of material fact concerning whether: (1) there was an implied easement before the express easement issued; (2) the implied easement ended when the express easement was signed; and (3) there was an implied public dedication of the easement in question. The trial court granted Boerschig's motion for summary judgment.
SHI moved for summary judgment as to the declarations of the rights of the parties concerning the express easement. SHI's motion asserted that the express easement was: (1) an easement appurtenant; (2) a general easement for ingress and egress;
(3) an easement not limited as to the purposes of such ingress and egress; and (4) an easement that included the right of the parties' guests, invitees, and licensees to use the easement. Boerschig stipulated that the easement was an easement appurtenant from the McCracken Ranch to the Cibolo Creek Ranch and Cienega Ranch, but contested whether the easement was appurtenant to access any of SHI's other properties. He also asserted that the easement was not a general easement that could be enlarged by changes in the use or character of SHI's property; rather, Boerschig alleged that the easement was limited by the intentions of the parties at the time the easement was entered into and that what is expressly not included in the easement is prohibited. The trial court granted SHI's motion for summary judgment and declared the express easement an easement appurtenant that is reciprocal in nature and grants each party a general right of ingress and egress, which extends to the parties' guests, invitees, and licensees. The trial court reserved all other rulings on the express easement, including Boerschig's requests for injunctive relief, for trial.
SHI also partially moved for traditional summary judgement, asserting that it had an easement by prescription on the Morita Road and that any fence trespass was barred by limitations. Boerschig responded that SHI's possession lacked any intention to appropriate and therefore, SHI was not entitled to an easement by prescription. Further, Boerschig retorted that his action is not barred by limitations as the discovery rule applied. The trial court denied SHI's motion for summary judgment.
SHI also partially moved for a no-evidence summary judgment on grounds that Boerschig lacked standing to address the Morita Road and that he failed to show any damages. Boerschig objected to the limitations and standing arguments, and withdrew his claims for lost rental values, mental anguish damages, and actual damages resulting from walking. However, Boerschig claimed he was entitled to actual damages for driving on his land, nominal damages for walking trespasses, and exemplary damages for malicious trespasses. The trial court granted the summary judgment in part with regards to claims for lost rental values, mental anguish damages, and actual damages for any alleged walking or driving on Boerschig's property. The remaining claims went to trial.
At the conclusion of trial, the court found that SHI had a prescriptive easement on the Morita Road, ruled that Boerschig bought the fence when he bought the property, and determined that Boerschig was not entitled to injunctive relief on the express easement. However, the trial court ordered SHI to pay $1 in nominal damages for trespass by foot and $100 in nominal damages for trespass by equipment on Boerschig's property. 3 The trial court further ordered that judgment be entered for SHI, that all relief requested and not expressly granted is denied, and that SHI recover its attorney's fees. The trial court's findings of fact and conclusions
of law declared that Boerschig lacked...
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