Don v. Aguilar

Decision Date12 August 2021
Docket Number02-20-00274-CV
CourtTexas Court of Appeals
PartiesBilly Don & Stephanie Couch and Carlo & Giovanna Restrepo, Appellants and Appellees v. Juan Carlos Avila Aguilar, Appellee and Appellant

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-309669-19

Before Sudderth, C.J.; Birdwell and Bassel, JJ.


Wade Birdwell Justice.

"Something there is that doesn't love a wall, that wants it down."

Robert Frost, "Mending Wall" (1914).

Don Carlos Avila Aguilar's neighbors erected a barrier blocking his only means of access to his property: a gravel driveway that passed over his neighbors' lots. So, Avila sued his neighbors, Appellants Billy Don and Stephanie Couch and Carlo and Giovanna Restrepo, and won a necessity easement to cross their land.

On appeal, Appellants challenge the necessity easement. On cross-appeal, Avila contests the trial court's implied determination that he did not have an express easement. We affirm the judgment in all respects.

I. Background
A. Factual Background

In 1981, Frank Maxey bought a stretch of land in Mansfield, Texas. In 1999, Maxey divvied up his property horizontally into four perpendicular lots. Lot 1 had direct access to Nelson Wyatt Road on the east, and Lot 4 had access to another public roadway on the west, but Lots 2 and 3 in the middle depended on a gravel driveway that ran through Lots 1 and 2 for access to Nelson Wyatt Road. The layout is approximated below:

(Image Omitted)

The central issues in the case are whether the current owner of Lot 3, Avila, has an express or implied easement to cross Appellants' properties, Lots 1 and 2. To evaluate that question, a brief history of how the lots changed hands over the years is necessary.

After Maxey partitioned the property in 1999, he sold Lots 2 and 4 and retained Lots 1 and 3 for himself. Maxey conveyed away Lot 4 to a family who are not involved in this suit except in that their property landlocks Lot 3 from the west. Maxey conveyed Lot 2 to Frankie Nowell and granted him an express easement to cross Lot 1 in order to reach Nelson Wyatt Road.

In 2005, Nowell conveyed Lot 2 to its current owners, Appellants Billy Don and Stephanie Couch. In 2013, Bonnie Williams acquired Lot 3 from a constable tax sale. In 2015, Maxey's estate conveyed Lot 1 to its current owners, Appellants Carlo and Giovanna Restrepo. At some point after the Restrepos' purchase, Appellants attempted to curtail use of the shared driveway by Lot 3's then-owner Williams, telling her that she was trespassing on their properties when she used the shared driveway.

That trend continued in 2019, when Williams sold Lot 3 to its current owner, Avila. After purchasing Lot 3, Avila was able to access the property only once using the shared driveway. Soon thereafter, Appellants blocked the driveway with a locked gate on the border between Lots 1 and 2, leaving Lot 3 landlocked.

B. Procedural Background

In 2019, Avila sued Appellants for a declaratory judgment that Lot 3 had an express easement and an implied necessity easement to cross Lots 1 and 2. Appellants countersued for an injunction to prevent Avila from using the driveway.

The case was tried to the bench on stipulated evidence, which largely consisted of deeds and testimony from an earlier hearing. After hearing the evidence, the trial court imposed an implied easement by necessity over Lots 1 and 2 for the benefit of Lot 3. The trial court declined to grant Avila an express easement. Both sides appealed.

II. The Couches' and Restrepos' Appeal

In their appeal, Appellants challenge the trial court's determination that Avila was entitled to an implied easement by necessity over Lots 1 and 2.

Whether a property owner is entitled to an easement by necessity is a question of law, although underlying factual issues may need to be resolved in order to reach the legal question. Staley Family P'ship, Ltd. v. Stiles, 483 S.W.3d 545, 548 (Tex. 2016). When neither party requests findings of fact and conclusions of law following a nonjury trial, all fact findings necessary to support the trial court's judgment are implied. Shields LP v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). Appellate courts defer to the trial court's findings of fact-so long as they are supported by the record-and review conclusions of law de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020).

It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created. Mitchell v. Castellaw, 246 S.W.2d 163, 167 (Tex. 1952). When an owner conveys part of a tract of land and retains a landlocked portion, a necessity easement over the portion conveyed may be implied so the owner of the landlocked part can access it. Staley, 483 S.W.3d at 548. To successfully assert a necessity easement, the party claiming the easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access remains a necessity and not a mere convenience (present necessity); and (3) the necessity also existed at the time the estates were severed (historical necessity). Hamrick v. Ward, 446 S.W.3d 377, 382 (Tex. 2014). "The party claiming a necessity easement has the burden to prove all facts necessary to establish it." Staley, 483 S.W.3d at 548. For an easement to be necessary, the claimant must show that he lacks any alternative route to legally access the public roadway from his property. Duff v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958); see Staley, 483 S.W.3d at 549. Necessity does not exist if the easement does not result in access to a public roadway. Staley, 483 S.W.3d at 549.

As to the first element, Appellants admit that Lots 1, 2, and 3 derive from common ownership. Also, it is undisputed that Avila's property, Lot 3, is presently landlocked and that he has no other means to access a public roadway from the property besides the shared driveway across Lots 1 and 2, which satisfies the second element, present necessity.

Appellants also concede that, at least at one point, the original owner Maxey was entitled to a necessity easement over Lot 2 because he had no other way to reach a public roadway from his Lot 3. But Appellants insist that there was no historical necessity for an easement over Lot 1. When Maxey partitioned the land and began selling the lots in 1999, he owned Lot 1 (which had direct roadway access) and Lot 3 (which did not). Appellants reason that, at the time of severance, Maxey only had necessity with respect to Lot 2: as the owner of Lot 1, Maxey had no need for an easement over his own property. Indeed, Appellants cite the merger rule to argue that Maxey could not have granted himself an easement across Lot 1 even if he wanted, because that lesser property right would have merged right back into the greater whole of his fee simple. Thus, Appellants contend that in the absence of any historical necessity, the owner of Lot 3 has never had a right to an implied easement over Lot 1; all that Lot 3's owner has ever enjoyed is permissive use of Lot 1. Thus, Appellant's appeal comes down to the third element and whether the original owner, Maxey, had historical necessity to cross Lot 1.

That in turn depends on what, exactly, is necessary. Appellants argue that the necessity for an easement must exist at severance. If that is the question, then Avila loses, because it is undisputed that Maxey did not need an easement across his own Lot 1 in 1999. See Magee v. Hambleton, No. 2-08-441-CV, 2009 WL 2619425, at *4 n.7 (Tex. App.-Fort Worth Aug. 25, 2009, pet. denied) (mem. op.) (noting that one who owns fee simple does not need an easement across his property).

However, under the Texas Supreme Court's earliest and most common formulation of the doctrine, the question is instead whether the owner of the dominant estate needed "access" across the servient estate, Hamrick, 446 S.W.3d at 382; Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984); Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 1944); Alley v. Carleton, 29 Tex. 74, 78 (1867); or, alternatively, needed a "roadway" across the servient estate. Waggoner's Estate v. Gleghorn, 378 S.W.2d 47, 48 (Tex. 1964); Duff, 311 S.W.2d at 641; Othen v. Rosier, 226 S.W.2d 622, 625 (Tex. 1950). To reach the public roadway from Lot 3, Maxey undoubtedly had the same type of necessity for access and a roadway across Lot 1 that Avila faces today, because to deny him access to a roadway across Lot 1 in 1999 would have entirely landlocked Lot 3 and left the property useless. For Maxey to make meaningful use of Lot 3, he needed the right to cross Lot 1 in order to reach the public roadway at the time of severance. That historical necessity is not diminished by the fact that he had the legal right to cross Lot 1 as the owner of Lot 1-even if it was a right he had, it was still a right he needed.

This conclusion is consistent with the reasoning that underlies the typical, two-lot case of implied easement by necessity. In the typical case, the owner of the landlocked lot traverses another lot for many years without problems to reach a public roadway, and the owner of the traversed lot gives the neighboring owner permission to cross his land. Because the owner of the landlocked lock has permission to cross the traversed lot, he has no need for an easement to cross. Indeed, the word "easement" is likely never uttered between them-at least, not until the owner of the traversed lot withdraws his permission to cross, and lawyers are...

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