Exxon Corp. v. Schutzmaier

• Citation: 537 S.W.2d 282
• Decision Date: 15 April 1976
• Docket Number: No. 7774,7774
• Parties: EXXON CORPORATION et al., Appellants, v. Joyce SCHUTZMAIER et vir., Appellees.
• Court: Texas Court of Appeals

Page 282

537 S.W.2d 282

EXXON CORPORATION et al., Appellants, v. Joyce SCHUTZMAIER et vir., Appellees.

No. 7774.

Court of Civil Appeals of Texas Beaumont.

April 15, 1976.

Rehearing Denied May 13, 1976.

Louis Paine and W. John English, Jr., Houston, for appellants.

A. J. Watkins, Houston, for appellees.

KEITH, Justice.

Defendant Exxon Corporation appeals from a judgment rendered in favor of Joyce Schutzmaier and her husband which found that an easement existed across Exxon's property for the benefit of the Schutzmaiers which extended from an express easement, earlier given their predecessors in title, to a public highway.

In 1949, Thomas E. Brawner (Joyce Schutzmaier's father and predecessor in title) purchased 173 acres from V. L. Peterson. This land was adjacent to a tract of land owned by Exxon ¹ which was purchased in two separate conveyances from George L. Dew in 1931 and H. W. Dew in 1932. The Exxon tract is located between Brawner's land and a public highway. It is undisputed that the sole means of access from the Brawner tract to the public highway was by means of a semicircular road which looped from the highway through Exxon's property and came within 600 feet of Brawner's tract--the road being known as Loop Road. In order to obtain a means of ingress and egress to his property, Brawner obtained from Exxon in 1950 a written easement extending for 600 feet from his property to Loop Road. Brawner used Loop Road without interference for a period of 22 years, at which time he conveyed this land to his daughter and her husband, the Schutzmaiers. At no point does the Brawner tract abut on the public highway or on Loop Road, except on the latter by means of the express easement.

When the Schutzmaiers began the development of their tract in 1972, Exxon allegedly began to interfere with the accessibility to the land by tearing up a bridge on the west leg of Loop Road, constructing gates signifying the road as private property, grading and plowing the road in certain sections, and other general acts of 'harassment.'

The Schutzmaiers then brought this action seeking the creation of an easement along Loop Road, an injunction against Exxon from further interfering with their rights of access to their property, the dedication of Loop Road as a public highway, the restoration of Loop Road to its pre-1972 condition, and damages for intentional interference and injuries resulting from the defendant's acts of harassment. Trial was to a jury which found: that defendant had not engaged in willful acts of harassment; that the plaintiffs and Brawner had relied on the use of Loop Road when the express easement was obtained in 1950; that the use of Loop Road had been apparent, continuous, and necessary to the enjoyment of the Brawner tract; that the use of Loop Road by the public was not sufficient to have implied a public dedication; and that the plaintiffs had suffered $10,000 in injuries because of defendant's acts but that defendant was not negligent. Based upon this verdict, the trial court found that an easement had been created; enjoined the defendant from further interfering with plaintiffs' rights of ingress and egress; refused to find that Loop Road was a public way or that monetary damages should be awarded; and ordered defendant to restore the entire Loop Road to its pre-1972 condition, including replacement of the bridge which was removed. We will refer to the parties as designated in the trial court.

Defendant's first point of error is that the plaintiffs are not entitled to a judgment awarding them 'an implied easement in their favor over and along Loop Road.'

We note initially that the trial court did not specify whether the easement which was created was by implication or by estoppel. The parties have addressed themselves to both theories and we will thus discuss each separately.

In order to establish an easement by implication, it was incumbent upon the plaintiffs to prove (1) that there was originally a unity of ownership between the dominant estate (the Brawner tract) and the servient estate (the Exxon tract); (2) that the use must have been apparent at the time of the grant to the dominant estate; (3) that the use of the easement was continuous so that the parties intended its use to pass by grant; and (4) that the easement must be reasonably necessary to the use and enjoyment of the dominant estate. See, Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207--208 (Tex.1962); Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.1966).

While strict adherence to the four requirements of an implied easement has been criticized, ² we believe that the weight of authority supports such a construction. Westbrook v. Wright, 477 S.W.2d 663, 665--666 (Tex.Civ.App.--Houston (14th Dist.) 1972, no writ); Johnson v. Faulk, 470 S.W.2d 144, 148 (Tex.Civ.App.--Tyler 1971, no writ); 4 F. Lange, Texas Practice 137, § 375 (1961); Clevenger v. Kulla, 22 Md.App. 448, 323 A.2d 623 (1974); Wetmore v. Ladies of Loretto, Wheaton, 73 Ill.App.2d 454, 220 N.E.2d 491 (1966); Boyd v. McDonald, 81 Nev. 642, 408 P.2d 717 (1965); Knight v. Shell, 313 Ky. 852, 233 S.W.2d 973 (1950); Maioriella v. Arlotta,364 Pa. 557, 73 A.2d 374 (1950).

Defendant asserts that plaintiffs have not proven the first element above, i.e., that there was an original unity of ownership between the dominant and servient estates at the time of the grant. Since the defendant does not complain of the jury's findings which support the remaining elements of an implied easement, we will confine our discussion to this one contention. It is plaintiffs' position that unity of ownership was established because Exxon owned the land which was conveyed for the express easement.

Plaintiffs' position is not well taken. The property which is subject to the express easement does not concern us here. The unity of ownership which plaintiffs had to establish in order to recover under this theory was the relationship between their tract (the dominant estate) and the tract upon which they seek to impose the easement (the servient estate), which is Loop Road. While defendant's point of error does not state whether it is complaining upon a 'no evidence' point or an 'insufficient evidence' point, there is no evidence at all in the record which reveals that there was a common grantor as to the Brawner tract and the land upon which Loop Road is located. The only evidence is that Brawner bought his land in 1949 from V. L. Peterson and that Exxon bought its land in 1931 and 1932 from H. W. Dew and George Dew. This proof is insufficient to comply with the common ownership requirement of Drye v. Eagle Rock Ranch, Inc., supra, and Bickler v. Bickler, supra. Because plaintiffs failed to prove all four requisite elements, we hold that no implied easement has been established.

We next examine the question of whether an easement by estoppel was created. In this context we will also discuss defendant's point of error No. 2 wherein it asserts error in the submission of special issue No. 3 which inquired whether the plaintiffs had made any improvements and expended any sums of money on the Brawner tract (dominant estate). The jury answered this issue in the affirmative.

In general, one who attempts to create an easement by estoppel must show that (1) a representation must have been communicated to the promisee, (2) that it must have been believed, and (3) that there must have been reliance upon such communication. Doss v. Blackstock, 466 S.W.2d 59, 61 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.). But the doctrine of easement by estoppel (or estoppel In pais as sometimes referred to) has not been applied with the same strictness and conclusiveness as easements by implication. As has been said by the Supreme Court, 'The exact nature and extent of the doctrine of estoppel in pais have not been clearly defined.' Drye v. Eagle Rock Ranch, Inc., supra, 364 S.W.2d at 209. In certain situations, it has thus been suggested that the cases should more properly be based upon a construction of the surrounding circumstances. Drye v. Eagle Rock Ranch, Inc., supra (at 210, citing 3 Tiffany on Real Property 315, § 800 (3d Ed. 1939)).

In North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678 (Tex.Civ.App.--Houston (14th Dist.) 1970, writ ref'd n.r.e.), the court, in finding an easement by estoppel, also considered the fact that improvements which had been made were permanent and substantial, that such improvements were open and obvious to the owner of the servient estate, that the servient estate had constructive notice of the activities of the dominant estate holders, and that such use and improvements had the tacit consent of the servient estate owners because there was no complaint made when the improvements were constructed.

There is no question in the case at bar that the Only means of ingress and egress for the plaintiffs is by Loop Road. This access was used for 22 years without any apparent...