Harrington v. Dawson–Conway Ranch, Ltd.

• Decision Date: 12 July 2012
• Docket Number: No. 11–10–00124–CV.,11–10–00124–CV.
• Citation: 372 S.W.3d 711
• Parties: Mark HARRINGTON, Appellant, v. DAWSON–CONWAY RANCH, LTD., Appellee.
• Court: Texas Court of Appeals

372 S.W.3d 711

Mark HARRINGTON, Appellant,

v.DAWSON–CONWAY RANCH, LTD., Appellee.

No. 11–10–00124–CV.

Court of Appeals of Texas,

Eastland.

June 7, 2012.

Rehearing Overruled July 12, 2012.

Jeffrey S. Lisson, Carter, Boyd, Lisson & Hohense, San Angelo, for appellant.

A. Scott Campbell, Messer Campbell & Brady LLP, Frisco, for appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and KALENAK, J.

OPINION

TERRY McCALL, Justice.

The issue in this case is whether the owners of the Dawson–Conway Ranch, Ltd. have an easement, either by implication or by prescription, to use a road on the Harrington Ranch that borders the Dawson–Conway on the west. A short portion of the road is south of the Dawson–Conway and crosses the Harrington Ranch from County Road 201 to an access point at the southwest corner of the Dawson–Conway. We shall refer to this portion as the first access road. From the first access point, the road runs northward across the Harrington Ranch to a second access point on the Dawson–Conway. At the second access point, that part of the Dawson–Conway is the north border of the Harrington Ranch. This longer portion of the road across the Harrington Ranch shall be referred to as the second access road.

The two ranches were originally part of the Monroe Ranch. In 1901, the Monroe Ranch first conveyed part of its ranch to Dawson–Conway's predecessors in interest and then conveyed another part of its ranch (to the immediate west of Dawson–Conway's property) to Mark Harrington's predecessors in interest. The only evidence concerning the establishment of the road was that the road was in existence sometime in the 1940s. To reach the second access point, the road crosses sections 199, 198, and 197 of Harrington's property.

In December 2007, Harrington closed the road between the first access point and the second access point, but he continued to allow access to the Dawson–Conway Ranch at the first access point. He claimed the closing was because of the trash left on his ranch by people going to the Dawson–Conway and not respecting his property. Dawson–Conway filed suit against Harrington in June 2010, claiming an implied easement by necessity at the time of severance. Dawson–Conway also pled an easement by prescription, citing the ten-year adverse possession statute. Tex. Civ. Prac. & Rem.Code Ann. § 16.026 (West 2002). As an alternative pleading, Dawson–Conway claimed a prescriptive easement to the entrance at the first access point.

Both parties filed motions for summary judgment. There was no evidence that the road, or even an easement, existed over Harrington's ranch at the time of severance. Dawson–Conway based its motion on the claim for a prescriptive easement. Harrington filed a standard motion for summary judgment and a no-evidence motion for summary judgment against both easement claims of Dawson–Conway. The trial court granted Dawson–Conway's motion and denied Harrington's motions. We reverse and render judgment that Harrington's motions should have been granted and that Dawson–Conway's motion should have been denied. Dawson–Conway did not establish a right to an easement over the Harrington Ranch.

Harrington's Issues on Appeal

In Harrington's first issue, he argues that the trial court erred in admitting as evidence the affidavit of A.V. Jones Jr. who stated that “[i]t has always been [his] understanding that this access route as it crosses sections 199, 198, and 197 [of Harrington's property] was permitted by the owners of Dawson–Conway.” In Harrington's second issue, he contends that the trial court erred in denying his motions for summary judgment. In the alternative, Harrington contends in his third issue that the trial court erred in granting Dawson–Conway's motion for summary judgment because there was a genuine issue of material fact as to at least one element of each of Dawson–Conway's claims. In his fourth and final issue, Harrington contends that the trial court's judgment was overbroad. We need only reach the first two issues.

Background Facts

Dawson–Conway consists of approximately forty-two sections of land (over 26,000 acres) in Shackelford County. One access to the ranch is County Road 167. County Road 167 ends at the Dawson–Conway at its northwest quadrant. To reach the rest of the ranch, however, one must cross the Clear Fork of the Brazos River. Thomas S. Dill, representative for the Dawson–Conway, stated in his affidavit that the river crossing is frequently impassable and not dependable. But, in his deposition, Dill acknowledged that he has crossed the river in a four-wheel drive pickup, stating that the water is generally one or two feet deep. Once across the river, he has access to the entire Dawson–Conway. The Clear Fork of the Brazos River also splits the Harrington Ranch, and Harrington testified that he crosses the river without a bridge.

In Dill's affidavit, he described the southwest quadrant of the Dawson–Conway as being extremely rough. Yet it is obvious from the map that oil and gas lessees accessed much of the ranch, including the southern part, to drill wells. Sections 193 and 194, near the Limited Access Point, have the name of Jones who conducted drilling operations on both ranches. In addition, Harrington testified that there were roads in the southwest quadrant of the Dawson–Conway that could be used by vehicles; he saw the roads when he rode horseback helping Bud Wilfong work cattle. Harrington and Wilfong at one time went near the center of the Dawson–Conway, loaded the cattle, and then exited using the first access point. Harrington expressed his opinion that it would not be difficult to build better roads on the Dawson–Conway if the owners or lessees did not like the roads that were there.

There was no evidence when the disputed road over Harrington's property was first established or used. The first access road from County Road 201 may have been used from the time of severance, but there was no evidence of such use or when County Road 201 was built. Nor was there any evidence of when someone built the second access road that crosses sections 197, 198, and 199 of Harrington's property. Jones remembered using the road in the 1940s to go quail hunting on the Dawson–Conway.

Harrington's predecessors began leasing land for mineral production as early as 1918. Those leases gave producers the right to use or establish roads on Harrington's land. Dawson–Conway acknowledged that Harrington, his predecessors, his grass lessees, and his hunters used the road along with their use of the road. Dawson–Conway's hunters, grass lessees, mineral lessees, and personnel have used the road from County Road 201 to the second access point for many years. Harrington maintained that he and his predecessors permitted the use of the road by Dawson–Conway, stating that he wanted to be a good neighbor.

In December 2007, Harrington had had enough of Dawson–Conway's hunters throwing trash on his land, mistakenly assuming they were on the Dawson–Conway and shooting deer on Harrington's land, driving too fast on the road (at one point running over a calf belonging to Harrington's grass lessee), and shooting a dog belonging to one of Harrington's managers. Harrington testified that he had never been notified that Dawson–Conway claimed a legal right to use the road on his land until he locked the gates to prevent access to the second access road. Harrington continued to allow Dawson–Conway to use the first access road.

Standard of Review

When competing motions for summary judgment are filed and one is granted and the other denied, the reviewing court must review the summary judgment evidence presented by both sides, determine all questions presented, and render such judgment as the trial court should have rendered. Comm'rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex.1997). We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Dawson–Conway filed a traditional motion for summary judgment, while Harrington sought summary judgment on both traditional and no-evidence grounds.

In a traditional summary judgment motion brought under Tex.R. Civ. P. 166a(c), the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Browning v. Prostok, 165 S.W.3d 336 (Tex.2005); Knott, 128 S.W.3d at 215–16. A no-evidence summary judgment motion made pursuant to Tex.R. Civ. P. 166a(i) is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.2006). Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Tamez, 206 S.W.3d at 582;W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). We review the summary judgment evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582;see Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). An appellate court reviewing a summary judgment must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. Mayes, 236 S.W.3d at 755;City of Keller, 168 S.W.3d at 827.

Prescriptive Easement Claim

The trial court granted Dawson–Conway's motion for summary judgment, holding that Dawson–Conway had established a prescriptive easement from County Road 201 to the second access point. Dawson–Conway's summary judgment evidence consisted of portions of Harrington's deposition, an affidavit by Jones, an affidavit by Dill, and maps. Harrington...