Johnson v. Faulk

• Decision Date: 29 July 1971
• Docket Number: No. 554,554
• Citation: 470 S.W.2d 144
• Parties: Mrs. H. M. JOHNSON et al., Appellants, v. Eva FAULK, Administratrix of the Estate of Zillah Elledge, deceased, Appellee.
• Court: Texas Court of Appeals

Page 144

470 S.W.2d 144

Mrs. H. M. JOHNSON et al., Appellants, v. Eva FAULK, Administratrix of the Estate of Zillah Elledge deceased, Appellee.

No. 554.

Court of Civil Appeals of Texas Tyler.

July 29, 1971.

Rehearing Denied Sept. 2, 1971.

Wynne & Wynne, B. J. Wynne, Wills Point, for appellants.

Ramey, Brelsford, Flock, Devereux & Hutchins, Mike Hatchell, Tyler, for appellee.

MOORE, Justice.

Zillah Elledge, deceased, instituted this suit against her sisters, Mrs. H. M. Johnson and Artis Morales, defendants, seeking a permanent injunction enjoining them from interfering with her use of a certain roadway across defendants' land which she used in gaining access to her land. After the death of Zillah Elledge, Eva Faulk, administratrix of her estate was substituted as party-plaintiff. The parties will hereinafter carry the same designation as in the trial court.

As grounds for a cause of action, plaintiff alleged that access to her land was had by following an existing roadway over the defendants' land, which roadway had been in existence for more than 56 years. While a metes and bounds description of the land owned by the defendants is set forth in plaintiff's petition, the roadway easement which she sought to establish was described only as a roadway lying on defendants' land beginning on the west boundary line thereof and meandering along the west boundary line, and from there along the south boundary line of defendants' land onto plaintiff's tract at the northwest corner thereof. Her prayer was for judgment establishing an easement together with a perpetual injunction enjoining defendants from 'obstructing said roadway or interfering with its use by plaintiff, her successors in title, or the public generally.'

Trial was before the court without the aid of a jury. After hearing the evidence, the trial court took the case under advisement and subsequently informed the parties by letter that he was going to enter judgment for the plaintiff granting an easement for a roadway as described in plaintiff's petition and that the defendants would be permanently enjoined from interfering with its use by the plaintiff and her successors in title or by the public generally. A judgment was prepared and entered on February 28, 1967. Approximately two years later plaintiff discovered that the judgment did not grant an easement in accordance with her pleadings but instead granted her an easement only 'along the west boundary line of the defendants' tract of land.' Thereupon plaintiff filed a motion for judgment nunc pro tunc alleging that by mistake and inadvertence the original judgment failed to grant her an easement along the south boundary line of defendants' land and continuing on to the northwest corner of her tract as described in her petition. She prayed that a new judgment be entered describing the easement in the same manner as set forth in her petition and as directed by the court in the letter addressed to the parties. After a hearing on the motion, the trial court entered a judgment nunc pro tunc describing the roadway easement substantially as set forth in plaintiff's petition. The judgment nunc pro tunc was entered on the 5th day of November, 1970. Except for the additional description the judgment nunc pro tunc decreed the same relief as the original judgment. Defendants perfected this appeal.

The record contains a statement of facts, both upon the original trial upon the merits in February, 1967, and upon the hearing on the motion for judgment nunc pro tunc in November, 1970. The record does not, however, contain any findings of fact or conclusions of law.

Defendants seek a reversal by six points of error asserting among other things that there is no evidence to support the trial court's implied finding of (1) an easement by prescription or (2) an implied easement appurtenant or way by necessity. We sustain defendants' contention and reverse and remand the cause to the trial court.

In the absence of findings of fact and conclusions of law, it is our duty to examine the record and determine whether there is any evidence of probative force, when viewed in a light most favorable to the plaintiff, to sustain the judgment. With this rule in mind, we will first undertake to discuss plaintiff's claim of an easement by prescription.

The burden of proving the existence of an easement upon the roadway in question in the absence of contract or express grant, was upon the plaintiff. 21 Tex.Jur.2d, sec. 60, p. 189.

In order to establish an easement by prescription, the essential and necessary elements are that the use and enjoyment of said road was exclusive, uninterrupted and continuous under a claim of right adverse to and inconsistent with the rights of the owner (defendants) of the fee. Above all, a prescriptive right against the owner of land must be 'adverse' signifying acquirement by the statute of limitations by 'actual and visible appropriation,' commenced and continued under a claim of right 'inconsistent' with and 'hostile' to the claim of the owner. Article 5515, V.A.T.S. Courts are uniform in holding that upon failure to establish any of the essential elements by a preponderance of the evidence, such claim of an easement by prescription cannot be maintained. The requisite elements to establish the easement are as in establishment of title by limitation and trespass to try title. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626; Sassman v. Collins, 53 Tex.Civ.App. 71, 115 S.W. 337 (1908, err. ref.).

The mere use of a road on another's land, either by license or permission of the owner, is not within itself adverse and hostile, and affords no basis for prescription; and the fact of the owner's acquiescing and consenting to the use, and knowing that the road is being so used, does not import such use was adverse and hostile to the owner's right of use and possession; nor does such import that the user of the road has or is asserting adverse use or possession. Weber v. Chaney, 5 S.W.2d 213 (Tex.Civ.App., San Antonio, 1928). In the case of Gooding v. Sulphur Springs Country Club, 422 S.W.2d 522, 525, this court said:

'To establish an easement by prescription over the land of another, it must be shown that the use was open, notorious, hostile, adverse, uninterrupted, exclusive and continuous for a period of more than ten years. A failure to prove any one of the essential elements is fatal. * * *'

The foregoing principles find support in the following cases: O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960); Othen v. Rosier, supra.

The record leaves much to be desired. Plaintiff offered no proof of record title to any of the lands involved. Defendants were not represented by an attorney. The proof offered by plaintiff consists solely of oral testimony and a plat showing five contiguous tracts of land. The plat is not drawn to scale and contains no metes and bounds description of any of the land. The tracts are numbered 1 through 5 with the name of each owner set forth on each tract. While defendant, Mrs. H. M. Johnson, is shown to be the owner of tract No. 3, plaintiff's petition does not seek a roadway easement over her tract and therefore we must assume that only injunctive relief was sought against her. According to the plat, plaintiff owns tract No. 5 and defendant, Artis Morales owns tract No. 4. A common boundary line, running north and south, separates the two tracts with tract No. 5 being on the east side and tract No. 4 on the west side of the boundary line. The roadway in question is designated by a group of arrows commencing at a public road on the west side of tract No. 4. From that point it extends east along the south...