Martin v. Cockrell
| Decision Date | 14 July 2010 |
| Docket Number | No. 07–08–0299–CV.,07–08–0299–CV. |
| Citation | 335 S.W.3d 229 |
| Parties | Stephen E. MARTIN, Appellantv.Gene Oliver “Buddy” COCKRELL, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Frederic M. Wolfram, Wolfram Law Firm, Amarillo, TX, for Appellant.John Huffaker, Kenneth R. Netardus, Travis J. Odom, Sprouse Shrader Smith, P.C., Amarillo, TX, for Appellee.
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
Appellant, Stephen E. Martin, appeals from a judgment rendered in favor of Appellee, Gene Oliver “Buddy” Cockrell, following a jury trial of Cockrell's declaratory judgment action seeking to establish an equitable easement by estoppel across Martin's property. By seven issues, Martin contends (1) the evidence is legally insufficient, (2) the evidence is factually insufficient to support a finding of an easement in the pasture road across his property, (3) Cockrell failed to submit or request jury questions on one or more essential elements of his easement by estoppel claim, (4) the Court's charge failed to properly instruct the jury on the nature and scope of the easement claimed, (5) the trial court improperly expanded the scope of the easement, (6) the jury erred in failing to award him damages for Cockrell's trespass, and (7) the trial court erred in failing to award him recovery of attorney's fees. We reverse and render in part and affirm in part.
At issue in this appeal is a pasture road located in Gray County, Texas, that begins at the southern tip of County Road 24 and traverses Martin's property south through Sections 113 and 84, Block M–2 of the BS & F Survey (Survey) to the northern middle section of Cockrell's property, Sections 114 and 83, Block M–2 of the Survey. Following a jury trial, the trial court issued a judgment awarding Cockrell, his heirs, successors and assigns, a permanent equitable easement of ingress and egress over Martin's property for agricultural purposes.
At trial, Paul Jones testified his family built the pasture road on Sections 113 and 84 of Block M–2 of the Survey (the “Jones property”) from a cow trail in the late 1930s or early 1940s. The Jones family used the pasture road to tend to their cattle. In 1941, the Ingrums purchased Sections 114 and 83 of Block M–2 of the Survey (the “Ingrum property”). The northern border of the Ingrum property abutted the southern border of the Jones property.
From the early 1940s, Larry Ingrum testified the Ingrums usually used the pasture road on the Jones property to exit their property and travel north to County Road 24. They placed cattle in the pasture nearest to the Jones property so they wouldn't have to ride two pastures. The Ingrums would typically enter their property from the west side, come down through the middle tending their cattle and then exit their property using the pasture road on the Jones property. At some indeterminate time, the Ingrums built some cattle pens and a couple of windmills in the middle pasture and used the pasture road on the Jones property to service the windmills.
Ingrum testified there was a gentlemen's agreement between his family and the Joneses permitting the Ingrums to enter and exit their property over the pasture road on the Jones property. There was no written agreement or contract. The Ingrums used the pasture road on the Jones property “by friendly neighbourly permission”—“[b]oth sides just did what they did.” Ingrum further testified they “never claimed to have a legal right to use the road” and agreed that their right to use the road was “consistent with friendly permission.”
Jones testified his family didn't have “a problem with [the Ingrums] using the road,” the two families were “just friends”—“friendly use of the road.” He testified “[n]obody ever asked permission to use the road and permission was never given.” Jones testified that on two different occasions, one of Ingrum's hands pulled off the road onto the pasture and damaged his grass. He testified he told the Ingrums he wanted it stopped and it stopped. He also testified his family “never gave anyone an easement to use the road.”
In 2000, Alice Ingrum Gray inherited the Ingrum property. She had two sons, Gene Oliver “Buddy” Cockrell and Lee Cockrell, Alice's guardian. Also, in 2000, Martin purchased the Jones property from Paul Jones.1
From 2001 to 2006, Martin leased the Ingrum property from May to October of each year for grazing purposes. During the lease periods, between 2003 and 2006, Martin's wife, Susan, cared for their cattle on the Ingrum property approximately three times a week. Because the Martins were not living on the Martin property at the time, Susan would enter and exit the Ingrum property via Gray County Road 22 off Highway 152, or she would cross the Ingrum property and exit on County Road 26. She testified it was unnecessary for her to use the pasture road in dispute to care for their cattle on the Ingrum property. When accessing the north middle pasture on the Ingrum's property, the difference between using the disputed pasture road and Ingrum's entry roads was simply a matter of convenience, rather than necessity. The distance required to travel to access the north middle of the Ingrum property from Ingrum's road was approximately eight miles, whereas access via the disputed pasture road was approximately five miles.
Susan also testified the Ingrum roads were “perfectly good” and provided access to the Ingrum windmills and caliche pit. If the Ingrum roads were graded, she testified they could drive large water testing trucks or windmill service trucks over the roads. While caring for the cattle on the Ingrum property, Susan drove a one-ton pickup truck with a sixteen foot gooseneck trailer.
Between 2000 and 2002, Martin did not observe anyone, or evidence of anyone, traveling over the disputed pasture road. In 2002, however, Martin gave Gray County permission to use the pasture road to haul caliche dug from a pit on the Ingrum property.2 Gray County Commissioner Joe Wheeley testified Martin gave the county permission to haul caliche across the pasture road via a “gentlemen's agreement,” not a formal easement.
In order to use the pasture road year-round to haul caliche, with Martin's permission, the county applied caliche to the road.3 For their convenience, the county also installed a culvert or cattle guard where the Ingrum property adjoined the Martin property and, to protect the county's caliche, Martin installed a combination lock at the point of entry to the Ingrum property from the pasture road in 2002. When the county ceased hauling caliche in 2006, the county removed the culvert or cattle guard, removed the caliche from a portion of the pasture road, and plowed and seeded the roadway to return the pasture road to its original condition per Martin's request.
In November 2006, Cockrell asked Martin for the combination to the locked gate between the Ingrum and Martin properties in order to check the windmills located in Ingrum's middle pasture. Martin gave Cockrell the combination. Three days later, Marshall Hopkins began parking heavy equipment on Martin's property intending to haul caliche out of the Ingrum pit to satisfy his requirements for a local job for Teja Feeders. When Martin questioned Hopkins's use of the pasture road, Hopkins told Martin that Cockrell had given him permission to haul the caliche over the pasture road. Martin refused to allow Hopkins use of the road and Hopkins removed his equipment. Days later, Martin installed a combination lock on the gate located at the juncture of County Road 24 and the pasture road on his property. He did not give this combination to Cockrell.
In April 2007, Cockrell agreed to settle his mother's estate with his brother. As a result of the settlement, Cockrell received the Ingrum Property. 4 Shortly thereafter, Cockrell informed Martin that he would not lease his pasture to Martin because he was giving his middle pasture a rest. 5 Later, Cockrell called Martin and asked for the combination to the lock on the gate where County Road 24 met the pasture road on Martin's property. Martin agreed to meet Cockrell at the gate and let him in and out. Cockrell responded that the arrangement was unworkable. In June or July 2007, Cockrell again approached Martin in order to obtain the combination to the locked gate and Martin refused to give Cockrell the combination.6 Shortly thereafter, Cockrell filed suit to obtain use of the pasture road.
On August 17, 2007, Cockrell filed a petition seeking a temporary injunction restraining Martin from denying him access to the Cockrell property over the pasture road on Martin's property. After a hearing on September 14, 2007, the trial court granted a temporary injunction enjoining Martin from restricting Cockrell's use of the pasture road for agricultural purposes.
After the temporary restraining order, Martin gave Cockrell the combination to the lock installed on Martin's gate between County Road 24 and the pasture road. Thereafter, Cockrell and Hopkins traversed the pasture road with heavy equipment to remove caliche from the pit to shore up a windmill on the Cockrell property. In the process, they drove off the pasture road into Martin's pasture.
On January 16, 2008, Martin counterclaimed against Cockrell for possession of the pasture road, an order barring Cockrell from using the pasture road, trespass, and damages to repair his pasture. On January 31, 2008, Cockrell filed his first amended petition asserting a permanent equitable easement or easement by estoppel permitting him to use the pasture road on Martin's property. On February 11, 2008, Cockrell also filed a supplemental petition requesting that the trial court declare him an equitable easement over the pasture road pursuant to the Texas Declaratory Judgment Act and award him recovery of reasonable attorney's fees.
Following a two-day trial, the jury...
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