Scott v. Cannon
| Decision Date | 15 January 1998 |
| Docket Number | No. 03-97-00390-CV,03-97-00390-CV |
| Citation | 959 S.W.2d 712 |
| Parties | William R. SCOTT and Bessie E. Scott, Appellants, v. Dennis P. CANNON and Katherine Berkley Cannon, Appellees. |
| Court | Texas Court of Appeals |
J. Bruce Bennett, Baskin, Bennett & Komkov, L.L.P., Austin, for Appellants.
Christopher L. Boldt, Baker, Boldt & Gallerano, Dripping Springs, for Appellees.
Before CARROLL, C.J., and JONES and KIDD, JJ.
This is an appeal of a declaratory judgment and a permanent injunction prohibiting the appellants William R. Scott and Bessie E. Scott (the "Scotts") from using a roadway located on property owned by appellees Dennis P. Cannon and Katherine Berkley Cannon (the "Cannons"). In nineteen points of error, the Scotts challenge the sufficiency of the evidence supporting the trial court's conclusions that the road on the Cannons' property is private and the Scotts have no easement to use it.
The Scotts and Cannons have been neighbors for over thirty years. As seen on the map below, the only access from Highway 290 to the Scotts' property (denoted on the map as "RANDERSON-IRELAND-SCOTT" hereinafter the "Scott Tract") is a roadway (hereinafter the "Road") that crosses two pieces of property owned by the Cannons (denoted on the map as "CH BERKLEY" and "TINNEY-GARCIA-CANNON," hereinafter the "Berkley Tract" and the "Tinney Tract" respectively). Although there is an existing unpaved access to the Scotts' property from a public road (denoted on the map as the "Old Road to Pound Property," hereinafter the "Pound Road"), the Road from Highway 290 has been the main access to the Scott Tract for as long as anyone can remember. 1 It is undisputed, however, that neither the Cannons nor their predecessors in title ever dedicated or granted an express easement to use the Road to the Scotts, the Scotts' predecessors in title, or the public. Whether the Cannons or the Cannons' predecessors in title gave the Scotts or the Scotts' predecessors in title permission to use the roadway remains disputed.
It is undisputed that the Scotts' property was never purchased from the Cannons or any of the Cannons' predecessors in title. Rather, the Scott Tract was originally created in 1884 by Dr. Joseph Pound when he sold 200 acres of his 700 acre tract to N.J. Jones. This 200-acre tract, referred to herein as the Scott Tract, was later sold to Hattie Randerson. In 1942, Randerson conveyed the tract to Bessie Scott's father, John Ireland. Finally, in 1957 the Scotts purchased the tract from Ireland and have lived there since that purchase. As for the remaining Pound property, most of it was dedicated to the City of Dripping Springs in 1983 and is denoted on the map as the "City Park."
Immediately south of the Scott Tract are two tracts of land owned by the Cannons. The Berkley Tract, which immediately adjoins the Scott Tract, has been in Katherine Cannon's family since 1909 when her grandfather C.H. Berkley, purchased it from P. Leinneweber. Katherine Cannon's father, Lee Berkley, used the property to run cattle but the record is unclear as to when and how long he actually lived on the property. 2 Katherine Cannon moved onto the property in 1967 and has lived there ever since. 3
Adjoining the Berkley Tract is the second piece of property owned by the Cannons, the Tinney Tract. The Tinney Tract was first owned by John Tinney. Tinney conveyed his land to a person known in the record as Dr. Garcia. Garcia and the Berkleys remained neighbors until the Cannons purchased Dr. Garcia's land in 1966.
In early 1996, an agent for Sprint Telecommunications approached the Cannons about permitting Sprint to place a communication tower on their land. The Cannons refused. The Sprint agent then approached the Scotts. The Scotts granted Sprint permission to place the tower on their land and told the Sprint agent that Sprint could use the Road to get to its tower. 4 The Cannons, however, told the agent that the Road was private and that the Scotts did not have the authority to grant permission for its use. The Cannons informed the agent that they owned the Road and that the Scotts had no easement over their land.
Shortly thereafter, the Cannons instructed their lawyer to send a letter to the Scotts terminating permission to use the Road and threatening them with trespass charges if they continued to do so. The Scotts responded by suing for an injunction and a declaratory judgment to secure and confirm their right to use the Road. The Scotts alleged that they had a permanent right to use the Road because they had acquired an easement over the Cannons' property by estoppel, necessity, and/or prescription. The Cannons counterclaimed seeking a declaratory judgment that the Road was private and requesting a permanent injunction prohibiting the Scotts from further use of the Road.
Following a bench trial, the trial court rendered judgment for the Cannons. The trial court declared that the Road was private and that the Scotts had no rights of any kind to use the Road. Moreover, the trial court permanently enjoined the Scotts from using the Road and held them liable for $13,000 in attorneys' fees. The Scotts appeal alleging nineteen points of error. These points are grouped to establish the following contentions: (1) the trial court erred in concluding that the Road was private and that the Cannons made no implied dedication of a public easement; (2) the trial court erred in concluding that the Scotts have not acquired an easement by estoppel; (3) the trial court erred in concluding that the Scotts have not acquired an easement by necessity; (4) the trial court erred in concluding that the Scotts have not acquired an easement by prescription; and (5) the trial court erred in awarding the Cannons attorneys' fees.
As a threshold issue, we must first consider whether the trial court erred in concluding that the Road is private. The Scotts contend that the evidence presented at trial conclusively proved that the Road had been dedicated by the Cannons for public use. In support of their contention, they introduced an affidavit filed and recorded in 1964 ("1964 Affidavit"). Because this affidavit is crucial to the Scotts' entire appeal, we will address the facts surrounding it in some detail.
In 1963, the Scotts applied for a home improvement loan with the Federal Land Bank (the "Bank") for the purpose of remodeling their home. Before the Bank would grant the loan, the Bank required the Scotts to secure an affidavit stating that the Road to their home was a public road. The Scotts' attorney contacted two longtime area residents, W.E. McNair and W.P. Crow, and prepared an affidavit for their signature. McNair and Crow swore that they were familiar with the Road and they stated in relevant part:
I feel the public considers this road used as ingress and egress to Mr. Scott's place as a public thoroughfare, not prohibited for use of the public so desiring to use the road. I know the public has for over twenty years used the road as a public road and look upon the same as no part of the adjoining landowner's property but as being open to them to come to Mr. William R. Scott's property.
McNair and Crow signed the affidavit on May 18, 1964. In June 1964, without notice to the Cannons or their predecessors in title, the 1964 Affidavit was filed and recorded with the Hays County Clerk's Office.
In October 1972, an attorney for the Cannons discovered the 1964 Affidavit by accident. It is undisputed that upon discovery of the affidavit, the Cannons through their attorney informed the Scotts that the Road was not a "public road." The events taking place after that conversation, however, remain disputed. The Scotts contend that they refused the Cannons' request to remove the 1964 Affidavit from the public record. The Scotts further contend that they told the Cannons that unless the Cannons would grant them an express easement, they would take no action to remove the 1964 Affidavit. Because no express easement was ever presented to them, the Scotts contend that the Road remained open for use by anyone desiring to visit their property.
The Cannons, on the other hand, contend that after they informed the Scotts that the Road was "not public," their attorney told the Scotts to draft an express easement for consideration by the Cannons. Because no such document was ever presented, the testimony indicates that at that point Mrs. Cannon believed that it was "a good time to just keep quiet" because use of the Road from thereon would be construed as permissive.
"Dedication" is the act of appropriating private land to the public for any general or public use. Once dedicated, the owner of the land reserves no rights that are incompatible with the full enjoyment of the public. See 2 George W. Thompson, Commentaries on the Modern Law of Real Property § 369 (1980). 6 In Texas, the doctrine of implied dedication is well established. 7 As stated by the Texas Supreme Court, a claimant can prove an implied dedication of an easement if it is shown that: (1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) the landowner owned the land in fee simple and therefore was competent to dedicate the land; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984); Lindner v. Hill, 691 S.W.2d 590, 592 (Tex.1985); see also Robert Brousseau, Real Property: Purchase, Sale, Title, and Ownership, 40 Sw. L.J. 301, 318-19 (1986). Whether the claimant has proved these elements is a question of fact. See Lindner, 691 S.W.2d at 591; Malone v....
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