Scown v. Neie

• Decision Date: 29 June 2006
• Docket Number: No. 08-05-00090-CV.,08-05-00090-CV.
• Citation: 225 S.W.3d 303
• Parties: Steven SCOWN and wife, Susan Scown, Appellants, v. Arthur "Van" NEIE, Jr., and wife, Sue Lynn Neie, Appellees.
• Court: Texas Court of Appeals

225 S.W.3d 303

Steven SCOWN and wife, Susan Scown, Appellants, v. Arthur "Van" NEIE, Jr., and wife, Sue Lynn Neie, Appellees.

No. 08-05-00090-CV.

Court of Appeals of Texas, El Paso.

June 29, 2006.

Rehearing Overruled September 6, 2006.

Rod Ponton, Alpine, for Appellants.

Dick R. Holland, Boldrick, Clifton, Holland & Essman, Midland, for Appellees.

Before McCLURE, J., CHEW, J., and GUADARRAMA, Judge (Sitting by Assignment).

OPINION

DAVID WELLINGTON CHEW, Justice.

Appellants, Steven and Susan Scown, appeal from a summary judgment granted in favor of Appellees, Arthur "Van" Neie Jr. and Sue Lynn Neie, establishing an easement running along the northeastern edge of Appellants' property. Appellants raise a single issue on appeal, asserting that the trial court erred in granting Appellees' motion for summary judgment. We affirm as modified/reform.

This dispute involves a paved road abutting Appellants' property referred to generally as Moseley Lane in Alpine, Texas. Appellants own a three-acre tract abutting Mosely Lane. Appellees own a ten-acre tract on the other side of Moseley lane and access a portion of their ten-acre tract from the portion of Moseley lane abutting Appellants' three-acre tract. It appears from the record that Mr. Neie, Sr. originally acquired the three-acre tract by assumption of the note of Mr. Carl E. Thain and wife Mary Thorne Thain sometime in 1963. By deed dated July 16, 1974, Mr. Neie, Sr. also purchased the ten-acre tract from his brother, Edgar H. Neie. There is no dispute that prior to 1976, Mr. Arthur Van Neie, Sr. owned both the three-acre tract and the ten-acre tract at issue in this case.

Susan Scown is the daughter of Mr. Arthur Van Neie, Sr and she is married to Steven Scown. In 1976, Mr. Neie, Sr. sold the three-acre tract to Appellants. Shortly after conveying the three-acre tract to Appellants, Mr. Neie, Sr. sold the ten-acre tract to Mr. Elton Miles, Appellees predecessor in interest. Then, in 1977, Appellants reconveyed the three-acre tract to Mr. Neie, Sr. Mr. Neie, Sr. remained the record owner of the three-acre tract until 1999 when he reconveyed the three-acre tract to Appellants.

Arthur Van Neie, Jr. is the son of Arthur Van Neie, Sr. He and his wife purchased the ten-acre tract from Mr. Miles. At some point, Appellants began construction of a fence across Moseley Lane which would have blocked access to that portion of Moseley Lane which abuts their property. Appellees' sought a restraining order temporarily halting the construction of the fence by Appellants which was ultimately granted by the trial court. Appellees also filed suit seeking a declaratory judgment that the disputed portion of Moseley Lane was an implied easement or in the alternative, that the disputed portion of Moseley Lane had been impliedly dedicated as a public roadway. Appellees then filed a motion for summary judgment which the trial court granted. Appellants timely filed their notice of appeal.

Standard of Review

We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.¹ See Tex.R.Civ.P. 166a(c); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). In reviewing the grant of a summary judgment, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); DeLuna v. Guynes Printing Co. Of Texas, Inc., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied).

The trial court may not grant a summary judgment motion by default for lack of an answer or response by the non-movant when the summary judgment proof is legally insufficient. City of Houston, 589 S.W.2d at 678. The non-movant is not required to file a response to defeat a motion for summary judgment if deficiencies in the movant's own proof or legal theories defeat its right to judgment as a matter of law. See id. The plaintiff, as movant, must conclusively prove his entitlement to prevail on each element of his cause of action as a matter of law. Id. However, if the respondent fails to file a response, the only ground for reversal he or she may raise on appeal is the legal insufficiency of the movant's summary judgment motion or proof. City of Houston, 589 S.W.2d at 678-79; Lujan v. Tampo Mfg. Co., Inc., 825 S.W.2d 505, 508 (Tex.App.-El Paso 1992, no writ).

Appellees relied on two theories in their motion for summary judgment: (1) implied dedication to public use; and (2) implied easement by grant. In its final order, the trial court specifically found that Appellees had an implied easement in the disputed section of Moseley Lane and also that Appellants predecessor in interest had impliedly dedicated that section for public use. Appellants did not file a response to Appellees' summary judgment motion and did not file controverting affidavits within the time period specified by Rule 166a(c). Appellants instead filed a motion seeking leave of court to file controverting affidavits which the trial court granted. In response to Appellants' motion for leave of court, Appellees filed written objections to the controverting affidavits of Steven Scown, Susan Scown, and Vicky Conwell which the trial court apparently granted.

In Appellants' sole issue,² they argue generally that the trial court erred in granting summary judgment in favor of Appellees. Because Appellants did not file a response to the summary judgment motion, they are limited to challenging the sufficiency of the grounds in the summary judgment motion or the evidence. Lujan, 825 S.W.2d at 508. We interpret Appellants' argument as a challenge to the sufficiency of the summary judgment grounds and evidence. We agree with Appellants first argument that the trial court erred in granting summary judgment on the ground that an implied easement existed in favor of Appellees.

An easement is a liberty, privilege, or advantage granted to a person, either personally, or because of that person's ownership of a specified parcel of land, to use another parcel of land for some limited purpose. Miller v. Elliott, 94 S.W.3d 38, 43 (Tex.App.-Tyler 2002, pet. denied), citing Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied). Easements may be created by express grant, by implication, by necessity, by estoppel, and by prescription. Tiller v. Lake Alexander Properties, Ltd., 96 S.W.3d 617, 621 (Tex.App.-Texarkana 2002, no pet.).

An implied easement arises where the circumstances surrounding a conveyance of land from a common owner results in an easement being created between the severed tracts. Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, 167 (1952). For example, when a common owner uses one tract of land for the benefit of another but subsequently conveys either tract, an implied easement may thus be created. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.1962). The law will read into an instrument that which the parties would have intended had they been fully aware of the surrounding circumstances and given the transaction proper consideration. See Mitchell, 246 S.W.2d at 167.

A tract of land burdened by an easement is known as the servient estate while the tract of land benefitted by the easement is referred to as the dominant estate. See Daniel, 917 S.W.2d at 110. If the dominant estate is retained by the grantor and the servient estate is conveyed, an implied easement is said to have been "reserved." Id. The test for whether an implied easement by reservation exists requires that the party claiming the easement demonstrate: (1) unity of ownership prior to the separation; (2) access must be a necessity and not a mere convenience and (3) the necessity must exist at the time of severance of the two estates. Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984); Daniel, 917 S.W.2d at 111. The degree of "necessity" required to support a finding of implied easement by reservation is strict necessity. Drye, 364 S.W.2d at 208.

On the other hand, if the dominant estate is conveyed while the grantor retains the servient estate, an easement is said to have been "granted." Daniel, 917 S.W.2d at 110. The test for whether an implied easement by grant exists is (1) whether there was unity of ownership of the dominant and servient estates and that the use was (2) apparent, (3) in existence at the time of the grant, (4) permanent, (5) continuous, and (6) reasonably necessary to the enjoyment of the premises granted. Id. The test required to support a finding of implied easement by grant is less burdensome than that required to support a finding of implied easement by reservation. See id. at 111. Finally, whether the operative set of facts exist to establish an implied easement is determined at the time of severance. Id.

Appellees' motion for partial summary judgment set out the elements for an implied easement by grant. Summary judgment is proper only on grounds that are expressly set forth in the motion. See Tex.R.Civ.P. 166a(c). In this case, an implied easement by either grant or reservation could only have been created prior to the 1976 severance. In 1976, Mr. Neie, Sr. conveyed the servient estate to Appellants while retaining the dominant estate. Shortly thereafter, by deed dated January 13, 1977, Mr. Neie, Sr. conveyed the dominant estate to Mr. Elton Miles and his wife. Although Appellants re-conveyed the servient estate to Mr. Neie, Sr. by deed...