Seber v. Union Pac. R.R. Co.

• Decision Date: 16 August 2011
• Docket Number: No. 14–10–00195–CV.,14–10–00195–CV.
• Citation: 350 S.W.3d 640
• Parties: Charles SEBER and Barbara Seber, Appellants,v.UNION PACIFIC RAILROAD COMPANY, Appellee.
• Court: Texas Court of Appeals

350 S.W.3d 640

Charles SEBER and Barbara Seber, Appellants,

v.UNION PACIFIC RAILROAD COMPANY, Appellee.

No. 14–10–00195–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Aug. 16, 2011.

Ben A. Baring, Jr., Houston, for appellants.Earnest W. Wotring, Glenda Hobbs Kirsch, David George, Houston, for appellee.Panel consists of Justices BROWN, BOYCE, and JAMISON.

OPINION

WILLIAM J. BOYCE, Justice.

Charles and Barbara Seber sued Union Pacific Railroad Company contending that it wrongfully removed the Sebers' private railroad crossing. The trial court granted summary judgment in favor of Union Pacific. We affirm in part, reverse in part, and remand to the trial court.

BACKGROUND

This dispute centers on the closing of a private crossing over Union Pacific's railroad right-of-way, which runs along the entire southern boundary of the Sebers' property. Before it was closed, the crossing allowed access between the Sebers' property and Hufsmith–Kuykendahl Road on the opposite side of the railroad right-of-way. The Sebers' property is landlocked along its northern and eastern boundaries. The western boundary abuts Stuebner–Airline Road. This litigation involves the title history of a formerly distinct 1.5 acre tract that is now part of the larger parcel of land owned by the Sebers, and for which the crossing allegedly was constructed.

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We recite these facts to explain generally how the Sebers came to own the 1.5 acre tract. Some facts are disputed by the parties, but any such factual disputes are immaterial to the resolution of this appeal. We express no opinion on whether this account of the title history, which is constructed from the affidavits and property records attached to the parties' summary judgment filings in the record, is completely accurate as a legal matter.

I. Title History

In 1902, the International and Great Northern Railroad Company acquired by condemnation a portion of the railroad right-of-way in question, together with a tract of about 1.5 acres adjoining the northern side of the right-of-way. Union Pacific does not dispute that it is the successor in interest to this entity. The right-of-way and adjoining 1.5 acre tract were acquired for the “maintenance, construction and operation” of a railroad and “for the purpose of laying out and using side tracks, switches, turnouts and for the erection and maintenance of section houses, depot buildings and other structures thereon.”

The 1.5 acre tract was used for a railroad section house, and a crossing was constructed over the railroad right-of-way to permit access between the otherwise landlocked 1.5 acre tract and Hufsmith–Kuykendahl Road. The 1.5 acre tract subsequently was severed from the remaining property that had been condemned.

The severed 1.5 acre tract was conveyed to a number of different owners until 1981, when it became part of a larger tract owned by Jo–Way Tool Company. After that point, the larger tract was conveyed to various owners until the Sebers acquired it in 1992.

Union Pacific advised the Sebers in a letter dated May 16, 2008 that the private crossing would be closed permanently. Union Pacific thereafter closed the crossing.¹

II. Procedural Background

The Sebers filed suit on October 30, 2008, alleging that removal of the crossing was “wrongful, constituted a trespass, and was done in derogation of the vested rights of the Sebers.” The Sebers sought a declaratory judgment that they are entitled to use the crossing as a right by deed and a mandatory injunction requiring Union Pacific to replace the crossing. The Sebers alternatively sought monetary damages, including exemplary damages, for (1) inverse condemnation of their right to use the crossing; and (2) Union Pacific's interference with their “vested property rights.”

Union Pacific filed a “Motion for Summary Judgment” on December 14, 2009, in which it contended that the Sebers cannot prevail in this suit because (1) the Sebers have no legal right to use the crossing; (2) Union Pacific's railroad right-of-way entitles it to exclude the Sebers; (3) the Sebers' claims are preempted by federal law; (4) the Sebers' trespass claim fails as a matter of law; and (5) the Sebers cannot obtain exemplary damages.

The Sebers filed a partial summary judgment motion invoking the traditional summary judgment standard, in which they argued that (1) the deed conveying the 1.5 acre tract from Union Pacific's predecessor in interest to the Sebers' predecessor in title also conveyed the “right to use” the crossing as an “appurtenance” to the property; and (2) Union Pacific is estopped by deed from denying the conveyance of the crossing.

The trial court signed an order on January 26, 2010 granting Union Pacific's December 14 summary judgment motion without specifying the grounds upon which the trial court acted. The January 26, 2010 order is final and appealable because it resolves all claims asserted by the Sebers against Union Pacific. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 205 (Tex.2001). The Sebers timely appealed.²

ANALYSIS

The Sebers argue in their first issue on appeal that the trial court erred in granting Union Pacific's December 14 summary judgment motion. The Sebers argue in their second issue that the trial court should have granted their “competing” partial summary judgment motion on the issue of their legal entitlement to use the crossing as an “appurtenance” conveyed by deed.

An appellate court applies de novo review to the grant of a traditional motion for summary judgment, using the same standard that the trial court used in the first instance. Duerr v. Brown, 262 S.W.3d 63, 68 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005)). A traditional summary judgment motion may be granted if the motion and evidence show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Tex.R. Civ. P. 166a(c), and Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985)). When the trial court's order granting summary judgment does not specify the grounds upon which it was granted, appellants must show that each of the independent arguments alleged in the motion are insufficient to support the order. Collins v. Allied Pharmacy Mgmt., Inc., 871 S.W.2d 929, 932 (Tex.App.-Houston [14th Dist.] 1994, no writ).

In a traditional motion for summary judgment, the movant carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). If the movant satisfies this burden, then the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). In determining whether a material fact issue exists to preclude summary judgment, we take as true all evidence favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in the non-movant's favor. Id.; Duerr, 262 S.W.3d at 68 (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006)).

I. Union Pacific's December 14 Summary Judgment Motion

In their first issue, the Sebers challenge Union Pacific's summary judgment arguments that (1) the Sebers have no legal right to keep the crossing open; (2) Union Pacific's railroad right-of-way entitles it to exclude the Sebers; (3) the Sebers' claims are preempted by federal law; (4) the Sebers' trespass claim is not viable as a matter of law; and (5) the Sebers cannot obtain exemplary damages. We review separately each challenge to the grounds upon which the trial court could have based its summary judgment. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997) (“A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone.”).³

A. Legal Right to Use Crossing

Union Pacific first argued in its December 14 summary judgment motion that “[t]he Sebers have no vested property interest or right in the private crossing.” Union Pacific contends that (1) the private crossing was not an “appurtenance” expressly conveyed “by easement or otherwise” to the prior owners of the 1.5 acre tract; and (2) the Sebers cannot establish an implied easement because they “cannot establish that the railroad crossing was their only means of accessing their Property.”

1. “Appurtenance”

Union Pacific initially asserted that the relevant deeds make “no reference to a conveyance of any ‘rights, privileges and appurtenances' or any reference to an easement.” As the Sebers pointed out to the trial court, the deeds state that they convey all “rights, privileges and appurtenances” or all “rights and appurtenances.”

The Sebers argue that the crossing is an easement expressly conveyed as an “appurtenance” by the deed between Union Pacific's predecessor in interest and the Sebers' predecessor in title.

An easement is a non-possessory interest in another's property that authorizes the holder to use that property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). An easement does not convey the property itself. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied). For an easement appurtenant to exist either by implication or in writing, there must be (1) a dominant estate, to which the easement is attached; and (2) a servient estate, which is subject to the use of the dominant estate to the extent of the easement granted or reserved. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.1962).

In determining whether an easement has been granted expressly, we look to the same rules of construction applicable to deeds. Callejo v. City of Garland, 583 S.W.2d 925, 927 (Tex.App.-Dallas 197...