Sisco v. Hereford
| Decision Date | 21 November 1984 |
| Docket Number | No. 04-83-00185-CV,04-83-00185-CV |
| Citation | 694 S.W.2d 3 |
| Parties | Geraldine SISCO and Helen Pena, Appellants, v. Jackie HEREFORD, et vir, et al., Appellee. |
| Court | Texas Court of Appeals |
Oscar M. Laurel, Jr., Richard G. Morales, Sr., Laredo, for appellants.
Bill Blackburn, Corpus Christi, James K. Jones, Jr., Laredo, for appellee.
Before CADENA, C.J., and REEVES and TIJERINA, JJ.
This is an appeal from a declaratory judgment granting an easement across appellant's land. The judgment was based on the jury's answers to special issues.
Appellees filed suit for declaratory judgment as to the existence of an implied easement across two tracts of land in Zapata County, known as the Varal Pasture and La Copa Pasture. There was a prior judicial adjudication establishing an implied easement of ingress and egress across the Varal Pasture granted to appellees' predecessors in title. Zapata County v. Llanos, 239 S.W.2d 699 (Tex.Civ.App.--San Antonio 1951, writ ref'd n.r.e.). It was appellees' contention that they were also entitled to an implied easement across the La Copa Pasture. The facts indicate that the easement had not been used since the early 1960's; that the roadway had deteriorated and was difficult to use. Chevron Oil Company constructed a roadway across appellants' land which substantially followed the old easement. Appellees had no legal right to use the Chevron road but argued that the old easement should be relocated to the Chevron road because it was a more practical, convenient and reasonable location. Appellants' version of the facts alleged that appellees and their predecessors in title abandoned all rights to the old easement and that the use of an easement across appellants' property was not necessary for the reasonable enjoyment of appellees' property. It was further contended that appellees had an easement by estoppel and an implied easement of ingress and egress on the Mangana-Hein Road, an adjacent roadway.
The first assignment of error concerns an assertion of error in the denial of the motion for new trial because of an alleged irreconcilable conflict in the jury's answers to special issues 13 and 15 and that as a result thereof there was no finding on the material issue of the location of the easement. Specifically the special issues in question recite in pertinent part as follows:
SPECIAL ISSUE NO. 13
Do you find from a preponderance of the evidence that the location of such easement, if any, was as drawn by Oscar Hein on Plaintiff's exhibit 16?
Answer "We do" or "We do not"
Answer: We do (All)
If you have answered "We do not" to Special Issue No. 13, then, answer Special Issue No. 14; otherwise, do not answer Special Issue No. 14.
Do you find from a preponderance of the evidence that the location of such easement, if any, was as drawn by Oscar Hein on Parties' Exhibit 1-G?
Answer "We do" or "We do not"
Answer: ___________
Do you find from a preponderance of the evidence that the old easement, if any, touched or passed through Share 2?
Answer "We do" or "We do not"
Answer: We do (All)
If you have answered Special Issue No. 15, "We do not", then, answer Special Issue No. 16; otherwise, do not answer Special Issue No. 16.
Do you find from a preponderance of the evidence that it is necessary or convenient for the Herefords to have an easement extending from the old easement, if any, to Share 2?
Answer "We do" or "We do not"
Answer: ___________
* * *
* * *
Consequently since the jury's answer to Special Issues 13 and 15 was "we do," they did not answer Special Issues 14 and 16. Exhibit 16 referred to in Special Issue No. 13 was a map of the land in question where the witness Hein drew the location of the old roadway across the Varal Pasture. This court declared an implied easement through this tract in Zapata County v. Llanos, supra at 702. Thus the jury finding established the location of the easement as indicated in Exhibit 16. The jury further found that the old easement touched or passed through share 2 (Varal Pasture owned by appellee Hereford). The conflict concerns exhibit 16 which shows that the old roadway does not touch or pass through share 2 of the Varal Pasture.
Appellants do not challenge the sufficiency of the pleadings or evidence in support of the submission of the special issues in question, but, limit the inquiry to the question of an irreconcilable conflict. Generally, the controlling question is whether the conflicting issues may be reconciled. In reviewing the jury's findings for conflict, the threshold question is whether the findings are about the same material fact. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, 455 (1944). The court must reconcile apparent conflicts in the jury's findings if reasonably possible in light of the pleadings, evidence, the manner of submission and the other findings considered as a whole. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562 (1949). The determination of conflict will be based on the wording of the issues, the structure of the charge and the evidence. If two issues which do not expressly refer to the same material fact are answered in an apparent conflicting manner, our courts have generally interpreted the answers as referring to different material facts, if reasonably possible under the wording of the issues, the structure of the charge, and the evidence. Bender v. Southern Pacific Transportation Co., 600 S.W.2d 257, 262 (Tex.1980) (emphasis added).
In the case at bar the two conflicting findings are with respect to the same material fact, i.e., the location of the easement and both cannot be true. If we accept finding No. 13, standing alone, we would rule in favor of appellees because the location of the easement has been defined. Conversely, if we accept finding No. 15, standing alone, we would render judgment for appellants because the jury in effect found the easement did not touch or pass through appellants' land. The record reflects that the location of the easement became a material fact question at the special instance and request of appellees. Their requested Special Issue No. 3, "... Do you find from a preponderance of the evidence that the location of such easement, if any, was as drawn by Oscar Hein on plaintiffs' exhibit 16," was granted and submitted to the jury as Special Issue No. 13. Their requested Special Issue No. 9, "... Do you find from a preponderance of the evidence that the old easement, if any, touched or passed through Share No. 2?" was granted and submitted to the jury as Special Issue No. 15. Hence, appellees' contention that they submitted the issues as an abundance of caution and that the location of the easement is undisputed, is without merit. Therefore, in accordance with the test for the determination of this question prescribed in Pearson v. Doherty, supra at 455, we conclude that the two findings are in fatal conflict and irreconcilable. See also Del Bosque v. Heitmann Bering-Cortes Co., 474 S.W.2d 450, 452 (Tex.1971). Point of error one is sustained.
Points of error two and three are interrelated and will be reviewed jointly. Appellants complain that the relocation of the easement to the Chevron road was error because: (1) the jury found in special issue 19 that restoration of the old easement would furnish appellees with means of ingress and egress, and (2) because the location of the easement, once established, could only be changed by consent of the parties. The trial court reserved for its determination, questions on the justice, reasonableness and fairness of allowing appellees ingress and egress by relocating the old easement to the new Chevron road. The judgment included a specific finding by the court, "that restoring the old easement would be unreasonable in view of the circumstances that the Chevron road is available as an existing relocation of the old easement."
The burden of proving an easement is on the party claiming the right of way. Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944). To prove an implied easement, the petitioner must show three essential requirements: (1) there must be an apparent use in existence at the time of the grant i.e., a roadway into or out of the area; (2) the use must be continuous, and (3) the use must be necessary to the use of the dominant estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-8 (Tex.1962). It is well established that an easement in use for a long period of time can be changed only with the consent of all the parties concerned, or by the judgment of a court in a suit in equity in which it is established that justice and fairness require that the roadway be changed. See Grobe v. Ottmers, 224 S.W.2d 487, 489 (Tex.Civ.App.--San Antonio 1949, writ ref'd n.r.e.).
Appellants' specific contention on this question alleges that the jury finding in Special Issue No. 19, "that restoration of the old easement would furnish appellees with adequate means of ingress and egress to their property," constituted an adequate remedy at law. It has long been established that the inadequacies of the remedy at law is both the foundation of and conversely a limitation on equity jurisdiction. Burford v. Sun Oil Co., 186 S.W.2d 306, 314 ().
Appellees do not dispute that restoration of the old easement would provide them with adequate means of ingress and egress but contend that restoration would be expensive and relocation to the Chevron road would be more practical, convenient and reasonable. The record shows non-use of the easement for approximately 18 years. The roadway had deteriorated and was not visible. The dominant owner has the duty to maintain, improve or repair the easement at no expense to the servient owner. Cozby v. Armstrong, 205 S.W.2d 403, 408 (Tex.Civ.App.--Fort Worth 1947, writ ref'd n.r.e.); See Annot., 20 ALR 3d 1026 (1968)...
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