Wiegand v. Riojas

• Decision Date: 30 March 1977
• Docket Number: No. 12482,12482
• Citation: 547 S.W.2d 287
• Parties: F. W. WIEGAND, Jr., Appellant, v. Lupe RIOJAS, Appellee.
• Court: Texas Court of Appeals

Page 287

547 S.W.2d 287

F. W. WIEGAND, Jr., Appellant, v. Lupe RIOJAS, Appellee.

No. 12482.

Court of Civil Appeals of Texas, Austin.

March 30, 1977.

Robert L. Crider, Austin, for appellant.

O. T. Moore, Jr., Blundell & Moore, Lockhart, for appellee.

O'QUINN, Justice.

Lupe (Guadalupe) Riojas, the appellee, brought this suit in August of 1974 claiming an easement to cross land owned by F. W. Wiegand, Jr., in going to and from Highway 183 and land owned by Riojas adjoining the Wiegand tract, but which does not front on the highway. Riojas alleged that he had been crossing the Wiegand property since April of 1951, until stopped by Wiegand in January of 1974, a use in which Wiegand's "predecessors in title acquiesced."

Trial was before the court without aid of a jury, following which the court entered judgment awarding Riojas "rights of ingress and egress over" the Wiegand tract "adjacent to and parallel (sic ) with that pipe line . . . easement to Texas New Mexico Pipe Line Company from U. S. Highway 183 to a point where said pipe line enters" the Riojas land.

Wiegand appealed from the judgment and brings the single point of error that Riojas failed to prove the elements necessary to establish an easement by prescription across the Wiegand property. We will sustain appellant's point of error and reverse the judgment of the trial court. We will render judgment that Riojas take nothing by his suit.

Riojas testified at trial that he began in 1943 crossing the Wiegand tract, which at that time was owned by Mrs. Hettie I. McMillan. The tract now owned by Riojas was owned at that time by Dr. Edgar Smith, by whom Riojas was employed. It is undisputed that in this period permission had been given Dr. Smith to cross the McMillan land from the highway in order to reach Smith's property to gather firewood.

In 1951 Riojas acquired the Smith tract, and permission was granted Riojas to cross the McMillan property in going to and from the highway to reach the Riojas tract. The McMillan, or intervening, tract was acquired in 1958 by Frederick Wiegand, Sr., father of appellant, and appellant purchased the tract in 1966.

It is settled in this state that to establish an easement by prescription, the person claiming the easement must show that use of the easement was open and notorious, adverse, hostile, exclusive, uninterrupted, and continuous for a period of ten years or more. Davis v. Carriker, 536 S.W.2d 246 (Tex.Civ.App. Amarillo 1976, writ ref'd n. r. e.); Dailey v. Alarid, 486 S.W.2d 620 (Tex.Civ.App. Tyler 1972, writ ref'd n. r. e.). Although statutes of limitation are inapplicable to easements, Texas courts have adopted the statutory period of ten years as the period required to establish a prescriptive right. 21 Tex.Jur.2d Easements, sec. 32, p. 160 (1961); Haas v. Choussard, 17 Tex. 588, 591 (1856); Baker v. Brown, 55 Tex. 377, 381 (1881).

The burden rests on the party claiming an easement by prescription to prove all the requisite elements, and failure to make proof of any one element will defeat the claim. Davis v. Carriker, Supra; Bindseil v. Collins, 481 S.W.2d 221 (Tex.Civ.App. Austin 1972, no writ); Bretzke v. Gode, 289 S.W. 111 (Tex.Civ.App. Austin 1926, no writ). As may be inferred by the stringent requirments of this burden of proof, creation of an easement by prescription is not favored by the law. ¹ Hollingsworth v. Williamson, 300 S.W.2d 194, 197 (Tex.Civ.App. Waco 1957, writ ref'd n. r. e.); Maricle v. Hines, 247 S.W.2d 611, 612 (Tex.Civ.App. Fort Worth 1952, no writ). It follows that mere use will not create an easement, no matter how long continued. Dailey v. Alarid, supra; Miracle v. Hines, supra.

Use by the claimant of the prescriptive easement not only must be adverse, but must be with the knowledge and acquiescence of the owner of the servient tenement. Bindseil v. Collins, supra; Bretzke v. Gode, supra. Notice to owner of the servient tenement need not be actual but may be constructive. Cockrell v. City of Dallas, 111 S.W. 977 (Tex.Civ.App. Dallas 1908, no writ); Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874 (Tex.Civ.App. Dallas 1904, no writ). Also see F. Lange, Land Titles and Title Examination, in 4 Texas Practice, sec. 376, p. 147 (1961). Notice serves to inform the servient owner that the claimant's use is under a hostile claim of right. See 21 Tex.Jur.2d Easements, sec. 26 sec. 28 (1961); 15 Baylor L.Rev. 341, 346-347 (1963). The prescriptive period for establishing the easement does not begin to run until the servient owner against whom the prescriptive right is claimed has notice. Gooding v. Sulphur Springs Country Club, 422 S.W.2d 522 (Tex.Civ.App. Tyler 1967, writ dism'd).

It is well established in Texas that use of an easement by permission of the servient owner, either express or implied, no matter over what period of time, cannot subsequently ripen into a prescriptive right. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950). It is true that the use of an easement which originally was permissive may become adverse at a later date, but the presumption is that there is a continuation of the permissive use. To transform permissive use of an easement into an adverse use, there must be a distinct and positive assertion of a right which is brought to the servient owner's attention and which is hostile to the owner's rights. Even if the prescriptive easement is claimed by a successor in interest of the party to whom permissive use originally was given, the presumption continues that the use is permissive. Miller v. Pellizzari, 342 S.W.2d 48 (Tex.Civ.App. Eastland 1960, no writ).

In the present case, after entry of judgment by the trial court, no request was made by appellant for findings of fact and conclusions of law, and none was filed by the court. The assumption on appeal is that the court found every fact necessary to sustain the judgment if such factual propositions were raised by the pleadings and supported by evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). Any legal theory that finds support in the evidence will be sufficient to affirm the judgment. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962).

After close examination of the trial record, it is apparent that Riojas did not prove the elements necessary to establish a prescriptive easement across the Wiegand tract.

During the period the Wiegand land was owned by Mrs. McMillan, Riojas testified, he was granted permission to cross the tract. Riojas also testified that it was not until 1973 or 1974 that permission to cross the land was withdrawn. The presumption is that during the period the tract was owned by Wiegand, Sr., use by Riojas was permissive. Riojas testified that he had permission to cross the property until the land was purchased by appellant, which occurred in 1966.

From the record it appears that at least until 1969, use by Riojas of the way over appellant's land was permissive. During the 1970's it is true Riojas made a hostile and adverse claim of right by such acts as removing fence wire and cutting the lock on a gate. However, when appellant fenced the land in the 1970's and when appellant locked the gate as early as 1971, any prescriptive period claimed by Riojas was interrupted. Bretzke v. Gode, supra; Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874 (Tex.Civ.App. Dallas 1904, no writ); Cunningham v. San Saba County, 11 Tex.Civ.App. 557, 32 S.W. 928 (Tex.Civ.App. Austin 1895, no writ),...