Wilson v. McGuffin

• Decision Date: 21 April 1988
• Docket Number: No. 13-87-350-CV,13-87-350-CV
• Citation: 749 S.W.2d 606
• Parties: Jane D. WILSON, Appellant, v. Joe S. McGUFFIN, Appellee.
• Court: Texas Court of Appeals

Page 606

749 S.W.2d 606

Jane D. WILSON, Appellant, v. Joe S. McGUFFIN, Appellee.

No. 13-87-350-CV.

Court of Appeals of Texas Corpus Christi.

April 21, 1988.

Rehearing Denied May 19, 1988.

Tom Beasley, Beasley, Beasley & Moore, Beeville, for appellant.

Michael C. Sartori, George West, for appellee.

Before NYE, C.J., and BENAVIDES and KENNEDY, JJ.

OPINION

BENAVIDES, Justice.

Appellant, Jane Wilson, appeals the trial court's injunctive order restraining her from impeding the use of a road running across her land to appellee Joe McGuffin's neighboring land. The trial court found in its findings of fact and conclusions of law that appellee owned an easement across appellant's land. Appellant challenges the legal and factual sufficiency of the evidence to support those findings. We agree with appellant that the evidence is legally insufficient to support the finding of an easement and reverse and render judgment.

The dispute concerns two tracts of land in Live Oak County, Texas, both bordering on Lake Corpus Christi. Appellee owns a tract of land (the McGuffin tract) which has largely been submerged since the lake's formation about 30 years ago, and this portion of the tract now exists as a peninsula surrounded by the lake on three sides and by appellant's land (the Wilson tract) to the north, as shown.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

For many years (the exact duration is unclear), access to the McGuffin tract has been obtained by a road across the Wilson tract branching from a public highway bordering the Wilson tract to the north. At least since the formation of the lake, this road has been the only overland route available to users of the McGuffin tract, including appellee, his guests and tenants, and the general public. Their use of the road was never impeded until 1983, when appellant's husband, James Wilson (who died leaving appellant as his successor in interest), posted notice that he planned to close the road across his land.

Appellee successfully sued for injunctive relief preventing the closing of the road. The trial court's conclusions of law indicate that the court found that three types of easements existed: (1) an easement by necessity; (2) an easement by prescription; and (3) an easement by estoppel. Wilson brings evidentiary attacks against these conclusions.

To fully analyze the arguments on appeal, an understanding of the ownership history of the two tracts of land is necessary. A partial abstract of title was introduced into evidence. According to it, prior to 1901, long before the flooding of the area for the formation of Lake Corpus Christi, the two tracts of land were owned by one person. In 1901, lands containing the two tracts were severed from each other. The McGuffin tract was eventually sold to appellee's uncle in 1916, and the Wilson tract was sold to appellee's grandfather in 1921. The abstract ceases at this point.

According to appellee's live and deposition testimony, the Wilson tract was eventually owned by appellee's father and three aunts, who sold the land to Mr. Wilson, appellant's husband, in 1942. Appellee's uncle conveyed the McGuffin tract as a gift to appellee's mother and father, and around 1980 or 1981 the land became appellee's through inheritance.

When Lake Corpus Christi was formed, appellee, his mother, and other family members executed an easement to the local water district to flood all but about fourteen acres of the McGuffin tract, resulting in the current situation as represented by the shaded area of the map. Appellee's family was compensated for the easement.

Appellant's six points of error all concern the factual and legal sufficiency of the evidence. When assessing legal and factual sufficiency of the evidence points of error, we will follow the well-established test recently reaffirmed in Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986). The burden of proof is on the party claiming the easement to prove the requisite elements. Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 125 (Tex.App.--Corpus Christi 1986, no writ).

1. EASEMENT BY NECESSITY

Appellant's first point of error asserts that there was no evidence or insufficient evidence to support an easement by necessity.

Texas law establishes that when a grantor conveys part of a tract of land while retaining the remaining acreage, an implied reservation of a right of way by necessity over the land conveyed exists if there is no other access to the land. Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984). Three elements must exist to establish an implied easement by necessity: (1) unity of ownership prior to separation; (2) access must be a necessity and not a mere convenience; and (3) the necessity must exist at the time of the severance of the two estates. Id.

The two tracts of land here at issue were last owned by the same person in 1901. Although there is no dispute that the only currently available land passage to the McGuffin tract is across the Wilson tract, appellant claims there is no evidence or insufficient evidence to show the road was a necessity at the time of severance in 1901.

We agree with appellant. There was simply no evidence presented that, at the time of severance, a necessity existed for the road in question, or that the road even existed in 1901. None of the witnesses testified to circumstances as they existed in 1901, the time of severance. As evidence of events prior to 1901, appellee points to a conclusory statement in an affidavit by his brother, filed in response to appellee's unsuccessful motion for summary judgment, in which he states that "old timers recalled that [the road] was there when the lands were contained in one large ranch." The affidavit was never offered into evidence at trial, however, and the hearsay statement in it is extremely weak evidence in any event. Thus, there is no evidence that the road in question was a necessary one at that time.

Moreover, even had McGuffin's evidence established that the road existed in 1901, it still did not show a necessity. Before it was flooded, the McGuffin tract was a triangular parcel of land bounded on two sides by streams and by appellant's land to the north (see map). According to appellee, who testified to facts as they existed long after 1901, access to the tract was available over one of the streams, the Nueces River (the "river road"), except in periods of very wet weather, when the road in dispute (the "high ground" road) had to be used. McGuffin argues that since the river road could not always be used, the high ground road was a necessity. We disagree with this logic. Nearly every road can be impassable at one time or another, which does not render an alternative route a necessary one other than for a limited time. The high ground road was a mere convenience for most of the time, and cannot be said to amount to a necessary one in the sense of an easement by necessity.

In short, we find no evidence to support the elements for an easement by necessity. McGuffin failed in his burden of proof. We sustain appellant's first point of error.

2. EASEMENT BY PRESCRIPTION

Appellant's second point of error attacks the trial court's granting injunctive relief based on a finding of an easement by prescription.

An easement by prescription is established in a manner similar to adverse possession of land. One must use someone else's land in a manner which is open, notorious, continuous, exclusive, and adverse for the requisite period of time, ten years in this case. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex.1979); Villa Nova Resort, Inc., 711 S.W.2d at 127. "(W)hen a landowner and the claimant both use the same way, the use by the claimant is not exclusive of the owner's use and therefore will not be considered adverse." Brooks, 578 S.W.2d at 673; accord, Vrazel v. Skrabanek, 725...