Timothy R. O'Leary v. Brent J. Coleman, M.D. ( 2008 )


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  •                               NUMBER 13-07-272-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    TIMOTHY R. O’LEARY,                                                         Appellant,
    v.
    BRENT J. COLEMAN, M.D.,                                                      Appellee.
    On appeal from the 197th District Court of Cameron County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
    Memorandum Opinion by Justice Garza
    This suit involves a dispute over the existence of an easement burdening property
    in the town of South Padre Island. In an attempt to sell a parcel of bay-front property and
    to extinguish any encumbrances on the property, appellee, Brent Coleman, M.D., filed a
    declaratory judgment and trespass to try title action against appellant, Timothy O’Leary,
    seeking to declare O’Leary’s alleged easement invalid. In response, O’Leary filed a
    general denial and a counterclaim requesting a judicial declaration that he had a valid
    easement over Coleman’s property. By three issues, O’Leary contends that the trial court
    erred in granting Coleman’s traditional motion for partial summary judgment because: (1)
    he raised material fact issues as to his claim for an easement by estoppel; (2) he raised
    material fact issues with regard to his claim for an easement by implication; and (3) he
    established an easement as a matter of law within the context of the deed to Coleman’s
    property. We reverse and remand for proceedings consistent with this opinion.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    This dispute pertains to three lots and a forty-foot pier located on or near Laguna
    Madre in South Padre Island, Texas. Coleman is the owner of Lot 1, a bay-front lot on the
    Laguna Madre. Coleman acquired Lot 1 by warranty deed from Warren Lee Walsh and
    Carolyn L. Walsh on or about June 1, 1992. On or about January 10, 1997, O’Leary
    acquired title to Lots 3 and 4—located inland from Lot 1 along Mars Street—by warranty
    deed from Richard J. O’Leary.
    Attached to the southwestern-most corner of Lot 1 is O’Leary’s pier, which extends
    forty feet into the Laguna Madre and is supported by pillars sunk into the sea floor.
    O’Leary has owned, used, and maintained this pier for at least eighteen years.1 In order
    to access the pier, O’Leary must walk from Mars Street across the “southwestern-most
    corner of Lot 1 for about six to ten feet.”
    On September 29, 1995, Coleman granted O’Leary permission in writing to cross
    over his property to access the pier. Specifically, Coleman’s written permission (“Right of
    Way agreement”) provided, in relevant part:
    Mr. Timothy O’Leary has been given Right of Way to the dock extending
    from the edge of my property to the Laguna Madre. The use, maintenance
    1
    O’Leary contends that the subm erged land supporting the pier is subject to a lease he has with the
    State of Texas which requires him to pay a yearly lease fee.
    2
    and liability of this structure is solely his responsibility. . . .
    The document reflects that it was recorded in the Cameron County public records on
    August 17, 2004, and that it was received by the Texas General Land Office on May 10,
    1996.
    This conflict arose on October 29, 2004, when Coleman provided O’Leary with a
    letter terminating permission to use Lot 1 to access the pier. At this time, Coleman notified
    O’Leary of his intention to sell the property and his desire to remove any potential
    encumbrances on the property.
    On April 1, 2005, Coleman filed a petition for declaratory judgment and an
    application for a temporary restraining order and injunction. In his petition, Coleman (1)
    sought an interpretation of the Right of Way agreement by the trial court; (2) asserted that
    O’Leary had become a trespasser by continually using his property to access the pier; (3)
    contended that he lost two sales of the property because O’Leary slandered his title to Lot
    1, resulting in at least $100,000 in damages; and (4) argued that he had suffered
    irreparable harm because O’Leary refused to recognize the revocation of the Right of Way
    agreement and continued to trespass on his property.2 Coleman also argued that the Right
    of Way agreement constituted a licensing agreement, not an easement, thereby
    temporarily allowing O’Leary to cross over his property to access the pier. Because he
    merely granted O’Leary a license to cross over his property, Coleman asserted that he
    could revoke the license at any time.
    On June 3, 2005, Coleman filed a motion for partial summary judgment as to his
    2
    Because of the irreparable nature of the harm Colem an claim ed to have sustained, he requested
    injunctive relief, an ex parte tem porary restraining order, and a tem porary injunction to prevent O’Leary from
    crossing over his property to access the pier in his petition. The record contains an agreed tem porary
    restraining order signed by the trial court on May 3, 2005.
    3
    declaratory judgment action advancing the same licensing argument made in his petition
    for declaratory judgment. Further, Coleman noted that as a result of O’Leary’s continuing
    trespass, he suffered irreparable harm that could not be readily calculated but required
    judicial intervention to mitigate damages.
    Subsequently, on July 26, 2005, O’Leary filed his first amended answer and
    counterclaim, denying all of the allegations contained in Coleman’s petition and asserting
    that he had acquired an easement by estoppel or by implication to cross over Coleman’s
    property to access the pier. O’Leary contended that from 1987 to 2005, he and his family
    continuously traveled across the southwestern-most corner of Lot 1 for purposes of ingress
    to and egress from the pier.3 O’Leary also argued that he and his predecessors-in-interest
    spent money on the State’s leasing fees, maintenance costs, taxes, insurance premiums,
    and improvements for the pier in reliance on promises and assurances made by both the
    Walshes and Coleman that they could use the southwestern-most corner of Lot 1 to
    access the pier.
    On July 29, 2005, Coleman filed an amended motion for partial summary judgment
    asserting the same contentions made in his original motion for partial summary judgment
    and adding grounds addressing O’Leary’s counterclaim that he had an easement by
    estoppel. Specifically, Coleman stated that the trial court could look to the Right of Way
    agreement to determine the rights of the parties and that the Right of Way agreement
    3
    O’Leary notes that he first acquired an interest in Lots 3 and 4 on Septem ber 28, 1987, through
    Dwight Parks, who acquired the property as trustee for O’Leary. O’Leary contended that at this tim e, the
    grantors of the property, Jack and Martha Burkholder, advised him that the “owners of Lots 3 and 4, Block
    138, enjoyed an easem ent across Lot 1 . . . to gain access to a dock which extended into the Laguna Madre
    and had its footings on the southwest corner of Lot 1 of Block 138.” O’Leary also noted that the City of South
    Padre Island forced the Burkholders to locate the dock’s footings off of city property to Lot 1 and that
    Colem an’s predecessors-in-interest assured the Burkholders that they and subsequent owners of Lots 3 and
    4 would have the right to use Lot 1 to gain access to the pier. O’Leary asserted that he would not have bought
    Lots 3 and 4 without that prom ise.
    4
    contemplated that O’Leary would be responsible for the maintenance and the liability of the
    dock; therefore, O’Leary “cannot now complain about his reliance on a promise when he
    assumed responsibility to maintain and insure the dock.” Additionally, Coleman contended
    that (1) O’Leary did not provide sufficient evidence to establish that he was the owner of
    the dock, and (2) O’Leary did not “allege or prove that the dock itself was constructed by
    the owner of Lots 3 and 4 in reliance on some promise from the owners of Lots 1 and 2 to
    grant some kind of access or easement.”
    On August 3, 2005, the trial court conducted a hearing on Coleman’s amended
    motion for partial summary judgment, Coleman’s petition for declaratory and injunctive
    relief, and O’Leary’s amended answer and counterclaim. On January 11, 2006, the trial
    court granted Coleman’s motion for partial summary judgment and made the following
    findings: (1) the Right of Way agreement was terminated by Coleman’s letter dated
    October 29, 2004; therefore, O’Leary was no longer licensed to use Lot 1 to access the
    pier; (2) O’Leary was guilty of trespass; (3) O’Leary slandered Coleman’s title; therefore,
    Coleman was entitled to damages to be determined by the finder of fact; and (4) Coleman
    was entitled to reasonable and necessary attorney’s fees in the amount of at least $7,000.
    On January 29, 2007, Coleman filed a motion to sever his declaratory judgment
    action from the underlying slander of title and damages case. The trial court granted
    Coleman’s motion to sever on February 9, 2007, and assigned the declaratory judgment
    action a new cause number. This appeal ensued.
    II. STANDARD OF REVIEW
    The function of summary judgment is to eliminate patently unmeritorious claims and
    5
    defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep't of Parks & Wildlife
    v. Miranda, 
    133 S.W.3d 217
    , 228 (Tex. 2004) (citing Casso v. Brand, 
    776 S.W.2d 551
    , 556
    (Tex. 1989)); Alaniz v. Hoyt, 
    105 S.W.3d 330
    , 344 (Tex. App.–Corpus Christi 2003, no
    pet.). We review de novo a trial court's grant or denial of a traditional motion for summary
    judgment. Creditwatch, Inc. v. Jackson, 
    157 S.W.3d 814
    , 816 n.7 (Tex. 2005) (citing
    Schneider Nat'l Carriers, Inc. v. Bates, 
    147 S.W.3d 264
    , 290 n.137 (Tex. 2004)); 
    Alaniz, 105 S.W.3d at 345
    .
    Under a traditional motion for summary judgment, the movant must establish that
    no material fact issue exists and that it is entitled to judgment as a matter of law. TEX . R.
    CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 
    73 S.W.3d 211
    , 215 (Tex. 2002); 
    Alaniz, 105 S.W.3d at 345
    ; Mowbray v. Avery, 
    76 S.W.3d 663
    , 690 (Tex. App.–Corpus Christi
    2002, pet. denied). After the movant produces evidence sufficient to show it is entitled to
    summary judgment, the non-movant must then present evidence raising a fact issue. See
    Walker v. Harris, 
    924 S.W.2d 375
    , 377 (Tex. 1996). We “must examine the entire record
    in the light most favorable to the nonmovant, indulging every reasonable inference and
    resolving any doubts against the motion.” Sudan v. Sudan, 
    199 S.W.3d 291
    , 292 (Tex.
    2006) (per curiam); see City of Keller v. Wilson, 
    168 S.W.3d 802
    , 824 (Tex. 2005).
    III. ANALYSIS
    1. Easement by Estoppel
    In his first issue, O’Leary contends that the trial court erred in granting Coleman’s
    motion for summary judgment because he had established an easement by estoppel
    burdening Lot 1. Specifically, O’Leary argues that his affidavit chronicling the existence of
    6
    the alleged easement was sufficient to raise a fact issue. O’Leary further argues that the
    Right of Way agreement was not a license and was executed for the sole purpose of
    satisfying the State of Texas’s requirement that O’Leary have a property interest in bay-
    front property before it leased the submerged land upon which the pier sits. Finally,
    O’Leary asserts that Coleman is estopped from denying the existence of the alleged
    easement because Coleman cannot “with one breath, demand that Defendant [O’Leary]
    repair and make improvements to the pier, and, with his next breath, deny Defendant’s
    right to enjoy the pier. Equitable estoppel’s chief purpose is to prevent behavior like
    Plaintiff’s [Coleman’s].” Conversely, Coleman contends that O’Leary failed to raise a fact
    issue with the trial court as to his easement by estoppel claim and that the Right of Way
    agreement was a license that governed use of Lot 1 to access the pier, which could be
    revoked at any time. Coleman also argues that an easement by estoppel cannot be
    predicated upon passive acquiescence alone and that an easement for pleasure and
    recreation alone is not favored at common law.
    A. Applicable Law
    “The doctrine of easement by estoppel has not been clearly defined and its
    application depends upon the unique facts of each case.” Stallman v. Newman, 
    9 S.W.3d 243
    , 246 (Tex. App.–Houston [14th Dist.] 1999, pet. denied); see Wilson v. McGuffin, 
    749 S.W.2d 606
    , 610 (Tex. App.–Corpus Christi 1988, writ denied); see also Ross v. Womack,
    No. 13-04-571-CV, 2006 Tex. App. LEXIS 10656, at **17-18 (Tex. App.–Corpus Christi
    Dec. 14, 2006, no pet.).4 The Texas Supreme Court first enunciated the rationale for
    4
    In reviewing secondary authority pertaining to easem ents by estoppel, we have found the following:
    An easem ent by estoppel m ay also exist in a passageway over a boundary strip as a result
    of longstanding reciprocal use of the strip by the adjoining owners as a passageway.
    7
    easement by estoppel in Harrison & Co. v. Boring, 
    44 Tex. 255
    (Tex. 1875):
    The owner of land may create an easement by a parol agreement or
    representation which has been so acted on by others as to create an
    estoppel in pais. As where he has by parol agreement granted a right of
    such easement in his land, upon the faith of which the other party has
    expended moneys which will be lost and valueless if the right to enjoy such
    easement is revoked, equity has enjoined the owner of the first estate from
    preventing the use of it.
    
    Id. at 267.
    In essence, the alleged servient estate may be estopped to deny the existence
    of an easement by making representations that have been acted upon by the owner of the
    alleged dominant estate. See Drye v. Eagle Rock Ranch, Inc., 
    364 S.W.2d 196
    , 209
    (Tex.1962).
    In order to create an easement by estoppel, the following elements must exist: (1)
    a representation was communicated, either by words or action, to the promisee; (2) the
    communication was believed; and (3) the promisee relied on the communication. Storms
    v. Tuck, 
    579 S.W.2d 447
    , 451 (Tex. 1979). An easement by estoppel is binding on the
    successors in title to the servient estate if reliance upon the existing easement continues.
    One who attem pts to create an easem ent by estoppel m ust show that a
    representation was com m unicated to the prom isee, the representation was believed, and
    there was reliance upon such a com m unication. For exam ple, an easem ent m ay be created
    by estoppel where a vendor represents to a purchaser that an easem ent exists, in favor of
    the prem ises proposed to be sold, over the vendor’s other realty, and the purchase relies on
    that representation, but the conveyance subsequently m ade does not m ention such an
    easem ent. Sim ilarly, an easem ent by estoppel is created when a landlord voluntarily
    im poses an apparent servitude on his or her property, and another person, acting reasonably,
    believes that the servitude is perm anent and in reliance upon that belief does som ething that
    he or she would not have done otherwise or refrains from doing som ething that he or she
    would have done otherwise.
    The reliance that m ust be shown to warrant a finding that an easem ent has been
    created by estoppel requires a showing of a detrim ent to the person relying on the easem ent,
    which m ay be determ ined from the surrounding circum stances, including the effect on the
    easem ent user if the easem ent is revoked or rem oved. Reliance m ay be shown by an
    expenditure other than upon the servient estate.
    25 A M . J U R . 2 D Easements and Licenses in Real Property § 14 (2007) (citations om itted).
    8
    Holden v. Weidenfeller, 
    929 S.W.2d 124
    , 131 (Tex. App.–San Antonio 1996, writ denied).
    B. Discussion
    The record contains an affidavit from O’Leary, which was attached to his first
    amended answer and counterclaim.          In his affidavit, O’Leary made the following
    contentions:
    2. Mr. Brent Coleman’s predecessors in title (Mr. & Mrs. Walsh), gave Mr. &
    Mrs. Burkholder, who were my predecessors in title, an easement over Lot
    1, Block 138, in favor of Lots 3 and 4, so that my predecessors could locate
    the footings of their dock on Lot 1, and have access across the southwestern
    corner of Lot 1, to get to the dock and to maintain the dock. After obtaining
    that agreement from the owner’s of Plaintiff’s [Dr. Coleman] property, the
    Brukholders [sic] built the dock footings on Plaintiff’s land. My family and I
    have crossed Plaintiff’s property to get to the dock for the last eighteen years
    without objection and with the full knowledge, acquiescence and consent of
    Mr. Coleman. Crossing Plaintiff’s property is the only way to get to my dock.
    O’Leary also noted that Coleman had granted him an easement through the Right of Way
    agreement, that the purpose of the Right of Way agreement was to satisfy a requirement
    of the State of Texas “to secure a written statement from Mr. Coleman acknowledging the
    easement rights before the State would continue to give me a lease for the State land that
    is submerged under the Laguna Madre under my dock,” and that the State of Texas’s
    General Land Office has recognized the existence of the easement across Lot 1 for use
    and maintenance for eighteen years.
    The record also contains an “AFFIDAVIT CERTIFYING EASEMENT” filed in the
    public records of Cameron County by O’Leary in August 2004. In this document, O’Leary
    characterizes the Right of Way agreement as granting an easement and notes that the
    Texas General Land Office has recognized and accepted this easement.
    O’Leary has not provided any written documentation of the original agreement
    9
    between the Walshes and the Burkholders establishing the alleged easement. However,
    Texas case law supports the notion that for easements, the doctrine of equitable estoppel,
    or estoppel in pais as it is sometimes called, operates as an exception to the statute of
    frauds which requires a writing for all transactions involving land to prevent injustice and
    to protect innocent parties from fraud. See Scott v. Cannon, 
    959 S.W.2d 712
    , 720 (Tex.
    App.–Austin 1998, pet. denied) (citing Storms v. Tuck, 
    579 S.W.2d 447
    , 451 (Tex. 1979);
    
    Drye, 364 S.W.2d at 209
    )); see also 25 AM . JUR . 2D Easements and Licenses in Real
    Property § 14 (2007).
    We are unable to determine whether the Walshes, predecessors-in-title of Lot 1, the
    servient estate, intended to convey a mere license or an easement to the Burkholders,
    predecessors in title of Lots 3 and 4, to access their pier.5 However, the record clearly
    demonstrates that some agreement or representation was made (1) to allow for the pier
    to be attached to Lot 1 when the Walshes owned Lot 1 and (2) for continuous passage
    over Lot 1 to access the pier that lasted for at least eighteen years. In addition, Coleman
    made an agreement with O’Leary granting O’Leary right of way across Lot 1 to access the
    pier.6       Agreements, such as these, may be binding upon successors-in-title if the
    5
    O’Leary characterizes the pier as the dom inant estate rather than Lots 3 and 4 in order to preserve
    his argum ent that an easem ent by im plication exists. A dom inant estate is an estate that benefits from an
    easem ent. B LAC K ’S L AW D IC TIO N AR Y 449 (7th ed. 2000); see 25 A M . J U R . 2d Easements and Licenses in Real
    Property § 1 (2007) (“[A] ‘dom inant estate,’ that has right to use land of another . . . .”). Therefore, the pier
    and Lots 3 and 4 would m ost aptly be considered the dom inant estates because O’Leary’s fam ily has traveled
    over Lot 1 to get to and from the pier and Lots 3 and 4. Clearly, Lots 3 and 4 benefit from the alleged
    easem ent over Lot 1 through usage of the pier and the intrinsic value of the pier is tied to the ability of the
    O ’Learys, the owners of Lots 3 and 4, to use the pier. W ithout access to the pier, O’Leary’s pier would be
    rendered worthless unless the pier was som ehow m oved to another piece of bay-front property. As previously
    m entioned, Lots 3 and 4 are not bay-front property. Moreover, the record does not reflect that O’Leary owns
    any bay-front property.
    6
    Colem an attem pts to characterize the Right of W ay agreem ent as a license that is revocable at any
    tim e. However, we need not determ ine the true character of the Right of W ay agreem ent. W e need only
    determ ine whether som e representation was m ade that an easem ent existed and that O’Leary believed the
    representation and relied upon on it. See Drye v. Eagle Rock Ranch, Inc., 364 S.W .2d 196, 209 (Tex.1962)
    10
    successors-in-title continue to rely upon the existence of the alleged easement. See
    Stallman v. Newman, 
    9 S.W.3d 243
    , 246 (Tex. App.–Houston [14th Dist.] 1999, pet.
    denied) (“An easement by estoppel, once created, is binding upon successors in title if
    reliance upon the existence of the easement continues.”) (citing Holden v. Weidenfeller,
    
    929 S.W.2d 124
    , 131 (Tex. App.–San Antonio 1996, writ denied)).
    O’Leary has demonstrated that the Burkholders, the predecessors-in-interest of Lots
    3 and 4, relied on the agreement by moving the pier from city land to the Walshes’ land
    and that his family has relied on the agreement by using Lot 1 to access the pier for
    eighteen years.         In addition, Coleman did not object to O’Leary’s usage of the
    southwestern-most portion of Lot 1 to access the pier from 1992 to 2004.7 O’Leary has
    paid to maintain and insure the pier and paid the State of Texas leasing fees for locating
    the pier in the submerged waters of the Laguna Madre. It is clear that O’Leary presented
    sufficient evidence establishing that he believed and relied on the agreement made by the
    Walshes and the Burkholders with respect to the pier.
    Therefore, we conclude, viewing the evidence in the light most favorable to the non-
    movant and disregarding all contrary evidence and inferences, see Zapata v. Children’s
    Clinic, 
    997 S.W.2d 745
    , 747 (Tex. App.–Corpus Christi 1999, pet. denied), that O’Leary
    has raised a genuine issue of material fact as to the nature of the representation, either by
    (establishing the essential elem ents for an easem ent by estoppel); see also Storms v. Tuck, 579 S.W .2d 447,
    451 (Tex. 1979) (sam e). Essentially, we are exam ining the conduct of the parties prior to the execution of the
    Right of W ay agreem ent.
    7
    W e do note that Texas case law is clear that an easem ent by estoppel m ay not be predicated upon
    passive acquiescence alone. See Stallman v. Newman, 9 S.W .3d 243, 248 (Tex. App.–Houston [14th Dist.]
    1999, pet. denied); see also Scott v. Cannon, 959 S.W .2d 712, 721 (Tex. App.–Austin 1998, pet. denied)
    (passive acquiescence "for no m atter how long a period" will not estop landowner from denying existence of
    easem ent across his land).
    11
    words or actions, communicated to the promisee—the Burkholders. See TEX . R. CIV. P.
    166a(c); see also Ross v. Womack, 2006 Tex. App. LEXIS 10656, at *20. Coleman
    cannot undermine the agreement made between the Walshes and the Burkholders by
    issuing the Right of Way agreement to recharacterize the agreement as a license when the
    prior conduct of the parties appears to give rise to an easement by estoppel. We further
    conclude that the conduct supported by O’Leary’s summary judgment evidence constitutes
    more than mere silence or acquiescence on the part of Coleman.8 Accordingly, we sustain
    O’Leary’s first issue.
    2. Easement by Implication
    In his second issue, O’Leary argues that the record contains some evidence
    establishing the elements of an easement by implication—continuous and apparent use,
    reasonable necessity, and unity of ownership between the dominant and servient estates.
    See Koonce v. J.E. Brite Estate, 
    663 S.W.2d 451
    , 452 (Tex. 1984). Because of this,
    O’Leary contends that fact issues exist and that the trial court erred in granting Dr.
    Coleman’s motion for summary judgment. On the other hand, Dr. Coleman asserts that
    8
    In support of his contention that an easem ent by estoppel cannot be predicated upon passive
    acquiescence alone, Colem an relies heavily on this Court’s holding in Schilab v. Dierlam, No. 13-03-00185-
    CV, 2004 Tex. App. LEXIS 7260, at **9-10 (Tex. App.–Corpus Christi Aug. 12, 2004, no pet.) (m em . op.).
    However, this case is factually distinguishable from the instant case. In Schilab, we concluded that the trial
    court did not err in granting Dierlam ’s m otion for sum m ary judgm ent as to the claim m ade by
    appellants— Gerald Schilab, C.B. W right, Mary W right, Carl W illiam s, and Carroll Edge— that an easem ent
    by estoppel existed because appellants failed to present any evidence that an express representation was
    com m unicated to them that an easem ent existed. 
    Id. at *11.
    The appellants contended that an easem ent
    by estoppel was created by “silence and acquiescence” on the part of Dierlam and her predecessors-in-title
    in the face of the appellants’ and their predecessors’ use of the road at issue. 
    Id. at *9.
    In the instant case,
    O’Leary has presented evidence dem onstrating that an agreem ent between the W alshs and the Burkholders
    governed the placem ent of and access to the pier. O’Leary contends that the Right of W ay agreem ent
    constitutes a recognition by Colem an of O’Leary’s easem ent over the southwestern-m ost corner of Lot 1 to
    access the pier. O’Leary also presents affidavit testim ony dem onstrating that he m aintained and insured the
    pier and paid leasing fees to the State of Texas for the pier in reliance on the agreem ent m ade between the
    W alshs and the Burkholders and the written perm ission granted by Colem an. Clearly, O’Leary is not relying
    solely on passive acquiescence to establish an easem ent by estoppel; therefore, Schilab is not persuasive
    in this dispute.
    12
    there was never common ownership of Lots 1, 3, and 4, thus undermining O’Leary’s
    easement by implication contention. Further, Coleman argues that O’Leary’s summary
    judgment evidence does not establish that the prior titleholders of Lot 1 conveyed a
    property interest to the prior titleholders of Lots 3 and 4.
    A. Applicable Law
    The creation of easements may be by an express grant, by implication, by estoppel,
    by prescription, by public dedication, by reservation in a conveyance of land, or by the
    purchase of land with reference to a map or plat showing abutting roads or streets. See
    Horne v. Ross, 
    777 S.W.2d 755
    , 756 (Tex. App.–San Antonio 1989, no writ); see also Ortiz
    v. Spann, 
    671 S.W.2d 909
    , 911 (Tex. App.–Corpus Christi 1984, writ ref’d n.r.e.). In order
    to maintain an implied easement appurtenant, meaning an easement interest which
    attaches to the land and passes with it, it was incumbent upon O’Leary as the party
    claiming such easement to prove the following elements: (1) unity of ownership between
    the dominant and servient estates; (2) apparent use of the easement at the time the
    dominant estate was granted; (3) continuous use of the easement, so that the parties must
    have intended its use to pass by grant with the dominant estate; (4) reasonable necessity,
    rather than a mere convenience, of the easement to the use and enjoyment of the
    dominant estate. See Bickler v. Bickler, 
    403 S.W.2d 354
    , 357 (Tex. 1966); Vinson v.
    Brown, 
    80 S.W.3d 221
    , 228-29 (Tex. App.–Austin 2002, no pet.); see also 
    Koonce, 663 S.W.2d at 452
    ; Westbrook v. Wright, 
    477 S.W.2d 663
    , 665-66 (Tex. Civ. App.–Houston
    [14th Dist.] 1972, no writ).
    Furthermore, the requirements for the establishment of such an easement by
    13
    implication must be strictly adhered to. Exxon Corp. v. Schutzmaier, 
    537 S.W.2d 282
    , 285
    (Tex. Civ. App.–Beaumont 1976, no writ) (noting that “[t]he use of such an easement is
    limited to those uses which are reasonably necessary and convenient and as little
    burdensome to the servient estate as possible, for the use of the right granted” and that
    easements by estoppel have not been applied with the same strictness and conclusiveness
    as easements by implication); 
    Westbrook, 477 S.W.2d at 665-66
    ; Johnson v. Faulk, 
    470 S.W.2d 144
    , 148 (Tex. Civ. App.–Tyler 1971, no writ).
    B. Discussion
    In support of his claim for an easement by implication, O’Leary refers to an affidavit
    attached to his first amended answer and counter-claim. In his affidavit, O’Leary notes that
    he and his family have used Lot 1 to access the pier for eighteen years, a use which has
    been apparent and continuous. Furthermore, O’Leary notes that “[c]rossing Plaintiff’s
    [Coleman’s] property is the only way to get to my dock.” O’Leary also attached a map
    depicting Lots 1, 3, 4, and the pier to demonstrate that the pier cannot be accessed from
    Lots 3 and 4 without crossing over Lot 1. O’Leary, however, failed to present evidence
    establishing the first element for an implied easement—unity of ownership between the
    dominant and servient estates. See 
    Koonce, 663 S.W.2d at 452
    (“To establish unity of
    ownership[,] the claimant must prove prior to severance, his grantor owned the dominant
    and servient estate as a unit or single tract.”). Previously, we noted that the dominant
    estate consists of Lots 3, 4, and the pier. O’Leary did not present the trial court with
    evidence demonstrating common ownership of Lots 1, 3, 4, and the pier. Moreover,
    O’Leary did not present evidence demonstrating common ownership of either Lot 1 and
    the pier or Lots 3 and 4 and Lot 1. Because O’Leary failed to produce evidence creating
    14
    a fact issue as to the first element for an implied easement, we need not address the
    remaining elements, and we conclude that the trial court did not err in granting Coleman’s
    motion for summary judgment as to O’Leary’s easement by implication contention. See
    TEX . R. CIV. P. 166a(i); see also Koonce, 663 S.W.at 452. Accordingly, we overrule
    O’Leary’s second issue.
    3. Coleman’s Deed to Lot 1
    In his third issue, O’Leary notes that Lot 1 was conveyed to Coleman by a warranty
    deed stating that the conveyance was subject to all “[v]isible and apparent easements on
    or across the property herein described.” O’Leary argues that this language, the fact that
    Coleman knew that the pier belonged to O’Leary, and the fact that the pier could only be
    reached by crossing Lot 1, supports a finding that O’Leary had an easement over Lot 1 as
    a matter of law. Coleman counters by arguing that O’Leary’s third issue was not properly
    preserved and, alternatively, that O’Leary does not have standing to claim benefits under
    the deed to Lot 1 since O’Leary was not a party to the deed or its warranties.
    A. Applicable Law
    The primary duty of a court when construing a deed is to ascertain the intent of the
    parties from the four corners of the document. 
    Luckel, 819 S.W.2d at 461-62
    . “The parties
    to an instrument intend every clause to have some effect and in some measure to
    evidence their agreement.” 
    Id. at 462
    (quoting 
    Altman, 712 S.W.2d at 118
    ). As a result,
    when seeking to ascertain the intent of the parties, a court attempts to harmonize all parts
    of the deed. Id. (citing 
    Altman, 712 S.W.2d at 118
    ). Even if different parts of the deed
    appear contradictory or inconsistent, a court must strive to harmonize all of its parts and
    15
    to construe the instrument so as to give effect to all of its provisions. 
    Id. (citing Benge
    v.
    Scharbauer, 
    259 S.W.2d 166
    , 167 (Tex. 1953)).
    An easement is considered an interest in land; therefore, the creation and transfer
    of such an interest is subject to the statute of frauds, unless the easement is imposed by
    operation of law, i.e. easements created by means other than a writing. See 
    Drye, 364 S.W.2d at 203
    & n.5 (noting that “a license, under some conditions, may rise to the dignity
    of an easement and must be in writing”); see also Schilab v. Dierlam, No. 13-03-00185-CV,
    2004 Tex. App. LEXIS 7260, at *6 (Tex. App.–Corpus Christi Aug. 12, 2004, no pet.)
    (mem. op.). In other words, O’Leary must demonstrate that the alleged easement was
    expressly conveyed in compliance with the statute of frauds to establish an easement as
    a matter of law. See 
    Drye, 364 S.W.2d at 203
    ; see also Ross, 2006 Tex. App. LEXIS
    10656, at **16-17; Schilab, 2004 Tex. App. LEXIS 7260, at *6.
    B. Discussion
    As a preliminary matter, we note that O’Leary did raise this issue with the trial court
    in his response to Coleman’s motion for partial summary judgment; therefore, this issue
    has been preserved for appeal.9 See TEX . R. CIV. P. 166a(c) (“Issues not expressly
    9
    In his response to Colem an’s m otion for partial sum m ary judgm ent, O’Leary noted that:
    W hen Colem an purchased his property, the very first item excepted from the deed was the
    following:
    1. Visible and apparent easem ents on or across the property herein described;
    ....
    Since Mr. Colem an knew that the Deed that gave him his rights in Lot 1 was
    specifically m ade subject to visible and apparent easem ents on or across the property, Mr.
    Colem an always understood that the O’Leary’s were entitled to cross the very southwestern-
    m ost corner of his property as necessary to access that dock. He never objected from 1992
    through 2004.
    16
    presented to the trial court by written motion, answer or other response shall not be
    considered on appeal as grounds for reversal.”). However, O’Leary does not have
    standing to claim a benefit derived from the warranty deed between the Walshes and
    Coleman. See S. Tex. Water Auth. v. Lomas, 
    223 S.W.3d 304
    , 306 (Tex. 2007); see also
    Haug v. Carter, No. 03-03-00476-CV, 2004 Tex. App. LEXIS 6817, at *21 (Tex.
    App.–Austin July 29, 2004, pet. denied) (noting that “[a] person who is not a party to a
    contract will still have a cause of action to enforce the contract if it was made for his or her
    benefit,” but “[t]he person claiming to be a third-party beneficiary must establish the
    existence of a contract and standing as a third-party beneficiary”).
    Standing is a component of subject-matter jurisdiction, and we thus consider the
    appellees' standing under the same standard by which we review subject-matter
    jurisdiction generally. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 
    852 S.W.2d 440
    , 446
    (Tex. 1993). Subject-matter jurisdiction presents a question of law; we review the district
    court's decision de novo. See Mayhew v. Town of Sunnyvale, 
    964 S.W.2d 922
    , 928 (Tex.
    1998). The general test for standing for individuals requires that there "(a) shall be a real
    controversy between the parties, which (b) will be actually determined by the judicial
    declaration sought.” Bd. of Water Eng'rs v. City of San Antonio, 
    155 Tex. 111
    , 
    283 S.W.2d 722
    , 724 (1955).
    In the instant case, O’Leary would not be properly characterized as a third-party
    beneficiary because he was not a party to the deed conveying Lot 1 from the Walshes to
    Coleman even though he attempts to derive a benefit from the deed on appeal. See
    Canfield v. Countrywide Home Loans, Inc., 
    187 S.W.3d 258
    , 263-64 (Tex. App.–Beaumont
    2006, no pet.) (applying third party beneficiary analysis within the context of a deed of trust
    17
    and warranty deed conveying property); Haug, 2004 Tex. App. LEXIS, at **20-24 (applying
    third party beneficiary analysis to a conveyance of easements located on Lake Travis).
    The Texas Supreme Court has held that there is a presumption against conferring third-
    party beneficiary status on non-contracting parties. See S. Tex. Water 
    Auth., 223 S.W.3d at 306
    (citing MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 
    995 S.W.2d 647
    , 652 (Tex.
    1999)). In determining whether a third party may enforce or challenge a contract between
    others, it is the contracting parties' intent that controls. See Corpus Christi Bank & Trust
    v. Smith, 
    525 S.W.2d 501
    , 503-04 (Tex. 1975).
    The supreme court further noted that the intent to confer a direct benefit upon a third
    party "must be clearly and fully spelled out or enforcement by the third party must be
    denied." MCI Telecomms. 
    Corp., 995 S.W.2d at 651
    . Incidental benefits that may flow
    from a contract to a third party do not confer the right to enforce the contract. 
    Id. at 652.
    “A third party may only enforce a contract when the contracting parties themselves
    intended to secure some benefit for the third party and entered into the contract directly for
    the third party's benefit.” S. Tex. Water 
    Auth., 223 S.W.3d at 306
    (citing MCI Telecomms.
    
    Corp., 995 S.W.2d at 651
    ; Stine v. Stewart, 
    80 S.W.3d 586
    , 589 (Tex. 2002)). In
    establishing that the contracting parties intended to confer a benefit to the third party, the
    third party must benefit more than incidentally. 
    Id. In other
    words, the third party must be
    either a donee or creditor beneficiary. MCI Telecomms. 
    Corp., 995 S.W.2d at 651
    . A
    person is a donee beneficiary if the performance promised will come to him as a pure
    donation. 
    Id. If performance
    will come to satisfy a duty or legally enforceable commitment
    owed by the promisee, then the third party is considered a creditor beneficiary. 
    Id. The record
    reflects that a contract—the deed—existed, but O’Leary has not
    18
    presented any evidence indicating that the parties to the deed—the Walshes and
    Coleman—intended to confer a benefit to him. The record indicates that the Walshes and
    Coleman entered into the deed for the purpose of conveying Lot 1 to Coleman, not for the
    purpose of conveying an easement to O’Leary. The benefit O’Leary derives from the deed
    is incidental, at best. Moreover, it is noteworthy that the deed makes reference to an
    easement for public utilities, an easement “in favor of Cameron County Fresh Water
    Supply District Number One (1),” and an easement and right of way executed by L.C.
    Guentel to Central Power and Light Company. However, the deed does not explicitly
    reference O’Leary’s alleged easement. Therefore, because O’Leary has not proven that
    the parties intended to confer more than an incidental benefit to him and because O’Leary
    would not be considered a third party beneficiary, we conclude that O’Leary does not have
    standing to claim benefits under Coleman’s deed. Accordingly, we overrule O’Leary’s third
    issue.
    IV. CONCLUSION
    Because O’Leary has raised a material fact issue as to his first issue pertaining to
    an easement by estoppel, we reverse and remand for proceedings consistent with this
    opinion.
    _______________________
    DORI CONTRERAS GARZA,
    Justice
    Memorandum Opinion delivered and
    filed this the 8th day of May, 2008.
    19