MEMORANDUM OPINION
No. 04-07-00654-CV
ESTATE OF JOSE ERNESTO TREVINO, Deceased; Guadalupe P. Trevino,
Jose Jaime Trevino and Patsy Trevino,
Appellants
v.
Billy C. MELTON, Daisy Melton, Maria Del Rosario P. Lopez and Miguel G. Lopez, Jr.,
Appellees
From the County Court at Law, Starr County, Texas
Trial Court No. CC-03-132
Honorable Romero Molina, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 3, 2009
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
This case stems from an easement dispute. Appellants Estate of Jose Ernesto Trevino,
Deceased, Guadalupe P. Trevino, Jose Jaime Trevino and Patsy Trevino (the Trevinos) filed a
petition seeking a declaratory judgment that they held an easement appurtenant to Farm to
Market Road 755 (FM 755) by prescription, by estoppel, or by recognition of recordings made in
04-07-00654-CV
the plats and deeds recorded in the Office of the County Clerk of Starr County, Texas. Prior to
trial, the trial court entered a no-evidence summary judgment in favor of Appellees Billy D.
Melton, Daisy Melton, Maria del Rosario P. Lopez, and Miguel G. Lopez, Jr. On the estoppel by
easement claim, the trial court rendered judgment on a jury verdict finding that the Trevinos do
not have an easement by estoppel over the road in question. We affirm the trial court’s judgment
that appellants did not have an easement by estoppels, as well as, the summary judgment of no
easement by reference. We reverse, however, the trial court’s summary judgment of no
prescriptive easement.
FACTUAL BACKGROUND
This dispute concerns a road easement that serves as the only access from the Trevinos’
property to FM 755. Beginning in 1958, Jose Ernesto Trevino (Ernesto), the family patriarch,
began accumulating what would grow to approximately 330 acres of ranch land. According to
the Trevinos, Ernesto built the road almost immediately after purchase. In 1959, the Trevinos
granted an easement to Medina Electric to connect electricity to their land, and other
improvements to the land followed.
According to the Trevinos, the road connects the Trevino Ranch to FM 755, and provides
the only ingress and egress to their ranch. Although there is some question as to who built the
road, there is no controversy regarding the Trevinos continued use. In 1963, Appellee Maria P.
Del Rosario Lopez’s father, Jesus Porras, Jr. (Jesus), purchased the 49.962 acre tract which
included the road in question, as part of a larger tract of 204.562 acres. Over the years, there
-2-
04-07-00654-CV
were three fences with key-locked gates placed on the road: (1) at the entry from FM 755; (2) at
an entry onto the Carrera Ranch; 1 and (3) at the entry to the Trevino Ranch. 2
In 1989, Maria decided to subdivide her land and sell individual lots. The Trevinos
agreed to remove the first gate on the road based on Maria’s request “prompted by her plan to
subdivide her land to sell and because she wanted prospective buyers to be able to view the lots
being offered for sale.” Maria also assured Jose Jaime Trevino (Jaime) that her sale of the lots
along the road would not affect the Trevinos’ use of the road.
On March 29, 1989, Emede Barrera and Dario O. Garza purchased two one-acre lots
from Maria by warranty deed. One fronted FM 755 and the other tract was located immediately
behind the first. Maria told Barrera “that road was going to be there forever for the use of the
people.” She assured Barrera that the road could be used by anyone that needed to get to the
properties in the back. The deed to Barrera, recorded on April 27, 1989, included a metes and
bounds description mentioning the “South R.O.W. line of a 40.0 feet Road Easement.” After the
sale of these two acres through various owners, in April of 2000, the Meltons purchased the two
one-acre lots. The deeds included the same language regarding the easement and the Meltons
acknowledged the easement noted in the deed.
1
The property situated between the Trevino Ranch and FM 755 is owned by the Carrera family. The Carrera family
was not involved in this dispute.
2
Although the Carreras apparently use a different access for their property, there does not appear to be any issue
with regard to the Trevinos crossing the Carrerra property.
-3-
04-07-00654-CV
Trouble began in November 2002 when the Trevinos leased their property to Ignacio
Barrera. For several months, the Meltons voiced concerns regarding vehicles traveling at an
unsafe rate of speed on the road. Their complaints, however, were ignored. In response, Billy
Melton informed Jaime Trevino that he had twenty-four hours to remove the cattle from the
Trevino Ranch because the road would be closed with a locked gate to control the traffic. Billy
stated that the Trevinos would be given one key for their use.
On March 9, 2003, Billy obstructed the Trevinos’ passage through the road with twenty
bales of hay and three vehicles. Both Jaime Trevino and Daisy Melton assert they called the
Sheriff’s Department and there were allegations by the Trevinos that Daisy used numerous
profanities towards them and even threatened them. Billy claimed that he owned the road by
purchase, but eventually explained that he was actually in the process of purchasing the road
from the Lopezes and Billy conditioned the Trevinos’ future use of the road on the Trevinos’
production of an easement to use the road.
-4-
04-07-00654-CV
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
“An easement is . . . [the] privilege . . . to use another parcel of land for some limited
purpose.” Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San Antonio 1996, writ denied).
The tract of land on which the easement is imposed is the servient estate, and the tract of land
benefitted by the easement is the dominant estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d
196, 207 (Tex. 1963). On March 8, 2005, Appellees filed a no-evidence motion for summary
judgment regarding the Trevinos’ various easement claims. In response, the Trevinos filed an
opposition to the motion for summary judgment and a counter-motion for partial summary
judgment.
A. The Summary Judgment Order
The appellate record does not contain a copy of the trial court’s order dated January 25,
2007, resolving Appellees’ no-evidence motion for summary judgment. It appears from the
record of the arguments made by counsel and the trial court’s order signed January 30, 2007
addressing the Trevinos’ motion, that the trial court denied the Trevinos’ counter motion for
partial summary judgment against Defendants Maria Del Rosario Lopez and Miguel G. Lopez,
Jr., and previously granted the no-evidence motion for summary judgment with regard to
easement by prescription and easement by reference. The January 30th order specifically
provides:
The Court further orders that a jury trial be set on the sole issue of whether or not
Plaintiffs can establish and have a right to an easement by estoppel over
Defendants’ land as described in the pleadings on file with the papers in this
cause which issue is not addressed or disposed [of] by the Court’s ruling made in
this order.
We, therefore, address the trial court’s take nothing summary judgment on the Trevinos’ claims
of easement by prescription and easement by reference.
-5-
04-07-00654-CV
B. No-Evidence Standard of Review
Rule 166a(i) provides that a party is entitled to summary judgment if, “[a]fter adequate
time for discovery, . . . there is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P.
166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Taylor-
Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 487 (Tex. App.—San Antonio 2000, pet. denied).
“A no-evidence summary judgment [motion] is improperly granted if the respondent brings forth
more than a scintilla of probative evidence to raise a genuine issue of material fact.” Gomez v.
Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.—San Antonio 1999, no pet.); accord
TEX. R. CIV. P. 166a(i). “More than a scintilla of evidence exists when the evidence rises to a
level that would enable reasonable and fair-minded people to differ in their conclusions.” King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal quotation marks omitted).
Less than a scintilla of evidence exists if the evidence is so weak as to do no more than create a
mere surmise or suspicion of a fact. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 n.18 (Tex.
2004).
C. Easement by Prescription
Here, the property interest claimed by the Trevinos is an easement appurtenant; that is, an
easement across the servient estate in favor of the dominant estate. The easement burdens the
servient estate, benefits the dominant estate, and “attaches to the land of the dominant estate.”
Drye, 364 S.W.2d at 207. Such an easement may be created by a writing, in which case
language of conveyance is required. However, an easement appurtenant may also be created
without a writing by dedication, implication, or estoppel. Id. at 203.
-6-
04-07-00654-CV
1. Necessary Elements
An easement by prescription rests on the claimant’s actions under a color of right.
“Burdening another’s property with a prescriptive easement is not well-regarded in the law.”
Toal v. Smith, 54 S.W.3d 431, 435 (Tex. App.—Waco 2001, pet. denied). To establish “an
easement by prescription, the [claimant] must show that his use of [another’s] land was: (1) open
and notorious; (2) adverse to the owner’s claim of right; (3) exclusive; (4) uninterrupted; and (5)
continuous for a period of ten years.” Id. at 435; Mack v. Landry, 22 S.W.3d 524, 531 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (“[A] person acquires a prescriptive easement by the
open, notorious, continuous, exclusive, and adverse use of someone else’s land for ten years.”);
Stallman v. Newman, 9 S.W.3d 243, 248 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
“[F]ailure to establish any of these essential elements by a preponderance of the evidence,”
negates the claim of easement. Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979) (citations
omitted).
“The hostile and adverse character of the use necessary to establish an easement by
prescription is the same as that which is necessary to establish title by adverse possession.”
Mack, 22 S.W.3d at 531 (citing Othen v. Rosier, 148 Tex. 485, 492, 226 S.W.2d 622, 626
(1950)). Adverse possession is defined in section 16.021 of the Texas Civil Practice and
Remedies Code as “an actual and visible appropriation of real property, commenced and
continued under a claim of right that is inconsistent with and is hostile to the claim of another
person.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (Vernon 2002). “One general test to
determine whether a claim is hostile is whether the [claimant’s] use, occupancy, and possession
of the land is of such a nature and character as to notify the true owner that the claimant is
asserting a hostile claim to the land.” Mack, 22 S.W.3d at 531; Stallman, 9 S.W.3d at 248. The
-7-
04-07-00654-CV
owner of the servient estate must have actual or constructive notice that there was an adverse and
hostile claim against the property. See Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App.—
Austin 1998, pet. denied). In determining whether a claim is hostile, we consider “whether the
adverse possessor’s use, occupancy, and possession of the land is of such nature and character as
to notify the true owner that the claimant is asserting a hostile claim to the land.” Mack, 22
S.W.3d at 531.
Notably, if permission to use the property is granted, the claim cannot be adverse absent
notice of the hostile nature of the claimant’s possession. Wright v. Wallace, 700 S.W.2d 269,
271 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.). Establishing that the use is adverse and
hostile requires the claimant take open action to obtain a permanent right to use the property, not
merely to obtain permission to do so. See Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex.
1987). The easement “claimant must exclude, or attempt to exclude, all other persons, including
the property owner[,] from using the roadway.” Stallman, 9 S.W.3d at 249. Joint continuous
use, without a legally adverse or hostile act, is not sufficient. Mack, 22 S.W.3d at 532.
2. Proof at Summary Judgment
Because the prescriptive easement requires adverse possession for a period of ten years, it
is imperative to understand the chronology of events. Ernesto Trevino began purchasing the
ranch property in 1959 and continued to purchase property for approximately twenty years.
According to the summary judgment evidence, he immediately built the twenty-five foot wide
road to his property commencing from the boundary line of the right of way road easement to
FM 755 and passing through property that was later purchased by Jesus Porras, Jr., Maria’s
-8-
04-07-00654-CV
father. 3 The roadway was not only cleared by Ernesto, but he blocked the roadway with a
locked gate. Jaime’s testimony that the road construction was performed without the permission
of the owner is uncontroverted.
On August 26, 1959, Ernesto openly contracted with Medina Electric Cooperative for
permission to use the road as a utility easement. The co-op installed clearly visible utility poles
and electrical lines that provided electricity exclusively to the Trevino Ranch. Moreover,
although contested by Billy Melton, both Jaime and Patsy Trevino provided affidavits that the
road was the sole means of ingress to and egress from the Trevino Ranch.
3. Analysis
The testimony is uncontroverted that prior to 1989, no one else used the road for any
reason. There is nothing to contradict the Trevinos’ testimony that from 1959 until 1989, they
maintained open, notorious, exclusive use of the road, including a locked gate, from FM 755.
The locked gate is clearly “some evidence” that the use of the property was exclusive, or that the
Trevinos excluded or attempted to exclude all other persons. See Stallman, 9 S.W.3d at 248
(“[H]ostility can be shown by the adverse possessor’s decision to ‘designedly enclose’ the
disputed property by erecting a fence.”); accord Mack, 22 S.W.3d at 528-29 (citing Exxon Corp.
v. Schutzmaier, 537 S.W.2d 282, 285-86 (Tex. Civ. App.—Beaumont 1976, no writ)). In
addition to some evidence of exclusivity, the testimony provides some evidence that for more
than the prescriptive period, Ernesto maintained the roadway uninterrupted, continuously, in an
open and notorious manner and adverse to the rights of Jesus, the property owner. Therefore,
3
Based on an Affidavit of Heirship, the testimony supports that Jesus Porras, Jr., Maria’s father, purchased the
property containing the roadway in question in 1962. On July 10, 1979, Jesus sold a portion of the property to his
brother, Domingo P. Porras, and retained the remainder. On December 22, 1980, after the death of her father, Maria
inherited the portion of the land belonging to her father.
-9-
04-07-00654-CV
without deciding the matter, there is some evidence that by the time Maria inherited the property
in question, it was already encumbered with the Trevino easement.
Maria acknowledges that she knew the Trevinos were using the roadway, but she
maintains that they were using it with permission. The use of property with the owner’s express
or implied permission or license cannot rise to the level of a prescriptive easement, no matter
how long the use continues. Vrazel, 725 S.W.2d at 711; Othen v. Rosier, 148 Tex. 485, 492, 226
S.W.2d 622, 626-27 (1950). Yet, the earliest testimony of permission to use the roadway was in
1989, years or even decades after the prescriptive period had run. When Maria decided to
develop her property, she notified the Trevinos that she wanted to designate the road as a
subdivision road and to widen it to forty feet in order to be in compliance with Starr County
subdivision regulations. There is testimony in the summary judgment record that Maria made
assurances that the Trevinos’ right to use the road would not be disturbed. Although one could
argue that the Trevinos’ use of the roadway at that point was permissive, a fact issue exists over
whether a prescriptive easement was obtained as much as twenty years earlier.
Accordingly, because the Trevinos produced some evidence that raised a genuine issue of
material fact on whether they had obtained a prescriptive easement on the roadway in question,
the trial court erred in granting Appellees’ no-evidence summary judgment with regard to the
Trevinos’ claim of a prescriptive easement.
D. Estoppel by Deed
The Trevinos next assert that the trial court erred in granting the no-evidence summary
judgment based on estoppel by deed. Estoppel by deed, or sometimes called estoppel by contract
or estoppel by reference, provides that a party to a contract or deed may not, at a later date, take a
position inconsistent with its provisions, to the prejudice of another. See Johnson v. Structured
- 10 -
04-07-00654-CV
Asset Servs., LLC, 148 S.W.3d 711, 721-22 (Tex. App.—Dallas 2004, no pet.) (defining estoppel
by contract); Moore v. Energy States, Inc., 71 S.W.3d 796, 799 (Tex. App.—Eastland 2002, pet.
denied) (defining estoppel by deed); Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966);
see also Horne v. Ross, 777 S.W.2d 755, 756 (Tex. App.—San Antonio 1989, no writ)
(“Conveyance of land by reference to a map or plat showing abutting roads or streets results in
the purchaser, or one holding under him, acquiring a private easement in the roads or streets
shown on the plat.”). In other words, “[u]nder the theory of estoppel by deed, the grantor of an
estate in land is estopped to assert an interest in or against the estate the deed purports to
convey.” Chappell Hill Bank v. Smith, 257 S.W.3d 320, 326 (Tex. App.—Houston [14th Dist.]
2008, no pet.).
Appellees argue there is no written conveyance with respect to the roadway and,
therefore, the deeds in question do not support an easement by reference. The evidence,
however, contradicts their assertions. In 1988, Maria sold approximately two acres of property,
bordered by the roadway in question, to Emede Barrera and Dario O. Garza. An engineering
report, filed with the warranty deed on the property describes the property “[b]eginning at a set
iron pin on the South R.O.W. line of a 40.0 feet Road Easement for the Northwest corner
hereof.” Additionally, the diagram attached to the report includes an easement drawn running
along the north side of the two-acre plot. Two years later, Mr. Barrera and Mr. Garza sold the
property to Hilda Gomez. Ms. Gomez subsequently sold the two acre plot to Elsie F. Limas, and
in 2000, the Meltons purchased the property from Ms. Limas. Although the last conveyance
does not include the engineer’s report, the property is described as bordered by “a proposed 40.0
feet road easement.” The evidence before the trial court for the summary judgment included
testimony of Billy Melton acknowledging that he knew about the roadway when he purchased
- 11 -
04-07-00654-CV
the original two acres from Ms. Limas. He asserts, however, that the additional 2.67 acres that
he purchased from Maria in November of 2001, property that included the roadway, gave him
absolute right to the roadway, unencumbered by any easements.
While the deeds do not specifically identify, by metes and bounds, the roadway upon
which the Trevinos assert an easement, “the description provides enough information so that a
party familiar with the locality can identify the premises with reasonable certainty.” Chappell
Hill Bank, 257 S.W.3d at 326-27 (citing Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247,
248-49 (1955)). The Trevinos’ argument fails, however, because an estoppel by deed precludes
a party to the document from later denying the road’s existence. See Dykes, 406 S.W.2d at 181
(“[T]he purchasers of the lots [to whom the seller showed a map with a street, existing or not,
touching the lot] have a right to have the street thrown open forever.”); Angell v. Bailey, 225
S.W.3d 834, 841 (Tex. App.—El Paso 2007, no pet.) (“Estoppel by deed stands for the general
proposition that all parties to a deed are bound by the recitals therein, which operate as an
estoppel, working on the interest in the land if it be a deed of conveyance, and binding both
parties and privies; privies in blood, privies in estate, and privies in law.” (quoting Freeman v.
Stephens Prod. Co., 171 S.W.3d 651, 654 (Tex. App.—Corpus Christi 2005, pet. denied)
(internal quotation marks omitted)). The Trevinos were not a party to any of the deeds described
above. The trial court, therefore, did not err in granting the no-evidence summary judgment
regarding the easement by deed and we overrule this issue on appeal.
E. Summary Judgment in Regard to Tort Claims
In the introductory paragraph and the prayer of their appellate brief, the Trevinos contend
the trial court erred in granting a no-evidence summary judgment on the causes of action for
assault and malicious prosecution because these causes of action were not addressed or requested
- 12 -
04-07-00654-CV
in the appellees’ motion for summary judgment. We are constrained in addressing this point
because the record does not contain the alleged erroneous summary judgment, and because of
Appellants’ limited briefing. The Trevinos do not cite any authority or outline their argument on
appeal. Thus, the Trevinos have waived a challenge to the trial court’s grant of the no-evidence
summary judgment. See TEX. R. APP. P. 38.1(h) (requiring appellant’s brief to contain clear and
concise argument for contentions made with appropriate citations to authorities and record);
Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
(recognizing appellant’s failure to brief issue results in waiver on appeal).
Additionally, there is no motion for summary judgment that included the tort claims.
Likewise, no order disposing of these claims is in the record. During trial, the Trevinos
presented evidence regarding Daisy Melton’s alleged assault on March 9, 2003. Outside the
presence of the jury, the Trevinos requested the trial court sever these causes and abate the same
pending the completion of the criminal prosecution. The Trevinos’ counsel acknowledged the
claims were “not ripe for trial” and that he was limited in his ability to ask questions of the
witnesses. The trial court denied the motion. No bill of exception or offer of proof was sought
by the Trevinos. See TEX. R. EVID. 103(a), (b). Moreover, when the claims were not presented
in the trial court’s proposed jury charge, counsel neither objected to the charge, nor provided the
trial court with a proposed charge including the claims. See TEX. R. CIV. P. 279 (“Upon appeal
all independent grounds of recovery or of defense not conclusively established under the
evidence and no element of which is submitted or requested are waived.”); TEX. R. APP. P.
33.1(a) (providing that to preserve a complaint for appellate review the complaining party must
have made a timely and sufficiently specific request, objection, or motion in the trial court);
Murray v. O & A Exp., Inc., 630 S.W.2d 633, 637 (Tex. 1982) (deciding the party waived
- 13 -
04-07-00654-CV
argument that pleadings did not support the charge submission by failing to make a timely
objection to the charge on that ground). Accordingly, the Trevinos waived their tort claims and
this issue is overruled.
FACTUAL AND LEGAL SUFFICIENCY
A. Standard of Review
The Trevinos challenge the legal sufficiency of the jury’s failure to find easement by
estoppel. We review a legal sufficiency challenge to an adverse finding to determine whether the
evidence conclusively proves a fact that establishes a party’s right to a judgment as a matter of
law. In doing so, we “must view the evidence in the light favorable to the verdict, crediting
favorable evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).
The Trevinos also challenge the jury’s failure to find easement by estoppel as against the
great weight and preponderance of the evidence. In reviewing this challenge, we must first
examine the record to determine if there is some evidence to support the finding and if there is
evidence, then we must determine, in the light of the entire record, whether the finding is so
contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong
and manifestly unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). “The
court of appeals must consider and weigh all the evidence, and can set aside a verdict only if the
evidence is so weak or if the finding is so against the great weight and preponderance of the
evidence that it is clearly wrong and unjust.” Id. at 241 (citing Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986), disapproved on other grounds by Crown Life Ins. Co. v. Casteel,
22 S.W.3d 378 (Tex. 2000)).
- 14 -
04-07-00654-CV
B. Easement by Estoppel
Three elements are necessary for an easement by estoppel: (1) “a representation
communicated, either by word or action, to the promisee”; (2) the promisee believed the
communication; and (3) the promisee relied on the communication to his detriment. Holden v.
Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied); accord Drye,
364 S.W.2d at 211. Under this doctrine, a landowner may be estopped from denying the
existence of an easement created by “representations” upon which another has detrimentally
relied. Drye, 364 S.W.2d at 209. These representations may be verbal or nonverbal. Storms v.
Tuck, 579 S.W.2d 447, 452-54 (Tex. 1979). “An easement by estoppel once created is binding
upon successors in title if reliance upon the existence of the easement continues.” Holden, 929
S.W.2d at 131. Because the easement claimed in the present case is an easement appurtenant to
the land, Appellees argue that it is an interest in land which requires a writing to create or
transfer. See TEX. PROP. CODE ANN. § 5.021 (Vernon 2003); Drye, 364 S.W.2d at 203.
The supreme court has recognized that “[t]he exact nature and extent of the doctrine . . .
have not been clearly defined.” Drye, 364 S.W.2d at 209. Although the application of the
doctrine of easement by estoppel depends upon the unique facts of each case, this equitable
doctrine has been applied to circumstances such as the “dedication of a street, alley, or square”; a
conveyance “with reference to a map or plat”; and expenditures by the owner of the alleged
easement for improvements on the servient estate. Id. at 209-10. The doctrine has also been
applied to circumstances involving expenditures on the dominant estate. See Holden, 929
S.W.2d at 132; Exxon Corp. v. Schutzmaier, 537 S.W.2d 282, 285-86 (Tex. Civ. App.—
- 15 -
04-07-00654-CV
Beaumont 1976, no writ); N. Clear Lake Dev. Corp. v. Blackstock, 450 S.W.2d 678, 683 (Tex.
Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.).
C. Testimony at Trial
The Trevinos were required to prove that a representation was communicated, believed,
and relied upon to their detriment. Billy testified that the road in question belonged to Maria and
Miguel and that when they divided the property into small tracts, the road was left “open to
access the other properties.” After his dispute with the Trevinos, Billy spoke to Miguel and was
told “if the Trevinos cannot get along with you lock the gate.” Additionally, he testified that
when he purchased the property there were no easements. Billy opined that although the
Trevinos were given permission by the Lopezes to use the roadway, there was never an
easement.
The testimony also included a number of contradictions. Maria testified that her father
built the road, but Guadalupe Trevino remembered the road being there when she and Ernesto
purchased the property in 1959. Throughout her testimony, Maria explained that she continued
to honor her father’s grant of permission to use the road, but was definite that she had never
given any type or form of conveyance of land to the Trevinos. She explained that she was only
“honor[ing] her father’s word with [Ernesto] Trevino” to “just to continue letting them go by.”
Moreover, although permission was given to use the roadway, no promises were ever made that
the Trevinos would have any type of easement in the property. In fact, Maria acknowledged
speaking to Guadalupe and telling her not to worry and that she would talk to the Meltons, but
once again she did not make any promises in the form of an easement.
- 16 -
04-07-00654-CV
D. Analysis
Four questions, all based on a preponderance of the evidence, were posed to the jury: (1)
“whether a representation or representations were made by the owners of the property over
which the road runs or lies to [the Trevinos] that they had a right to use the road in order to enter
and exit out of their land”; (2) whether “a representation or representations were made to [the
Trevinos] by words or conduct that they had the right to use the road”; (3) whether “[the
Trevinos] believed the representation or representations made by the owners of the property over
which the road runs or lies that [the Trevinos] had the right to use this road”; and (4) whether
“[the Trevinos] relied to their own detriment on the representation or representations made to
them by the owners of the land over which the road runs that they had a right to use the road.”
To each of these questions, the jury answered, “we do not.”
Contrary to the Trevinos’ assertions, this case is easily distinguished from Holden v.
Weidenfeller, wherein this court affirmed an easement by estoppel claim based on similar facts.
See Holden v. Weidenfeller, 929 S.W.2d 124, 131-32 (Tex. App.—San Antonio 1996, writ
denied). Like the Trevinos, the Weidenfellers alleged that they were landlocked owners and had
used the road continuously for thirty-five years for ingress and egress before the opposing
landowners, the Holdens, attempted to lock them out. Id. at 131. Importantly, however, the
Weidenfellers bought their property with the understanding that the road gave them access to the
property and that the Holdens made no objection to the use of the road for over seven years after
the Weidenfellers purchased the property and even allowed the Weidenfellers to place their own
lock on the gate. Id. at 131-32 (noting the evidence showed that the landlocked owners and their
predecessors built a house on the property and had spent significant amounts of time and money
improving the property over the years).
- 17 -
04-07-00654-CV
There are no such allegations here. To the contrary, the evidence is uncontroverted that
Ernesto Trevino purchased the property prior to any purchases by Maria’s father and there is
little to no evidence that the Trevinos actually expended money on the road in question or relied
to their detriment on any promises made by any of Appellees or even Jesus Porras. Additionally,
there is significant testimony that any representations made by the owners of the property were
simply permission to use the roadway to access the Trevino Ranch. More specifically, the
Lopezes both testified that Maria’s father built and maintained the road and that any use of the
road by the Trevinos was by permission based on a relationship between Jesus Porras and
Ernesto Trevino. We hold that the evidence was both legally and factually sufficient to support
the jury’s verdict.
CONCLUSION
Because the Trevinos failed to properly brief the tort claims, or object before the trial
court, their tort claims are waived on appeal. Furthermore, estoppel by reference only protects
the purchaser of the property, not an unnamed third-party, and thus, the trial court properly
granted the no-evidence summary judgment regarding this easement. We, therefore, affirm the
trial court with regard to the no-evidence summary judgment on the easement by reference and
tort claims. The evidence at trial was both legally and factually sufficient to support the trial
court’s judgment of no easement by estoppel.
However, because the Trevinos raised a genuine issue of material fact at the summary
judgment hearing regarding each of the elements required for a prescriptive easement, the trial
court erred in granting the no-evidence summary judgment on that issue. We, therefore, reverse
- 18 -
04-07-00654-CV
the trial court’s grant of summary judgment on the Trevinos’ claims of prescriptive easement,
and remand this matter to the trial court for further proceedings consistent with this opinion.
Rebecca Simmons, Justice
- 19 -