State of Texas v. John S. Beeson, Trustee, as Successor-In-Interest to Richard C. Bumstead and Sylvia M. Bumstead, John Beeson, and Paul Sirota

Opinion filed February 8, 2007

The court on this day, July 19, 2007, has withdrawn this opinion and judgment dated February 8, 2007, and substituted the opinion and judgment dated July 19, 2007.

Opinion filed February 8, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00064-CV

                                                     __________

                                       STATE OF TEXAS, Appellant  

                                                             V.

            JOHN S. BEESON, TRUSTEE, AS SUCCESSOR-IN-INTEREST

             TO RICHARD C. BUMSTEAD AND SYLVIA M. BUMSTEAD,

                        JOHN BEESON, AND PAUL SIROTA, Appellees

                                         On Appeal from the 157th District Court

                                                          Harris County, Texas

                                              Trial Court Cause No. 2002-22,286

                                                                   O P I N I O N

This appeal involves an effort by landowners to establish an easement across an abandoned railroad right-of-way that adjoins their property.   The landowners contend that they possess an easement by necessity or, alternatively, a prescriptive easement, to cross the railroad right-of-way in order to access a public road that runs along the opposite side of the railroad right-of-way.  After considering the parties= competing motions for summary judgment, the trial court determined that the landowners established both of their easement claims as a matter of law. We reverse and render.

                                                               Background Facts

Appellees own two small, neighboring tracts of real property that lie immediately north of the railroad right-of-way.  A public highway known as AOld Katy Road@ runs along the corresponding southern boundary of the railroad right-of-way.  Accordingly, the State of Texas owns the property located on the other side of the railroad right-of-way.^[1] 

The parties= respective tracts have a common source of title; a 655-acre tract acquired by Max and Eliza Roy prior to 1893.  The Missouri Kansas & Texas Railway Company of Texas condemned a railroad right-of-way across the original Roy tract in a judgment entered on January 18, 1893.^[2]  The area condemned by the railroad consisted of a 100-feet-wide right-of-way running east/west across the northern portion of the Roys= large tract.   The railroad easement had the effect of bisecting the Roy tract into two tracts: a relatively narrow strip of land lying north of the railroad right-of-way and a large tract of land lying south of the right-of-way.  A very narrow strip of the original Roy tract located along the northern line of the railroad right-of-way constitutes the southernmost portion of appellees= two tracts. With respect to the land lying south of the right-of-way, the Roys conveyed a 7.8-acre strip of land running parallel to the railroad right-of-way to Harris County on March 30, 1896.  This property has been utilized as

Old Katy Road

for many years.   

From 1893 until the 1990=s, the right-of-way was continuously used for railroad purposes.  In 1992, the State purchased the railroad right-of-way from the successor-in-interest of the original railroad company.^[3]  Pursuant to the terms of the purchase agreement between the railroad company and the State, the railroad company abandoned its use of the railroad right-of-way in 1998.  This appeal concerns the use of the right-of-way by the adjoining property owners after its abandonment by the railroad company.

The property descriptions contained in the conveying instruments for the tracts located north and south of the railroad right-of-way do not include the property located within the right-of-way.  As noted by the Texas Supreme Court in State v. Fuller, 407 S.W.2d 215, 218 (Tex. 1966), a deed to land abutting a railroad right-of-way conveys title to the center of the right-of-way unless the contrary intention is expressed in the conveyance instrument.^[4]  Upon abandonment of the right-of-way, the adjoining landowners= title to their respective halves of the right-of-way ripen into absolute ownership.  Id. The parties recognize the applicability of this principle by agreeing that, upon the railroad company=s abandonment of the right-of-way, appellees own the northern half of the right-of-way and the State owns the southern half of the right-of-way.  Since the parties acknowledge appellees= ownership of the northern half of the right-of-way, the issues in this appeal focus on  appellees= right to cross the southern half of the right-of-way. 

Appellees= property consists of two tracts that are 7.0065 acres and 5.7923 acres in size.  Their two tracts are separated by a private road know as “Walne Street.” 

Walne Street

is a paved road that runs across the right-of-way and intersects with

Old Katy Road

.^[5]  Appellees used

Walne Street

to access

Old Katy Road

prior to the railroad=s abandonment of the right-of-way.  They contend that they possess an easement to continue using

Walne Street

to access

Old Katy Road

.  Appellees base their claim of an easement by necessity on the contention that the Roys reserved the right to cross the railroad right-of-way in order to access both portions of their property lying north and south of the right-of-way.  Appellees base their prescriptive easement claim on the contention that

Walne Street

has been used by them to access

Old Katy Road

at least since 1975.   The trial court decreed in its final judgment that appellees are the owners of an easement for the purpose of providing them access to the public road system across the portion of

Walne Street

which lies on the southern half of the railroad right-of-way.

                                                              Standard of Review

When competing motions for summary judgment are filed, and one is granted and the other denied, the reviewing court must review the summary judgment evidence presented by both sides and determine all questions presented.  Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). Appellees filed a traditional motion for summary judgment, while the State sought summary judgment on both traditional and no-evidence grounds.  With respect to a traditional summary judgment motion brought under Tex. R. Civ. P. 166a(c), the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.  Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). In reviewing a summary judgment, we consider the evidence in the light most favorable to the nonmovant and resolve any doubts in the nonmovant=s favor. Nixon v. Mr. Prop. Mgmt. Co ., 690 S.W.2d 546, 548-49 (Tex. 1985).  Under Tex. R. Civ. P. 166a(i), a party may move for summary judgment on the ground that 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.  Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion.  Rule 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

                                                                 Issues on Appeal

The State raises seventeen issues on appeal.  Its first, second, third, fourth, fifth, sixth, fifteenth, and sixteenth issues deal solely with appellees= claim of an easement by necessity.  Its seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth issues deal solely with appellees= prescriptive easement claim.  The State=s seventeenth issue concerns the trial court=s rulings on the State=s objections to appellees= summary judgment evidence.

                                                            Easement by Necessity

Appellees contend that the Roys reserved an easement by implication to cross the railroad right-of-way.  They base this contention on the allegation that an easement across the right-of-way was necessary for the Roys to access both portions of their property that were bisected by the right-of-way.^[6]  A party claiming an easement by necessity exists must demonstrate (1) unity of ownership prior to the separation, (2) access must be a necessity and not a mere convenience, and (3) the necessity must exist at the time of severance of the two estates.  Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984).^[7]  The party claiming an easement by necessity has the burden of proving his entitlement to same.  See Miller v. Elliott, 94 S.W.3d 38, 43 (Tex. App.CTyler 2002, pet. denied).            In its first and second issues, the State contends that there is no evidence to support the Anecessity@ element.  The degree of Anecessity@ required to support a finding of an implied easement by reservation is strict necessity.  Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 208 (Tex. 1962). If a landowner can access his property by other means, he cannot claim a right by implication to pass over the land of another to reach his property.  Duff v. Matthews, 311 S.W.2d 637, 640-41 (Tex.  1958). The burden is on the party seeking to establish an implied reservation of a roadway to exclude, by proof, the possibility of another way of ingress and egress except the way claimed.  Id.

Easements by necessity are temporary because their existence is dependent on the necessity that created them. Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 1944). Easements by necessity terminate upon the cessation of the necessity.  Id. Accordingly, appellees were required to show that the necessity, if any, which existed at the time of the severance of the estates in 1893 existed until the time of trial.  See Miller, 94 S.W.3d at 44.

Appellees do not have any evidence of the manner in which the Roys used the property at the time that the railroad right-of-way came into existence in 1893.  Instead, they rely upon the general allegation that the Roys would have needed to cross the right-of-way to access the northern strip of their property that was cut off from the remainder of their large tract by the right-of-way. They cite

Missouri-Kanasas-Texas Ry. Co. of Texas v. Cunningham, 273 S.W. 697, 699-701 (Tex. Civ. App.CAmarillo 1925, no writ), as a specific example of a Texas court recognizing the existence of an easement by necessity when a railroad right-of-way severs an enclosed tract of property.  The court held in Cunningham that an easement is reserved by the landowner by implication to cross the right-of-way to access both portions of his enclosed property when his only access to both portions is across the right-of-way.  Id. 

While the holding in Cunningham would appear to be applicable to this appeal in theory, the evidence offered in support of the easement in Cunningham differs greatly from the evidence which exists in this appeal.  The claimant in Cunningham was the original owner of the tract of property bisected by the railroad right-of-way.  Id. at 698.  He submitted evidence of his actual use of his tracts of property since the time of the severance and his manner of accessing one tract from the other by using a passageway under a wooden bridge that supported the railroad tract since its construction.  Id.

Appellees base their claim of an easement by necessity on the assumption that the Roys would have needed to cross the right-of-way to access a thin, 2.5-acre wedge-shaped tract of their original tract. The southernmost portion of appellees= two tracts are derived from this 2.5-acre tract.  However, appellees have no evidence of the manner in which the Roys may have actually used the 2.5-acre tract. In the absence of evidence of actual use, there is no evidence that the Roys had a need to access the 2.5-acre tract after the railroad crossed their property.  There is no evidence that the Roys had a necessity to cross the right-of-way at a point located along the southern boundary lines of appellees= tracts.  Specifically, the 2.5-acre tract was approximately 2,900 lineal feet in length along the northern line of the right-of-way.  The southern boundary of appellees= two tracts (including Walne Street) only occupied approximately 1,200 feet of the 2.5-acre tract=s linear run along the right-of-way.  Appellees have no evidence that excludes the possibility that the Roys used some other point along the 2.5-acre=s tract linear run to cross the right-of-way. Furthermore, the Roys possessed an additional 52.82-acre tract located along the northern line of the right-of-way that they could have used to access the 2.5-acre tract.^[8]  Moreover, the Roys conveyed the 2.5-acre tract in 1924.  Appellees do not have any evidence that the necessity which the Roys may have possessed to access the 2.5-acre tract in 1893 continued to exist after its conveyance. 

The State=s first and second issues are sustained. We do not reach the State=s remaining issues pertaining to appellees= claim of an easement by necessity (Issues Nos. Three, Four, Five, Six, Fifteen, and Sixteen) in light of our determination that there is no evidence to support the element of necessity.  See Tex. R. App. P. 47.1. 

                                                            Prescriptive Easement

A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else=s land for ten years.  See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979); Mack v. Landry, 22 S.W.3d 524, 531 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Stallman v. Newman, 9 S.W.3d 243, 248 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). Appellees rely upon the following affidavit testimony of John S. Beeson to support its prescriptive easement claim:

1.         I am personally familiar with the 7.0065-acre and 5.7923-acre tracts of land that are involved in this lawsuit and the location of the road known as Walne Street, a 30-foot-wide road that runs in a north-south direction between the 7.0065-acre and 5.7923-acre tracts.

2.         At least since 1975, the 7.0065-acre and 5.7923-acre tracts, as well as a (sic) properties located to the north of these tracts, have accessed the public highway system across the 100-foot-wide railroad right-of-way located to the south of these tracts using Walne Street, which is a private road paved over the railroad right-of-way.  Immediately south of the railroad right-of-way is the public thoroughfare known as

Old Katy Road

.  These properties do not have any other access to the public highway system except across the railroad right-of-way at this location to

Old Katy Road

.  According to my research, this private road crossing at

Walne Street

was not subject to a written crossing agreement with the railroad.

Thus, appellees contend that they possess a prescriptive easement to cross the right-of-way by virtue of

Walne Street

=s existence at least since 1975.

In its seventh and eighth issues, the State contends that appellees= prescriptive easement claim is barred by Tex. Civ. Prac. & Rem. Code Ann. '16.030(b) (Vernon 2002).  This statute provides that “[a] person may not acquire through adverse possession any right or title to real property dedicated to public use.” The State formally dedicated the right-of-way for highway purposes upon its purchase from the railroad in 1992. Appellees contend the statute does not bar their claim because their prescriptive easement ripened into existence prior to 1992.  Even if we assume that  a prescriptive easement vested in favor of appellees to cross the railroad right-of-way prior to its dedication by the State to public use in 1992, we conclude that it did not run against the State=s interest in the property prior to the railroad=s abandonment of the right-of-way.

 As noted by the court in Millmen Union v. Missouri-Kansas-Texas R. Co. of Texas, 253 S.W.2d 450, 454 (Tex. Civ. App.CWaco 1952, writ ref. n.r.e.), “A railroad company has the exclusive use of the surface of the land on which its right of way is located.”  Since the railroad had the exclusive use of the right-of-way, the State=s interests in the right-of-way during the period of time that it was used for railroad purposes was similar to that of a remainderman to a life estate in that the State did not have a right to possess the right-of-way during the period of its operation.   This court rejected the possibility of a remainderman=s interest being subject to adverse possession during the term of the life tenancy in Hensley v. Conway, 29 S.W.2d 416, 417-18 (Tex. Civ. App.CEastland 1930, no writ).  The court reasoned in Hensley that limitations does not accrue against the remainderman=s interest while the life tenant remains alive because the remainderman does not have a possessory interest that would allow him to institute a trespass to try title action seeking the ouster of the trespasser.  Id. 

Our reasoning in Hensley is applicable to the facts in this appeal.  It would be unreasonable for the State=s right to possess the property in the future to be impaired by a prescriptive easement based upon acts occurring prior to the vesting of the State=s possessory right.   To hold otherwise would have required the State to institute an action to prevent appellees from crossing the right-of-way even though it was in the exclusive possession of the railroad.  Accordingly, while appellees may have established a prescriptive easement against the railroad=s right to possess the right-of-way, their adverse use was ineffectual against the State=s future right to possess the property. Any  prescriptive easement that appellees possessed against the railroad terminated when the railroad abandoned the property in 1998.   Thus, the State=s dedication of the right-of-way to public use in 1992 prevented the State=s interest in the property from being impaired by a prescriptive easement after the railroad abandoned the right-of-way.

We sustain the State=s seventh and eighth issues.  We do not reach the State=s remaining issues pertaining to appellees= claim of a prescriptive easement (Issues Nos. Nine, Ten, Eleven, Twelve, Thirteen, and Fourteen) in light of  our determination that appellees= claim is barred by statute.  See  Rule 47.1.  We also do not consider the State=s seventeenth issue concerning the trial court=s rulings on the State=s objections to appellees= summary judgment evidence because it is not necessary to the final disposition of this appeal.  Id.

                                                            This Court=s Judgment

The judgment of the trial court is reversed, and judgment is rendered in favor of the State.

TERRY McCALL

JUSTICE

February 8, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

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^[1]The parties acknowledge that the State owns Old Katy Road by virtue of its status as a public highway.

^[2]The condemnation judgment provided in pertinent part as follows: AIt is further ordered adjudged and decreed that the land and premises described in the plaintiff=s petition herein be and the same is hereby condemned and adjudged to the Missouri Kansas and Texas Railway Company of Texas for its use and benefit as a right-of-way for its railway, and such right thereto is hereby vested in said Company.@

^[3]The portion of the railroad right-of-way lying south of appellees= tracts of property was included in a purchase by the State of several miles of railroad right-of-way. 

^[4]In many respects, the facts in this case are similar to those addressed in Fuller.

^[5]There is only one reference to

Walne Street

in the applicable deed records.  The description of

Walne Street

in this reference indicates that it runs between appellees= two tracts of property.  However, this description does not indicate that

Walne Street

extends across the railroad right-of-way to

Old Katy Road

.  The description of

Walne Street

contained within the deed records is inconsistent with the actual course of the asphalt road which separates appellees= two tracts. Photographs in the summary judgment record illustrate that the road extends across the railroad right-of-way to

Old Katy Road

. 

^[6]A tract of land burdened by an easement is known as the servient estate, while the tract of land benefitted by the easement is referred to as the dominant estate. Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.C San Antonio 1996, writ denied).  If the dominant estate is retained by the grantor and the servient estate is conveyed, an implied easement is said to have been Areserved.@ Id.

^[7]Appellees do not base their claim of an easement upon an established route in existence at the time the railroad right-of-way was created. An easement of this type is typically referred to as an implied easement.  See Daniel, 917 S.W.2d at 110.   To establish an implied easement, a plaintiff must establish that (1) there was a unity of ownership between the dominant and servient estates and that the use was (2) apparent, (3) in existence at the time of the grant, (4) permanent, (5) continuous, and (6) reasonably necessary to the enjoyment of the premises granted.  Id.  Since appellees are claiming an easement by necessity, they are not required to show the existence of a route that was apparent, continuous, and permanent at the time of the severance.  Id. at 111.

^[8]The 52.82-acre tract was located east of the 2.5-acre tract along the northern line of the railroad right-of-way.  At the time of the right-of-way=s acquisition in 1893, these two tracts were separated by a pre-existing railroad right-of-way that intersected with the right-of-way at issue in this appeal.