Russell, Joe T., Jr. v. Rawls, Joy--Appeal from 394th District Court of Presidio County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOE T. RUSSELL, JR., )

) No. 08-00-00546-CV

Appellant, )

) Appeal from the

v. )

) 394th District Court

JOY RAWLS, )

) of Presidio County, Texas

Appellee. )

) (TC# 6323)

MEMORANDUM OPINION

Appellant Joe T. Russell appeals from the trial court=s judgment entered in favor of Appellee Joy Rawls, which establishes that Ms. Rawls possesses an easement across his property. On appeal, Mr. Russell raises a single issue: whether the trial court erred in finding that Ms. Rawls was entitled to an easement by estoppel because she failed to show that the legal elements of an easement by estoppel had been satisfied. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a dispute over Appellee Joy Rawls= right to use a road which is on a portion of Mr. Russell=s property. Ms. Rawls is the owner and resident of a twenty acre property in the Casa Pierdas area of Presidio County, Texas. Ms. Rawls moved to this property in 1982. At that time, the adjacent ranch property was owned by Ms. Tomasa Van Neiman, Appellant=s aunt. At trial, Ms. Rawls testified that she and Ms. Van Neiman were familiar with each other and had a friendly relationship. Ms. Van Neiman had known Ms. Rawls= husband since he was born and they had visited in Casa Pierdas often. Ms. Rawls stated that she and her husband were taken in just like family members and as Ms. Van Neiman=s health deteriorated, Ms. Rawls went to her house every day to see how she was doing and to tend to her needs.

During Ms. Van Neiman=s lifetime, Ms. Rawls used a twenty foot roadway on Ms. Van Neiman=s property as the means of ingress and egress to her twenty acre property. Ms. Rawls testified that Ms. Van Neiman had no objection whatsoever to allowing her to continue using that road. Ms. Rawls stated that she would drive Ms. Van Neiman into town when Ms. Van Neiman was no longer able to drive, brought her groceries after she was not able to do so herself, and brought her mail to her every week. According to Ms. Rawls, Ms. Van Neiman never objected to her using the roadway. She stated that the roadway was her only practical means of ingress and egress to her property and that she had relied on Ms. Van Neiman=s actions with respect to continuing use of that roadway.

At trial, two witnesses testified to their relationship between Ms. Rawls and Ms. Van Neiman. Stanley Elliot, who is Ms. Rawls= brother and was Ms. Van Neiman=s brother in law, recalled that his sister used to check on Ms. Van Neiman every day, used to take her mail to her, and that they got along like neighbors. To his knowledge, Ms. Rawls was never hindered, stopped, or not allowed from using that road for any reason. Wilbur Elliot, another brother of Ms. Rawls, testified that she and Ms. Van Neiman were good neighbors who did favors for one another. He never knew of Ms. Van Neiman ever stopping anybody from using the road that ran along the fence line of her property.

Upon Ms. Van Neiman=s death in 1992, Appellant Joe T. Russell, Jr. acquired the seven acres where his aunt=s house and ranch headquarters are located. Ms. Rawls continued to use the road until 1995, with the exception of two stoppages in 1989 and 1991 at Appellant=s request for road repairs. Other than the times when the road needed repair, Mr. Russell did not stop Ms. Rawls from using the road prior to 1995. There was never any type of written easement granted to Ms. Rawls nor has Mr. Russell formally given her permission to use the road on his property. However, Ms. Rawls testified that until 1995 at no time did Mr. Russell=s conduct indicate that she could not use the road on his property. She also stated that she continues to rely on the use of the road as an easement to reach her property.

In 1995, Mr. Russell stopped Ms. Rawls from using the road on his property by putting up barbed wire and hauling in about nine big boulders to block the road. Ms. Rawls received a letter from Mr. Russell in which she was instructed that she could only use the road with Mr. Russell=s permission. Ms. Rawls started to make preparations to find an alternative way to her property. She moved her vehicles to the Donaldson property and moved her cattle and a barrel of gasoline to the Russell property. From then on, any time Ms. Rawls came to or from her property, she had to walk across the Carpenters= property and crawl through two grates to get to her house. When Ms. Rawls had things to carry, she transported her belongings in a wheel barrel. Though Ms. Rawls did not have the owners= permission, she started doing this because it was necessary for her to come and go from her property. Ms. Rawls told them why she was doing it and they did not object. However, Mr. Carpenter later blocked Ms. Rawls= access to his property in early 1999.

In January 1999, Ms. Rawls approached Mr. Russell about making a deal because Ms. Rawls was willing to buy an easement. In order to start using the road again, Ms. Rawls entered into an agreement with Mr. Russell under his terms. For one month, January 9 to February 13, 1999, Ms. Rawls paid Mr. Russell $100 for use of the road on his property. When Ms. Rawls did not pay a second $100, Mr. Russell wrote her a letter stating that he planned to put up a locked gate.

At trial, Mr. Russell testified that he recalled seeing Ms. Rawls at his aunt=s house and knew that Ms. Rawls had visited and had helped take care of his aunt before she died. Mr. Russell stated that he never told Ms. Rawls that she had any type of easement across his property. He also testified that at the January meeting, he told Ms. Rawls that he was not interested in selling an easement and instead made a good faith offer for her to use his road for a renewable period of one year at a cost of $500 each year.

Following the bench trial, the trial court entered a judgment in favor of Ms. Rawls, ordering that she recover from Mr. Russell title to and possession of the twenty-foot wide easement on the east boundary line of his 320-acre property. In the trial court=s findings of fact and conclusions of law, it found that from July 1982 until the death of Mr. Russell=s grantor a representation was communicated either by word or action to Ms. Rawls of an easement for passage over a strip of land to be used for purposes of ingress and egress to Ms. Rawls= property and home located therein. It found that Ms. Rawls believed the communication and relied on the communication to use the strip of land on the side of the fence line that runs north and south along the Mr. Russell=s east fence line. The trial court also found that Ms. Rawls continues to rely upon the existence of the easement by estoppel, in order to ingress and egress her property and home. Mr. Russell now appeals the trial court=s judgment.

DISCUSSION

Standard of Review

In his sole issue, Mr. Russell argues that Ms. Rawls failed to meet her burden of proof in establishing an easement by estoppel. Specifically, Mr. Russell asserts that Ms. Rawls= only claim to the easement is based on his and his predecessor in title=s failure to object to her use of the road, therefore no representation was communicated to Ms. Rawls with respect to her continued use of the roadway. We understand Mr. Russell to be challenging the legal sufficiency of the evidence to support the trial court=s finding that Ms. Rawls has an easement by estoppel across a portion of his property.

A trial court=s findings of fact in a bench trial have the same force and dignity as a jury verdict and we review sufficiency challenges to findings of fact by the same standards we apply in reviewing a jury=s findings. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). In reviewing the trial court=s findings of fact for legal sufficiency of the evidence supporting them, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). If there is more than a scintilla of evidence to support the finding, the legal sufficiency point fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App. -El Paso 1992, no writ). A trial court=s conclusions of law are reviewed de novo as legal questions. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App. -Waco 1997, writ denied). We will follow a trial court=s conclusions of law unless they are erroneous as a matter of law. Id. at 503.

Easement by Estoppel

An easement, as a general rule, must be in writing to be validly conveyed. SeeTex.Prop.Code Ann. ' 5.021 (Vernon 1984); Stallman v. Newman, 9 S.W.3d 243, 247 (Tex.App. Houston [14th Dist.] 1999, pet. denied). The doctrine of easement by estoppel, a creature of equity, is an exception to this general rule. Stallman, 9 S.W.3d at 247. The doctrine of easement by estoppel holds that the owner of the alleged servient estate may be estopped from denying 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. 1963). This doctrine is not clearly defined and its application must depend on the facts of each case. Drye, 364 S.W.2d at 209; Stallman, 9 S.W.3d at 246.

Three elements are necessary to create an easement by estoppel: (1) a representation communicated, either by word or action, to the promisee; (2) the communication was believed; and (3) the promisee relied on the communication. See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979); Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex.App. San Antonio 1996, writ denied). These elements apply at the time the communication creating the alleged easement is made. Vinson v. Brown, 80 S.W.3d 221, 229 (Tex.App. Austin 2002, no pet.). An easement by estoppel, once created, is binding upon successors in title if reliance upon the existence of the easement continues. See Shipp v. Stoker, 923 S.W.2d 100, 102 (Tex.App. Texarkana 1996, writ denied).

Texas appellate courts are divided on whether an easement by estoppel can be created by mere silence or whether such an easement can occur apart from a vendor/vendee relationship in which the representation served as an inducement for the conveyance. See Mack v. Landry, 22 S.W.3d 524, 529 (Tex.App. Houston [14th Dist.] 2000, no pet.)(discussing differing applications of the estoppel theory in the appellate courts); Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App. Austin 1998, pet. denied)(finding there must be a vendor/vendee relationship to establish an easement by estoppel); Wallace v. McKinzie, 869 S.W.2d 592, 596 (Tex.App. Amarillo 1993, writ denied)(finding permissive, acquiescent conduct constituted representations made to a promisee). As stated above, the application of the equitable doctrine of easement by estoppel must be determined on a case-by-case basis. See Drye, 364 S.W.2d at 209; Stallman, 9 S.W.3d at 246. As such, we find that it is appropriate to apply this doctrine outside of strictly vendor/vendee relationships in circumstances, such as in this case, where the representation made constitutes the conduct or words of the promisor and the promisee acted in reliance thereon. See Wallace, 869 S.W.2d at 595-96; Exxon v. Schutzmaier, 537 S.W.2d 282, 285 (Tex.Civ.App.--Beaumont 1976, no writ).

Here, the evidence at trial shows that for a period of time between 1982 and Ms. Van Neiman=s death in 1992, Ms. Rawls used the road on Ms. Van Neiman=s property as a means of ingress and egress to her landlocked twenty-acre property, as well as to access Ms. Van Neiman=s house. When Ms. Van Neiman=s health began to deteriorate, Ms. Rawls drove Ms. Van Neiman to and from town. Ms. Rawls went to Ms. Van Neiman=s house every day to tend to her needs, bring her groceries, or her mail. There is no evidence to contradict the strong inference that Ms. Van Neiman was aware of Ms. Rawls= continual use of the twenty-foot wide road along the east fence line of Ms. Van Neiman=s property to access both the Rawls property and her home to accomplish these tasks. While there is no evidence in the record of any verbal communication to Ms. Rawls by Mr. Russell or his predecessor in title, Ms. Van Neiman, Ms. Van Neiman=s conduct was more than mere acquiescence to the use of the road on her property. The evidence suggests that despite several opportunities, Ms. Van Neiman never objected to Ms. Rawls= use of the road nor was Ms. Rawls ever told that she could not use the road. Ms. Van Neiman=s permissive conduct is evidence that supports the trial court=s finding that a representation was made to Ms. Rawls of an easement for passage over a strip of land to be used for purposes of ingress and egress to Ms. Rawls= property and home. Moreover, the evidence at trial also supports the trial court=s finding that Ms. Rawls acted in reliance and continues to rely on this representation. Accordingly, we find that the evidence was legally sufficient to support the trial court=s findings and judgment that Ms. Rawls possesses an easement by estoppel on Mr. Russell=s property. Issue One is overruled.

For the reasons stated above, we affirm the trial court=s judgment.

March 20, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

Barajas, C.J., Chew, J., and Hill, C.J. (Ret.)

Hill, C.J., (Ret.)(Sitting by Assignment)