Roy O. Perkins, III v. Krauter Family Partnership, Ltd. and James C. Krauter--Appeal from 216th Judicial District Court of Kendall County

MEMORANDUM OPINION
No. 04-03-00166-CV
Roy O. PERKINS III,
Appellant
v.
KRAUTER FAMILY PARTNERSHIP, LTD. and James C. Krauter,
Appellees
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 00-338
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 22, 2004

AFFIRMED

Roy O. Perkins appeals the trial court's judgment finding that an easement appurtenant by implied grant burdens Perkins' property in favor of James C. Krauter, who owns and operates the Ingenhuett General Store in Comfort, Texas and the Krauter Family Partnership, which owns the real estate upon which the store is situated. We affirm the trial court's judgment.

1. Testimony of Gregory James Krauter - Perkins first argues the trial court erred in admitting the testimony of Gregory James Krauter, a descendant of the dominant estate's original owner, regarding events pre-dating his birth, including use of the purported easement. We disagree. See Akers v. Stevenson, 54 S.W.3d 880, 886 (Tex. App.-Beaumont 2001, pet. denied) (holding that the testimony of the great-grandson of the dominant estate's original owner admissible hearsay pursuant to Rules 803(19), (20) and 804(b)(3), which permits testimony regarding personal or family history and boundaries of or customs affecting lands in the community).

2. Perkins next argues the evidence is legally and factually insufficient to support the trial court's findings of three of the essential elements of an implied easement. We again disagree.

a. Apparent and Continuous Use - Two of the elements of an implied easement appurtenant by implied grant are apparent use of the easement at the time the dominant estate was granted and continuous use of the easement so that the parties must have intended that its use pass by grant. Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex. 1966). "Whether these requirements have been met are to be determined at the time of severance." Holden v. Weidenfeller, 929 S.W.2d 124, 129 (Tex. App.-San Antonio 1996, writ denied). The trial court found that an easement across Perkins's property has been in apparent and continuous use as an easement since 1891. This finding is amply supported by the testimony of seventy-eight year old James Krauter, who testified that the easement, which was created before he was born, has been used as an easement for as long as he can remember; he specifically remembers using it in conjunction with playing baseball in the 1930s (when the dominant and servient estates were severed). Also significant is that Krauter's water line, which was installed in approximately 1921, runs alongside the easement. Indeed, during a 2000 upgrade to the driveway on the easement, Perkins removed the gate lock that had been in use since the 1920s.

b. Reasonably Necessary - Another element of an implied easement appurtenant by implied grant is that the easement "is" reasonably necessary to the use and enjoyment of the dominant estate. See Bickler, 403 S.W.2d at 357 ("The only question remaining is whether use of the driveway is necessary to use of the dominant estate.") (emphasis added). "In implying an easement by grant, our courts have adopted the rule of reasonable, rather than strict, necessity." Fender v. Schaded, 420 S.W.2d 468, 472 (Tex. Civ. App.-Tyler 1967, writ ref'd n.r.e.). Thus, "[t]he degree of 'necessity' required to establish an easement by implied grant is merely such as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made." Id.; see also Teich v. Haby, 408 S.W.2d 562, 566 (Tex. Civ. App.-San Antonio 1966, writ ref'd n.r.e.) ("In cases involving easements by implied grant, it is sufficient if the easement in question was reasonably necessary to the enjoyment of the land conveyed."). Both James C. Krauter and Gregory Krauter testified that the easement was reasonably necessary to the enjoyment of their property.

3. Perkins next argues that the trial court erred in awarding easement without specifying its location. However, the location of the easement is specified on the parties' exhibits; and there was no dispute at trial regarding the location of the easement. Accordingly, the error, if any, in failing to specify the location of the easement was waived. See Tex. R. App. P. 33.1(a)(1).

4. Finally, Perkins argues the trial court erred in failing to restrict the Krauters' use of the easement for activities on Lot 101. Again, however, this issue was not raised at trial and was waived. See Tex. R. App. P. 33.1(a)(1).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice