GUADALUPE SANDOVAL v. PATRICIO GUZMAN AND JOSE SALINAS--Appeal from County Court at Law of Kleberg County

NUMBER 13-01-180-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

GUADALUPE SANDOVAL,   Appellant,

v.

PATRICIO GUZMAN AND JOSE SALINAS, Appellees.

On appeal from the County Court at Law

of Kleberg County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Valdez

Appellant, Guadalupe Sandoval, brings this appeal following a trial court order denying him possession of a thirty foot wide easement on appellee Guzman=s tract of land. Sandoval attacks the trial court=s judgment by fifteen points of error. We affirm the judgment of the trial court.

I. FACTS

On March 24, 1973, Manuel Luera and his wife purchased a tract of land from Barbara Dawson. The land purchased is a rectangular partition, which the Lueras later divided into three rectangular subdivisions. On July 11, 1988, the Lueras filed for record a plat of the Luera Subdivision No. 1 on the eastern portion of their tract of land. The plat did not reference easements of any kind. Subsequently, the Lueras erected a fence twenty-two feet from the southernmost property line. The fence creates a twenty-two foot private access and public utility easement. The fence runs east to west along the southernmost property line across the entire tract of land, including what would later be divided into Subdivisions No. 2 and No. 3.

The Lueras then sold a tract of land, Subdivision No. 1, to Guadalupe Sandoval. Sandoval retained a twenty-two foot easement across the southernmost property line based on the existing fence.

The Lueras subsequently filed a second plat regarding the same general tract of land referring to a thirty-foot private access and utility easement, and an easement agreement was subsequently and separately filed, specifically describing the thirty-foot easement.

The Lueras then sold the property adjacent to Sandoval to Manuela Mendietta, subject to all reservations of record, and Mendietta subsequently sold that property to Patricio and Olga Guzman (AGuzman@) without any reservations.

The issue in this case is whether Sandoval possesses a twenty-two foot easement across the Guzman land, according to the original fence line, or whether he possesses a thirty foot easement under the recorded easement agreement.

In a bench trial, the court held that Sandoval retained a twenty-two foot easement rather than a thirty foot easement across the Guzman property. The trial court=s judgment is based on findings of fact and conclusions of law that Luera did not reserve the thirty foot easement in his deed to Mendietta. Therefore, the Lueras did not have the power to grant the easement to Sandoval because the easement agreement was filed after the conveyance to Guzman. But, the court held that Sandoval did have a thirty foot easement across other properties in the subdivision because these properties were conveyed after the easement agreement was recorded. The appeal pertains only to the denial of the right to expand the twenty-two foot easement to thirty feet across Guzman=s property.

Sandoval raises fifteen issues on appeal, contending that the trial court erred by: (1) holding the plat dated November 9, 1992, and the Easement Agreement did not create a thirty foot public utility easement in favor of Sandoval; (2) failing to find Mendietta, Guzman=s prior title holder, acquired an easement by implication; (3) failing to find Guzman=s lot is burdened by a thirty foot wide easement; (4) finding the surveyor erred in noting an easement; (5) finding that Luera sold a tract of land to Mendietta on November 18, 1992; (6) finding that Mendietta sold a tract of land to Guzman on November 18, 1992; (7) finding that Mendietta and Guzman did not have constructive notice of the easement; (8) finding that Guzman=s undivided one half interest was not burdened by an easement; (9) finding the Easement Agreement did not convey an easement in favor of Sandoval because it was not recorded until November 23, 1992; (10) finding Guzman=s undivided interests are not burdened by the November 23, 1992 easement; (11) finding that Sandoval has an easement by necessity; (12) finding Sandoval was not entitled to recovery against Guzman; (13) finding that Sandoval has an easement by necessity that is twenty-two feet wide; (14) finding that Guzman and Sandoval are not entitled to have the fence removed; and (15) finding that Sandoval did not possess an easement by prescription or necessity any greater than that which exists south of the southernmost fence located on the property of Guzman.

II. STANDARD OF REVIEW

Although not specified in Sandoval=s brief, we interpret the points of error to challenge the findings of fact and conclusions of law. See Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.BHouston [14th Dist.] 1996, no pet.). Unchallenged findings of fact are binding on an appellate court unless there is no evidence to support the finding. Id. The evidence supporting them is reviewable for legal and factual sufficiency by the same standards as evidence supporting a jury=s answer. Id; see also Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In reviewing legal sufficiency the appellate court considers only the evidence and inferences that tend to support the challenged findings and disregards all inferences to the contrary. See Catalina, 881 S.W.2d at 297. A finding will be upheld if more than a scintilla of evidence supports it. Id. In reviewing factual sufficiency, the appellate court must weigh all of the evidence in the record. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Findings of fact may be overturned if they are so against the great weight of the evidence as to be clearly unjust. Id.

The trial court=s conclusions of law are always reviewable. See Westech Eng=g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.BAustin 1992, no writ). Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id.

III. ANALYSIS

A. The Deeds

In his first point of error, Sandoval contends the trial court erred by finding the plat dated November 9, 1992 and the Easement Agreement dated November 23, 1992, did not create a thirty foot easement across Guzman=s property. The survey dated November 9, 1992 mentioned the easement to be determined by separate agreement. This separate Easement Agreement was signed November 23, 1992. The Lueras=s deed to Mendietta is dated November 18, 1992, but was not acknowledged until November 23, 1992.

The issue before the Court is whether the Easement Agreement existed at the time Guzman purchased the property. Conveyance is effective and title is transferred upon execution and delivery of the deed. See Burgess v. Easely, 893 S.W.2d 87, 90 (Tex. App.BDallas 1994, no writ). In the absence of proof to the contrary, it will be presumed that the deed was delivered on the date of the deed and not the date of the acknowledgment. See Popplewell v. City of Mission, 342 S.W.2d 52, 56 (Tex. Civ. App.BSan Antonio 1960, writ ref=d). In the case at bar, the deed was dated November 18, 1992. On November 19, 1992, title transferred to Mendietta. Later the same day Mendietta transferred title to Guzman. Therefore, at the time of the purchase, no easement agreement existed to burden the property. The evidence constitutes legally sufficient evidence to show that Sandoval is not entitled to a thirty foot easement across Guzman=s property. See Waggoner, 932 S.W.2d at 631.

Conveyance of land by reference to a map or plat showing abutting roads or streets results in the purchaser acquiring a private easement in the roads or streets shown on the plat. See Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966);Horne v. Ross, 777 S.W.2d 755, 756 (Tex. App.BSan Antonio 1989, no writ). Both Dykes and Horne concern the existence of easements for access to public streets where the deeds referred to a plat showing the road. Dykes, 406 S.W.2d at 181; Horne, 777 S.W.2d at 756. However, these cases are distinguishable. In the case at bar, the easement at issue was not noted in the original plat dated July 11, 1988, and the disputed easement is not used for access to public streets. Accordingly, Sandoval=s first point of error is overruled. Because we conclude Sandoval is not entitled to a thirty foot easement based on the plat record and the Easement Agreement, we need not address Sandoval=s third and ninth points of error.

B. Easement by Implication

In his second point of error, Sandoval claims the trial court erred by refusing to find that Mendietta and Guzman failed to purchase the lot in fee simple and purchased the lot subject to an easement by implication. Courts have established that 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, 777 S.W.2d at 756. Sandoval contends Mendietta, Guzman=s prior title holder, did not purchase the property in fee simple, but purchased the property subject to a private easement by implication. In order to maintain an easement by implication, the following requirements must be met: (1) the use must be apparent; (2) the use must be continuous; and (3) the use must be necessary. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 208 (Tex. 1963). In the case at bar, evidence exists that Sandoval uses the twenty two foot easement for a gas and sewer line, but he does not use the portion of the land on the other side of the fence, which lies twenty two feet from the southernmost property line. The use of the thirty foot easement is not apparent or necessary. Therefore, Sandoval=s use of the thirty foot easement fails to fill the requirements for an easement by implication. Id.

An easement by necessity can only be created when the complaining party proves the easement is necessary to the use and enjoyment of his property. See id. The Drye court held that a water or sewer line into the granted estate constitutes grounds for an easement by necessity. See id. All parties in the instant case agree that Sandoval had a twenty two foot easement by necessity because this is the only means of ingress and egress to Sandoval=s property. Sandoval has no claim of necessity to expand the current twenty two foot easement to thirty feet. We conclude that Sandoval does not maintain a thirty foot easement by implication on Guzman=s property. Accordingly, Sandoval=s second point of error is overruled and the eighth, tenth, and eleventh points of error need not be addressed.

C. Constructive Notice

As a general rule, an instrument relating to real property which is not recorded in the county records is binding on a subsequent purchaser who has notice of the instrument. Tex. Prop. Code Ann. ' 13.001 (a) (Vernon 1984). Such an instrument is not binding on a subsequent purchaser for valuable consideration who has no notice of the instrument. Id.; see also Waggoner, 932 S.W.2d at 632. An instrument that is properly recorded is notice to all persons of the existence of the instrument. Tex. Prop. Code Ann. ' 13.002 (Vernon 1984). Sandoval contends Mendietta and Guzman had constructive notice of the Easement Agreement before purchasing the land. Thus, he claims Mendietta and Guzman are bound to the thirty foot easement.

A purchaser is bound by every recital, reference, and reservation contained in or disclosed by an instrument which forms an essential link in the chain of title under which he claims. See Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982). In the case at bar, the property records did not contain a legal description of the easement when Guzman purchased the land. No reference was made to the easement in any of the deeds prior to the Easement Agreement. Therefore, the Lueras did not reserve the easement and have no authority to grant an easement to Sandoval regarding property sold before the Easement Agreement.

Sandoval relies on Waggoner v. Morrow, which held that an unrecorded partition constitutes notice. Waggoner, 932 S.W.2d at 632. However, in that case, the partition created the easement, thereby making the partition an Aessential link in the chain of title.@ Id. In the case at bar, the Easement Agreement is not an essential link in the chain of title because it did not create Guzman=s property. Also, Mendietta agreed to convey the property to Guzman on November 18, 1992, five days before the execution of the Easement Agreement. Guzman could not have inspected the grant of easement even with an extensive search. Furthermore, the Lueras did not record the Easement Agreement until after Guzman purchased the property. Therefore, neither Mendietta nor Guzman had constructive notice of the Easement Agreement. Accordingly, Sandoval=s fifth, sixth, and seventh points of error are overruled.

D. Conclusions of Law

The twelfth, thirteenth, fourteenth and fifteenth points of error challenge the trial court=s conclusions of law. The trial court=s conclusions of law are always reviewable. See Westech, 835 S.W.2d at 196. We previously found Sandoval failed to fulfill the requirements for an easement by implication. Accordingly, the twelfth point of error contending the trial court incorrectly applied the legal theory of easement by implication is overruled.

The final three points of error contend the trial court erred in its conclusion that Sandoval did not possess an easement by prescription of necessity any greater than that which exists south of the southernmost fence located on Guzman=s property. Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id. We previously found that the trial court could have concluded that Sandoval presented no evidence proving the necessity of extending the easement. Therefore, Sandoval=s twelfth, thirteenth, fourteenth, and fifteenth points of error are overruled.

After reviewing the evidence, we conclude more than a scintilla of evidence exists to support the trial court=s findings of facts and conclusions of law. See Ortiz, 917 S.W.2d at 772. Moreover, the findings of fact are not so against the weight of the evidence as to be clearly unjust. Id.

Accordingly, the trial court=s judgment is affirmed.

Rogelio Valdez Chief Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

This 24th day of October, 2002.