1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-12-00310-CV



### _________________ JASON BARNETT, Appellant V. CHARLES MICHAEL HAVARD JR., Appellee

___________________ __________________ __________________ _________________ On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 31557

___________________ __________________ __________________ _________________ MEMORANDUM OPINION Appellant Jason Barnett appeals the trial court’s judgment in favor of appellee Charles Michael Havard Jr., which declared the scope of an easement and the respective rights of Barnett as owner of the servient estate and Havard as owner of the dominant estate. Barnett challenges the trial court’s interpretation of the express easement and the trial court’s dism issal of his trespass and negligence per se claims. We affirm the trial court’s ju dgment in part and re verse and render in part.2 Factual and Procedural History Valerie Maynard co-owned a piece of property in Jasper County, Texas. Havard’s grandfather owned an adjacent piece of property to Maynard’s property. In 1974, Maynard conveyed an easemen t across her property to Havard’s grandfather. The easement granted th e following to Havard’s grandfather: the free and uninterrupted use, liberty and privilege of the passage in, along, upon and across the existing right-of-way from the location where it leaves the north side of County Road and crosses our land out of H. T. & B. Section 1, Abstract 1079 in Jasp er County, Texas, and Abstract 232 in Newton County, Te xas, and goes into lands now owned by Charles M. Hava rd out of H. T. & B. Section 9, Abstract 1078 in Jasper County, Texas, and Abstract 177 in Newton County, Texas. The purpose of this easement is to provide the perpetual right of passage to the Grantee, his heirs or assigns. The road that provides passage to Havard ’s property under the easement is known as Private Road 8395, and ge nerally runs due south from the southern boundary of Havard’s property. Havard’s grandfathe r conveyed the property to his wife, Havard’s grandmother, who ultimately c onveyed the tract of land to Havard in June 2002. Havard has resi ded on the property and has continuously used the easement since that time. In 1983, Valerie Maynard conveyed he r forty-five-acre tract of land to MWI Land, Inc. The forty-five-acre conveyan ce was expressly made subject to two easements, the easement to Havard’s prope rty and an easement to Gulf States3 Utilities Company (“GSU”). Ba rnett introduced into evid ence a land survey that was prepared for MWI Land in 1985, wh en it purchased the land from Maynard. The survey reflects both easements. Out of the forty-five-acre tract, MWI conveyed a 3.168-acre tract of land to Kenneth Mendoza, who conveye d the property to another. Eventually, Shirley Ausherman held title to the property and she conveyed her interest in the 3.168- acre tract (Lot 6 as depicted on insert ed survey) to Barnett in November 2010, along with her interest in an adjoining .518 -acre tract of land. Barnett testified that Ausherman never communicated to him th at she thought the easement burdening the property was a forty-foot easement. Private Road 8395 is about twelve feet wide. It is a slag road. The western boundary of Barnett’s property runs to the center of the roadway; Havard’s father owns the property from the center of th e road on the opposite side. In the MWI Land Survey, the private road is located between lots 6 and 7 and identified only as “Existing Road[.]”4 Havard testified that over the years he and his family have repaired the road probably two or three dozen times with slag . Havard testified that he does not have any trouble gaining ingress to and egress out of the propert y. He also testified that he did not think emergency personnel w ould have problems getting to his home using Private Road 8395. Havard testified that for as long as he could remember, he and his family have maintained and mowed bot h sides of the road up to a distance of thirty-four feet from the center of the private road . During his testimony, Havard read his5 statement into the record. In his statement, he indicated that the road has sloping contours on both sides, which were esta blished, maintain ed, and mowed for drainage purposes to help move water to the county-maintained ditches. He further stated that the road is main tained in this manner to prev ent flooding. He explained, “the 80-foot width was esta blished and maintained so that gentle sloping and drainage could be achieved and maintained with private equipment, rather than continuous ditch dredging[ .]” Barnett testified that he has never noticed any flooding problems related to the road. Hava rd testified that the prior owners of Barnett’s property had no objection to Hava rd mowing the thirty-four-foot section on the side of the private road. Havard te stified that an easement, which only gives him nine feet on either side of the road, is not reasonable because it does not permit him to bring heavy equipment in if necessary to main tain the road. Barnett testified that prior to movi ng onto the property, he had informed Havard that he did not want Havard to mow in excess of fifteen-feet from the center of the private road. Shortly after purchasing the property, Barnett contended that Havard was trespassing on his property by continuously mowing past Barnett’s property line. Barnett testified th at he had a survey done by Quin Land Surveying which, accordi ng to Barnett, reflected only a thirty-foot easement, fifteen-feet from the center of Private Road 8395 on each side. Barnett testified6 that once he had the results from the comp leted survey, he asked Havard to stop coming onto his property. Barnett began the process of building a fence around his property, both to prevent Havard from entering his property and to keep some cows on his property. Barnett sought to build a fence that w ould run parallel to and abutting the easement; however, the fence would not cro ss the road or limit Havard’s access to his property. Havard testifie d that Barnett was building hi s fence at the fifteen-foot marker and he believed that Barnett had placed a corner post in side the easement. Barnett testified that Havard used his tractor to knock down the fence post and Havard admitted that he physically remove d the post. Havard testified that while removing the post, he remained within fifteen feet of the center of the private road. In May 2011, Havard filed suit against Barnett seeking a permanent injunction to prevent Barnett from interfering in any way with Hava rd’s exercise of his easement rights. Barnett filed an answ er to Havard’s lawsuit and filed a counterclaim wherein he sought declarat ory judgment, and da mages for trespass, assault, false imprisonment, and neglig ence per se for violating the Criminal Mischief Statute. Defendant also asserted a federal cause of action under 42 U.S.C. § 1983.7 After a bench trial, the court found the width of the easement granted to Havard’s predecessor in title to be thirty feet on either side from the center of the private road. 1 The court further granted Havard the right to mow and maintain the full width of such easement. The court f ound that Havard was entitled to construct a fence along the eastern boundary of the easement provided Hava rd constructs the fence within six months of the date of the trial court’s judgment. The court then dismissed all other claims Havard had against Barnett, and dismissed all of Barnett’s claims against Havard with prej udice. Barnett appealed the trial court’s decision. Barnett did not request, and the trial court did not issue, findings of fact and conclusions of law. In a nonjury trial, when no findings of fact or conclusions of law are requested or issued, all facts nece ssary to support the trial court’s judgment

1 We note that the judgment finds that the width of the easement granted to Havard’s predecessor in title is thirty feet on either side of the center of the private road. However, Barnett only owns the eastern side of the private road. The western side of the private road is owned by Hava rd’s father. Havard’s father was not made a party to this lawsuit. Neither party ar gued to the trial court or on appeal that Havard’s father was an indispensable party to this litigation and that the trial court lacked jurisdiction in his absence. See Tex. R. Civ. P. 39. Furthermore, we note that although “all persons who have or claim any interest that would be affected by the declaration must be made parties” to a declarator y action, those not made a party to the action are not prejudiced by a ny declaration. Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a) (West 2008). Accordingly, the trial court’s judgment only affects the rights of the par ties to the suit, and the tria l court’s jurisdiction was not compromised by the absence of any parties. See id

.8 and supported by the evidence are implied. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002). Howe ver, when the record on appeal contains a full reporter’s record, a party may challenge the trial court’s implied findings for legal and factual sufficiency under the same standards that govern challenges to a jury’s findings. Id .; Whaley v. Cent. Church of Christ of Pearland , 227 S.W.3d 228, 231 (Tex. App.—Houston [1st Dist.] 2007, no pet.). For the party to prevail on the sufficiency challenge, he must demonstr ate that the trial court’s judgment cannot be sustained by any theory raised by the evidence. Whaley , 227 S.W.3d at 231. Barnett does not specify in his appella te brief whether he challenges the court’s findings for legal or factual sufficie ncy. With regard to both of his issues, Barnett characteri zes the evidence as “ undisputed[.]” Accordingly, we construe Barnett’s issues as legal sufficiency challenges. See Regal Fin. Co., Ltd. v. Tex Star Motors, Inc. , 355 S.W.3d 595, 603 (Tex. 2010) (noti ng that evidence is legally insufficient when it “conclusively esta blishes the opposite of the vital fact”) (quoting Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). When a party challenges the legal suffici ency of the eviden ce, we review the entire record and credit favorable evidence if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See City of9 Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). We must assume that the factfinder decided questions of credibility or conflicting evidence in favor of the verdict if it reasonably could do so. Id . at 819-20. The test for legal sufficiency is whether the evidence at trial would enab le reasonable and fair-minded people to reach the verdict under review. Id . at 827. If the evidence would enable reasonable and fair-minded people to differ in their conclusions, then the factfinder must be allowed to do so. Id . at 822. We cannot substitute our judgment for that of the trier of fact if the evidence falls within the “zone of reasonable disagreement.” Lee v.
Hasson , 286 S.W.3d 1, 13 (Tex. App.—Housto n [14th Dist.] 2007, pet. denied) (citing City of Keller , 168 S.W.3d at 822). We will sustain a legal-sufficiency challenge if the record shows one of th e following: (1) a co mplete absence of evidence of a vital fact; (2) rules of la w or evidence bar the court from giving weight to the only evidence offered to prov e a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller , 168 S.W.3d at 810.
Reasonable Easement In his first issue, Barnett argues the trial court erred by deciding that the appropriate width of the easement encumber ing Barnett’s property should be thirty feet on either side of the centerline of th e road. Barnett argues the trial court did10 not apply the appropriate law in making this determination and disregarded the evidence before it. An easement is a nonpossessory interest in another’s property that authorizes its holder to use that property for a particular purpose. Marcus Cable Assocs. v. Krohn , 90 S.W.3d 697, 700 (Tex . 2002). The owner of the dominant estate has a duty to maintain the easement, and the owne r of the servient estate has no right to interfere with the dominant estate. Roberts v. Friendswood Dev. Co. , 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Reyna v. Ayco Dev. Corp. , 788 S.W.2d 722, 724 (Tex. App.—Austin 1990, writ denied). The owner of the dominant estate must make reasonabl e use of the right and not unreasonably interfere with property rights of the owner of the servient estate. San Jacinto Sand Co. v. Sw. Bell Tel. Co. , 426 S.W.2d 338, 345 (Tex. Ci v. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). When an easement does not state the wi dth of the right-of-way created, the easement holder is entitled to a suitable a nd convenient way sufficient to afford ingress and egress to the owne r of the dominant estate. Lakeside Launches, Inc. v. Austin Yacht Club, Inc. , 750 S.W.2d 868, 871 (Tex. App.—Austin 1988, writ denied); Crawford v. Tenn. Gas Transmission Co. , 250 S.W.2d 237, 240 (Tex. Civ. App.—Beaumont 1952, writ re f’d). The suitable width de pends on the purpose of11 the easement. If the easement merely states the object for which the easement is granted, then we will infer those dimensi ons that are reasonably sufficient for that
purpose. Crawford , 250 S.W.2d at 240. No interest in real property passes by implication as incidental to a grant except what is reasonably nece ssary to its fair enjoyment. A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner. Coleman v. Forister , 514 S.W.2d 899, 903 (Tex. 1974). Therefore, every easement holder has the right to do whatever is reas onably necessary to enjoy fully the rights granted in the easement. Roberts , 886 S.W.2d at 367. Howeve r, to determine the scope of an easement we may only imply “‘ those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient
owner.’” Whaley , 227 S.W.3d at 231 (quoting Lakeside Launches, 750 S.W.2d at 871). “As a general rule, the questions of whether the use of an easement by the dominant estate is reasonably necessary a nd convenient and of whether the use is as little burdensome as possible on the servie nt estate are questions of fact for the trial court or jury.” Reaves v. Lindsay , 326 S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Here, the grant expressly provides “t he free and uninterrupted use, liberty and privilege of the passage in, along, upon and across the existing right-of-way[.]”12 It further expressly notes the purpose of the easement is to provide the easement holder with “the perpetual right of passag e[.]” It is undisputed that the easement has remained unaltered and that the original grant is currently in effect. It is also undisputed that the recorded easement document does not expressly indicate the width of the easement. While the easemen t makes no mention of any other rights of the user, we may imply that Havard’s use of the easement to maintain the easement and prevent its flooding is reas onably necessary for Havard’s reasonable use of the easement. See Coleman , 514 S.W.2d at 903. Havard contends that he has “the right of passage over the reasonable portion of the servient estate, with cons ideration for sloped contours to be maintained in order to provide for draina ge to prevent flooding of the road.” He argues that the easement must be wide enough “to control drainage and prevent flooding which would result in not being able to use the road.” Maintaining and repairing the road is Havard’s duty as the owner of the dominant estate and providing for a mean s to prevent flooding may be reasonably necessary to fulfill the purposes of th e easement—the free and uninterrupted passage to Hava rd’s property. See Roberts, 886 S.W.2d at 367; see also Whaley , 227 S.W.3d at 231-32. On appeal, Barnett ar gues, “an easement of fifteen feet on either side of the centerline (thirty feet to tal) would clearly be sufficient to achieve13 the stated purpose of the c onveyance.” However, Havard te stified at trial that he could not maintain the road with only nine feet on either side of the twelve-foot road because he would be unable to get he avy equipment into the area. Havard also explained that he and his family use the thir ty-four feet of proper ty on both sides of the road to create gentle sloping contours for drainage of the road. He explained that this method of drainage allowed th em to maintain the road with private equipment, rather than continuous ditch dredging. While Barnett testified that he has not noticed flooding of the road, the trial court could have reasonably concluded that the road has not flooded be cause of the sloping contours maintained by Havard. See City of Keller , 168 S.W.3d at 819-20. Mo reover, there is no evidence in this record that an alternative form of eff ective drainage for the road would be less burdensome to the servient estate. Considered in a light most favorable to the judgment, we conclude that reasonable and fair-minded people could determine that the sixt y-foot easement was proper. See id . at 827. We hold that the evidence is legally sufficient to support the trial court’s judgment that the width of the easement should be thirty f eet on either side of the center of the private road designated as Private Road 8395, and therefore affirm that part of the trial court’s judgment.14 The trial court also granted Havard th e right to construct a fence along the eastern boundary of the easement. Under th e easement, while Havard is entitled to use the road, he is not entitled to fence th e road or exclude Ba rnett from access to the road. Barnett is entitled to access his en tire tract of land. Havard must make reasonable use of his easement right and he must not unreasonably interfere with Barnett’s property rights. See San Jacinto Sand Co. , 426 S.W.2d at 345. We expect Barnett and Havard “‘to exercise their resp ective rights and privile ges in a spirit of mutual accommodation.’” See Baer v. Dallas Theater Ctr. , 330 S.W.2d 214, 219 (Tex. Civ. App.—Waco 1959, writ ref’d n.r.e.) (quoting Restatement, Property— Servitudes, Sec. 485, p. 3026.). Therefore, we reverse and strike that portion of the trial court’s judgment finding that Havard has a right to install a fence along the western boundary of the easem ent on Barnett’s property. Trespass Claim In his second issue, Barnett complains th at the trial court erred in not ruling in his favor on his trespass claim because Havard failed to offer a defense and the evidence was undisputed that Havard tres passed on Barnett’s pr operty. Trespass to real property is defined as the unaut horized entry upon the land of another. Barnes v. Mathis , 353 S.W.3d 760, 764 (Tex. 2011). While a property owner has a right to exclude others from his property, the pr operty owner may choose to relinquish a15 portion of the right to exclude by granting an easement. See Marcus Cable , 90 S.W.3d at 700. For a plaintiff to recover da mages for trespass to real property, he must prove “(1) the plaintiff owns or has a lawful right to possess real property, (2) the defendant entered the plaintiff’s land and the entry was physical, intentional, and voluntary, and (3) the de fendant’s trespass caused in jury to the plaintiff.” Wilen v. Falkenstein , 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied). The plaintiff must prove that the defendant exceeded the bounds of any legal rights he ma y have possessed. Koelsch v. Indus. Gas Supply Corp. , 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Havard contends that he had consent to enter Barnett’s property. Consent is an affirmative defense to a cause of action for trespass. Gen. Mills Rests., Inc. v. Tex. Wings, Inc. , 12 S.W.3d 827, 835 (Tex. App. —Dallas 2000, no pe t.). Havard did not expressly plead consent as a defens e. As a general rule, a judgment must be supported by the pleadings and proof at trial. See Cunningham v. Parkdale Bank , 660 S.W.2d 810, 813 (Tex. 1983) . To determine whether a judgment conforms to the pleadings, we review th e pleadings as a whole. Raymond v. Raymond , 190 S.W.3d 77, 83 (Tex. App.—Houston [1st Dist .] 2005, no pet.). “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings.” Tex. R. Civ. P. 67. To16 determine whether an issue was tried by c onsent, we examine the record not for evidence of the issue, but rather fo r evidence of trial of the issue. Moneyhon v. Moneyhon , 278 S.W.3d 874, 879 (T ex. App.—Houston [14th Di st.] 2009, no pet.). After examining the record as a whole, we find ample evidence that the issue of consent was tried below. Therefore, we conc lude the issue of consent is properly before this Court on appeal. Consent to enter property may be imp lied if the owner has actual knowledge that people have been entering the land and fails to take reasonable steps to prevent or discourage those persons from entering the land. Gen. Mills Rests. , 12 S.W.3d at 835. Consent to enter property may also be based on an express easement. See Marcus Cable , 90 S.W.3d at 700; see also Koelsch , 132 S.W.3d at 498 (finding no liability for trespass when defendant’s use of property fell within rights conveyed by easement). There is no dispute that Havard entered Barnett’s property. Accordingly, liability for trespass is de pendent on whether Havard’s entry was with consent. Barnett complains that Havard trespasse d each time he travelled past fifteen feet from the centerline of the private road . However, as discussed above, the trial court found the easement to be thirty f eet from the centerline on each side of the private road. Havard’s easement entitles him, and, in fact, require s him to maintain17 the easement. Because Havard’s entr y onto the property was for purposes authorized by the easement and within th e boundaries of the easement as found by the trial court, Barnett cannot prevail on his trespass claim for this entry. Barnett argues that the evidence showed that Havard did not just trespass on the portion of property at issue in th e easement. He complains that Havard trespassed on his propert y by mowing the easement owned by GSU along the northern boundary of Barnett’s property. At trial, Havard admitted that he mowed the easement owned by GSU. He also admitted that he did not have an interest or right in the easement owned by GSU. He ad mitted that he had no express authority to mow the easement and had never aske d GSU for permission to mow the area. He testified that he and his family ha ve mowed that portion of the property for years. He explained that the prior owners did not object to his family mowing the property. He testified that when Barne tt indicated he had an issue with him mowing the property, he stopped. Havard essentially argues that he was justified in entering the property to mow the GSU easement because the prior ow ners had consented to his entry onto the property. Viewing the evidence in a light most favorable to the verdict, we hold that the trial judge could have reasonabl y found that the prior owners of the property had impliedly consented to Hava rd’s entry onto the property and that18 when Barnett revoked that consent, Ha vard stopped entering the property. We conclude the evidence is legally sufficie nt to support the trial court’s judgment dismissing Barnett’s cause of action for trespass. 2 We overrule Barnett’s second issue to the extent it concerns his trespass cause of action. Negligence Per Se Claim In his second issue, Barnett also argue s that he is entitled to a new trial because the trial court failed to rule in his favor on his negligence per se claim when Havard admitted to destroying Bar nett’s fence post and kne w that destroying the post was a violation of the Penal Code . Barnett’s negligence per se claim is based on his allegation that Ba rnett violated the criminal mischief statute, which provides in relevant part: (a) A person commits an offense if, without the effective consent of the owner: (1) he intentionally or knowi ngly damages or destroys the tangible property of the owner; (2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or (3) he intentionally or know ingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner. Tex. Penal Code Ann. § 28.03(a) (West 2011).

2 The trial court’s judgment, dismissing Barnett’s claims with prejudice, will not bar claims for damages proximate ly caused by future acts of trespass . See generally Mossler v. Shields , 818 S.W.2d 752, 753 (Tex. 1991).19 “Negligence per se is a tort concep t whereby the civil courts adopt a legislatively imposed standard of conduc t as defining the conduct of a reasonably prudent person.” Moughon v. Wolf , 576 S.W.2d 603, 604 (Tex . 1978). “Where the Legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care, and an unexcused violati on of the statute constitutes negligence or contributory negligence as a matter of law.” Mo. Pac. R.R. Co. v. Am. Statesman , 552 S.W.2d 99, 103 (Tex. 1977) . We recognize that while all persons have a duty to obey the criminal law, not all criminal statutes provide a standard for civil liability. See Carter v. William Sommerville & Son, Inc. , 584 S.W.2d 274, 278 (Tex. 1979). Texas courts will only impos e civil liability based on a criminal statute when the statute provides an appropriate basis for doing so. See Perry v.
S.N. , 973 S.W.2d 301, 305 (Tex. 1998). Assuming, without deciding, that a viola tion of the criminal mischief statute triggers liability in tort, we find legally sufficient evidence to support the trial court’s dismissal of Barnett’s cause of action for negligence per se. In certain circumstances, the courts have found that an easement owner may protect his easement rights by self-help. For exam ple, an easement owner may remove obstacles that interfere with the ex ercise of his easement privileges. See Stuart v. Larrabee , 14 S.W.2d 316, 320 (Tex. Civ. App. —Beaumont 1929, writ ref’d). In20 Stuart , the court found that the appellee wa s not liable for damages for cutting and removing gates and two trees that had prev ented him from using a road that he had an easement right to use. Id . In so acting, the easement owner was acting to abate a nuisance which interfered with his privilege of use. Id

. Barnett contends that Havard admitte d to destroying Barnett’s fence post with his tractor. At trial, Ha vard testified that he believ ed the fence post was placed inside the easement, and he removed the post from the ground because he believed it interfered with his easemen t privileges. Barnett testif ied that Havard did not destroy the post, but simply pulled it ou t of the ground and left it on the ground. There is no evidence in the record that in removing the post Havard did other injury to Barnett’s property. The evid ence suggests that the post was located approximately fifteen feet from the center of the private road , an area that is within the width of the easement as de termined by the trial court. Viewing the evidence in a light most fa vorable to the verdict, the trial judge could reasonably have conclu ded Havard had a right unde r the easement to remove the post to abate the nuisance. We hold th at the evidence is legally sufficient to support the trial court’s judgment di smissing Barnett’s cause of action for negligence per se. We overru le Barnett’s second issue.21 We affirm the trial court’s judgment to the extent that the trial court determined it was reasonable and necessary for the width of the easement to extend thirty feet from the center of the private road to enable Havard to fully enjoy the right of passage over Private Road 8395. However, we reverse the trial court’s judgment that Havard had a right to co nstruct a fence along the eastern boundary of the easement and strike such language from the judgment. We affirm the trial court’s judgment dismissing all othe r claims of Havard and Barnett.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

________________ ______________ CHARLES KREGER Justice

Submitted on December 5, 2013 Opinion Delivered June 12, 2014 Before McKeithen, C.J., Kr eger and Horton, JJ.