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 dismissal of his trespass and negligence per 

se claims. We affirm the trial court’s judgment in part and reverse and render in 

part. 
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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 easement across her property to Havard’s 

grandfather. The easement granted the 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 Jasper County, Texas, and 

Abstract 232 in Newton County, Texas, and goes into lands now 

owned by Charles M. Havard 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 generally runs due south from the southern boundary of 

Havard’s property. Havard’s grandfather conveyed the property to his wife, 

Havard’s grandmother, who ultimately conveyed the tract of land to Havard in 

June 2002. Havard has resided on the property and has continuously used the 

easement since that time. 

 In 1983, Valerie Maynard conveyed her forty-five-acre tract of land to MWI 

Land, Inc. The forty-five-acre conveyance was expressly made subject to two 

easements, the easement to Havard’s property and an easement to Gulf States 
3 

Utilities Company (“GSU”). Barnett introduced into evidence a land survey that 

was prepared for MWI Land in 1985, when 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 conveyed 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 inserted 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 that 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 the 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 property. He also testified that 

he did not think emergency personnel would 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 both sides of the road up to a distance of thirty-four 

feet from the center of the private road. During his testimony, Havard read his 
5 

statement into the record. In his statement, he indicated that the road has sloping 

contours on both sides, which were established, maintained, and mowed for 

drainage purposes to help move water to the county-maintained ditches. He further 

stated that the road is maintained in this manner to prevent flooding. He explained, 

“the 80-foot width was established 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. Havard testified that the prior owners of 

Barnett’s property had no objection to Havard mowing the thirty-four-foot section 

on the side of the private road. Havard testified 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 maintain the road. 

 Barnett testified that prior to moving 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 that he had a survey done by Quin Land 

Surveying which, according to Barnett, reflected only a thirty-foot easement, 

fifteen-feet from the center of Private Road 8395 on each side. Barnett testified 
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that once he had the results from the completed 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 would run parallel to and abutting the 

easement; however, the fence would not cross the road or limit Havard’s access to 

his property. Havard testified that Barnett was building his fence at the fifteen-foot 

marker and he believed that Barnett had placed a corner post inside the easement. 

Barnett testified that Havard used his tractor to knock down the fence post and 

Havard admitted that he physically removed 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 Havard’s exercise of 

his easement rights. Barnett filed an answer to Havard’s lawsuit and filed a 

counterclaim wherein he sought declaratory judgment, and damages for trespass, 

assault, false imprisonment, and negligence per se for violating the Criminal 

Mischief Statute. Defendant also asserted a federal cause of action under 42 U.S.C. 

§ 1983. 
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 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 found that Havard was entitled to construct 

a fence along the eastern boundary of the easement provided Havard 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 prejudice. 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 necessary 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 Havard’s father. Havard’s father was not made 

a party to this lawsuit. Neither party argued 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 declaratory action, those not made a 

party to the action are not prejudiced by any declaration. Tex. Civ. Prac. & Rem. 

Code Ann. § 37.006(a) (West 2008). Accordingly, the trial court’s judgment only 

affects the rights of the parties to the suit, and the trial court’s jurisdiction was not 

compromised by the absence of any parties. See id. 
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and supported by the evidence are implied. BMC Software Belgium, N.V. v. 

Marchand, 83 S.W.3d 789, 795 (Tex. 2002). However, 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 demonstrate 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 appellate brief whether he challenges the 

court’s findings for legal or factual sufficiency. With regard to both of his issues, 

Barnett characterizes 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) (noting that evidence is legally 

insufficient when it “conclusively establishes 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 sufficiency of the evidence, 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 of 
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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 enable 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.—Houston [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 the following: (1) a complete absence of 

evidence of a vital fact; (2) rules of law or evidence bar the court from giving 

weight to the only evidence offered to prove 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 encumbering Barnett’s property should be thirty 

feet on either side of the centerline of the road. Barnett argues the trial court did 
10 

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 owner 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 reasonable 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. Civ. App.—Houston [14th 

Dist.] 1968, writ ref’d n.r.e.). 

When an easement does not state the width of the right-of-way created, the 

easement holder is entitled to a suitable and convenient way sufficient to afford 

ingress and egress to the owner 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 ref’d). The suitable width depends on the purpose of 
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the easement. If the easement merely states the object for which the easement is 

granted, then we will infer those dimensions 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 necessary 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 reasonably necessary to enjoy fully the rights 

granted in the easement. Roberts, 886 S.W.2d at 367. However, 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 and convenient and of whether the use is 

as little burdensome as possible on the servient 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 “the free and uninterrupted use, liberty 

and privilege of the passage in, along, upon and across the existing right-of-way[.]” 
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It further expressly notes the purpose of the easement is to provide the easement 

holder with “the perpetual right of passage[.]” 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 easement 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 reasonably 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 consideration for sloped contours to be 

maintained in order to provide for drainage 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 means to prevent flooding may be reasonably 

necessary to fulfill the purposes of the easement—the free and uninterrupted 

passage to Havard’s property. See Roberts, 886 S.W.2d at 367; see also Whaley, 

227 S.W.3d at 231-32. On appeal, Barnett argues, “an easement of fifteen feet on 

either side of the centerline (thirty feet total) would clearly be sufficient to achieve 
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the stated purpose of the conveyance.” However, Havard testified 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 heavy equipment into the area. Havard also 

explained that he and his family use the thirty-four feet of property on both sides of 

the road to create gentle sloping contours for drainage of the road. He explained 

that this method of drainage allowed them 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 because of the sloping contours maintained 

by Havard. See City of Keller, 168 S.W.3d at 819-20. Moreover, there is no 

evidence in this record that an alternative form of effective 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 sixty-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 feet 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. 
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The trial court also granted Havard the right to construct a fence along the 

eastern boundary of the easement. Under the easement, while Havard is entitled to 

use the road, he is not entitled to fence the road or exclude Barnett from access to 

the road. Barnett is entitled to access his entire 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 respective rights and privileges 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 easement on Barnett’s property. 

Trespass Claim 

In his second issue, Barnett complains that 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 trespassed on Barnett’s property. Trespass to 

real property is defined as the unauthorized 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 property owner may choose to relinquish a 
15 

portion of the right to exclude by granting an easement. See Marcus Cable, 90 

S.W.3d at 700. For a plaintiff to recover damages 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 defendant’s trespass caused injury 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 may 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 pet.). Havard 

did not expressly plead consent as a defense. 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 the 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. To 
16 

determine whether an issue was tried by consent, we examine the record not for 

evidence of the issue, but rather for evidence of trial of the issue. Moneyhon v. 

Moneyhon, 278 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 

After examining the record as a whole, we find ample evidence that the issue of 

consent was tried below. Therefore, we conclude the issue of consent is properly 

before this Court on appeal. 

Consent to enter property may be implied 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 dependent on whether Havard’s entry was 

with consent. 

 Barnett complains that Havard trespassed 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 feet from the centerline on each side of the 

private road. Havard’s easement entitles him, and, in fact, requires him to maintain 
17 

the easement. Because Havard’s entry onto the property was for purposes 

authorized by the easement and within the 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 the easement. He complains that Havard 

trespassed on his property 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 admitted that he had no express authority 

to mow the easement and had never asked GSU for permission to mow the area. 

He testified that he and his family have 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 Barnett 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 owners 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 reasonably found that the prior owners of the 

property had impliedly consented to Havard’s entry onto the property and that 
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when Barnett revoked that consent, Havard stopped entering the property. We 

conclude the evidence is legally sufficient 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 argues 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 Barnett’s fence post and knew that destroying 

the post was a violation of the Penal Code. Barnett’s negligence per se claim is 

based on his allegation that Barnett 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 knowingly 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 knowingly 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 proximately 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 concept whereby the civil courts adopt a 

legislatively imposed standard of conduct 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 violation 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 impose 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 violation 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 example, an easement owner may remove 

obstacles that interfere with the exercise of his easement privileges. See Stuart v. 

Larrabee, 14 S.W.2d 316, 320 (Tex. Civ. App.—Beaumont 1929, writ ref’d). In 
20 

Stuart, the court found that the appellee was not liable for damages for cutting and 

removing gates and two trees that had prevented 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 admitted to destroying Barnett’s fence post 

with his tractor. At trial, Havard testified that he believed the fence post was placed 

inside the easement, and he removed the post from the ground because he believed 

it interfered with his easement privileges. Barnett testified that Havard did not 

destroy the post, but simply pulled it out 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 evidence 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 determined by the trial court. 

Viewing the evidence in a light most favorable to the verdict, the trial judge 

could reasonably have concluded Havard had a right under the easement to remove 

the post to abate the nuisance. We hold that the evidence is legally sufficient to 

support the trial court’s judgment dismissing Barnett’s cause of action for 

negligence per se. We overrule 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 construct 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 other 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., Kreger and Horton, JJ.