## In the Court of Appeals Second Appellate District of Texas at F ort Wort h

___________________________ No. 02

- 20

- 00274

- CV

___________________________

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348

- 309669

- 19
Before Sudderth, C.J.; Birdw ell and Bass el, JJ. Opinion by Justice Birdw ell 

### B ILLY 

### D ON 

### & S TEPHANIE 

### C OUCH AND 

### C ARLO 

### & G IOVANNA 

### R ESTREPO 

### , Appellants and Appellees

V



### . J UAN 

### C ARLOS 

### A VILA 

### A GUILAR 

### , Appellee and Appellant2 OPINION

“ Something there is that doesn’t love a wall, t hat wants it down. ” Robert Frost, “Mending Wall” (1914)

.

Don Carlos A vila Aguilar ’ s neigh bors er ec ted a barri er blocking his only means
of access to his property : a gravel driveway that passed over his neighbors ’ lots

. So , Avila su ed his neighb ors , Appellants Billy Don and Stephanie Couch and Carlo and
Giovanna Restrepo , and won a necess ity ea semen t t o cros s their land

. On appeal, Appellants challenge the necessity easement
. On cross

- appeal,
Avila contests the trial court’s implied determination that he did not have an express

easement
. We affirm the judgment i n all respects.
I. B ACKGRO UND
A. Fact ual Background
In 1981, Frank Maxey boug ht a stretch of land in Mansfield, Texas

. In 1999, Maxey divvied up his property horizontally into four perpendicular lots

. Lot 1 had
direct access to Ne lson Wyatt Road on the e as t , and Lot 4 had access t o an other pub lic roadway o n th e w est , but Lots 2 and 3 in the middle depended on a gravel driveway that ran through Lot s 1 and 2 for access to Nelson Wyatt Road

. T he layout
is approximat ed below:3 The central issue s in th e case are whether the current owner of Lot 3, Avila , has

an e xpress or implied ease ment to cross Appellants ’ proper t i es, Lots 1 and 2

. To
eval uate t hat q uestion , a brief history of how the lots c hanged hands over the years is
necessary . After Maxey partitioned the property in 199 9, he sold Lots 2 an d 4 and reta ined
Lots 1 and 3 for hims elf

. Maxey conve yed away Lot 4 to a family who a re no t involved in this suit e xcept in that the ir property landlocks Lot 3 from the west

. Maxey conveyed Lot 2 to Frankie Nowell and granted him a n ex press easement to

cros s Lot 1 in order to reach Nelson W yatt Road

. I n 2005 , Now ell convey ed Lot 2 to its current owners, Appellants Billy Don and Stephanie Couch

. In 2013, Bonnie Williams acquired Lot 3 from a constable tax
sale. In 2015, Maxey ’s estate conveyed Lot 1 to its cu rrent owners, Appell ants Carlo4 a nd Gi ovanna Restrepo. At some point after the Restrepos ’ purchase, Appe llants attempted to curtail use of the shared driveway by Lot 3’s then

- owner Williams, telling
her that she was trespassi ng on their properti es wh en she used the shared driveway.
That tren d contin ued i n 2019, when Williams sold Lot 3 to its current owner,
Avila

. After purchasing Lot 3, Avil a was able to access t he property only once using
the sh ared driveway. S oon t hereafter , Appellants blo cked th e driveway with a locked gate on the border between Lots 1 and 2 , leaving Lot 3 landlocked

. B. Procedural Background
In 2019 , Avila sued A ppel lant s for a declaratory judgment that Lot 3 had an

e xpress easem ent a nd an implied necessity e asement to cross Lot s 1 and 2. Appellants counter su ed for an injunction to prevent Avila from using the driveway.
The case was tri ed t o the bench on stipula ted evidence , which largely consi sted
of deed s and testimony from an earlie r hearing

. After hearing the evidence, the tr ial

court impose d an implied easement by necessity over Lots 1 and 2 for the benefit of
Lot 3. T he trial court declined to gr ant Avila an expr ess easement. Both sid es appealed.
II. T HE C OUCHES ’ AND R ESTREPOS ’ A PPEAL In their appeal, Appellants challeng e the trial cour t’s determination that Avila was entitled to an implie d ea sement by necessit y ov er Lots 1 and 2. Whether a property ow ner is entitl ed t o an easement by necessity is a q uest ion of law, al though u nderlying factual issues may need to be resolv ed in order to reach5 the legal question. Staley Family P’ship, Ltd. v. Stiles , 483 S.W.3d 5 45, 548 (Tex . 201 6). When neither party r equests findi ngs of fact a nd conclusions of law fo llow ing a nonjury trial, a ll fact findings necessary to support the tria l court’s judgment are implied. Shields LP v. Bradberry , 526 S.W.3d 471 , 480 (Tex. 2017). Appellate co urts defer to the trial court’ s findings of fac t

— so long as they are supported b y th e record

— and review co nclusions of law de novo. Sw. Elec. Power Co. v . Lynch , 595 S.W.3d 678, 683 (Tex. 2020). It is universally recognize d that where the own er of a sing le ar ea of land
conveys away p art of it, th e ci rcumstances attending the conveyance may themselves,
witho ut aid of language in the deed, and indeed somet im es in spite of such lang uage, cause an easement to arise as between t he two parcels thus created

. Mitchell v.
Castellaw , 2 46 S.W.2d 163 , 16 7 (Tex. 1952). When an owner conveys part of a tract of
l and and retains a landlocked portion, a necessit y ea sem e nt over the portio n conveyed may be implied so the owner of the landlocked part c a n access it. Stal ey , 483 S.W.3d

at 548. T o successfull y as sert a necessity easement, the party claiming the e asement must demonstrate: (1) unity of ownership of the all eged d ominant and serv ient estates prior to severance; (2) the clai med access remains a necessity a nd no t a mere convenience (pre sent necessit y) ; and (3) the necessity also existed at the time the
estates were severed (historical necessity)

. Hamrick v . Wa rd , 44 6 S.W.3d 377, 38 2 (Tex. 2014). “The party claiming a necessi ty easement has th e burden to pr ove a ll facts
necessary to est ablish it.” Stal ey , 483 S.W.3d at 548. For an easement to be necessary,6 the claimant must show that he lacks any alternat ive rout e to legally acces s the public

r oadway from his property. Duff v. Matthews , 311 S .W.2d 637, 64 0 (Te x. 1958); see Staley , 483 S.W.3d a t 54 9

. N ecessity does not exist if the easement does not result in

access t o a public roadway

. Staley , 483 S.W.3 d a t 549

. As to the first element, Appellants admit that Lots 1 , 2 , and 3 derive from

com m on ownership. A lso , it is undispu ted that Avil a’s property, Lot 3 , is presently
landlocked and that he has no other means to access a public roadway from t he
p roperty beside s the sh ared driveway across Lots 1 and 2 , which satis fies th e second

e l ement , presen t nec e ssity. Appellants also concede that , at least at one point , the original owner Maxey was entitled to a necessity easement over Lot 2 because he h ad n o other way to r ea ch

a public roadway from his Lot 3

. But Appellants insis t that there w as no hi storical necessity for an easem ent over Lot 1 . When Maxey partitioned the land and began selling the lots in 1999, he owned Lot 1 ( which had direct road way access) and Lot 3 ( w hich did not ). Appellants reason that , at the time of se v erance , Maxey only had necessity with respec t to Lot 2 : as th e owner of Lot 1, Maxey had no need for an

easement over his own property . Indeed, Appellants cite the merger rule to argue t hat Maxey c ould not have granted himself an easemen t across Lot 1 ev e n if he wante d , be c ause that lesser property right w ould have merged right back into the greater whole of his fee simple. Thus, Appellants contend that in the a bsen ce of any
historical n ecessity, t he owner of Lot 3 has never had a right to an implied eas e ment7 ove r Lot 1 ; a l l that Lot 3’s owner has ever enj oyed is p ermissive use of Lot 1. Thus, Appellant’s appeal comes down to the third ele ment and whether the origi nal owner, Maxey, had h istorical n ecessity to cross Lot 1.
That in turn d epends on what, e x actly, is nec essar y . Appellants argue that the

nece ssity for an easement must exist at severance

. If that is the question, the n Avila
lose s , because it i s und ispu ted that Maxey did not need an ea sement across his own
Lot 1 in 1999

. See Magee v. Ham b leton , No. 2

- 08

- 44 1

- CV, 2009 WL 2619425, at *4 n.7 ( Tex. App.

— Fort Worth Aug. 25, 2009, pet. denied) ( mem. op.) ( n oting that one who owns fee simple does not need an easement across his property )

. Ho we ver, under the Texas Supreme Court’s earliest a nd m ost common formul at ion of the doctrine, the question is instead whether the owner of the
dominant estate needed “ access ” across the servient est ate, Hamrick , 446 S.W.3d at 382 ; Koonce v. Brite Estate , 66 3 S.W.2d 451, 452 (Tex. 1984) ; Bains v. Parker , 182 S .W. 2 d 397, 399 ( T ex. 1 9 44) ; Alley v. Carleton , 29 Tex. 74 , 78 (1867) ; or , alternatively, needed a

“ roadway ” across the servient esta te. Waggone r ’ s E state v. Gleghorn , 378 S.W.2d 47, 48 (Tex. 1964) ; Duff , 311 S.W.2d at 641 ; Othen v. Rosier , 2 26 S.W.2d 622, 62 5 (Tex. 1950)

. To r each the public roadway from Lot 3, Maxey undoub tedly had the same type of necessity for access and a road way across Lot 1 that Avila faces today, because to deny him access to a r oa dway across Lot 1 in 1999 would have entirely l andl ock e d
Lot 3 and l ef t t h e property useless. For Maxey to make meaningful use of Lot 3, he needed the right to cross Lot 1 in ord er to reach the p ublic roadway at the time of8 severance . That historical n ec essity is not diminished by the fact that he had the l e gal right to cros s Lot 1 as the owner of Lot 1

— even if it was a right he had, it was still a right he needed.
This conclusio n is consist ent w ith the re asoning that underlies the typical, two

lot case o f implied easement by necessity

. I n the typical c ase , the owner of the
l a ndlocked lot traverses another lot for many years without problems to reach a public roadway , and the own er of the tr avers ed lot gives the neighboring owner permission

to cross his l and

. Because the owner of the land lo cked loc k has per m ission to cro ss th e traversed lot, he has no nee d for an easement to cross. In deed, t he word
“easement” is likely never utt ered between them

— at least , not until the owner of the
traversed lot withdr aw s his permission to cross , and lawyer s ar e in volved

. I n the

res ul ti ng ap p eal , courts will invariably hold that the owner of the landlocked lot had historical necessity to cross, even though he or igi nally had legal permission to cross

. That is, the fact t hat the owner of the landlocked lot h isto rica lly had t h e legal a bili ty to cross the land, through permission, does not destroy his necessity to cross that land all
the same. For a s it is wid ely r ecognized in other states, If, at one time, there has been u nity of title, as here, the right to a w ay b y necessi t y may lay dor mant t hrough several transfers of title and yet pass with each transfer as appurtenant to the dominant estate a nd be exerci sed a t any time by the holder of the title t hereto

. William C. Ha ak Tr. v. Wilusz , 949 N.E.2d 833, 8 37 ( Ind. Ct. App

. 2011) (qu otin g Fin n v. Williams , 33 N.E.2d 226, 228 ( Ill. 1941)); accord Bickel v. Hansen , 819 P.2d 957, 9619 (Ariz. Ct. App. 1991); Kell ogg v . Garcia , 125 Cal. Rptr. 2d 817, 828 (C al. Ct. App. 2002);
P en cader Assocs., Inc. v. Glasgow Tr. , 446 A.2d 10 9 7, 1100 (D el. 1982) ; Broadhead v. Terpening , 611 So. 2d 949, 954 (Miss. 1992); Short v. S. Union Co. , 372 S.W.3d 520, 539

– 40 (Mo. Ct. App . 201 2); Frame v. Huber , 2010 MT 71, ¶ 15, 3 55 Mont. 515, 519, 231
P. 3d 589, 592

. “ The fact that the orig inal grantee and his su cces sors i n interest have been permitted ingress to and egress from the 40 acres over the land owned by surrounding strangers i s imm aterial. ” William C. Haak Tr. , 949 N.E .2d at 8 3 7 (quoting Finn , 3 3 N.E.2d at 228). “ When such p ermi ssio n is de n ied, as in the prese n t case, the subsequent grantees may avail themselves of the dominant and servient
estates.” Id. (quoting Finn , 33 N. E.2d at 228)

. Similarly, the fact that Maxey had the legal right to c ro ss Lot 1, as his own property , does not destro y his need t o do so a ll the same. Thus, we believe that the element of historical necessity is satisfied, as is shown by Canal i v. Satre , the f acts of

w hich resemble those present in this cas e. 688 N.E.2d 3 51 , 354 (Ill. App. Ct. 1997).
Th ere, a l andowne r conveyed t o st range r s most of his land that abutted a public road , and he retain ed lots D and E for himself. Id. For l ot E, the only me ans o f ingress and egress was through a small portion of lot D that t ou ched the public road. See i d

. at 3 54

– 5 5

. The r eafter, the lan downe r conveyed away lot D while retaining lot E, thereby landlocking lot E. Id. at 354. T he court held that historical n ecess ity was
shown with respect to lot E d espite the fact that the ow ne r once had the right and
abilit y to ing ress an d egress fro m Lo t E t h rough his own Lot D

. Id. Like this case,10 the owner in Canali retained two of his partitioned lots , and the fact tha t his path of
historical necessity took him through one of his own lo ts did not destroy his necessity.
Se e id

. As s u pport, the cour t rel i ed on the maxim we have quoted above: “where such a situation exists, the easement need not be for conti n uous use but may lay dormant through successive grantees to be used at any time b y a subsequent titleholder.” Id.
Th is do rmancy a ddress es A p pell ants ’ argument that there could be no necessity

easement in light of the merger rule, under which an easement i s terminated when all
the benefits and burdens of the various properties come int o a single ownership. Teal
Tradi ng & Dev ., LP v

. Champee Sp ring s Ran c hes Prop. Owners Ass’n , 534 S.W.3d 558, 579 (Tex. App.

— San Antonio 2017), aff’d , 593 S.W.3d 324 (Tex. 202 0). We will assu me without deciding that the merger rule applies to easements by n ecessity in the first place

. 1 Even so, we th in k that dorm ancy save s the easement from being extinguished by the merger rule. At the time of se verance , there was no t yet an y easement t o

mer ge or extinguish because, i n its dormant state, the necessity wa s never formally
ackn owledged by a court as the b asis for an eas ement that was fixed in character and
dimension

. And e asements are generally fixed things: “ Easement boundaries are generally stat ic and attac hed t o a specific portion of private property.” Se verance v.

1 But see Leggio v. Haggerty , 42 Cal. Rptr. 400 , 406 ( Cal. C t. App. 1 965 ) (ho lding t hat n ecessity easements are not subject to the doctrine of merger ) ; Fritz v. Tompkins , 61 N.E. 893, 895

– 96 ( N .Y. 1901) (same) ; Hwy

. Props. v. Dollar Sav. Bank , 431 S.E.2d 95, 98 n.4 (W. Va. 1993) (same); see a lso Riley v. Jo ne s , 174 S. W.2d 5 30, 531 (Ky. 19 43) ; Stilbell Realty Corp. v. Cullen , 352 N.Y.S.2d 656, 6 57

– 58 ( N.Y. App. Div. 1974); Hazard v. Robinson , 11 F. Cas. 931, 932 (C.C.D.R.I. 1823 )

.11 Patterson , 370 S.W.3 d 70 5, 7 21 (Te x. 2012) (op. on reh ’ g )

. “Once established, the location or character of the easement cannot be changed without the consent of the parties.” Id. With no cour t eve r having recognized an easem ent or delineate d its

nature or boundaries , we do not bel ieve t ha t there was som e tac i t easement floating in
the ether

— shapeless and undefined , but with enough substance that it must be
merge d into Maxey’s fee s imple

. Put simpl y, we do not believe that Maxey’s ownership of Lot 1 destroys the dormant nec essi ty f or and r ight to an ease ment

a cross Lot 1

. Our approach also accords with the root justifications for necessity easements.
One basis for the doctrine is t he preferenc e aga inst economic waste: “courts will imply a ro ad way easement to facilitate cont inued producti ve use of the lan dlock e d
p arcel, rather than rigidly restrict access.” Ham rick , 446 S.W.3d at 382. In this case,

n o less than in the typical impli ed

- easement case, d enying Avila an easement would
waste the l an d’s utility, including a pond o n Lot 3 that o ff ered a natural suppl y of

water
. I t w ould also waste the $100,000 that Avila spent in pursuit of his plan to build a family home o n Lot 3

. Another basis for the necessity

- easement doctrine is implied
intent : “ th e law rea ds into the instr ument that which the circumstances show both grantor and grantee must have in tended , had they given the ob vious facts of the
transaction proper c ons idera tion.” Seber v. Union Pac. R. R. Co. , 350 S.W.3d 640, 648 (Tex. App.

— Hou st on [1 4th Dis t. ] 2011, no pet.) (quot i ng Mi tchell , 246 S.W.2d at 167).
A t the time of the severance , Maxey , in his position as owner of L ot 1, c ould not have12 intended to deny hims elf t he right to cross Lot 1 to reach the public road

. Accord
Canali , 688 N. E.2d at 354

. W ith the element o f his t orica l necessity satisfied, we hold that Avila is entitled

t o a ne cessity easement allowi ng him to cross Lot s 1 and 2, as the tria l court
dete rmine d. We overrule Appellants’ first issue. We need not consider Appella nt s’

re maining i ssue, which rests on t h e pre mise that Avila’s use of Lot 1 was merely permissive.
I II
. A VIL A ’ S C ROSS - A PPEAL
On cro ss

- appeal, Avila contends that the tr ial court er red i n denying him an express easement across both Lots 1 and 2. Avila’s arg um ent h inge s o n a quirk in the
19 99 de e d by which Maxey conveyed Lot 2 to Nowell, who owne d the pro perty before the Couches . In the deed, Maxey grant ed Nowell an expr ess easement to c ross Lot 1

. However, the metes and bounds of the easement stret ched no t j ust a c ross Lot
1 , but a ll t he way across Lot 2 and up to the border of Lot 3. Thu s, it appeared that Maxey was purporting to grant the owner of Lot 2 an express easem ent to cross Lot 2
as well , which both sides agree w as un usual and unnecessary . Avila r e a sons that this s trang e gran t works in his favor. He suggests that
because the easement’s metes and bounds cross ed Lot 2 , th is portion o f the deed
should operate no t only as a grant of an easement across Lot 1 in favor of L o t 2 , but
also as a res ervatio n o f an easement ac ross L ot s 1 and 2 in favor of Avila ’ s Lot 3

.13 But n othing in the deed sugges ts that such a reservat ion was being made. Just
the opposite, under the heading of “ Reser vations From and Exceptions to Conveyance and Warranty , ” it state d , “Non e . ” T h e deed thus plainly and unambiguo u sly state d that there were no res ervations

. “ The constr uction of an unambiguous deed is a question of la w for the co urt. ” Griswold v. EOG Res., Inc. , 459 S.W.3d 713, 717 (Tex. App.

— Fort Worth 2015, no pe t.)

. A cou rt ’ s p ri mary goal when construing a deed is to ascertain the true i ntenti on of the parties solel y from all of the language in the deed. Id. T he intent that gove rns “ is not the intent that the parties meant but failed to expre ss, but the inte nt that is ex pr e sse d. ” Id. If Maxey
intended to reserve a n express e asement across Lot s 1 an d 2 for the benefit of Lot 3 , it was not an intent that he expressed in the deed.
Mo reove r, Avila ’s case for an express easement is not aided by t he special rules

o f constr uct io n th at apply to deeds. “ A warranty deed will pass all of the estate owned by t h e grantor at the time of the conveyance unless there are reservations o r exceptions that reduce the estate convey ed. ” Id. “ Property ‘ excepted ’ or ‘ reserved ’

un de r a deed is n e ver i ncluded in the grant and is something to be deducted from the thing grant ed, narrowing and limit ing what would otherwise pass by the general word s of the gra nt. ” Id. “ Reservations must be made by clear language, and c ourts do not
fav or reserva tio ns by im plication. ” Id. Deeds “ are to be most strongly construed against the gr antor and in favor of t he grantee; this ru le applies to reservations and14 exceptions. ” Id

. T he absence of any lan guage clearly reservi ng an expre ss easement in
f

av or of Lo t 3 s p eak s strongly against the existence of such a n easement
. It is true that “ w e presume that the parti es to a deed intend every clause to have
some eff ect and in s ome m easure to evidence their agreement.” Chi

. Title Ins. Co. v. Cochran Inv s . , Inc. , 6 02 S. W

. 3d 8 9 5, 900 (Tex. 2020) (internal quotation omitted). From that pr inciple co me cases like Jones v. Moctezuma , wh ich, among the cases that Avila
cite s , is the mo st on point and the most favorable to his cause

. N o. 14

- 94

- 00 009

- CV,
1995 WL 68 1294, at * 2 ( T e x. A pp.

— Houston [14th Dist.] Nov. 16, 1995, writ denied) (op. on reh ’g) (not designated for publicat ion )

. Avila relies on Jones to urge that the
dee d ’s me te s an d bou nds descri ption must be given some effect , which he sa ys should
be the re se rvation of an e as ement in fa vor of Lot 3

. In Jones , two pa rents conveyed a property to their son in a deed with limiting langu age indicating that the property conveyed was “subject to ” a r oad easement when, in fact, the easement ’s metes an d bounds des cri pt ion and the a tt ac hed su rveys instead d epicted wha t could only be consistent with the grant of a n easement wholly

o n an adjacent property that was retaine d by the parents

. Id. T he de ed ’s granting
clause was silent as to any easement on the retain ed p rop er t y , and t he p ar ti es

“ co ncede d [] ” that a deed ’s li miting language was “ mislab eled ” with words delimiting

an easement
. Id. On those facts, the court opted to cons true the dee d as grant ing an easement on the adjac ent property , sin c e doing otherwise would ro b any ef fect fr om the d eed ’s l anguage con cerning an easement , its me tes and bou nds description of that15 easement , and its attached map s and s urveys . 2 See id. But u nlike Jone s , he re, the metes
and bounds d id not d escribe a n easement that was wh oll y inco n si stent w i th th e na ture

o f the easement as it w as described in the deed

. R a t her, t h e metes and bounds were largely con sistent with , and cor rec t according to , the stat ed nature of the easement, which was a grant in favor of Lo t 2 rathe r than a reserv ation in fa vor of Lot 3

. Thus,
unlik e Jones , t he grant clauses in question did have some effect as they were written , and a sensi ble effect at that : the y grant ed the owner of Lot 2 an ingre ss

- egress easement across Lot 1, which Lot 2’s owner needed in ord er to ma ke use of his
p ro perty. The fact that the deed a chieved th at necessary end with some surplus age does not give us leave to rewrite the correct po rtion of the deed’s plain langua ge :

“ W hen part of a deed ’ s property description is incorrect, we will d isrega rd th at par t as

s ur plusage and enforce the deed if the remainder of the description identifies the land
with sufficient cert ainty. ” Piranha Partne rs v. Neuhoff , 596 S .W.3d 740, 7 45 n. 12 (Tex. 2020) (internal quotation omitted )

. Moreover, also u nlik e Jone s , wh ere th e gr an t clause

wa s m erely silent as to w hether there was any such easement , here , the res ervation
clause spo ke to t hat matter , stating explicitly t h at there we re no rese rvati ons whats oever . See Meekins v. Wisnoski , 404 S.W.3d 690, 699

– 700 (Tex. A pp.

— Houst on [ 14 th Dist.] 2013 , no pet .) (relying in part on the state ment of “ N one ” under the heading of “ Rese rvations from Conveyanc e ” to hold that there w as no rese rvation)

.

2 The dissent would have held differently. See id. at *3 (Fowler , J., dissent in g)

.16 We ther efore hold that the unambiguous language of the deed in question did

no t res erve a n ex pr es s easem ent i n favor of Lot 3

. We overrule Avila ’s lone issue on

cross

- appeal

. IV. C ONCLUSION
W e affirm the trial co urt ’s judgment in all respects. /s/ Wade Birdwell
W ade Birdwell Just ice
Delivered: August 12, 2021