AFFIRM; and Opinion Filed June 18, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00735-CV

THE STALEY FAMILY PARTNERSHIP, LTD., Appellant

V.

DAVID LEE STILES, DELZIE STILES, GINGER WESTBROOK, ROBERT STILES, 

AND DAVID STILES, Appellees

On Appeal from the 429th Judicial District Court

Collin County, Texas

Trial Court Cause No. 429-03484-2010

OPINION

Before Justices Fillmore, Evans, and Lewis 

Opinion by Justice Fillmore

Appellant, the Staley Family Partnership, Ltd. (Staley) brought an action seeking a 

judicial declaration that it has an easement by necessity across land owned by appellees David 

Lee Stiles, Delzie Stiles, Ginger Westbrook, Robert Stiles, and David Stiles to access County 

Road 134 (CR 134). Appellees filed a counterclaim, seeking a judicial declaration that Staley 

does not have an easement across appellees’ property and attorney’s fees. All issues were 

submitted to the trial court in a bench trial. The trial court rendered judgment granting appellees’ 

counterclaim for declaratory judgment that Staley does not have an easement across appellees’ 

property and awarding appellees their attorney’s fees. We affirm the trial court’s judgment.
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Background

Staley is the owner of a tract of land consisting of 10.129 acres (the Staley Tract) located 

in Collin County, Texas. The Staley Tract was previously part of a much larger tract of land 

owned by Thompson Helms by grant from the State of Texas in 1853 (the Thompson Helms 

Tract). In 1855, after the deaths of Thompson Helms and his wife, Abigail, their estate conveyed 

the portion of the Thompson Helms Tract west of Honey Creek to Robert Skaggs. In 1866, the

remaining portion of the Thompson Helms Tract was partitioned by the probate court between 

the children of Thompson and Abigail Helms: Mary Helms, George Helms, Sarah T. Helms, 

Frances M. Helms, James Helms, and Axia Ann Helms. At the time of the 1866 partition, Axia 

Ann Helms was awarded a 152 acre tract that was the northernmost of the six partitioned tracts 

of land (the Axia Ann Helms Tract), James Helms was awarded a 142 acre tract of land (the 

James Helms Tract) south of the Axia Ann Helms Tract, and Frances M. Helms was awarded a 

110 acre tract south of the James Helms Tract (the Frances M. Helms Tract), as shown on the 

map below.
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In 1873, Frances M. Helms conveyed 60 acres comprising the eastern portion of his 110 

acre tract to James Helms. In 1876, Frances M. Helms conveyed 40 acres in the middle of his 

original 110 acre tract to James Helms, retaining the 10.129 acre tract now known as the Staley 

Tract (depicted by gray shading on the map above). Honey Creek borders this remaining 10.129 

acre tract to the west and south, and an unnamed tributary of Honey Creek borders the tract to 

the east. In 1880, Frances M. Helms conveyed the remaining 10.129 acre tract, the westernmost

portion of his original 110-acre tract, to Moses Hubbard. Upon the death of Moses Hubbard and 

his wife, the 10.129 acre tract was owned by The Moses and Mary Jane Hubbard Trust created 

by a January 5, 1897 will. In June 2005, the 10.129 acre tract was conveyed from The Moses 
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and Mary Jane Hubbard Trust to Berry Lynn Johnston.1

 In September 2005, the 10.129 acre 

tract of land was conveyed by Berry Lynn Johnston to Charis Interests, Inc. In December 2009, 

the 10.129 acre tract of land was conveyed by Charis Interests, Inc. to Staley.

Appellees own the portion of the Axia Ann Helms Tract and the portion of the James 

Helms Tract that are bordered by Honey Creek on the west and an unnamed tributary of Honey 

Creek on the east (the Stiles Tract). The Stiles Tract is north of the Staley Tract. CR 134 is now 

located on the northern boundary of the Stiles Tract. Honey Creek and the unnamed tributary of 

Honey Creek extend north of CR 134.

At trial, Staley sought a declaratory judgment that by reason of necessity, it “has or owns 

an access easement to, over, and across the Stiles Tract for purposes of access to and from [CR 

134].” Following a bench trial, the trial court signed a judgment declaring that Staley does not 

have an easement across appellees’ property—the Stiles Tract—to access CR 134 from Staley’s 

10.129 acre tract—the Staley Tract—and awarding appellees attorney’s fees. The trial court 

filed findings of fact and conclusions of law. Staley requested additional findings, which were 

not made. Specifically, the trial court concluded that Staley does not have an easement by 

necessity, an implied easement, or an easement by estoppel across appellees’ property.2

 Staley 

filed this appeal.

Easement by Necessity

Staley contends the trial court erred by failing to grant a declaratory judgment that Staley 

established an easement by necessity over appellees’ property to access CR 134 and by rendering 

 1 When the 10.129 acre tract was sold to Berry Lynn Johnston in 2005, a specific exception in the special warranty deed provided, “Right of 

access to a public street or road from subject property is not insured.”

2 “Easements may be created by express grant, by implication, by necessity, by estoppel, or by prescription.” Machala v. Weems, 56 S.W.3d 

748, 755 (Tex. App.—Texarkana 2001, no pet.); Tiller v. Lake Alexander Props., Ltd., 96 S.W.3d 617, 621 ((Tex. App.—Texarkana 2002, no 

pet.); see also Hamrick v. Ward, 359 S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.] 2012, pets. granted) (“Texas courts commonly refer to 

easements implied by necessity as ‘easements by necessity’ and easements implied by prior use simply as ‘implied easements.’”). At trial, Staley 

relied on theories of easement by implication, necessity, and estoppel. However, on appeal, Staley challenges only the trial court’s failure to find 

it has an easement by necessity.
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a declaratory judgment in favor of appellees that Staley does not have an easement by necessity 

over appellees’ property to access CR 134. Whether a party is entitled to an easement by 

necessity is a question of law, and we review the trial court’s conclusions of law de novo. See 

Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 631 (Tex. App.—San 

Antonio 1997, pet. denied). A conclusion of law will be reversed if it is erroneous as a matter of 

law. Id.

Elements of Easement by Necessity and Burden of Proof

An easement by necessity is established with proof of (1) unity of ownership of the 

dominant and servient estates prior to severance, (2) necessity of a roadway, and (3) existence of 

the necessity at the time of the severance of the two estates. Id.; see also Koonce v. Brite Estate, 

663 S.W.2d 451, 452 (Tex. 1984). An easement by necessity is temporary and “ceases when the 

necessity terminates.” Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 1944); see also Crone v. 

Brumley, 219 S.W.3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied). As the party seeking 

the easement by necessity, Staley had the burden to establish all elements of that claim. See Duff 

v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958); Crone, 219 S.W.3d at 68 (party seeking 

easement has burden of proof). Whether these requirements have been met is determined at the 

time of severance of the alleged dominant and servient estates. Miller v. Elliott, 94 S.W.3d 38, 

43 (Tex. App.—Tyler 2002, pet. denied);

3 see also Ingham v. O’Block, 351 S.W.3d 96, 102 (Tex. 

App.—San Antonio 2011, pet. denied) (relevant time to determine unity of ownership is when 

easement was allegedly created, that is, at time of severance).

 3 The parcel of land owned by the grantor of the alleged easement is referred to as the servient estate and the parcel of land benefitted by the 

alleged easement is referred to as the dominant estate. See Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San Antonio 1996, writ denied).
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Analysis

Prior to the 1866 partition of the Thompson Helms Tract, the property on which the

Staley Tract and the Stiles Tract are now located was united in common ownership by Thompson 

Helms. In other words, the alleged dominant estate—the Staley Tract—and alleged servient 

estate—the Stiles Tract—were a part of a single tract (the Thompson Helms Tract) until it was 

partitioned in 1866. At that time, the 10.129 acres now known as the Staley Tract were part of 

the Frances M. Helms Tract, and the Stiles Tract to the north of the Staley Tract was part of the 

James Helms Tract and the Axia Ann Helms Tract. It is over what was the James Helms Tract 

and the Axia Ann Helms Tract at the time of the 1866 partition that Staley sought an easement 

by necessity to CR 134. The land contained in the Staley Tract was never part of the James 

Helms Tract to its north. We therefore conclude the relevant severance occurred in 1866 when 

the Thompson Helms Tract was partitioned and there was a severance of the alleged dominant 

estate and the alleged servient estate. Accordingly, we necessarily reject the trial court’s Finding 

of Fact No. 16 that the relevant severance occurred in 1876 when Frances M. Helms conveyed 

40 acres of the remaining 50 acres in the Frances M. Helms Tract to James Helms.4

Staley contends the Staley Tract has remained “landlocked” since 1866, and the necessity 

for an easement across the Stiles Tract to the public road system has existed since that time and 

presently exists. According to Staley, the partition in 1866 of the Thompson Helms Tract made 

the westernmost 10.129 acres of the Frances M. Helms tract inaccessible from the east, south, 

and west due to impassable ravines of Honey Creek on the west and south and the unnamed 

tributary of Honey Creek on the east. Staley contends, therefore, that at the time of the 1866 

partition, the only access to the 10.129 acres of the Frances M. Helms Tract was from the north, 

through the James Helms Tract and the Axia Ann Helms Tract.

 4 The trial court’s erroneous Finding of Fact No. 16, however, did not result in the rendering of an incorrect judgment.
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Necessity at the time of severance is an essential element of an easement by necessity. 

Staley bore the burden of proving not only unity of ownership and present necessity, “but also 

‘historical necessity,’ i.e., an easement was necessary at the time of the severance.” Ellison, 956 

S.W.2d at 633; see also Ingham, 351 S.W.3d at 102 (referring to third element of easement by 

necessity as “historical necessity”).

Staley sought declaration of an easement by necessity “to, over, and across the Stiles 

Tract for purposes of access to and from [CR 134].” Staley bore the burden of establishing that 

its claim for access across the Stiles Tract was a necessity and not merely a convenience. See 

Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 724 (Tex. App.—Eastland 2012, 

pet. denied) (“In an easement by necessity case, whether by reservation or grant, we hold that the 

degree of necessity required is that of ‘strict necessity.’”). Staley also bore the burden of 

establishing that this necessity to cross the Stiles Tract for access to CR 134 arose at the time of 

the partition of the alleged dominant and servient estates. See Ellison, 956 S.W.2d at 633. The 

inquiry that governs resolution of this case is whether at the time of the severance, the dominant 

estate—the Staley Tract—had the right to pass over the servient estate—the Stiles Tract—due to 

necessity of access to CR 134. See Bains, 182 S.W.2d at 399; Crone, 219 S.W.3d at 70 (noting 

no evidence established that at time of severance a public road abutted property across which 

plaintiff sought easement by necessity; evidence was therefore legally insufficient to support 

easement by necessity); Tiller v. Lake Alexander Props., Ltd, 96 S.W.3d 617, 623 (Tex. App.—

Texarkana 2002, no pet.) (easement by necessity may not be imposed where there is no evidence 

of necessity to access public road at time of severance of dominant and servient estates); Heard 

v. Roos, 885 S.W.2d 592, 596 (Tex. App.—Corpus Christi 1994, no pet.) (proof of unity of 

ownership and necessity of roadway not enough to establish an easement by necessity; proof the 

necessity existed at time dominant and servient estates were severed must be shown, and
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evidence did not support a finding that public road existed at time of severance); Ellison, 956 

S.W.2d at 632 (holding a requisite to proof of historical necessity is a showing that easement 

would provide access to a public road existing prior to severance of dominant and servient 

estates); see also Perez v. Benavides, No. 04-06-00751-CV, 2007 WL 1608927, at *2 (Tex. 

App.—San Antonio June 6, 2007, no pet.) (mem. op.) (at the time of severance, Share F was 

landlocked, and Perez’s predecessors never gained access to a public road across Share F; 

accordingly, evidence conclusively established no necessity existed for Perez’s predecessors to 

use Share F to access a public road at time the estates were severed); Penney v. Mangum, No. 07-

08-0025-CV, 2009 WL 1677837, at *2 (Tex. App.—Amarillo, June 16, 2009, no pet.) (mem. 

op.) (record clearly showed that at time of severance, FM 1187 was in existence and was only 

access to servient estate; easement to access FM 1877 was necessity); Daniel v. Fox, 917 S.W.2d

106, 112 (Tex. App.—San Antonio 1996, writ denied) (“We find overwhelming evidence that 

the roadway in controversy was in existence and being used as a necessity prior to and 

subsequent to [partition of the property].”).

Thomas Staley testified at trial that 1866 maps do not show CR 134. He testified that the 

records that would provide information regarding establishment of CR 134 “go back” to the 

1930s. He testified the “mapping is very poor, so it’s not clear what roads were up there. We’re 

pretty certain there were some roads. We don’t know if it’s 134 or not.” As to whether CR 134 

was located at the northern boundary of what is now the Stiles Tract in 1866, Thomas Staley 

testified that there may have been a county road, “But – it might not have been called a county 

road. It may have just been a road, you know. We don’t know. That’s a long time ago.”5

 See 

Crone, 219 S.W.3d at 69–70 (maps dated 1936 and 1944 did not establish existence of a public 

road in 1920 or 1923, nor did they furnish a basis for inferring that a public road existed some 

 5 At submission, counsel for Staley acknowledged Staley did not show at trial the location of a public road in 1866.
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sixteen and twenty years before their publication). David Stiles testified at trial that he had no 

knowledge of what was at the northern boundary of the Stiles Tract in 1866. There is no credible 

evidence in the record that a public road was in existence and being used in 1866 at the northern 

boundary of what is now the Stiles Tract.6 Although Staley contends the Staley Tract was 

landlocked at the time of severance, there is no credible evidence to show the necessity of access 

across the Stiles Tract to a public road in the current location of CR 134 at the time of severance. 

Applying the appropriate standard of review, we conclude Staley failed to establish as a matter of 

law the essential element of existence of the necessity at the time of the severance.

Attorney’s Fees

Staley contends that, because the trial court erred by failing to grant a declaratory 

judgment that Staley established an easement by necessity, the trial court erred by awarding 

attorney’s fees to appellees and by failing to award attorney’s fees to Staley. The trial court has 

discretion to award reasonable and necessary attorney’s fees as it deems equitable and just under 

the Uniform Declaratory Judgments Act (UDJA). See TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.009 (West 2008) (trial court may award reasonable and necessary attorney’s fees to 

prevailing party in declaratory judgment action); see also TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.002(b) & 37.004(a); Roberson v. City of Austin, 157 S.W.3d 130, 136–37 (Tex. App.—

Austin 2005, pet. denied) (noting a large number of easement cases have been decided under the 

UDJA and that the UDJA, which is to be liberally applied, states it applies to determine the 

validity of deeds). The grant or denial of attorney’s fees in a declaratory judgment action lies 

within the discretion of the trial court, and its judgment will not be reversed on appeal absent a 

clear showing that it abused that discretion. Oake v. Collin Cnty., 692 S.W.2d 454, 455 (Tex. 

 6 There is also no credible evidence in the record that a public road was in existence and being used in 1876 (the date the trial court 

determined the relevant severance occurred) at the northern boundary of what is now the Stiles Tract.
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1985); see also Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300, 

319 (Tex. App.—Texarkana 2006, pet. denied) (entitlement to attorney’s fees “depends on what 

is equitable and just, and the trial court’s power is, in that respect, discretionary”).

Staley did not file a post-trial motion complaining about the amount of attorney’s fees 

awarded appellees or that the attorney’s fees awarded appellees were unreasonable or 

unnecessary, and Staley does not argue on appeal that the attorney’s fees awarded appellees were 

unreasonable or unnecessary. Staley only argues that the trial court erred as a matter of law by

awarding attorney’s fees to appellees because appellees should not have been the prevailing 

parties in the trial court. The trial court granted appellees’ request for a declaratory judgment 

that Staley does not have an easement by necessity across appellees’ property. Having 

concluded the trial court did not err by granting appellees’ request for a declaratory judgment or 

by denying Staley’s request for a declaratory judgment, and as Staley does not contend the 

appellees’ attorney’s fees are unreasonable or unnecessary, we cannot conclude the trial court 

abused its discretion by awarding attorney’s fees to appellees.

Conclusion

We resolve Staley’s sole issue against it. We affirm the trial court’s judgment.

130735F.P05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

THE STALEY FAMILY PARTNERSHIP, 

LTD., Appellant

No. 05-13-00735-CV V.

DAVID LEE STILES, DELZIE STILES, 

GINGER WESTBROOK, ROBERT 

STILES, AND DAVID STILES, Appellees

On Appeal from the 429th Judicial District 

Court, Collin County, Texas,

Trial Court Cause No. 429-03484-2010.

Opinion delivered by Justice Fillmore, 

Justices Evans and Lewis participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellees David Lee Stiles, Delzie Stiles, Ginger Westbrook, 

Robert Stiles, and David Stiles recover their costs of this appeal from appellant The Staley 

Family Partnership.

Judgment entered this 18th day of June, 2014.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE