### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00353- CV

Appellan t, Cam bridge Hold ings, L td.// Cross-Appellant, The Cam bridge Condominiums Council of O wn ers

v. Appellee, The Cam bridge Condominiums Council of O wn ers// Cr oss-Appellee, Cam bridge Hold ings, L td.

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0260 6, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The principal issues in this appea l conce rn whether a condominium reg ime’s council of owner s has acquir ed an ease ment permitting use of a portion of one owne r’s condominium unit “for the limit ed purpose of fire/e merg ency ingr ess and eg ress” by the other owner s. Whil e reje cting the council’s claims that it had acquir ed such an ease ment by nece ssity or estoppel, the district court rende red judgme nt that t h e co u n cil had acquir ed the ease ment by presc ription. I n cross-a ppeals, the aff ecte d condominium owne r and the c ouncil have joined issue a s to whether the district c ourt

err ed with respe ct to eac h of these ease ment theories. Concluding that the district court di d not

err in r ejec ting the council’s ease ment-by -nec essity and estoppel claims but did err in a war ding an

ease ment by

presc ription, we will aff

irm the judg ment in part and r ever se in part.BACK GR OUND The disputed condomin iu

m p r o p erty is located on the first floor of Cambridg e Tower , a 15-story building si tuated on an Austin city block bounded by

Martin L uther King Boulevar d to the north, Colorado Street to the east, 1 8 t h Street to the south, and L avac a Street to the west. Cambridg e T o wer was orig inally constructe d in 1964 as an apar tment complex. I n 1979, Cambridg e Tower ’s owner at the time, Cambridg e Tower Corporation, conver ted the building into

a condominium reg ime consisting of privately owned units—with three first-floor units desig nated for commerc ial use and approximately 165 units on highe r floors for residential use—and common elements that include hallway s outside the units, a first-floor lobby , eleva tors, a two-le vel par king
gar age l o cated immediately below the first floor, and three stairway s. At all rele vant tim es , appellee , The Cambridg e Condomini um Council of Owner s (Council), a n o n -p ro fi t corpor ation whose membership is comprised of the owner s of condominium units in the building, has been ch ar ged u n der the condominium decla ration with administering and g overning the aff airs of th e building and its condominium reg ime, including manag ing and maintaining the common elements.

Although the “footprint” of the building’s first floor appea rs somewhat larg er, eac h of the residential floors of Cambridg e T o we r is rec tang ular in shape, with its long sides running north to south. Eac h floor’s outer walls are ring ed by condominium units except wher e a commonelement elevator lobby

abuts the building’ s easter n wall at roug hly

the m idpoint on the bui lding’ s north-south axis

. A common-ele ment hallway runs north to south throug h the middle of the floor, providing acc ess to and from residential units located on either side of it, as well as the eleva tor lobby

. At b o t h t he north and south ends of the floor, the hallway terminates at a door

2enter ing into a stairwell (re spectively , the “north stairway ” and “south stairway”). A third stairwell

is located adjac ent to the eleva tors (the “ce ntral stairway ”). Eac h stairway is a two-hour pressurized enclosure —it is desig ned to withstand a fire for two hours an d to keep smoke out (except what littl e may enter when a person walks into the are a). Ba rry Smi t h , wh o since 1992 has serve d as Cambridg e Tower ’s proper ty manag er on the Council’s behalf , test i fi ed t h at the stairwells are intended to serve not onl y as an es cape route but a safe haven for residents in the event of a fire. Smit h elabor ated that many Cambridg e Tower residents are elder ly and wou l d have difficulty
trave rsing the stairwells t o ex i t the building themselves. Thus, Smit h explained, residents are instructed that the stairwells are th ei r first line of defe nse in the event of a fire, wher e they could

rema in until they wer e assist ed or resc ued from the bui lding. Although Smith acknow ledg ed that the Council has never installed co m m u n i ca t ions equipment in the stairwells that would enable residents seeking ref

ug e there to aler

t first responde rs to their prese nce, there was testimony that the fire de partment would c heck the stairwells as pa rt of their pr ocedur es whe n responding to a fire

. The south stairway runs from the b u i lding’ s roof throug h its residential floors, terminating in first-floor desig nated common-element space where one can ex it onto 18th Street. The central stairway runs from the r o o f, t h rough t he residential floors, but continues past the first and throug h both levels of the undergro u n d parking g ara g e. L ike the south stairway , the centr al stairway may be enter ed or exit ed on the first floor throug h desig nated common-ele ment space , the building’s lobby

. The north stairway beg ins at the building’s roof, provides acc ess to and from the residential a

nd first floors, and te rminates in the par king g ara g e.

3The district court he a r d e v id e n ce that since the building’s 1964 construction, the firstfloor are a surrounding the north stairway has been config ured to include a pair of hallway s (terme d the “Nor th Corridor” by the district court and parties) that run betwee n t he north stairway and a doorwa y throug h the building’s west (L avaca S t re et ) ex terior wall. The North Corridor is at the
cente r of the pr esent dispute.

I t i s undisputed that, at all rele vant times since Cambridg e Tower ’s conver sion to condominiums, the North Corridor and other first-floor are as surrounding the north stairwa

y have been desig nated in the condominium decla rations to be part o f o n e of the first-floor commerc ial units—Unit 1A, which occupie s 8,440 square fee t encompa ssing essentially the entire first floor of Cambridg e Tower n o rt h of t he lobby are a. I t is also undisputed that since Cambridge Tower first
convey ed Unit 1A to a separ ate owner , which occur red in 1982, none of the convey ing instruments h av e purported to rese rve or g rant, on behalf of the g rantor or others, any rig ht to u s e t h e North Corridor for purposes of building ingr ess or eg ress. Nor, the parties ag ree , has there been any other instrument of rec ord rese rving or g ranting such a rig ht. I nstead, all instruments of rec ord have shown that the north stairway , unlike Cambridg e Tower ’s other two stairway s, cannot be enter ed or exit ed throug h desig nated common-ele ment space on the first floor, but is entirely surrounde d by the
separ ately owned Unit 1A. During the 1980s, Unit 1A was acquir ed by First Cambridg e Part nership, which also owned the other two fir st-floor commer cial units, Units 1B and1C. The partne rship included
Dan Womack, J ohn McClish, an d M r. W o mack’ s wife, I ma J ean Womack. First Cambridg e Partnership was later succe eded by a limit ed partne rship, I DJ , L td., that also included the Womacks

4and McClish. Be cause there is no dispute that the two partne rships’ interests are identical in all 1
respe cts rele vant to this case, we will refe r to these e ntities as “FCP/I DJ .”

FCP/I DJ undertook renovations on all three of its first-floor commerc ial units. Some of the planne d renovations required Council approva l, including modifications to doors and walls in Unit 1C. There was also evidenc e that FCP/I DJ ’s renovations to Unit 1A trig g ere d a require ment that the unit, which had here tofore been g overne d by the City of Austin building code in eff ect during Cambridg e Tower ’s 1964 construction, be updated to comply with the then-c urre nt version of the code. During the perm i t t i n g an d approva l proce ss for these renovations, moreove r, the City took the position that the North Corridor, irrespe ctive of who owned it, wa s p ar t o f the north stairway ’s fire- exit sy stem and had to be maintained and kept unobstructed for that purpose. Fur ther, beca

use the building had not been constructe d with a sprinkler sy s t em (nor had the Council elec ted to install one), the City maintained that the th en -c u rr en t code require d that the North Corridor, like the building’s stairwells, be made a two-ho ur fire- resistant enclosure , which entailed improvements to the passag ewa y ’s walls and new doors. FCP/I DJ prese nted a written
p ro p o s al to the Council wher eby it offe red to “g rant[] the ease ment for the fire esca pe corr i d o r” throug h the North Corridor if the Council would (1) approv e FCP /I DJ ’s proposed plans for

renova ting Unit 1C, which it had previously submitt ed t o t h e C o u n cil, and (2) “pay the cost of
upg rading the fire esca

pe corr idor to a 2 hour firew all—acc ording to the City Fire Code,” “purc hase and install double 2 hour fire protec tion doors to be installed in the corr idor,” and “pay the differ ence in cost betwee n the cost for three reg u lar office doors and 2 hour fire protec tion doors.” The

I , D, and J signify

the par tners’ f irst names—I ma, Dan, a

nd J ohn. 1
5proposal contemplated, howeve r, that the Council “will need to have the nece ssary leg al documents

prepa red to e ffe ctuate the ease ment to be g iven by [FCP/ I DJ ] t o the [Council] .” The Council took up FC P / I DJ ’s proposal during the specia l called meeting of its entire membership on September 29, 1988. The sole evidenc e of specific statements du ri n g this meeting is the Council’s approve d minutes. We quote the re levant excer pts: 2

The First Cambridg e Partnership Proposal —President Kahle introduced Secre tary J oe Ann Wat s o n . Direc tor Watson rea d aloud the resolution prese nted by the First Cambridg e Partne rship as follows:

“WHEREAS the First Cambridg e Partnership is prese ntly renovating Units 1-A, 1-B , and 1-C of t he first floor of the C ambridg e and pursuant to the plans for that renovation needs the Council of Co-owner s’ permission to alter the exterior walls of Unit 1-C by repla cing the doors on the west exterior wall of that unit with g lass walls; and WHEREAS the First Cambridg e Partne rship reque sts pe rmission to mov e the location of the doorwa y s in Unit 1-C from the common are a h al l way pursuant to the plans previously submitt ed to the Council of Coowner s; and

Acc ompany ing the copy of the ty ped and sig ned C ouncil minutes in evidenc e are copies 2 of the meeting notice, five proposed resolutions (one of which conce rned FCP/I DJ ’s proposal), and the Council secr etar

y ’s handwr itten notes from the meeting

. The minutes, excerpted above, ref lect that the re solution concerning FCP/I DJ ’s proposal wa s adopted ve rbatim as propose d. Neither the meeting notice nor the secr etar y ’s notes mentions any statements or ag ree ments conce rning the North Corridor be y ond g ener al re fer ence s to the proposed re solution or FCP/I DJ ’s written proposal. The secre tary ’s handwritten notes instead re flec t that much of the di scussion or debate during the meeting conce rned the location of the ma ilbox es. Although one attendee at the meeting did testify at trial—I ma Womack, FCP/I DJ partne r and wife of Dan Womack, who prese nted the proposal on behalf of the partne rship—she could not rec all specific statements during the meeting

.
6WHEREAS the C ode of the C ity of Austi n require s a fire exit from the stairwell at the north end of the building to the outside from the first floor; and
WHEREAS the First Cambridg e Partnership has ag ree d to provide an ease ment for the f

ire e x it from the stairwell in the north e nd of the building to the outside; and
WHEREAS the Council of Co-owner s wishes to reloc ate and enlar g e the mailbox es on the first floor of t h e C am b ri d ge to the south end of the building; and
WHEREAS the First Cambridg e Partnership has ag ree d to install the new mail box es in the sou t h en d o f t he building pursuant to the plans that wer e submitted to the Council of Co-owners; a nd
BE I T RESOL VED that the Cambridg e Co-owner s approve the plans which have been submitted.”
A m o tion was made by the Boa rd, seconde d by owner C.W

. Cook, to ac ce p t t h e re s olution as prese nted. Mr. Danny Womack, of the First Cambridg e Partnershi p , explained the proposal and asked for questions from the floor. After the discussion, a vote wa s taken. The motion passed by a vote of 71 approve d, 42 disapproved.

There afte r, acc ording to I ma Womack, FCP/I DJ installed the “additional firepr oofing ” and the Council “paid the differ ence betwee n our finish-out cost and the cost of firepr oofing .” Ms. Womack indicated that the improve ments were ultimately completed in De cembe r 1989. Despite the admonition in FCP/I DJ ’s written prop o s al , t h e Council never had the written documentation prepa red to eff ectua te the express ease ment FCP/I DJ had ag ree d to g rant, and

no such ease ment was ever reduc ed to w riting, executed, or rec orded. This sta nds in c ontrast to a 3
J une 1988 expre s s ea s em en t that FCP/I DJ had g rante d to the Council acr oss Unit 1B to provide

Nor wer e the minutes of the September 1988 specia l meeting rec orded in the rea l proper ty 3 rec ords. 7acc ess to adjac ent restroom fac iliti es. This June 1988 ease ment was reduc ed to writing, executed,

and re corde d in the Travis County rea l property

rec ords.
I n J une 1989, the C ouncil adopted a Revised Declaration of C ondominiu m , wh i ch is rec orded in the Travis County rea l proper ty rec ords. As with the orig inal decla ration, the revised decla ration desig nates the North Corridor as part of Unit 1A and does not mention any ease ment or other rig ht of acc ess throug h the North Corridor, or any other restric tion on the North Corridor’s use.

Ms. Womack, who went on to serve four y ear s on the C ouncil’s board of di rec tors during the 1990s, including a two-y ear term as its president, testified that neither she nor any one else

ever raised the issue of the nece ssity of executing a written ease ment during the y ear s that followed. She explained, “Quite honestly , I never thought about it.” Nonethele ss, acc ording to Ms. Womack, FCP/I DJ never locked the door from the north stairway or otherwise i m p ed ed the ability of residents to trave rse the North Corridor from the north stairway to the L avac a Street ex i t

. Ms. Womack explained that the partne rship so limit ed its use of the North Corridor “[b] eca use it was

a fire esca pe.” There was also testimony that City fire inspectors would trave rse the north stairway and Nor th Corridor as pa

rt of annua l fire sa fety

inspections.
On Marc h 7, 2000, FCP/I DJ contra cted to sell Uni t 1A to appellant Cambridg e Holdings, L td. (Cambridg e) for $840,000. I n connec tion with the sale, the Council was require d to provide a resa le cer tificate at FCP/I DJ ’s reque st. See Tex. Prop. Code Ann. § 82.157(a) (West 2007). Ba

rry Smit h, the Cambridg e Tower proper ty manag er, serve d as the Council’s contac t point during the sale and completed a resa le ce rtificate conce rning Unit 1A in April and fur nished it to FCP/ I DJ . One of Cambridg e’s partne rs, Michae l Voticky , revie wed the r esale cer tificate, the

8revised decla ration, which was attache d, and other documents. The plats attache d to the decla ration do not show the interior lay out of Unit 1A, except for the location of the north stairway in the cente r of the u n i t an d t h e restrooms. Shading is used to depict any common elements, and the only

are a within Unit 1A that is shaded is the north stairway

. Additionally , t h e t i t l e policy showed no

ease ments of rec ord aff

ecting the North Corridor. I n fac t, as previously indicated, there wer e no instruments of rec ord that purpor ted to rese rve or g rant an ease ment or other r ight of acc ess in the North Corridor.

There is no contention that Cambridg e had act u al knowledg e of FCP/I DJ ’s
1988 ag ree ment to g rant an express ease ment in the North Corridor. I n fac t, Ba rry Smit h, who beg an
manag ing Cambridg e Tower in 1992, testified that even he had been unawa re of the events during the September 1988 specia l meeting until he had been “extremely surprised” to discover the meeting minutes when re sponding to a discovery

reque st during the subsequent litigation with Ca mbridg e. Voticky also i n s p ec t ed Un it 1A sever al times in advanc e of closing

. At that time, there we re l i gh t ed “exit” signs on the wall inside eac h end of the North Corridor, one above the do o rw ay t o the north stairway , the other above the doorwa y leading throug h the building’s
west outer wall. A fire- protec tion expert prese nted by the Council acknow ledg ed that the exit signs signifie d that eac h doorwa y was a fire exit leading from the North Corridor, not into it, and Voticky indicated that he had understood the signs t o m ea n t h i s . Additionally , there wer e locks on the
two doors that wer e activate d from the North Corridor side. Although the condominium decla ration desig nated these doors as c ommon elements, the locks we re de signated to be par t of Unit 1A.

9On the other hand, on the north stairwell side of the door leading to the

North Corridor was stenciled, “F irst Floor Ex it.” Vo t i ck y als o testified that during one of his inspections, he trig g ere d a “buzzer” by opening the door from the North Corridor side. Acc ording
to Voticky , he inquired with Smit h, who explained that the buzz er was part of the building’s “saf ety ”

measure s, serving as notice that someone had enter ed the are a. The buzz er was not connec ted to the building’s f

ire-a larm sy stem. The prese nt dispute arose in late 2004 and ea rly 2005, when Cambridg e soug ht the Council’s approva l of a series of proposals to subdivide Unit 1A into separ ate units. Some of these proposals included rec onfig uring the North Corridor to cre ate more space for private occupa ncy . These discussions prompted the Council to hire a consultant, Fr ank I vy , to analy ze fire code issues rela t ed t o the North Corridor. I vy conclude d in a Fe bruar y 2005 letter to Smit h that the North
C orridor “wa s an extension of the North Ex it Stair and classified an Ex it Enclosure an d m u s t continue to exit at the exterior of the building” and “is not to be used for private occupa ncy .” Smit h subsequently provided I vy ’s letter to Mr

. Voticky

. Cambridg e claims that I vy ’s letter was the first i n d i cation it rec eived of any contention that it was restric ted from using the North Corridor fo r private oc cupanc y .

There afte r, Cambridg e made a written demand that the C o u n ci l pay it for what Cambridg e conte nded wa s the diminuti on in value of U nit 1A attributable to the limitations on its

use of the North Corridor and reimburse it pro rata for the other unit owner s’ share s of maintenanc e and renova tion costs that Cambridg e had incurre d on the North Corridor since April 2000. After the

10Council reje cted these demands, Cambridg e filed suit in J uly 2005 seeking a decla ratory judgme nt 4
that it is the exclusive owner of the North Corridor and that the Council has no ri g hts to, interest in, or ease ment in the North Corrido r. I n the alternative, in the event that the North Corridor is burdene d by such an ease ment, Cambridg e soug ht a declara tory judgme nt that the North Corridor is a common element unde r the re vised condominium declar ation, such that Cambridg e is e ntitled
to reim b u rs em en t fo r the ot her unit owner s’ s hare s of repair and maintenanc e costs as well as t he portion of Unit 1A’s purchase price that is attributable to the North Corridor. Also, assuming the

ease ment’s exis tence , Cambridg e assert ed common-law and statutory fra ud claims ag ainst the Council for alleg edly misrepre senting or failing to disclose the ea s em en t i n the resa le cer tificate its g ener al m anager p re p ar ed

. The Council counter claimed. I t soug ht decla ratory judgme nts that (1) the North Corridor is not a common element, and (2) the residential un it owner s hold an

ease ment in the North Corridor in any of three alterna tive way s—an “implied ease ment by prior and exis ting use,” an implied ease ment by nece ssity , or an easement by estoppel. Both parties soug ht attorney ’s fe es in conne ction with their dec lara tory -judg ment claims. 5

The claims wer e tried to the district court, which rende red judgme nt that the Council “holds a presc riptive ease ment to use the ‘North Corridor’ in Unit 1A leading from th e first floor landing of the North Stair to the L avac a Street door for the limit ed purpose of fire/e merg ency ingr ess and eg ress.” The court re j ec t ed C ambridge’ s contra ry decla ratory claim that it had the exclusive rig ht to the North Corridor, the Council’s decla ratory claims that i t had acquir ed an ease ment by

See Uniform Dec lara tory J udg ments Act (UDJ A), Tex. Civ. Prac. & Rem. Code Ann. 4 §§ 37.001-.011 (West 2008). See id. § 37.009. 5 11estoppel or nece ssity , Cambridg e’s decla ratory claim that the North Corri d o r w a s a c o mm o n e le me n t, and Cambridg e’s fra

ud claims. The district court awa rded the Council $180,000 in attorney ’s fee s throug h trial and a total of $50,000 in conditional appellate attorney ’s fee s. The court further

awa rded post-j u d gm ent interest on the amount of the judgme nt, with interest on the conting ent appellate att o rney ’s fee s acc ruing “fr om the date the notice of appea l is filed or the petition for revie w is filed, whicheve r is applicable .” The district court subsequently enter ed finding s of fac t and conclusions of law

.

Both Cambridg e and the Council appea led.

ANALYSIS Cambrid ge b ri n gs twelve issues on appea l, while the Council bring s three

. These issues can be classified into essentially three g roups. The first g roup of issues conce rns the exis tence of an ease ment in the Council’s favor “for the limit ed purpose of fire/e merg ency ingr ess and eg ress” throug h the North Corridor. I n its first issue, Cambridg e arg ues that the district co u rt err ed in holding that the Council had acquir ed a presc riptive ease ment in the Nor t h C o rr i d o r beca use, it

asser ts, the Council never pled such a theory , nor was the claim tried by consent. I n its second issue, Cambridg e cha lleng es whe ther there was leg ally and fac tually sufficie nt e vidence of ea ch ele ment require d to establish a pre scriptive ea sement.

I n the event this Court sustain s ei t h er of C ambridg e’s first two issues and reverse s the district court’s judgme nt awa rding it the ease m en t b y p re scription, the Council urg es in its first two issues that the evidenc e conclusively establishes that it acquir ed the ease ment by estoppel.

12I n its third issue, the Council additionally asser ts that the evidenc e conclusively establishes that the

ease ment was c reated by

implication from nece ssity

. Assuming we reve rse the district court’s judgme nt awa rding a presc riptive ease ment and aff irm the court’s ref

usal to awa

rd one based on estoppel or nece ssity , Cambridg e arg ues in its third issue that the district court err ed in ref using to rende r judgme nt decla ring that Cambridg e had exclusive rig hts to the North Corridor. I n the event we do not, Cambridg e bring s a second g roup of issues conce rning its alternative claims for relief. I n its fourth and fifth issues, Cambridg e arg ues that the district court err ed in ref using its claim for a decla

ration that the North Corridor is a common element and its c laim f

or reimburse ment for expenses it incur red in ma intaining or

improving tha t

are a. Simi larly , in its six th throug h ninth issues, Cambridg e contends that the evidenc e conclusively establishes its entitlement to relief on its common-law and statutory fra ud claims or that the court’s ref usal to awa

rd such r elief w as ag ainst the g rea t weig ht and pre pondera

nce of the evidenc e. I n its third an d fi n al set of issues, Cambridg e complains of the judgme nt awa rd of attorney ’s fee s and post-judgme nt interest on those fee s. I n its tenth and eleve nth issues, Cambridg e
urg es that the district court’s attorney ’s fee s aw ar d be reve rsed and rema nded for rec onsideration b ec ause the court’s judgme nts on the decla ratory claims’ merits wer e err oneous and, even i f n o t , beca use the amount of fee s it awa rded wer e inequitable and unjust. I n its twelfth issue, Cambridg e complains that the district court err ed in order ing that post-judgme nt interest on appellate attorney ’s fe es s h o u ld acc rue “fr om the date the notice of appea l is filed or the petition for revie w is fi l ed , whicheve r is applicable ,” and that such interest should instead run from the date the appellate court’s judgme nt becomes f

inal. The Council conc edes Cambr idge ’s twelfth issue.

13Stand ard of review
Most of the dispositi ve issues on appea l turn on whether the ev i d en ce was leg ally

or fac tually sufficie nt to support the district court’s j u dg ment. When a party is challeng ing the leg al s ufficie ncy of t he evidence support i n g an adver se finding on an is sue on which an opposing party has the burde n of proof

, it prevails if the rec ord shows any one of the following : (1) ther e is no evidenc e supporting a vit al fact, (2) the evidence offe red to prove a vital fa ct is no more than a

mere scintilla, (3) the evidenc e conclusively establishes the opposite of the vital fac t, or (4) the court is barr ed by law or the rules of evidenc e from considering the only evidenc e offe red to prove the vital fac t. S ee C i t y o f K el l er v. W

ilson , 168 S.W .3d 802, 810 (Tex. 2005). More than a scintilla of evidenc e ex ists when the evidenc e support i n g t h e finding , as a whole, “rises to a level that would enable rea sonable and fair- minded people to d i ff er i n t h eir conclusions.” Merre ll Dow Pharms.

v. Havne r , 953 S.W .2d 706, 711 (Tex. 1997); Transport ation Ins. Co. v. Moriel , 879 S.W .2d 10, 25 (Tex. 1994). I f the evidenc e is so wea k as to do no more than cre ate a mere surmise or suspicion of its exis tence , its leg al eff ect is that it is no evidenc e. Ha yn es & Boone v. Bowser Bouldin, Ltd. , 896 S.W .2d 179, 182 (Tex. 1995). Conversely , evidenc e conclusively establishes a vital fac t when the evidenc e is such that rea sonable people could not disag ree in their conclusions. City of Keller , 168 S.W .3d at 814-17.

When a party challeng es the leg al sufficie ncy of the evidenc e supporting an adver se finding on an issue on which it has the burden of proof, that party can preva il only if it demonstrates that the evidenc e conclusively establishes all vi t al fa ct s i n support of the issue. Dow Chem. Co.
v. Francis , 46 S.W .3d 237, 241 (Tex. 2001).

14When conducting a leg al-suff iciency revie w, we must view the evidenc e in the light
most favor able to the trial court’s finding s, “cr editing favor able evidenc e if rea sonable jurors could, and disreg arding contra

ry evidenc e unless rea sonable jurors could not.” City of Keller , 168 S.W .3d
at 807. Moreove r, we must indulge ever y rea sonable infere nce that would support the district court’s finding s. Id. at 822. The ult imate t est fo r l egal sufficie ncy is whether the evidence at trial would enable rea sonable a

nd fair- minded people to re ach the verdic t under re view. See id. at 827. When a party challeng es the fac tual sufficie ncy of the e v idence supporting an adver se finding on which the opposing pa rty had the bur den of pr oof, we should set aside the finding only if the evidenc e supporting the finding is so weak as to be clea rly wrong and manifestly unjust. See
Cain v. Bain, 709 S.W .2d 175, 176 (Tex. 1986). When a party challeng es the fac tual sufficie ncy of the evidenc e supporting an adver se finding on an issue on which that party had the burden of proof,

we considere d whether the finding is so ag ainst the g reat weig ht and preponde ranc e of the evidenc e that it is clea

rly wr o n g an d u n

j u s t

. Francis , 46 S.W .3d at 241. I n either case , we must consider,

we i gh , and examine all of the evidenc e in the rec ord, both supporting and ag ainst the finding , to decide whether the finding should be set as i d e. See id. ; Plas-Tex, Inc. v. U.S. Steel Corp ., 772 S.W .2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co. , 715 S.W .2d 629, 635 (Tex. 1986).

Easem ent by prescr iption

Cambridg e’s fi rs t t wo issues challeng e the portion of the district court’s judgme nt that awa rded the Council a prescriptive easement in t h e No rth Corridor. A prescriptive easement
may arise from a proper

ty owner ’s knowing acquie scenc e (whe ther actu al or constructive) in a claimant’s adv er s e u s e o f t h e proper ty under a claim of rig ht for ten y ear s or more. See Scott

15v. Cannon , 959 S.W .2d 712, 721 (Tex. App.—Austin 1998, pet. denied) ; W iegand v. Riojas , 547 S.W .2d 287, 290 (Tex. C i v . App.—Austin 1977, no writ). Gene rally speaking , the easement claimant has the burden of proving that he has been in possession of the ease ment in a manner that is (1) “open,” (2) “notorious,” (3) “exclusive,”a nd (4) “adve rse” (5) continuously (6) for a period of
ten y ear s or more. See Brooks v. Jones , 578 S.W .2d 669, 673 (Tex. 1979); Scott , 959 S.W .2d at 721.

The “adve rsity ” element is the same require d to prove adver se possession. See Scott , 959 S.W .2d at 722. I t require s that the claiman t h av e acte d under a “cla im of right”—with int ent
to obtain a perma

nent rig ht to use the proper ty in a particula

r way , not mere ly to obtain permission from the rig htful owner to do so. See Ellis v. Jansing , 620 S.W .2d 569, 571-72 (Tex. 1981); Vrazel

v. Skrabanek

, 725 S.W .2d 709, 711 (Tex. 1987). Relatedly , the claim of rig ht must be inconsistent with the landowner ’s leg al rig hts to use the proper ty

. See Scott , 959 S.W .2d at 722. This “does not require an int ention to dispossess the rightful owner, or even know there is one.” Tran v. Macha , 213 S.W .3d 913, 915 (Tex. 2006) (per curia m). W h at i t d o es require is intent to perma nently
appropr iate the rig ht in the proper ty “as one’s own to the exclusion of all others; ‘[m] ere occupa ncy

o f land without any intention to appropr iate it will not support the statute of limit ations.’” Id

. (quoting Ellis , 620 S.W .2d at 571 (quoting W right v

. Vernon Compress Co. , 296 S.W .3d 517, 522 (Tex. 1956))); see also Ellis , 620 S.W .2d at 571-72 (“ ‘No matter how exclusive and hostile to the
true o wn er t h e p o ssession may be in appea ranc e, it cannot be adver se unless acc ompanied by the intent on the part of the occupa nt to make it so. Th e n ak ed possession unacc ompanied with any claim of rig ht w ill neve r constitute a bar.’ ” (quoting Orsborn v. Dee p Rock Oil Corp. , 267 S.W .2d 781, 787 (Tex. 1954))). For example, posse ssing or using proper ty in the mistaken belief tha t one

16owns or has a rig ht in it will not g ive rise to presc ription if unacc ompanied by intent to appropr iate

that rig ht. See Ellis , 620 S.W .2d at 571-72 (no ev idence of adver se possession wher e claimant’s prede cessor possessed strip of neig hb o r’ s p roperty but “neve r claimed or intended to claim any
proper ty other than that descr ibed in his deed, or what he thought was contained in his deed, and he

never intended to claim any

proper ty owned by

the abutting proper

ty owner s”).
Fur thermore , the adver se claim of rig ht must have been “hostile,” or having outward manifestations of such nature and char acte r as to notify the proper ty ’s true owner that the claimant is asser ting a claim to a perma

nent rig ht to use the proper ty that is inconsistent with the rig hts of the

owner . See Scott , 959 S.W .2d at 722. “As this Court has stated, there must be a distinct and positive

asser t i o n o f a ri g ht which is broug ht to the servient owner ’s attention and which is hostile to the

owner ’s rig hts.” Id. (citing W iegand , 547 S.W .2d at 289). Such an asser tion may come in the form

o f a d i re ct v er b al asser

tion of a claim or be established by the charac ter of the us e of the property and surrounding ci rc u m s t ance s. See Orsborn , 267 S.W .2d at 787 (“Claim of rig ht must be manifested by decla

ration or by open or visible act. I f there is no v er b al asser tion of claim to the land broug ht to the knowledg e of the landowner , the adver se possessio n m u st be so open and
not o ri o u s an d m an ifested by such open or visible act or acts that knowledg e on the part of the

owner will be p re s u m ed.”); Scott , 959 S.W .2d at 722-23 (af fidavit filed by claimant asser ting that roadw ay was public road suffice d as “distinct and positive asser tion” of claim of rig ht). I n either

case , the asser

tion must be of a nature that indicates the claimant “is asser ting the rig ht adver sely to the true owner , and [be] inconsistent w ith the idea of a permissive use which may be terminated at the pleasure of the owner .” City of Austin v. Hall , 48 S.W

. 53, 55-56 (Tex. Civ. App.—Austin 1898,

17no writ); see also Callan v. W alters , 190 S.W

. 829 , 832 (Tex. Civ. App.—Austin 1916, no writ) (“[T]he use or possession o n wh i ch [prescription] is founded must be adver se, or of a nature
to indicate that it is claimed a s a rig ht, and not the ef fec t of indulge nce or

of any compac t short of
a g rant.” ). Consequently , wher e adver sity and hostili ty are not shown, the claimant’s use of the proper

ty is c onsidered to ha

ve been with the owner ’s permission or license, as use of pr operty , standing alone, is equally consistent with permissive use as it is with use under a claim of rig ht. See Othen v. R osier , 226 S.W .2d 622, 627 (Tex. 1950). And, as this Court has explained:

I t is well established in Texas that use of an ease ment by permission of the servient estate owner , either express or implied, no matter of what peri o d of time, cannot subsequently ripen into a presc riptive rig ht. [citi ng Othen , 226 S.W .2d at 626.] I t is true that the use of an ease ment which orig inally was p er m issive may become adver se at a later date, but the presumption is that there is a continuati o n of the permissive use. To t ra n s fo rm permissive use of an ease ment into an adver se use, there must be a distinct and po s i t i v e as s ertion of a rig ht which is broug ht to the servient owne r’s a ttention and which is hostile to the owner’ s rig hts.

W iegand , 547 S.W .2d at 290.

Fo r t he use of proper

ty in itself to constitute the requisite “distinct and pos i t i v e

asser tion” of a rig ht in the proper ty hostile to the owner ’s rig hts, the claimant’s use of the proper ty
must be “e x cl usive;” i.e., the claimant has excluded or attempted to exclude all other
persons—e specia lly the proper ty owner —from using the same proper ty for the same purpose. See Brooks , 578 S.W .2d at 674. “While other jurisdicti ons do not require the presc riptive use to be exclusive [of] use by the owner of the land, this rule of proper ty has long been the established rule in T exas.” Id. I t f

ollows—and is e qually well established—that proof mere ly of a joint use of the

18proper

ty with the owner cannot estab l i s h a p resc riptive ease ment beca use it does not signa l an adver se claim of right but is consistent with permissive use. See id. at 673-74; Scott , 959 S.W .2d
at 721-22; see also Tran , 213 S.W .3d at 914 (“Joint use is not enoug h, beca use ‘possession must be of such char acte r as to indica te unmistakably an asser

tion of a claim of exclusive ow nership in the
occupa nt.’”) (quoting Rhodes v. Cahill , 802 S.W .2d 643, 645 (Tex. 1990) (quoting Rick v. Grubbs , 214 S.W .2d 925, 927 (Tex. 1948)))

. Thus, “[i] t has long been the law in Texas that when a landowner an d t h e cl ai m ant of an ease ment both use t he same way , the us e by the claimant is not exclusive of the owner ’s use and there fore will not be con s i d er ed ad v erse .” Brooks , 578 S.W .2d
at 673. Howeve r, this Court has previously held that proof of joint rather than exclusive use is not

nece ssarily fata l to a presc riptive-ea sement claim if the claimant makes some form of “distinct and positive asser

tion” of a hostile claim of rig ht that is separ ate and apar t from the claimant’s use of the
proper ty

. See Sc ott , 959 S.W .2d at 721-23. 6

Sco t t co n ce rned a dispute over the Scott family ’s rights to use a road across the Cannon 6 family ’s proper

ty that both families had used jointly for a number of y ear s. I n 1964, in connec tion with a loan application, the Scotts had filed an aff idavit in the county rea l proper ty rec ords asser

ting that the road was a public road. See Scott v. Cannon , 959 S.W .2d 712, 717-18 (Tex. App.—Austin 1998, pet. denied)

. The Cannons did not discover the aff idavit until 1972, wher eupon the Cannons throug h their attorney informed the Scotts of their view that the road was not public. Acc ording to the Cannons, who preva iled at trial, their attorney told the Scotts to draf t an express ease ment for the Cannons’ consideration. When the Scotts did not prese nt a written ease ment to them, the Cannons took no further action to restric t the Scotts’ acc ess or otherwise ass er t t h ei r rig hts in the road, perc eiving that it was “a g ood time to just keep quiet” beca use the Scotts’ use of the road from then on would be considere d permissive. Id. at 718. There afte r, the Scotts’ joint use of the road with the Cannons continued.

19I ntertwined with the se conce pts are the require ments of “open” and notorious” use.

“Ope n” use ref

ers to use that is not made in secr et or stealthily , while “notorious” use ref ers to use that is actua lly known t o the property owner or i s widely known i n the area such that the property

owner would rea sonably be expected to know of it. See Restateme nt ( Third) of Property (

Servitudes) § 2.17 cmt. h (2000). The purpose of t hese require ments is t o en s u re t h at t h e property owner has ample opportunity

to protect a g ainst the establishment of pre scriptive rig hts. See id. Finally , the require ment of “continuous” use has both a mental and phy sical aspec t. The mental aspec t require s that the ease ment claimant cont i n u e asser ting an adver se and hostile claim of rig ht to use the servient proper ty throug hout the presc riptive period. See id. § 2.17 cmt. i.
I f th e claimant submits to the servient estate holder’s title or abandons the claim under which the

use is made, and/or the title holder interrupts the claimant’s use phy sically or by leg al action, the
presc riptive period ceas es t o ru n . S ee id. § 2.17 cmts. i, j; see also W iegand , 547 S.W .2d at 290

I n the 1990s, litigation arose in which the Scotts claimed they had acquir ed a presc riptive ease ment to use the road. Id. at 717. I n response , the Cannons relied on the rule that joint use of a roadw ay with a proper

ty owner is presumed to be permissive and cannot ripen into presc ription. See id. at 721-22. Rejecting the Cannons’ arg uments, this Court distinguished cases apply ing this rule as “not controlli ng ” on th e b asis that they involved “cla imants [who] wer e try ing to establish an ease ment by presc ription based on continuous use alone .” Id

. at 722. I n contra st, the Court rea soned, Scott “involv[ed] both joint use and independe nt acts to show adver sity .” Id. The Court went o n t o hold that the 1964 aff idavit (once the C annons di scover ed it in 1972) was “the ty pe of distinct and positive assertion ” require d to “‘tra nsform permissive use of an ease ment into an adver se use.’” Id. (quoting W iegand v. Riojas , 547 S.W .2d 287, 290 (Tex. Civ. App.—Austin 1977, no writ)). I t conclude d that the affidavit (on ce discovere d by the C annons), the Scotts’ continued use of the road there afte r, the absenc e of evidenc e “to show that afte r 1972 the Cannons g ave the Scotts permission to use the Road or that t h e Scotts looked to the Cannons for permission,” and evidenc e that the Scotts had helped pay for road repa irs and maint enance “cr eate d the adver sity neede d to beg in the presc riptive period.” Id. at 722-23. 20(landowne r’s fenc ing o f p roperty and locking of g ate to block acc ess to claimed ease ment acr oss

proper ty interrupted the presc riptive period). How much use is n e c e s s a r y to demonstrate the require d consistency of purpose depends on the char acte r of the dominant estate and the normal use that an

owner of the c laimed ea sement would make

. Restateme nt ( Third) of Property (

Servitudes) § 2.17
cmt. i. The phy sical aspec t of the continuity require ment, on the other hand, require s that the use be open and notor ious throughout the pr escr iptive period. See id.

“[C] reation of an ease ment by presc ription is not favor ed in t h e law.” W iegand , 547 S.W .2d at 289. Evidence of a presc riptive ease ment “must be clea r and positive, and should be strictly construed.” Callan , 190 S.W

. at 832. Be fore courts will take the “ sever e step” of “ta king

rea l estate from a rec ord owner without express consent or compensa tion

. . . the law rea sonably require s that the parties’ intentions be very clea r.” Tran , 213 S.W .3d at 915. The district court found that the Council acquir ed an ease ment by presc ription to use th e North Corridor “for the limit ed purpose of fire/e merg ency ingr ess and eg ress” and that this

ease ment is enfor cea

ble ag ainst Cambridg e. I n its fir st issue on appea l, Ca mbridg e arg ues that the district court er

red in a war ding the Council a presc riptive ea sement in the North Corr idor bec ause the Council never pled such a claim. I nstead, C am b ri d ge arg ues, the Council went to trial on a “pre scriptive ease ment” pleading that actua lly alleg ed a claim for an implied ease ment by prior and

21exis ting use

. The Council re sponds that it sufficiently pled a pr escr iptive-ea sement cla im, and in 7
any event, Cambridg e fa iled to preser ve its complaint below. The question of whether the Council had sufficie ntly p l ed a presc riptive-ea sement claim was first raised by Cambridg e during a pretria l hear ing on motions in limine. The parties had previously exchang ed proposed jury char g es (this case had orig inally been set on a jury docket) and

one of the Council’s proposed issues would have submitt ed a presc riptive-ea sement theory

. Responding to the Council’s proposed presc riptive-ea sement submissi on, Cambridg e’s trial counsel stated “[i] t’s not in their petition, and we’ re g oing to object to that. And we’ re not g oing to try that b y consent.” When questioned by the district court, trial counsel stated “ther e is no pleading to

An implied ease ment by prior and exis ting use require s proof of (1) unity of owner ship 7 betwee n the dominant and servient estates; (2) appar ent use of the ease ment at the time the dominant estate was g rante d; (3) continuous use of the ease ment, from which it is inferr ed that the parties must h ave intended its use to pass by g rant with the dominant estate; and (4) rea sonable n ec es s i t y o f the ease ment to the use and enjoy ment of the dominant estate. See Vinson v. Brown , 80 S.W .3d 221, 228-29 (Tex. A

pp.—Austin 2002, no pet.). I n the portion of their ple ading s they char acte rize as a “pre scriptive ea sement” c laim, the Council alleg ed: Residential unit owner s, whose titles also ori g inated from Cambridg e Tower Corporation, hav e co ntinuously , openly , obviously , and peac eably used the North Corridor to acc ess the fire exit from the North Ex it Stairway , at all times since J une 26, 1979. Plaintiff and its prede cessor s in title purcha sed and took possession of Unit 1A wit h full knowledg e of the ex isting use of t he North Cor ri d or t o acc ess the fire exit

. Wit h no notice to the contra ry , the rema ining unit owner s purcha sed and too k p o s s es s i on of residential units, rely ing on use of the North Corridor to acc ess t h e fire exit

. There fore , Unit 1A is subject to an implied ease ment by prior and exis ting use by defe ndan t and the rema ining unit owner s. The use of the North Corridor fire exit was and continues to be phy sically nece ssary for the use of all the building re sidents. The Council does not arg ue that the judgme nt can be supported on the theory of implied ease ment by prior and exis ting use, but instead asser ts that these alleg atio n s and the evidenc e support the judgme nt that it acquired a presc riptive ea sement.

22support that [claim]

. And t here will be no evidenc e to sup p o rt at l east one of t he elements.” The

Council’s attorney

responde d that its counter claim for “an implied ea sement by prior and e x isting
use” wa s intended to be the Council’s presc riptive-ea sement claim beca use “[t] hat’s what an

ease ment by presc ription is. I t’s prior and exis ting use. And that l ang uag e is clea rly stated i n . . .

our latest pleading

. So we believe i t i s i n t h e pleading s or we wouldn’t have submitt ed it in our char g e.” T he district cour t responded “ [a] ll right” and then moved on to other issues. Cambridg e did not obtain an express ruling on thi s objection, file written specia l exceptions, or otherwise revisit its objection befor e trial. The trial rec ord further ref lects that,

co n t rar y to its prior asser

tions that it would not try the presc riptive-ea sement issue by consent, Cambridg e elicited te stimony uniquely rele vant to the elements of a presc riptive-ea sement cla im.
For example, Cambridg e’s trial counsel asked Vo t i ck y t o testify as to whether “any one has ever attempted to e x clude y ou as one of the owner s of Cambridg e from using the hallway s at issue”—a ref ere nce to the exclusivi ty element of a presc riptive-ea sement claim—af ter explaining to him that “[a]nother claim in this lawsuit is that there should be an ea s em en t , a presc riptive ease ment it is

ca l l ed

. ” Simi larly , during Cambridg e’s direc t examination of Ba rry Smit h, the proper

ty manag er, trial counsel asked: “Ar e y ou awa re of the council that is filing this ease ment claim ever taking any action that’s adver se to my client’s owner ship of the north corr idor? ” Cambridg e likewise did not object to simil ar evidenc e elicited by the C o u n ci l. Assuming without deciding that Cambridg e’s pretria l objection would have prese rved its complaint reg arding the sufficie ncy of the Council’s pleading s of a presc riptive-ea sement claim, we conclude that Cambridg e waived that complaint by permitting the claim to be tried by consent. Tex. R. Civ. P. 67; cf. Boyles v. Kerr , 855 S.W .2d 593,

23601 (Tex. 1993) (holding claim not tried by consent wh er e p roof was rele vant to both pled and

unpled claims); Bedgood v. Madalin , 600 S.W .2d 773, 775-76 (Tex. 1980) (holding issue not tried by consent when opposing party objected to both presenta tion of evidenc e and submission of j ury question on issue). We overr ule Cambridg e’s f

irst issue.
I n its second issue, Cambridg e challeng es the leg al and fac tual sufficie ncy of the evidenc e supporting the district court’s f indings and conclusions that the Council ha d used the North Corridor for “fire /emerg ency ingr ess and eg ress” “continuously ” for more than ten y ear s, that the Council’s use was “open” and “notorious,” that its use was “adve rse,” and that Cambridg e

was bound by the ease ment. The district court made the following fact fi n d i n gs ad d resse d to the require ments of “c ontinuous” “use” for ten y ear s or more:

3. The North Corridor of Unit 1A has been consistently used by the Council for the purposes of fire/e merg ency ingr ess and eg ress since at least 1979. A b u i l ding plan predating the cre ation of the condominium ref lects th e exis tence of the Nor

th Corridor as a

first floor e x it from the North Stair.
4. The door from the North Stair leading to the North Corridor has never been locked to restric t exit from the North Stair. The door h as n ot been locked beca use the North Corrid o r i s t h e fire exit from the North Stair. Fur ther, longtime resident and manag ement employ ee, Be tty Strongbow , testif ied that the North Corridor has alway s been there and that, since 1964, when the bui l d ing was ere cted, acc ess from the North Stair to the L avac a Street exit doors has ne ver be en blocke d.

Ba sed on these finding s, the district court conclude d that “the Council continuously used the North Corridor” for “the limit ed purpose of fire/e merg ency ingr ess and eg ress” “for a period of more than 10 y ear s.”

24The dist rict court further found t hat “the doorwa y leading from the North S tair .

. . open[s] out into the North Corridor,” that “the exterior doors to the North Corridor

. . . open out onto
L avac a Street,” and that “[a]ll doors in a fire/e merg ency exit passag e way swing in the direc tion of the intended exit , as did this one.” I t also found t h at “a n al arm . . . had been place d on the door leading from the North Stair to the North Corridor.” Ba sed o n t h ese finding s, the district court conclude d that “the config uration of the North Stair, the unlocked door opening out into the hallway that leads to the near est outside exit opening onto L avac a Street, as well as the exis tence of an alar m, rende red the use of the North Corridor as a fire/e merg ency ingr ess and eg ress open and notorious.”

On the other hand, it w a s u n d isputed that the Council has never excluded or attempted
to exclude any owners o f Uni t 1A or their tenants from using the North Corridor for fire or

emer gen cy i n gre ss or eg ress. Thus, it was conce ded that any “use” of the North Corridor by the Council for this purpose would have been n o more than joint use with Unit 1A’s owner , not the exclusive use that presc ription ordinarily require s. See Brooks , 578 S.W .2d at 673. Consequently , there is no question that this case is g overne d b y T ex as ’s l o n g standing rule that an ease ment cl ai m an t ’s m ere joint use of a way with the proper ty owner is not adver se and cannot ripen int o
presc ription unless and until the Council made a “distinct and positive asser tion” of a cl ai m of rig ht to use the North Corridor so as to come within the exception this Court identified in Scott. See
Scott , 959 S.W .2d at 721-23. And only at that point would the ten-y ear presc riptive period beg in to

run. See W

iegand , 547 S.W .2d at 290. Evidently rec o gn i z i n g t h i s , the district court made the following fac t findings a ddresse d to Scott ’s exception to the exclusive-use re quirement:

255. The law firm of Womack and McClish, P.C. had their office s on the first floor of the Cambridg e Condomini um building for many y ear s. Unit 1A was owned by the partne rship I DJ L td. prior t o i t s sale to Cambridg e. The partne rs in I DJ L td. are I ma Womack, Dan Womack, a nd J ohn McClish.
6. At a 1988 condominium meeting , Dan Womack, Gene ral Partner of I DJ L td., and the prior owner of Unit 1A and member of First Cambridg e Partnership, and the Council wer e prese nt w hen the Council asserted a n ease ment to the North Corridor. At the same meeting , Dan Womack agr eed to provide the Council an easement. The parties to this ag ree ment also rec og nized at t hat time that an emer g ency exit from the North Stair throug h the North Corridor to the outside was re quired unde r City Code.
7. After 1988, the Council paid for firepr oofing and repa irs o f t h e No rth Corridor. These improvements wer e made in order to f ireproof the hallway and doors.

The district court further found or conclude d that “the Council made a distinct and positive asser tion of its rig ht to use the North Corridor in case of a fire/e merg ency throug h its ag ree ment with I DJ L td. in which the Council paid for firepr oofing of the Nor

th Corridor.” Finally , the district court made fac t finding s addre ssed to whether Cambridg e had acquir ed Unit 1A subject to the presc riptive ease ment it had found, or was a bona fide purcha ser for value who took the proper ty fre e of that interest. The court found that Voticky , “a repr esenta tive and partne r of Cambridg e” and “experienc ed rea l estate develope r,” had observe d the doors that opened from the north stairway into the North Corridor and from the North Corridor to L avac a. Moreove r, the court found, Voticky had trig g ere d the alar m on the north stairway door and been “informe d by

a repr esen t ati ve of the Council that the alar m was part of the safe ty equipment of the building.”
Ba sed on these finding s, the district court conclude d that “Cambridg e had sufficie nt notice of the

26implied ease ment” and that “[f]or the same rea sons that the use of the North Corridor was open and

notorious, Cambridge also had suff icient notice of

the implied ease ment.” 8
Under the district c ourt’s finding s and conclusions, the ten-y ear presc riptive period would have beg un to run at the time of th e “1 988 condominium meeting ”—which, the parties
ag ree , ref ers to the September 29, 1988 specia l meeting of the C o u n cil

. During that meeting , the district court found, “the Co u n ci l as s er t ed an ease ment to the North Corridor.” Howeve r, as Cambridg e points out, there is no evidenc e th at t h e Council “asse rted an ease ment to the North Corridor” during that meeting unless that phrase is int en d ed to ref er to the Council’s resolution memorializing t hat FCP/IDJ had agreed to grant an ex press easement i n ex ch an ge for approving FCP/I DJ ’s proposed renovations and paying for the firepr oofing i m p ro v em ents to the North Corridor. The Council does not appea r to contend othe rwise.
I n the district court’s view, echoe d by the Council, the resolution and agr eeme nt constituted the requi re d “direct and positive asser tion” of a claim of rig ht by the Council that is sufficie nt to distinguish its undisputedly joint use of the North Corridor from permissive use and thus trig g er the presc riptive period. See Brooks , 578 S.W .2d at 673; Scott , 959 S.W .2d at 721-23;
W iegand , 547 S.W .2d at 290. Howeve r, Cambridg e points out another rea son why the presc riptive period could not have begun running any ear lier. By resolving that FCP/I DJ “has ag ree d to provide

an ease ment” throug h the North Corridor without disputing that this rig ht was FCP/I DJ ’s proper ty
to g rant, the Council acknow ledg ed the superiority of FCP/I DJ ’s title. See Texas W

. R y. Co.

Although imp l i ed ea s ements and presc riptive ease ments are distinct conce pts under 8 Texa s l aw, there is no dispute that the district court was using “implied ease ment” to ref er to the presc riptive ea sement it had found. 27v. W

ilson , 18 S.W

. 325, 326 (Tex. 1892) (“A single act of acknow ledg ment by the [claimant] of the

owner ’s title is fata l to the [prescriptive ease ment].”); see also Stallman v. Newman , 9 S.W .3d 243,
249 (Tex. App.—Houston [14t h Dist.] 1 9 9 9 , p et. denied) (cla imant’s failure to dispute proper ty

owner ’s authority to g rant permission to use road belied claim of rig ht to use road)

. For both of these

rea sons, the C o u n ci l ’s presc riptive-ea sement claim must rest upon evidenc e of events during and afte r the Septembe r 1988 spec ial meeting

.

Cambridg e arg ues that there is leg ally insufficient evidenc e that the Council, its members, or tenants used the North Corridor “for the purposes of fire/e merg ency ingr ess” and eg ress

a d v e r s e ly , o p e n ly , n o to r io u s ly , a nd continuously for the presc riptive period. As Cambridg e observe s, the adver se use of proper

ty nece ssary for presc ription require s actions that would g ive rise to cause s of action in tort for interfe renc e with proper ty rig hts if underta ken without the owner ’s consent. See Klein v. Gehrung , 25 Tex. 232, 242 (1860); Hall , 48 S.W

. at 55-56; Restateme nt ( Third) of Property ( Servitudes) § 2.16 cm t. b, c. I n the case of the North Corridor, this means actua l phy sical entry

or invasion by the Council or its residents for p u rp o ses of fire or emer g ency . See Restateme nt ( Third) of Property (

Servitudes) § 2.16 cmt. c, § 2.17 cmt. d. Although the Council helped pay for firepr oofing improvements FCP/I DJ made to the doors and walls of the North Corridor in 1988 or 1989 in anticipation of using it as a fire exit , there was scant testimony that the Council or residents had ever actua lly made such use of the North Corridor there afte r. I t w as undisputed that there had

never been a fire in the Cambridg e Towe rs in which the Nor th Corridor had be en used for ingre ss
or eg ress. More over, both B arr y Smit h and Mar ie Arnold, the Council’s pre sident at time of trial, testified that the Council did not conduct fire drills beca use of the advanc ed ag e and m obility

28limit ations of many of the residents. The sole testimony indicating that the North Corridor had ever

been phy sically enter ed by Cambridg e Tower residents for fire or emer g ency -re lated purposes

came from Smit h, the Council’s g ener al manag er since 1992. Smit h answe red, “Ye s,” when asked whether “re sid en t s of C ambridg e Tower have us ed the [North Corridor] when the fire alarms had
g one off.” Howeve r, the Council did not elicit any further testimony as to whether this had occur red

on only one occa sion or many , or how many , when this had occur red, over what period of time this had occur red, how many residents had enter ed the North Corridor on any such occa sions, how long they wer e ther e, or a

ny other c ircumstance s reg arding any such incidents.
As the Counc i l sug g ests, the nature , intensity , or fre quency of proper ty use that suffice s to establish continuous adver se use may vary ac cording to the char acte r of the claimed

ease ment and the normal use its o wn er wo u l d m ak e of it. See Restateme nt ( Third) of Property ( Servitudes) § 2.17 cmt. i. Nonethele ss, even considering that t h e Council claims an ease ment to use the Nor

th Corridor as a

fire or emer g ency

esca pe—a f unction whose norma l utili zation would be rela tively infreque nt—it rema ins that the Council had the burden of prese nting some evidenc e of the nature and extent of any use it made of t h e No rt h Corridor for fire or emer g ency purposes. I t failed to do so.
T h e dis trict court’s finding that the North Corridor had been “consistently u s ed b y the Council for the purpose s of fire /emerg ency ingr ess and e g ress since at least 1979” presumably
rests upon evidenc e that the Council believed or anticipated it could use the North Corridor as a fire

or emer g ency exit , even if it hardly ever did. Howeve r, an ease ment claimant’s beliefs or intentions

are not adver se use. S

ee Tran , 213 S.W .3d at 914 (“[T]here must be adver se possession , not just

29adver se beliefs .”). Alterna tively , the finding s must re st upon evidenc e that FCP/IDJ continuously

limit ed or burdene d its own use of the North Corridor so the Council could use it in the event of an

emer g ency . This is the import of the district court’s finding s that “ac cess from the North Stair to the
L avac a Street exit doors has never been blocked” and that the “door from the North Stair leading to the North Corridor has never been locked to restric t exit from the North Stair

. . . b ec au s e the North Corridor is the fire exit from the North Stair.” Be y o n d t h i s , the Council also points to evidenc e that City fire inspectors trave rsed the No rt h C o rr idor, along with other building are as, during annual inspections of C am b ri d ge T ower ; considere d the North Corridor to be part of the north stairway fire- exit sy stem f o r c o d e p u rposes; and that FCP/I DJ ’s continued acc ession in keeping the passag ewa

y unobstructed enable d the building to pass inspection without ne ed for the Council
to make other provision for emer g ency acc ess at the building’s north end. Howeve r, none of these
acts repr esent actions of the Council. “As distinguished from ease ments

. . . in which one looks to
t h e i n t en t or actions of the alleg ed ease ment’s g rantor,” this Court has previously observe d , “an ease ment by presc ription rests upon the claimant’s adver se actions under a color of rig ht.” Scott , 959 S.W .2d at 721 (e mphasis added)

.

Although the prese nt circ umstances potentially implicate other ease ment theories, as the Council arg ues below, it cites no Texas case s that have rec og nized an ease ment by prescription

on fac t s such as these. The Council does cite a Kentucky supreme court case and Massac husetts intermediate appellate court case that rec og nized an ea s em en t by presc ription in a fire esca pe. 9

See Ben Snyder, Inc. v. Phoenix Amuseme nt Co. , 218 S.W .2d 62, 64 (Ky

. 1949); Brooks, 9 Gill, & Co. v. Landmark Props. , 503 N.E.2d 983, 985 (Mass. App. Ct. 1987). Ad d i t i o n ally , we observe that the Third Restatement of Property identifies a s o me w h a t b r o ader conce pt of presc ription 30Howeve r, we are not persua ded that Texas law operates the same way , espec ially g iven our courts’

traditional disfavor towa

rd pre scriptive ea sements. See W iegand , 547 S.W .2d at 289.
I n short, we ag ree with Cambridg e that the Council did not prese nt leg ally sufficie nt evidenc e of the sort o f ad v erse and continuous use of the North Corridor require d to g ive rise to

a presc riptive ease ment under Texas law. Consequently , we sustain Cambridg e’s second issue. We
express no opinion reg arding Cambridg e’s other leg al-suff iciency challeng es to this port i o n of the judg ment.

Easem ent by estoppel

Having conclude d that the evidenc e is leg ally insufficient to support the district court’s judgme nt awa rding the C o u ncil a presc riptive ease ment in the North Corridor, we

now turn to the Council’s cross-points urg ing us to rende r judgme nt awa rding an ease ment under its other theories. I n its first two issues, the Council arg ues that the evidenc e conclusively establishes

eac h element of its claim for ease ment by estoppel. Easeme nt by estoppel (also termed estoppel in pais) is a n equitable doc trine whe reby courts may , in cer

tain situations, bar a proper ty owner from disputing the exis tence o f an ea sement on his proper ty wher e the owner has led another proper ty

owner to rely to his detriment on the ease ment’s exis tence

. See Storms v. Tuck , 579 S.W .2d 447, 451 (Tex. 1979); Murphy v. Long , 1 7 0 S .W.3d 621, 625-27 (Tex. App.—El Paso 2005, pet. denied) ;

that includes a doctrine of “ac quisiti ve presc ription” that can arise even wher e the requisite adver se use by the e as em en t claimant is lacking

. See Restatement ( Third) of Property (Se rvitudes) § 2.16 & cmts. a-c , § 2.17 (2000). Howeve r, the Council has not contende d that this doctrine is rec og nized in Texas law. 31Scott , 959 S.W .2d at 720. “B eing a cre ature o f equity , it seeks to preve nt injusti ce and to protec t

innocent par

ties from fr aud.” Storms , 579 S.W .2d at 451; see Sc ott , 959 S.W .2d at 720.
Easeme nt by estoppel “is a leg al theory the exact nature and extent of which h as
not been clea

rly define d.” Storms , 579 S.W .2d at 451. Whil e the doctrine “is fre quently applied in

a few definite cate g ories of suits involving land”—those arising out of or involving (1) a dedica tion of a street, alley , or square ; (2) a convey ance with ref

ere nce to a map or plat; and (3) a seller of land who allows i t s p u rc h aser to expend money on an alleg ed “ser vient estate” —“the authority for its application outside those cate g ories is ‘ra re and nebulous.’” Id. & n.3 (quoting Drye v. Eagle Rock Ranch , 364 S.W .2d 196, 209 (Tex. 1962)); see also Scott , 959 S.W .2d at 720. This Court has held that a vendor-vend ee re l at i onship must exis t to establish an easement by estoppel, although som e of our sister courts have since questioned that holding. Scott , 959 S.W .2d at 72 0 (c i t i n g S t o rms , 579 S.W .2d at 451, and W ilson v. McG uffin , 749 S.W .2d 606, 610 (Tex. App.—Corpus Christi 1988,

wr i t d en i ed)); see also Lakeside Launches, Inc. , 750 S.W .2d at 872 (noting that “to cre ate an

ease ment by estoppel, something must be said or d o n e b y t h e owner of the servient estate at the time of the g rant of the dominant estate that i n d u ce s the acc eptanc e of the g rant” ); cf. Murphy , 170 S.W .3d at 624-27; Mack v. Landry , 22 S.W .3d 524, 529-30 (Tex. App.—Houston [14t h Dist.] 2000, no pet.). The basic elements require d to establish an ease ment by es t o p p el are : (1) a misrepre sentation by the alleg ed servient proper ty owner , communicated to the ease ment claimant, that the clai m ant has a rig ht to use the proper ty ; (2) the communication is believed; and (3) the claimant detrimentally relies on the communication. Scott , 959 S.W .2d at 720. Texas c ourts have

32held t hat actions amounting to misrepre sentations reg arding an ease ment may potentially be

established by proof that the alleg ed servient pro p erty owner made a parol g rant of the ease ment (which the owner could otherwise avoid b y i n voking the statute of fra uds or convey ance s), that the owner misrepre sented that the ease ment alre ady exis ts, or that the owner made a parol promise

or ag ree ment to g rant the ease ment. See Storms , 579 S.W .2d at 451-53; Murphy , 170 S.W .3d at 624- 27; Scott , 959 S.W .2d at 720. Reg ardle ss, “[e]ssential to t h e cr ea t i o n o f estoppel is that the misrepre sentation be communicated t o, believed, and relied upon by the innocent pa rty .” Storms , 579 S.W .2d at 452; Scott , 959 S.W .2d at 720. The evidenc e must also show that the element s of

ease ment by estoppel wer e prese nt at the time the statements g iving rise to the alleg ed ease ment wer e mad e. S ee McAshan v. River Oaks Country Club , 646 SW .2d 516, 519-20 (Tex

. App.—Houston [1st Dist.] 1982, writ ref

’d n.r.e .) (holding no ease ment by estoppel when documents presented as evidenc e o f alleg ed repr esenta tions reg arding proper ty had been cre ated afte r house was built in alleg ed re liance on r epre sentations).

Reg arding the Council’s ease ment-by -estoppel claim, the di s t rict court found that “Cambridg e as a subsequent purcha ser to Unit 1A did not make any repr esenta tions to Council that there was an ease ment.” Whil e not disputing that the evidenc e supports this finding , the Council
sug g ests it is immaterial beca use the evidenc e conclusively establishes that an ease ment by estoppel had alre ady been cre ated during FCP/I DJ ’s owner ship. The Counc il urg es that FCP/I DJ “communica ted to the C o u n ci l that it would g rant an ease ment to use the North Corridor for an

emer g ency exit ,” and “[t] he Council believed this repr esenta tion and re l i ed upon it in making improvements t o the North Corridor to meet C ity fire code requireme nts.” The Council adds that

33Cambridg e, while a subsequent purcha ser for value, is bound by the ease ment beca use it had actua l or constructive notice of it. See Lakeside L aunches , 750 S.W .2d at 873 (no ea sement by estoppel
may be imposed ag ainst a subsequent purcha ser for value who has no notice, actua l or constructive, of t he easement claimed). I n support, it relies on t h e d i s t ri ct co urt’s findings that Cambridg e had “suff icient notice” of the presc riptive ease ment it had found. Ba sed on these arg uments, the Council in its first issue urg es that the district c ourt err ed in de ny ing its e aseme nt-by -estoppel claim. I n its second issue, the Council urg es us to revisit our holding in Scott that ease ment by estoppel can arise solely within a vendor- vendee rela tionship.
We express no opinion a s to the Council’s second issue beca use, assuming without deciding that a v en d o r- v en d ee rela tionship is not require d to establish ease ment by estoppel, we conclude that the evidenc e does not show conclusively that FCP/I DJ made any statements i n the
nature of fra

udulent misrepre sentations to the Council reg arding the exis tence of an ease ment in the North Corridor or

any ag ree ment to gr ant one. See Sc ott , 959 S.W .2d at 720-21. To the c ontrary , the district court he ard e vidence that FCP/I DJ expli citly advised the Council, as pa rt of i ts written proposal to g rant an ease ment in the North Corridor in exchang e for t h e C o u n cil paying for firepr oofing and approving FCP/I DJ ’s renovations, that the Council “will need to have the nece ssary l ega l documents prepa

red to eff ectua te the ease ment to be g iven by [FCP/ I DJ ] to the [C ouncil ]

. ” That the Council never did so, even while proce eding to pay for firepr oofing , is not evidenc e, much less conclusive evidenc e, that it wa s defr auded by FCP/I DJ about whether the ease ment exis ted or what rema ined to make it eff ective. See Storms , 579 S.W .2d at 451-52, 4 5 4 ; Scott , 959 S.W .2d
at 720-21; see also Sorrell v. Gengo , 49 S.W .3d 627, 632-34 (Tex. App.—B eaumont 2001, no pet.)

34(mere fac t that gr antor ha d ag ree d to rese rve a n express ease ment but subsequently failed to do so in the deed is not evidenc e of a misrepre sentation that can form the basis for ease ment by estoppel).

More broadly , we cannot conclude that the evidenc e conclusively establishes a situation wher e jus t i ce require s estoppel t o enfor ce the ease ment FCP/I DJ had agr eed to g rant the Council. See Storms , 579 S.W .2d at 451-52; see also W ilson , 749 S.W .2d at 610. I n discussing the rela tive equities in a situation like this, t he Restateme nt observes:

I f t h e parties have fully neg otiated a servitude arra ng ement, but contemplate that a written document will be executed to finalize the transac tion, g iving eff ect t o the oral arr ang ement ordinarily will no t b e ju s ti f ie d

. Only in extraordinary circ umstances would relianc e on the oral ag ree ment be jus tified. The S tatute o f Fr aud’s function to protec t p ar t i es ag ainst tentative, nonfinal arr ang ements is clea r in this situation, and should not be over

ridden a bsent extraordinary

circ umstances.

Restateme nt (

Third) of Property (

Servitudes) § 2

. 9 cmt

. e, § 2.10 cmt. c (2000). Her e, there was evidenc e that the parties contemplated not only that written documentation wo u l d b e require d to eff ectua te FCP/I DJ ’s convey ance of an ea s em ent, but that the Council would handle g etting those documents prepa

red. I f the Council had followed throug h with these steps and an express

ease ment had been executed and rec orded, it is unlikely (as the Council itself has sug g ested) that this litigation—a dispute illust rative of why Texas has a statute of fra u d s an d rec ording laws—would

ever have arisen. I n these circ umstances, we cannot conclude as a matter of la w that this is one of those “ra re and nebulous” case s wher e estoppel is require d to preve nt an injusti ce ag ainst an innocent party

. See Storms , 579 S.W .2d at 451; Scott , 9 5 9 S.W .2d at 920; see also Riverc enter Assocs.

v. Rivera , 858 S.W .2d 366, 367 (Tex. 1993) (“[E]quit y aids the diligent and not those who slumber on their rig hts.” (quoting Callahan v. Giles , 155 S.W .2d 793, 795 (Tex. 1941))).

35We overrule the Council’s first and se cond issues.

Easem ent by necessity

I n its third issue, the Council arg ues that the evidenc e conclusively establishes

an implied easem en t b y nece ssity permitting it to use the North Corridor for fire or emer g ency ingr ess or eg ress. An “implied” ease ment may arise in the conte x t of a convey ance that sever s

owner ship of two estates in rea l proper ty

. I n cer tain circ umstances wher e the rig ht to use one estate is considere d espec ially critica l to the use or enjoy ment of the other estate, t h e l aw will imply an

ease ment in favor of the second estate, in derog ation of the terms of the written convey ing instrument, in the view that the parties must have intended to include such a term in the convey ing instrument. See M

itchell v. Castellaw , 246 S.W .2d 163, 167-68 (Tex. 1952); Restateme nt ( Third) of P roperty (

Servitudes) § 2.11 (2000). The Council a rg ues that an implied e aseme nt by nece ssity

arose when Cambridg e Tower Corporation conver ted the building it then wh olly owned to a condominium reg ime in 1979 and sold Unit 1A to Cambridge ’s pre dece ssor in 1982.

To establish an implied ease ment by nece ssity , the Council was require d to prove: (1) a unity of owner ship over Unit 1A and the common are as and other units that the ease ment would benef it; (2) fire or emer g ency acc ess throug h the North Corridor is a “necessity ,” not mere ly a “conve nience ;” and (3) the nece ssity has exis ted since the time the estates wer e sever ed. See Koonce

v. Brite Estate , 663 S.W .2d 451, 452 (Tex. 1984). There is no dispute that the Council satisfied the
f ir s t e le me n t— Ca

mb r id g e T o w er Corporation orig inally owned the entire building. The contr o v e r s y , rathe r, has c oncer

ned the e x istence of

a “ne cessity ” that the Council and me mbers other than Unit
1A’s owner use the North Corridor for fire or emer g ency acc ess and whether such a nece ssity exis ted

36when Cambridg e Tower Corporation se v e r e d o w n e r s h ip of Unit 1A from owner ship of the proper ties the North Corridor ’s use would be nefit.

Texas courts have historically been hesitant to judicially rew rite written convey ance s based on unstated intent implied from nece ssity

. They have require d proof that the proposed use of

one estate is e conomically or phy sically essential for the use of the other, and not me rely desirable

or con v en i en t

. S

ee Mitchell , 246 S.W .2d at 167 (in case involving portion of gas station’s “wa sh shed” that en cr o ac h ed on adjac ent proper ty , looking to whether “the station could not have been
proper ly conducte d without it or that a rea djustment of the shed so as to eliminate the encr oachme nt would have been impractica ble for any rea son”); Callan , 190 S.W

. at 832 (“A way of nece ssity must be more than a way of convenie nce; it must be an absolute nece ssity , with o u t which the party claiming it would be wholly deprive d of t he use of his land.”); Hall , 48 S.W . at 55 (“ The doc trine of nece ssity means just what it say s. The rig ht .

. . must arise by rea son of the absolute ne cessities of the claimant

. . . .”). The courts have been espec ially reluc tant to imply rese rvations of ease ments by th e o ri gi n al g rantor at the expense of the g rante e and have require d “strict nece ssity as
prer equisite to all implied rese rvations of ease ments.” See Mitchell , 246 S.W .2d at 167-68. For example, in numerous case s involving rea lty lacking frontag e on a publi c ro ad , T ex as courts have require d the landlocked pr operty owner to prove he has literally

no other mea

ns of ac cessing his proper

ty , re g ardle ss how circ uitous or inconvenient the available alternative routes might be. See, e.g. , Duff v. Matthews , 311 S.W .2d 637, 642-43 ( T ex . 1 9 5 8) (no ease ment by nece ssity even

37though other means of acc ess over clai m an t ’s own land was curr ently impassable and would

require clea

ring and re pair). 1 0
This Court has applied t h e same principle to hold that a building owner had not
p ro v ed that use of a share d stairway in an adjac ent bank building was nece ssary for t h e u s e o f the upper floors of his building beca use he could build his own stairway inside his building. Callan , 190 S.W

. at 832. Alt h o u gh we ac knowledg ed that building the alternative stairway “would cost something” for the owner , we held that “w h et h er o r n o t the cost would exceed the benef it is immaterial, it c lear ly appea ring that the use of the stairway in the bank building is not nece ssary to the use of the upper story of the [claimant’s] buildi ng .” Id. The d i s t ri ct court hear d evidenc e that Cambridg e Tower residents, including those living near the north stairway , have multipl e alternative routes thr o u g h which they could conce ivably depar t the building without trave ling throug h the North Corridor. These routes incorporate various combinations of t he buil ding’ s two other stairway s and hallway s trave rsing eac h of the buil ding’ s floors. These routes include proce eding direc tly to either the centr al or south stairwells on any g iven

re s i d ential floor—both code- compliant, 2-hour fire-r esistant enclosure s—where they could eithe r exit the building or seek ref ug e th er e wi t h o u t ever enter ing the north stairwell or North Corridor.

I n these way s, Texas law is more restric tive reg arding ease ments by nece ssity than that of 1 0 many other states. For these rea sons, we are not persua ded by the rea soning of New York case s the Council cites that found ea sements by nece ssity in f ire exit s. See Benne tt v . 48 Laight St . Assocs. , 784 N.Y.S.2d 9 1 9 (N

. Y. Sup. Ct. 2004); Mid-Central Props., Ltd. v. 344 W

. 45th St. Corp. , 341 N.Y.S.2d 912, 914 (N.Y. Sup. Ct. 1972), aff’d , 41 A.D.2d 606 (N.Y. App. Div. 1973). Unlike Texas, which re quires a showing of st rict necessity by a gra ntor claiming an ea sement, Ne w York require s only that the “cla imed nece s s i t y i s real and rea sonable.” 49 N.Y. J ur. Easeme nts and Licenses in Real Prope rty § 90 (2009). 38Alterna tively , Cambridg e pointed out tha t r esidents could continue down the nor th stairway

to the building’s parking g ara g e, wher e they could proce ed to the g ara g e exit on the south (18th Street) side of the building, up a ramp, and out onto street level, all without enter ing the North Corridor. The 1 1
court found that “[i] t is

. . . undisputed that the Council has another acc ess besi d es t h e North Corridor from the building to the street.” Ba sed on this fac t finding , the dis t ri ct co u rt conclude d that “[t] he element of nece ssity is not met beca use Council has another way into and out of the building .”

The Council does not challeng e the evidenc e supporting this fac t finding but disputes its lega l significa

nce. The finding , in the Council’s view, “misses the point” tha t its easement-by

nece ssity claim is not predic ated on building residents’ need to use the North Corridor for acc ess to their units, but on the residents’ need to use it for the specific purpose of a fire exit

. Consequently , the Council rea sons, “ca se law dealing primarily with rura l land disputes which state that any exit route, albeit circ uitous, is an available exit which defe ats a claim to an ease ment by nece ssity ” is simply inapposite. I t urg es that “[a]n emer gen cy ex i t , b y definition, is not circ uitous and should not involve winding throug h differ ent smoke filled h al l wa y s or throug h an underg round parking lot (which , i t adds, would be “filled with hundreds of car s, containing thousands of
g allons of g asoline”)

.

The evidenc e, the Council further contends, conclusively estab l i s hes that no alterna tives to the North Corridor a re a vailable a s code- compliant fire or emer g ency exit s, at least

There was also evidenc e that the g ara g e exit gate opened a utomatically

if the building’ s 1 1 fire a larm sy stem was trig g ere d. 39for building residents living in the northern part o f C am b ri d g e Tower

. Moreove r, the Council

asser ts, the evidence c onclusively establishes that the c ity

fire c ode, both cur

rently and at the time of sever ance , has require d the use of the North Corridor as a desig nated fire or emer g ency exit

. The City relies on testimony from two expert witnesses, Chief Donald Smit h, head of the City of Austin Fire Depa rtment’s preve ntion division, and Phill ip Haug ht, a fire safe ty eng ineer

. Both testified to the effec t that the North Corridor, onc e construc ted, has be en conside red f or fire code pur

poses t o be par t of the north stairwell fire e x it and, for this rea son, must remain in its current c onfig uration and be a vailable f or use in the e vent of a

fire.
For at least the following rea sons, we conclude that t h e ev i d ence falls short of conclusively establishing that use of the North Corridor as a fire or emer g ency exit was “strictly

nece ssary ” as of 1982, when owner ship of Unit 1A was sever ed from the proper ties that use would benef it. First, even if the city building code has require d that the North Corridor rema in part of the north sta i rwe ll fire exit , the Council did not demonstrate how or why failure to comply with this require ment would equal wholly depriving the Council or residential unit owner s of the use of their
proper ty , as the doctrine of ease ment by nece ssity require s. See Mitchell , 246 S.W .2d at 167; Callan , 190 S.W

. at 832. This is the import of the district court’s unchalleng ed fac t finding that “the Council has another acc ess besides the North Corridor from the building to the street” —there wer e multipl e alterna tive routes by which one could acc ess, use and enjoy any are a of the building without enter ing
t h e No rt h C orridor. And, in the event of a fire, it is undisputed that residents on any g iven fl o o r would have available three alternative fire- protec ted, pressurized stairwells in which they could seek

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ug e or exit the building—the centr al, south, and north stairwells, wit h t h eir use of the latter limit ed solely

by the re quirement that they exit any wher e other

than the first floor

. Even acc epting the Council’s premise that nece ssity equals a fire exi t that strictly complies with the building code, the d i s t ri ct court rea sonably could have conclude d that the north stairwe ll and North C orridor were not strictly nece ssary as a fire- exit sy stem under the c ode version in eff

ect in 1982. There was evidenc e that when Cambridg e Tower was constructe d in 1964, issues rela ting to fire exit s would have been g overne d by a 1931 buildi n g code and that these require ments continued to g overn, notwithstanding any intervening chang es or updates in the code, until FCP/I DJ ’s 1988 renovations. Haug ht and S mith left open whether that 1931 code pe rmitted only two fire exit s in Cambridg e Tower and whether the centr al and south stairway s would have suffice d for that purpose. Moreove r, Ha ug ht acknowle dg ed that eve n under a 1964 building code he thought would have gove rned at the t ime o f t he buil ding’ s 1979 condominium conver sion, the
centr al stairway would have suffice d as a fire exit for the northern portion of the building except for

cer tain “northe ast or northwe st apartments” in w hich “the far thest point in those apar

tments to the
cente r stairwa

y would be in excess of 150 fe et.” Additionally , both Haug ht and Fr ank I vy , the i n s p ec tor who analy zed the fire- exit issue for the Council in 2005, acknow ledg ed that it was possible that the Counci l an d re sidential

owner s could cre ate a

code- compliant fire- exit sy stem in the northern pa rt of the building to serve

as an alternative to the north stairway or North Corridor. These options included making renova tions
to the north stairway and/or adjac ent proper ty or constructing an alternative fire exit o u t s i d e the building’s c urre nt outer wa lls. As I vy put in r eg ard to this issue, “The re’ s all kind of way s to skin

41a cat.” This Court relied on simil ar evidence in Callan , holding that wher e a building o wn er was

fre e to build a stairway within his own building to rea ch his upper floors, there was no nece ssity requiring an ease ment to use a stairway in an adjac ent building. See Callan , 190 S.W

. at 832. The Council urg es that t h e p re s en t case is distinguishable from Callan beca use “[t] he exterior of the North Side of the building is entirely surrounde d by private units” and “[t] here is simply no way to
construct an acc essible exit structure that leads from the common element hallway s on upper floors of the north side of the building to the g round.” Whil e the Council alone may not curr ently own all of the proper

ty throug h wh ich an alternative fire exit could be constructe d, it rema ins that the
proper ty wher e an a lternative f

ire ex it could be built is within the ownership of either the Council

or the residential condominium owner s on whose behalf the C o u n ci l i s s eeking to burden the Cambridg e-ow ned North Corridor. Thus, as in Callan , there is no nece ssity to burden Cambridg e’s
proper ty to benef

it the Council or other owner s, as that conce pt is rec og nized in Texas law, beca use they rema in free to build an alterna tive to the north stairwa y on their own prope rty

. We overrule the Council’s third issue.

Rem ainin g issues

Be cause we have aff

irmed the dist ri ct co u rt’s judgme nt reje cting the Council’s

ease ment-by -nec essity and ease ment-by -estoppel claims and reve rsed its judgme nt awa rding the Council a presc riptive easem en t, we sustain Cambridg e’s third issue, and reve rse and rende r judgme nt decla

ring that the North Corridor of Unit 1A is not subject t o an ease ment for fire/e merg ency ingr ess and eg ress in favor of the Council. As Cambridg e’s fourth th roug h

42ninth issues are pr edica ted on a judg ment that an ea sement in the Council’s fa vor did exist , we do

not rea ch them.

I n light of our dispo s i tion of Cambridg e’s second and fourth issues, we sustain Cambridg e’s tenth issue, reve rse the judgme nt awa rd of attorney ’s fee s, and rema nd the parties’ attorney ’s fee s claims to the district court for rec onsideration. See Robertson v. City of Austin , 157 S.W .3d 130, 137 (Tex. App.—Austin 2005, pet. denied). We thus do not reach Cambridge ’s eleve nth and twelfth issues conc erning the amount of that a war d.

CONCLUSION
We aff irm the district court’s judgme nt denying relief on the Council’s ease ment-by

nece ssity and ease ment-b y - e s to p p e l c la im s , r e v e r s e th e ju d g me n t awa rding the Council a presc riptive

ease ment and deny

ing Cambridg e a decla

ration that the North Corridor of Unit 1A is not subject to

an ease ment for fire/e m erge ncy ingr ess and eg ress in favor of the Council, and rende r judgme nt
g ranting Cambridg e that d ec l aration. We also reve rse the judgme nt awa rd of attorney ’s fee s and

rema nd the par ties’ attorne y ’s fe e cla ims for furthe r proc eeding s.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton and Waldrop Affir med in part; Rever sed and Rende red in pa rt; Reverse d and Remande d in part Filed: June 11, 2010

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