Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-17-00007-CV

13 HEIN, L.L.C. and Robert P. Hein,

Appellants

v.

Analicia PENA DE BECERRA, Federico Javier Pena Llanos, Lilia Leticia Pena de Borrego, 

Hilde Pena de Trad, Elsa Pena Cass, Zimmerman Limited Partnership No. 1,

Appellees

From the 406th Judicial District Court, Webb County, Texas

Trial Court No. 2014-CVF-001164-D4

Honorable Oscar J. Hale, Jr., Judge Presiding

OPINION ON APPELLANTS’ MOTION FOR REHEARING

Opinion by: Rebeca C. Martinez, Justice

Sitting: Karen Angelini, Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: December 27, 2018

AFFIRMED

The motion for rehearing filed by appellants 13 Hein, L.L.C. and Robert P. Hein is denied. 

The court’s opinion and judgment dated July 11, 2018 are withdrawn, and this opinion and 

judgment are substituted in its place. In this opinion, we address appellants’ express easement 

argument.

13 Hein, L.L.C. and Robert P. Hein (collectively, Hein) appeal the final judgment rendered 

in favor of Zimmerman Limited Partnership No. 1. We affirm the judgment of the trial court.
04-17-00007-CV

- 2 -

BACKGROUND

The underlying dispute concerns three contiguous tracts of land—El Varal Pasture, El 

Brazil Pasture, and La Copa Pasture—located in Webb and Zapata Counties. This is the fifth 

appeal in the last 70 years related to the properties at issue.1

 La Copa Pasture and El Brazil Pasture 

are next to each other, with La Copa to the west and El Brazil to the east. The majority of the El 

Varal Pasture is directly south of La Copa Pasture, but its northeast corner borders the southwest 

corner of El Brazil Pasture. There are no public roads within any of the three tracts, but there is a 

public road adjacent to La Copa Pasture and a private road that travels from the public road, across 

La Copa Pasture, and into El Brazil Pasture. 

The location of the properties was depicted in a map in this court’s opinion of Pena v. 

Salinas, 734 S.W.2d 400, 404 (Tex. App.—San Antonio 1987, writ ref’d n.r.e.):

All of the three properties once belonged to Henry Hein, Sr. See id. at 401. When Henry, 

Sr. died on April 5, 1920, all of his property passed to his three children, Maria Hein de Llanos, 

Conrad Hein, and Henry Hein, Jr., in undivided one-third interests. 

 1 See Zapata County v. Llanos, 239 S.W.2d 699 (Tex. App.—San Antonio 1951, writ ref’d n.r.e.); Sisco v. Hereford, 694 S.W.2d 3 (Tex. App.—

San Antonio 1984, writ ref’d n.r.e.); Pena v. Salinas, 734 S.W.2d 400 (Tex. App.—San Antonio 1987, writ ref’d n.r.e.); Briones v. Solomon, 769 

S.W.2d 312 (Tex. App.—San Antonio 1989, writ denied). 
04-17-00007-CV

- 3 -

In 1921, Maria and Henry, Jr. acquired Conrad’s interest in 1,200 acres out of the La Copa 

and El Brazil Pastures. In 1923, Conrad sold his remaining interest in the La Copa and El Brazil 

Pastures to G.W. Sprague. The conveyance was made subject to a prior recorded deed of trust 

covering Conrad’s interest in the La Copa and El Brazil Pastures. After a foreclosure sale pursuant 

to the terms of the deed of trust and a subsequent liquidation sale, Union State Bank and Trust 

Company of Laredo (the “Bank”) became the owner of Sprague’s interest in the La Copa and El 

Brazil Pastures.

In 1925, Henry, Jr., Maria, and Conrad partitioned El Varal Pasture among themselves. 

Attorney W.W. Winslow helped the siblings with the partition, and as payment for that assistance, 

Henry, Jr. conveyed an undivided one-third interest in his own one-third interest in El Varal 

Pasture, i.e., a one-ninth undivided interest, to Winslow. When Conrad died in 1925, his surviving 

widow and children inherited his interest in El Varal Pasture.

In September 1928, Maria, Henry, Jr., and the Bank partitioned their interests in the La 

Copa and El Brazil Pastures, with the Bank taking the western half of La Copa Pasture, Maria 

taking the eastern half of La Copa Pasture which became known as the Zimmerman Ranch, and 

Henry, Jr. taking the entirety of El Brazil Pasture which became known as the Brazil Ranch. 

Because the 1928 partition left Henry, Jr. without access to a public road to the Brazil Ranch, the 

1928 partition deed granted Henry, Jr. and those claiming under him “a reasonable right of egress 

and ingress over that portion of the lands partitioned to [the Bank] and [Maria] lying between [the 

Brazil Ranch] and the Laredo-Zapata Highway.” Later that same month, Henry, Jr. conveyed his 

remaining interest in El Varal Pasture to Maria. After the 1928 partition and conveyance, the 

parties held the three tracts as follows:
04-17-00007-CV

- 4 -

Western Half of La 

Copa Pasture

Eastern Half of La 

Copa Pasture 

(Zimmerman 

Ranch)

El Brazil Pasture 

(Brazil Ranch)

El Varal Pasture

The Bank Maria Henry, Jr. Maria (five-ninths)

Conrad’s heirs (onethird)

W.W. Winslow (oneninth)

In 1929, a Webb County court entered an Agreed Partition Judgment that split El Varal 

Pasture into four separate tracts as follows: (1) Maria was granted Share No. 1, the western twothirds; (2) Conrad’s heirs were granted Share No. 2, the northern half of the eastern third which 

became known as Sullivan Ranch; (3) Winslow was granted Share No. 3, the middle quarter of the 

eastern third; and (4) John A. Pope, Sr., John A. Pope, Jr., and Bismark Pope were granted Share 

No. 4, the southern quarter of the eastern third. After the 1929 partition, the ownership of the three 

tracts was as follows:2

Western 

Half of La 

Copa 

Pasture

Eastern Half 

of La Copa 

Pasture 

(Zimmerman 

Ranch)

El Brazil 

Pasture 

(Brazil 

Ranch)

Share No. 

1 El Varal 

Pasture

Share No. 

2 El Varal 

Pasture

(Sullivan 

Ranch)

Share No. 

3 El Varal 

Pasture

Share No. 

4 El Varal 

Pasture

The Bank Maria Henry, Jr. Maria Conrad’s 

Heirs

W.W. 

Winslow

The Popes

Maria’s daughter, Enriqueta, eventually inherited the Zimmerman Ranch. Henry, Jr.’s son, 

Robert, eventually took ownership of the Brazil Ranch, which he then conveyed to 13 Hein. 

Because the Brazil Ranch remained landlocked, Robert and the other agents of 13 Hein continued 

to access it via the easement across La Copa Pasture that Henry, Jr. acquired in the 1928 partition. 

 2 At some point after 1929, Maria purchased Share No. 3 from Winslow, and after Henry, Jr. died, his widow, Luz Almaraz Hein, purchased Share 

No. 4 from the Popes. 
04-17-00007-CV

- 5 -

In the 1980s, a dispute arose over the easement, and a number of plaintiffs, including 

Robert Hein, sought declaratory judgment to resolve their interests in the easement. A 1985 final 

judgment confirmed that Robert Hein and his fellow plaintiffs owned an ingress/egress easement 

and specified the path of the easement ran from a gate on a county road at the western boundary 

of La Copa Pasture, through La Copa Pasture and the Zimmerman Ranch, and to the shared 

boundary line between the Zimmerman Ranch and the Brazil Ranch at a point “6,022.6 feet from 

the southwest corner of the Brazil Ranch.” Based on the 1985 judgment, the parties agree Hein 

has an easement to use the private road that travels across La Copa Pasture and the Zimmerman 

Ranch for ingress and egress to the Brazil Ranch. 

In 2008, Robert Hein acquired the Sullivan Ranch from Conrad’s heirs which he later 

conveyed to 13 Hein. It is undisputed that the Sullivan Ranch is contiguous with Hein’s other 

property, the Brazil Ranch, and that it can be accessed directly from the southwest corner of the 

Brazil Ranch.

After Hein acquired the Sullivan Ranch, Arthur Zimmerman,3 who had acquired 

Enriqueta’s interest in the Zimmerman Ranch, informed Robert and the other agents of 13 Hein 

that they could not use the easement across the Zimmerman Ranch if they intended to continue 

across the southwest corner of the Brazil Ranch onto the Sullivan Ranch. Arthur erected a sign at 

the entrance of the Zimmerman Ranch that warned would-be visitors to Hein’s property against 

using the easement to access any land other than the Brazil Ranch.

In 2015, Hein filed a lawsuit against Zimmerman seeking a declaration that the express 

easement in the 1928 partition and the 1985 judgment also gave Hein the right to travel over the 

Brazil Ranch to and from the contiguous Sullivan Ranch via the same road. Hein later amended 

 3 Arthur Zimmerman is the principal of Zimmerman Limited Partnership No. 1. 
04-17-00007-CV

- 6 -

the petition to seek a declaration that an implied easement by necessity to reach the public road 

exists across La Copa Pasture, the Zimmerman Ranch, and the Brazil Ranch in favor of the 

Sullivan Ranch because the Sullivan Ranch is landlocked.

Zimmerman and Hein both filed motions for summary judgment on Hein’s claims. The 

trial court granted Zimmerman’s motion for partial summary judgment on Hein’s express 

easement claims on August 31, 2015; however, the trial court initially denied Zimmerman’s 

motion for summary judgment on Hein’s easement by necessity claim because it found that a fact 

question existed “as to necessity for road access.”

On June 27, 2016, Hein filed a motion for partial summary judgment asserting the first and 

third elements of the implied easement by necessity claim were established as a matter of law. 

Zimmerman filed a competing motion for summary judgment challenging the first element of that 

claim: “unity of ownership of the alleged dominant and servient estates before severance.” The 

trial court granted Zimmerman’s motion and denied Hein’s motion. After a bench trial on 

attorney’s fees, the trial court entered a final judgment in Zimmerman’s favor on December 12, 

2016.

DISCUSSION

In its first issue on appeal, Hein argues the trial court erred in granting summary judgment

on the first element of his implied easement by necessity claim in favor of Zimmerman. 

Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 

164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is appropriate when no genuine issue of 

material fact exists and the movant is entitled to judgment as a matter of law on the issues 

presented. TEX. R. CIV. P. 166a(c). A defendant may obtain summary judgment by, among other 

things, conclusively negating at least one element of the plaintiff’s cause of action. Frost Nat’l 
04-17-00007-CV

- 7 -

Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). In reviewing a summary judgment, we take 

as true all evidence favorable to the nonmovant, indulging every reasonable inference and 

resolving any doubts in the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661. When 

faced with competing summary judgment motions where the trial court denied one and granted the 

other, we consider the summary judgment evidence presented by both sides, determine all 

questions presented, and if the trial court erred, render the judgment the trial court should have 

rendered. Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015).

Easement By Necessity

Whether a property owner is entitled to an easement by necessity is a question of law, 

although underlying factual issues may need to be resolved in order to reach the legal question. 

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

Antonio 1997, pet. denied). When an owner conveys part of a tract of land and retains a landlocked 

portion, a right of way by necessity over the portion conveyed is implied so the owner of the 

landlocked part can access it. See Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984). 

The party claiming a necessity easement must show: (1) unity of ownership of the alleged 

dominant and servient estates before severance; (2) the claimed easement is a present necessity

and not a mere convenience; and (3) the necessity for the easement existed when the two estates 

were severed. Staley Family P’ship, Ltd. v. Stiles, 483 S.W.3d 545, 548 (Tex. 2016). The party 

claiming a necessity easement has the burden to prove all facts necessary to establish it. Id. To 

establish unity of ownership the claimant must prove his grantor owned the dominant and servient 

estate as a unit or single tract prior to severance. Koonce, 663 S.W.2d at 452. The parcel owned 

by the grantor of the easement is the “servient estate,” and the parcel benefitted by the easement is 

the “dominant estate.” Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.—Tyler 2005, no pet.).
04-17-00007-CV

- 8 -

Application

Hein argues that an easement by necessity burdening the Zimmerman Ranch was impliedly 

created for the benefit of the Sullivan Ranch as a result of the 1929 partition judgment. As such, 

Hein had the burden of proving that, in 1929, the Sullivan Ranch and the Zimmerman Ranch were 

commonly owned as a single tract or unit. The Sullivan Ranch did not come into existence until 

El Varal Pasture was partitioned in 1929, and thus we consider whether unity of title existed 

between the La Copa and El Brazil Pastures (the alleged servient estates) and El Varal Pasture (the 

alleged dominant estate) at the time of the 1929 partition judgment. 

Zimmerman Ranch is part of La Copa Pasture, and the Sullivan Ranch is part of El Varal 

Pasture. The summary judgment evidence established that Conrad Hein sold his interest in La 

Copa Pasture and El Brazil Pasture to G.W. Sprague in 1923. Zimmerman thus argues that the 

1923 conveyance destroyed any unity of title that may have previously existed. After 1923, 

ownership of the three pastures was as follows:

La Copa Pasture and El Brazil Pasture El Varal Pasture

G.W. Sprague Conrad

Maria Maria

Henry, Jr. Henry, Jr.

Thus, it is undisputed that since 1923, the three pastures have not been owned by a common group 

of owners as a single tract or unit.

Hein responds that the Sprague conveyance is insignificant because it did not destroy 

Maria’s unified ownership of the Sullivan and Zimmerman Ranches. Hein argues that unity of 

ownership is shown by the following facts: 1) all three tracts once belonged to Henry, Sr. and then 

to his children in undivided one-third interests; 2) in 1928, when Maria acquired sole ownership 
04-17-00007-CV

- 9 -

of the land that is now the Zimmerman Ranch, she still had an undivided five-ninths interest in all 

of El Varal Pasture, including what is now the Sullivan Ranch; and 3) immediately before El Varal 

Pasture was partitioned to create the Sullivan Ranch in 1929, El Varal Pasture and the Zimmerman 

Ranch shared a common owner—Maria. In essence, Hein argues the unity element can be 

established if two separate tracts, with different owners, share a single common owner.

We cannot agree that Hein’s single-common-owner theory satisfies the unity of ownership 

element as a matter of law. The Texas Supreme Court held in Koonce that a single common owner 

in two or more separate tracts with different co-owners fails to satisfy the unity of title element. 

See Koonce, 663 S.W.2d at 452. “To establish unity of ownership the claimant must prove prior 

to severance, his grantor owned the dominant and servient estate as a unit or single tract.” Id. In 

Koonce, Mabel Brite owned an undivided interest in two tracts. See id. The first tract was owned 

by Mabel and Genevieve Koonce. Id. The second (landlocked) tract was owned by Mabel and 

her husband, J.E. Brite. Id. Upon Mabel’s death, her interests passed to her husband. J.E. Brite 

then owned an undivided interest in the first tract with Genevieve and a fee simple interest in the 

second tract. Id. After J.E. Brite’s death, his estate claimed that an easement by necessity existed 

from the landlocked second tract over the first tract. Id. The court held that even though there 

was a common owner in both tracts, there was no unity of title because the two tracts were not 

owned as a single tract with the same owner. See id. (“There is no evidence the 10-acre tract and 

the 284 acres were ever owned as a unit by J.E. Brite. Therefore, we hold the J.E. Brite Estate 

failed to establish the element of unity of ownership between the dominant and the servient 

estate.”). 

Because the summary judgment evidence in the instant case established as a matter of law 

that unity of title did not exist between the three tracts of land at the time the Sullivan Ranch was 

severed in the 1929 partition, the trial court did not err in granting Zimmerman’s motion for 
04-17-00007-CV

- 10 -

summary judgment on the first element of Hein’s implied easement claim. See Holden v. 

Weidenfeller, 929 S.W.2d 124, 129 (Tex. App.—San Antonio 1996, writ denied) (burden of 

establishing elements of implied easement by necessity is on the party claiming the easement). 

We overrule Hein’s first issue.

Express Easement

In its second issue on appeal, Hein argues the trial court erred in granting Zimmerman’s 

motion for partial summary judgment on Hein’s express easement claim. Again, we review a trial 

court’s summary judgment ruling de novo. Valence Operating Co., 164 S.W.3d at 661. Summary 

judgment is appropriate when no genuine issue of material fact exists and the movant is entitled to 

judgment as a matter of law on the issues presented. TEX. R. CIV. P. 166a(c). 

Unlike an implied easement, an express easement must comply with the Statute of Frauds, 

which requires a description of the easement’s location. Severance v. Patterson, 370 S.W.3d 705, 

736 (Tex. 2012) (citing Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983)). We apply basic 

principles of contract construction and interpretation when considering an express easement’s

terms. Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). The contracting 

parties’ intentions, as expressed in the grant, determine the scope of the conveyed interest. Id. at 

700-01. When the grant’s terms are not specifically defined, they should be given their plain, 

ordinary, and generally accepted meaning. Id. “An easement’s express terms, interpreted 

according to their generally accepted meaning, therefore delineate the purposes for which the 

easement holder may use the property. Nothing passes by implication ‘except what is reasonably 

necessary’ to fairly enjoy the rights expressly granted. Thus, if a particular purpose is not provided 

for in the grant, a use pursuing that purpose is not allowed.” Id. (internal citations omitted). 
04-17-00007-CV

- 11 -

Application

Here, the parties do not dispute that the express easement in question4 allows Hein to enter 

La Copa Pasture via the public road and use a private road that travels across the land—including 

the Zimmerman Ranch—to reach the border of the Brazil Ranch. They do, however, disagree as 

to whether the easement allows Hein to travel from the Brazil Ranch to the Sullivan Ranch, which 

was not acquired by Hein until 2008. In its motion for partial summary judgment on Hein’s express 

easement claim, Zimmerman argued that Hein’s attempted expansion of the easement was 

unauthorized pursuant to Bickler v. Bickler, 403 S.W.2d 354 (Tex. 1966). In Bickler, Ralph Bickler 

attempted to gain access to his property by buying a 20-foot strip of property from S.M.N. Marrs 

which adjoined the property he already owned. Id. at 357. The Marrs property benefited from an 

8-foot easement across the neighboring tract. Id. Bickler sought to use the 8-foot easement to 

travel to his newly-acquired 20-foot tract and then travel from there to his other property which 

was adjacent to the 20-foot tract. Id. The Texas Supreme Court held that Bickler had no legal 

right to do so. Id. at 359. The court rested its holding on “the rule of law stated in 2 Thompson 

on Real Property, 1961 Replacement Ed., 565-566, § 386”:

Rights of way granted or reserved are appurtenant to the dominant tenement, and 

can be used only for the purposes of that tenement. * * * One having a right of way 

appurtenant to specified land cannot lawfully use the way to reach another tract 

owned by him to which the way is not appurtenant. * * * The way is granted for 

the benefit of the particular land, and its use is limited to such land. Its use cannot 

be extended to other land, nor can the way be converted into a public way without 

the consent of the owner of the servient estate.

Id. 

 4 The 1928 Partition Deed provides:

That the said Henry Hein and those claiming under him the land hereby partitioned to him are 

entitled to and are hereby given a reasonable right of egress and ingress over that portion of the 

lands partitioned to the said Union State Bank & Trust Company of Laredo and the said Maria Hein 

de Llanos lying between the lands awarded to him and the Laredo-Zapata Highway.

See Pena v. Salinas, 734 S.W.2d 400, 401 (Tex. App.—San Antonio 1987, writ ref’d n.r.e.).
04-17-00007-CV

- 12 -

We agree that Bickler controls in this instance. The easement created in the 1928 Partition 

Deed is for the benefit of the Brazil Ranch only and may not be used to access any other property, 

including property owned by the owners of the Brazil Ranch. Thus, Zimmerman proved its 

entitlement to judgment as a matter of law on Hein’s express easement claim. 

Based on the record before us, we cannot conclude the trial court erred in granting 

Zimmerman’s motion for partial summary judgment on Hein’s express easement claim. 

Accordingly, we overrule Hein’s second issue. Given our disposition, we need not address Hein’s 

third issue related to attorney’s fees.

CONCLUSION

We affirm the judgment of the trial court.

Rebeca C. Martinez, Justice