### 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. 03-10-00505- CV

Lill ie P hill ips, Ap pellant

v. Irene Schneider, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 169 TH JUDICI AL DISTRICT NO. 236 ,506 -C, H ONO RAB LE GORDO N G. ADAMS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
L illie Phill ips broug ht an action seeking to obtain an ease ment by nece ssity acr oss land owned by her cousin and neig hbor I rene Schneider

. The trial court failed to find that she car ried her burden of proof and rende red j u d gm en t d en y ing her claim. Phill ips appea ls the take- nothing judgme nt. Phill ips complains in two issues that the evidenc e is leg ally and fac tually insufficient to support the trial court’s failure to awa rd her an ease ment by nece ssity acr oss Schne ider’s proper ty
. The trial court filed finding s of fac t and conclusions of law. Appellant reque sted additional finding s, which we re not made . We will affirm the trial c ourt’s judg ment.
BACK GR OUND Aug ust Richter and his wife owned a trac t o f 1 4 4 .15 acr es of land in Be ll County , Texas. I n 1975, afte r their deaths, the proper ty was partitioned among the members of their family

. The Ri chter s’ daughter , L y dia Richter Winkler, wife of Wesley Winkl er, served as executor. Shesupervised the partition of t he R ichter property and the manner by which the parc els of l and wer e

distributed. The property was divi ded int o nine t rac ts; family members drew lots to select a trac t. There afte r, the family members executed a partition deed among themselves convey ing eac h his or her se para te trac t.

I n the partition, Appellant L illie Phill ips and h er siblings drew trac t seven, approximately 12.5 acr es of land. Phill ips rec ently acquir ed all of trac t seven herse lf. Phili ps’s trac t does not abut a public r oad and ha s remaine d unimproved since the partition.

L illie Phill ips’s land (her eaf ter “Appe llant’s trac t” or “the Phill ips trac t”) is bounded by four trac ts. West of Appellant’s trac t is proper ty owned by another rela tive who also happens to be named L y dia Winkl er, but she is not the same person previously descr ibed. Appellant has crosse d this trac t with permission a few times to rea ch her proper ty
. East of Appellant’s proper ty is land the Richter family sold to the Army Corps o f E ng ineer s befor e the partition; it is now owned by Terr y Galloway

. Whil e the Corps of Eng ineer s owned this land, family members sometimes crosse d the Corps land to rea ch the Richter proper ty , and I rene Schneider used this route to acc ess her proper ty
. Appellant once rea ched her proper ty by crossing Galloway ’s proper ty without permission. Neither of these two tr acts wa s part of the partitioned estate

. I n the partition, I rene Schneider ’s mother rec eived t ra ct s ix , which border s Appellant on the North. Schneider and her brother acquir ed the proper ty at their mother’s death, and S ch n eider has owned all of this proper ty since the mid-1980s (her eaf ter “the Schneider t ra ct ”)

. L y dia Richter Winkl er, who had supervised t h e p ar t i tion, rec eived trac t eig ht, which border s Appellant on the South; this trac t is now owned by her son, Wil liam Winkl er (her eaf ter “the Winkl er

2trac t”). I t is undisputed that Appellant’s trac t, the Winkl er trac t, and the Schneider trac t wer e all part

of the lar g er tra ct par

titioned among the Richter fa mily

. The northea st corne r of the Schneider trac t touches Winkl er Park Road. At the time of the partition, a h i gh h i l l on her proper ty blocked and preve nted Schneider ’s acc ess to Winkl er Park Road. I n the mid-1980s, Schneider bulldoz ed the hill to enable acc ess. She constructe d a cabin and a drivewa

y to connec t her cabin on the Schneider trac t with Winkl er Park Road. The boundary betwee n the Phill ip s t ra ct and the Schneider trac t is fenc ed, and there is no g ate betwee n the two trac ts. The undisputed evidenc e ref lects that Phill ips and her siblings have never acc essed their trac t by means of the Schneider

trac t. The southern edg e of the Winkl er tra ct t ouches W hite Flint Park R oad. Roadway s
on the Winkl er trac t pr ovide acc ess to White Flint Park Road for more than one residenc e situated

on the trac t. A private road from Whit e Flint Park Road crosse s the Winkl er trac t toward the Phill ips trac t. An unpaved ex tension of this road continues to the southern boundary of the Phill ips trac t. Although the boundary betwee n the Phill ips trac t and the Winkl er trac t is fenc ed, there is a g ate for

acc ess in the boundar

y fenc e at the point whe re this unfinished roa d enter s the Phill ips tract. Phill ips orig inally filed s uit ag ainst both I rene Schneider and Wil liam Winkl er. Howeve r, she non-suited Winkl er beca use she did not think it logic al to place an ease ment throug h the middle of his pr operty and beca use, in he r opinion, c rossing the Schneider trac t ma de the most
sense to her and was shorter and better suited for ac ce ss to her proper ty
. Her construction expert opined that an ease ment acr oss the Schneider trac t offe red a shorter, simpler, and less burdensome

3location. Schneider ’s rea l estate witness, on the other hand, stated that he believed that an ease ment

throug h the Winkl er trac t would have less of an economic impact than one acr oss the Schneider trac t.

Phill ips testified that she lives in I rving , Texas, and has been absent from Be ll County since befor e the 1975 partition. When questioned, she g ave somewhat unclea r and un ce rt ain testimony

. As she stated, “I live in I rving and have for over 40 y ear s, so I don’t know what went on down her e. . . . 99% of the thing s that happene d here I don’t know any thing a bout.” Althoug h the

rec ord contains evidenc e that Phill ips’s brother, n ow dece ased, had previously filed suit ag ainst Schneider and her brother in 1987 seeking to obtain an ease ment acr oss the Schneider trac t, Phill ips declined to discuss her brother or his eff orts reg arding acc ess. Her brother abandone d the action and eventua lly filed a non-suit. Appellant admi tted that she has never crosse d the Schneider trac t to
rea ch her proper

ty
. She ag ree d that Whit e Flint Park Road is usually how she acc essed her proper ty , but she denied that she h ad ever crosse d the W inkler t rac t to acc ess her proper ty
. She disclaimed knowledg e of events in the past and denied knowing how her siblings had acc essed the trac t during all these y ear s since the pa rtition. Wil liam Wi nkler a

nd Schneider ’s brother , Walter Arldt, had knowle dg e of matters rela ting to the time of the partition. Wil liam Winkl er was a signa tory to the partition deed, wher eby he acquired eig ht acres o f t he R ichter property south of hi s mother; later, he acquir ed his pare nts’ share afte r their deaths. Winkl er was involved in discussions rela ting to the partition. Although no longe r a party to this litigation, Winkl er testified that, afte r the partition, Phill ips crosse d the Winkl er trac t t o t ra v el betwee n her proper ty and Whit e Flint Park Road. He descr ibed the roadw ay from Whit e Flint Park Road that crosse s his trac t and exten d s t o t h e s outhern boundary of the Phill ips

4t ra ct. Winkl er testified that, at t he ti me of the partiti on, this was int ended by the partie s t o b e t h e

road by which Phill ips could acc ess her trac t. Phill ips admitted that, at the time of the partition, she orig inally intended to use the drive acr oss the Winkl er trac t in order to acc ess Whit e Flint Park Road. Arldt also testified that, when the trac ts w ere partitioned, the Phillips owner s went acr oss Winkler to acc ess their prope rty
. He testified that orig inally Phill ips went ac ross the Winkler trac t but that at some point afte r L i llie Phill ips arg ued with Wesley Winkl er, L y dia’s husband and Wil liam’s fathe r, Wesley Winkl er denied Phill ips further acc ess acr oss the Winkl er trac t. Both men testified that no one eve r used the Schne ider tra ct for a cce ss to the Phil lips tract.

The trial court made the following finding s: Appellant’s trac t does not abut a public roadw ay and does not have a recorde d acc ess easement t o cross a neig hbor; the Winkler trac t was part of the prior estate; prior unity of owner ship e x isted betwee n the Winkl er trac t and the Phill ips trac t; the near est public roads to the Phill ips trac t are Winkl er Park Road to the East and Whit e Flint Park Road to the South; the Winkl er trac t is situated betwee n the Phill ips trac t and Whit e Flint Park Road; afte r the partition, an unfinished roadw ay was made to lead from a drivewa y on the Winkl er trac t to the southern boundary line of the Ph i l l i p s t rac t, and this roadw ay was intended to be the

acc ess route f

rom the Phill ips tract to White Flint Park Road; after the par tition, t he owne rs of the Phill ips trac t acc essed Whit e Flint Park Road by cro s s i n g t he Winkl er trac t; and the owner s of the Phill ips trac t never cr o s s ed t he Schneider trac t to obtain acc ess to a public road or for any other re ason. The trial court conclude d that the evidenc e failed to prove that acc ess over the Schneider trac t is a nece ssity and not mere ly a conveni ence; failed to exclude the possibili ty of

5another way of acc ess to the Phill ips trac t other than acr oss the Schneider trac t; and failed to prove

that the nece ssity for an ease ment acr oss the Schneider trac t e x isted at the time of the sever ance of the two trac ts.
STANDARD OF REVIEW

Phill ips challeng es t he lega l and factual sufficiency of t he evidence s u p p o rt i n g the trial court’s failure to find that she established her rig ht to an implied ease ment by nece ssity acr oss the land owned by Schneider

. When a party challeng es the leg al sufficie ncy of the evidenc e supporting a

n adver se finding on an issue on which it ha d the burde n of proof , the appe aling party
can preva il only if it demonstrates that the evidenc e conclusively establishes eac h o f t h e required elements o f an i s sue as a matter of law. Dow Chem. Co. v. Francis , 46 S.W .3d 237, 241 (Tex. 200 1 ). Evidence conclusively establishes a vital fac t in support of an issue when the evidenc e is such that rea sonable peo p l e co u l d not disag ree in their conclusions. City of Keller v W ilson, 168 S.W .3d 802, 814-17 (Tex

. 2005). When conducting a lega l-sufficie ncy re v i ew , the appellate court must view the evidenc e in the light most favor able to the trial cou rt ’s finding s, cre diting favor able evidenc e if the rea sonable fac t-finder could, and disreg arding contra ry evidenc e unless the

rea sonable fac t-finder could not. Id. at 807. Moreove r, t h e co urt must indulge ever y rea sonable infere nce tha t would support the trial court’ s findings. Id. at 822.

When a party challeng es the fac tual sufficie ncy of the evidenc e supporting an adver se finding on an issue on which it ha d the burden of proof, the appea ling party must de monstrate that t h e fi n ding, or non-finding , is ag ainst the g rea t weig ht and preponde ranc e of the evidenc e. Dow Chem. Co., 46 S.W .3d at 241-42. The appellate court must consider and weig h all of the evidenc e 6and may set aside the finding only if the evidenc e is so wea k or the finding so ag ainst the weig ht and

preponde ranc e of the evidenc e that it is clear ly wrong and unjust. Id. A trial court’s finding s of fac t in a bench tri al serve the same function as a jury ’s

answe rs to issues and are g overne d by the same standards for sufficie ncy revie w. Ca t a l i n a v. Blasdel, 881 S.W .2d 295, 297 (Tex. 1994). A t rial court’s conclusion of law is not controlling, and an appellate court may trea t the conclusion as a finding of fac t if it serve s that purpose. See Ray v. Farme rs’ State Bank , 576 S.W .2d 607, 608 (Tex. 1979).
Easem ent by Nec essity

A party seeking to e stablish a n ease ment by

nece ssity has the burde n of proving all the fac ts nece ssary to establish the rig ht. To establish an implied eas em ent by nece ssity , the proponent must prove (1) unity of owner ship of the dominant and servient estates prior to separ ation; (2) acc ess must be a nece ssity and not mere ly a convenie nce; and (3) the nece ssity must have exis ted at the time of sever an ce o f the two estates. Koonce v. Brite Estate , 663 S.W .2d 451, 452 (Tex. 1984); Duff v. Matthews , 3 1 1 S
. W
. 2 d 6 37, 641 (Tex. 1958). As the party asser ting an implied

ease ment by nece ssity acr oss the Schneider trac t, Phill ips h ad t h e burden of proving all the fac ts
nece ssary to establish that she was e ntitled to a way of nec essity

acr oss that tract.
DISCUSSIO N An implied e aseme nt may arise out of nece ssity in the context of a convey ance that

sever s owner ship of two estates in rea l prop er t y . W h er e t he rig ht to use one estate is considere d espec ially critica l to the use or enjoy ment of the other estate, the law may imply an ease ment in favor

7of the second estate, in derog ation of the terms of the written convey ing instrument, in the view that t he parties must have intended to include such a term in the deed. See Mitchell v. Ca s t el l a w , 246 S.W .2d 163, 167-68 (Tex. 1952). “Where the owner of a single are a of land convey s awa y part of it, the circ umstances attending the con v ey ance may themselves, without aid of lang uag e in the deed, and indeed sometimes in spite of such lang uag e, cause an ease ment to arise as betwee n the two parc els thus cre ated—not only in favor of the parc el g rante d (‘implied g rant’) but also in favor of the one remaining in the ownership of t he gra ntor (‘implied reserva tion’).” Id. at 167. The easement

neces s ar i ly can arise only from an implied g rant or an implied rese rvation in the convey ing instrument. Othen v. R osier , 226 S.W .2d 622, 626 (Tex. 1950).

When a g rantor convey s land that is surrounde d by other land s belong ing to the g rantor or to the gra

n t o r and other persons, an easement by nece ssity arises from the presumption that the g rantor intended to g rant a roadw ay to enable the g rante e to acc ess the proper ty so as to have ful l enjoy ment of the proper

ty convey ed. The failure to g rant an ease ment is presumed to be an oversig ht and will be implied in the g rant. Machala v. W eem s , 56 S.W .3d 748 , 7 5 5 (T ex . App.—Texarkana 2001, no pet.); Grobe v. Ottmers , 224 S.W .2d 487, 488-89 (Tex. Civ. App.—San Antonio 1949, writ ref

’d n.r.e.)

. Once an easement by nece ssity arises, it continues until the

nece ssity terminates. Bains v. Parker , 182 S.W .2d 397, 399 (Tex. 1944); Crone v Brumley , 219 S.W .3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied) (1920 sever ance cre ated in g rante e implied ease ment by nece ssity north acr oss g rantor; unwritten ease ment impliedly transferr ed to
succe ssive owner s, defe ating later eff ort by them to establish nece ssity for ease ment south). The burden is on the party claiming an ease ment acr oss another person’ s land to prove all of t h e fac ts

8nece s s ar y t o establish the ease ment. Bains , 182 S.W .2d at 399. A party seeking to establish an

ease ment by neces sity acr oss another trac t must prove that she has no leg al access to her property except the way claimed. Duff , 311 S.W .2d at 640. L eg al ac cess includes an im plied ease ment by

nece ssity

. Bains, 182 S.W .2d at 399; Crone , 219 S.W .3d at 69.

Th e ex i s tence of an ease ment by nece ssity may be inferr ed from evidenc e of an ag ree ment among landowner s at the time of the sever ance . I n k ee p i n g wi th the provisions of the implied nature of the g rant, one can show that there was an oral ag ree ment among the parties at the time of the convey ance as to the ease ment and its location, and such an ag ree ment does not have to be in writing

. Grobe , 224 S.W .2d at 489. The location of the way of acc ess can first be located by the g rantor and, if not, the n by the g rante e. The location of such way of nece ssity may be made by

a separ ate oral ag ree ment of the parties at the time of the convey ance , and may also be established by the ac quiesce nce of

the par ties to the transac tion. Id

. Phill ips was re q u i re d t o prove that the t wo t rac ts owned by Phill ips and S chneide r enjoy ed prior unity of ownership, that Phill ips’s claim fo r ac ce s s acr oss the S chneide r t rac t was a
nece ssity and not mere ly

a conve nience , and that this nece ssity to cross that trac t arose at the time of the partition of the two estates; there fore , an implied g rant of an ease ment by nece ssity from the g rantors to Phill ips acr oss Schneider ’s trac t should be implied in the convey ance to Phill ips. Rights claimed in derog ation of war ranties are im p l i ed with g rea t caution and, there fore , must be made clea rly to appea

r. Duff , 311 S.W .2d at 641. Phill ips had the burden to exclude that she had any other way of ing ress a

nd eg ress other

than the wa

y she now c laims. Id. I f Philli ps had any rig ht to pass

over any of her surrounding trac ts at the time of the partition, whether by presc ription, nece ssity , or

9otherwise, other than by a mere lic en s e, she cannot show that there was an ease ment acr oss the

Schneider trac t convey ed to her by implication in her deed. Bains , 182 S.W .2d at 399. The inquiry is not g overne d by the situation exis ting at the time of trial but instead conce rns whether , at the time of the partition in 1975, Phill ips or her co-ow ners had any rig ht to pass over a surrounding trac t, “whe ther by

presc ription, nece

ssity, or otherw ise.” Id. (empha sis added). Appellant first asser

ts that the evidenc e sh o w s th a t th e Sc hneider trac t and the Phill ips trac t enjoy prior u n i ty of owner ship. Although the trial court made no such expli cit finding , the evidenc e was undisputed that the Winkl er, Schneider , and Phill ips tra cts wer e cre ated by the same partition deed. Appellant next fa ults the trial court for failing to f ind tha t he r nee d for an ease ment to acc ess her proper

ty is a nece ssity , beca

use the undisputed evidenc e conclusively establishes that her trac t is “landlocke d.” This fac t, too, is undisputed. Phill ips further contends that she has no leg al rig ht of acce ss and has never had a le g al rig ht of acce ss; there fore , Phill ips further asser ts that her need f or an e aseme nt clear ly

arose at the time of the pa rtition. Id. ; Crone , 219 S.W .3d at 68. She

asser ts that she and her siblings have only been able to acc ess their proper ty by permission over the y ear s. I n fac t, Appellant prese nted littl e or no evidenc e as to how her siblings have acc essed the trac t during the thirty

plus y ear s since the pa

rtition. An action to establish an ease ment by nece ssity does not exis t in a vacuum. The fac ts to be proven must be s h o wn as ag ainst the named defe ndant or defe ndants as of the time of the

sever ance . Phill ips c hose to institute her action only ag ainst Schneider

. Thus, while her land may

10be landlocked, the trial court deter mined that she failed to show that acc ess acr oss the Schneider trac t
was a nece ssity that arose at the time of the f amily partition. The evidence sug g ests that at the time of the pa rtition, the parties may have ag ree d for Phill ips and her siblings to acc ess their trac t by crossing the Winkl er trac t, and, appar ently , they did so for some time. The court’s finding s all point to the Winkl er trac t as the one which the parties intended to be burdene d by this ease ment, even though no terms wer e ever reduc ed to writing

. I t was admitted that no one ever crosse d the Schneider trac t for this purpose, and there was no evidenc e that the need to cross that trac t arose at the time of the pa rtition. I n fac t, the evidenc e shows that even Schneider could not acc ess Winkl er Park Road from her trac t and no drive to it exis ted until sever al y ear s afte r the partition when Schneider bulldoz ed the larg e hill blocking her way and built a drive. Phill ips testified t hat s he finds a route acr oss the S chneide r t rac t t o m ake more sense to her, to be simpler, shorter, and, in eff ect, more convenie nt, than acc ess acr oss the Winkl er t ra ct
. But these opinions at trial shed no light on the f acts, c ircumstance s or ag ree ments at the time of par tition. I n seekin g acc ess acr oss the Schneider trac t, Phill ips in eff ect was asking the trial court to r ule that an ease ment by nece ssity acr oss that trac t was implied in the partition deed under which she acquir ed her proper ty
. The t ri al co u rt failed to find that the evidenc e supported this

asser tion. Although Phill ips has nothing in writing g ranting her leg al acc ess to her proper ty , nothing in the partition deed, in the fac ts surrounding the partition, or in the conduct of the family members at the ti me of or since the partition sug g est that a route acr oss the Schneider trac t arose out of

nece ssity at the time of the de ed.

11Schneider contends that, e ven if Phill ips de monstrated a ne ed for an ea sement, any
ease ment could just as likely aff ix to the Winkl er proper

ty as to hers. Phill ips responds that, by this arg ument, she could never establish her rig ht to an ease ment, beca use one landowner could alway s arg ue that the ease ment should attach to another landowner

. By t h e s am e l o gic, howeve r, if the proponent asser

ts her need for an ease ment ag ainst only one neig hbor when there exis t others in the

same position, the proponent has pree mpted the rig ht to deter mine which proper

ty must be subjected to this burden. P hillips conce des that it is equally possible for an ease ment to lie acr oss either the Winkl er or Schneider trac ts. She asked the t rial court to make supplemental finding s that the

ease ment should be located on the Winkl er trac t if not on the Schneider trac t. I f she failed to prove that the ease ment should be located acr oss the Schneider trac t, she arg ues, the trial court should have found that she is entitled to an ease ment acr oss the Winkl er trac t or, at the least, the cause should be

rema nded for this deter

mination. The trial court made no such finding , and this was not an issue to be adjudicate d in this proce eding

. Winkl er is n o t a p ar t y who could be bound by this judgme nt, beca use Philli ps had dismissed pleading s for this relief

. Appellant had the burden to prove not only that she had no leg al rig ht to acc ess her land, but that it was nece ssary that she acc ess her land by crossing the Schneider trac t, and that this

nece ssity to cross the Schneider trac t arose at the time of the partition and should be implied in her deed. Even assuming she proved that a nece ssity exis ted, as Phill ips alleg ed, she failed to prove that the ea sement must cross the Schne ider tra ct.

12The evidenc e does not conclusively establish that Phill ips is entitled to an implied

ease ment by nece ssity acr oss the Schneider trac t. Fur ther, the evidenc e is not fac tually insufficient to support the trial court’ s failure to find that Phil lips established such a r ight.
CONCLUSION Be cause we hold that the evidence is leg ally and fac tually sufficie nt to support the trial court’s finding s and judgme nt, we overr ule Appellant’s appellate i s s u es and aff irm the judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Marily n Aboussie, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Aboussie* Affir med Filed: Jul y

26, 2013 * Be fore Marily

n Aboussie, Chief J ustice (re tired), Third Court of Appea ls, sitti ng by assig nment. See Tex. Gov’t Code Ann. § 74.003(b) ( West 2005).

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