### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00422
- CV

Appellant, Uptown Cars, Inc. // Cross
- Appellants, Newcastle Management Trust and Jerry Landers

v. Appellees, Newcastle Management Trust and Jerry Landers //

Cross
- Appellee , Uptow n Cars, Inc.

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 16
- 000432 , THE HONORABLE MAYA GUERRA GAMBLE , JUDGE PRESIDING

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

E as ement rights to access Lake Travis

— s pe cific ally, whether an express
easement a llows non - waterfront p roperty to build a road and boat dock on adjace nt lakefront properties and whether the non

- waterfront property ha s prescriptive

- easement rights to maintain

a boat dock

— are at issue in this case. The non - waterfro nt p roperty owner , Upt own Cars, Inc. , sued its n eighbors , Newcastle M anagement Tru st and Jerry Landers ( together , N eighbors) , to resolve th e dispute. On the parties ’ c ross - motions, the t rial court rendered final summary j udgment determining that Upt own does not have the right to build and maintain a road or boat dock on N eighbors ’ properties but does have rights to traver se their properties to access the lake and to recreate on the shore. For the following reasons, we affirm the trial court ’ s judgment in part, rev erse it in pa rt, and remand for further proceedings

.2 BACKGROUND The undisputed evidence es tab lishes that Upt own owns fee ti tl e to an approximately 1.577

- acre tr act of l and (th e P roperty) terminating at its e ast boundary at the 670

- foot c o ntour on the sho res of Lake T ravis

. 1 Newcastle and Landers own t he surrounding tracts , which each extend eastward from th e 670

- foot co ntour to the cen terline of the lake

. Below is a n undated photogra ph depicting the Property ( within the red outline) and th e adjoining tract s . T he ph otograph depi cts a time when the lake level was hi gher than it is currently , making it appear that the Property has direct lake access, but it does not. The p urple outline depicts the original

are a burdened by an express e asement area and specified by met es and bounds in th e express
easement , although the easement extends on the east all the way to the shoreline of the lake, where ver it may be

.

1 L ake Travi s is a flood

- cont rol lake with widely var ying su r face levels ; according ly , t he shoreli n e of Lak e T ra vi s m oves as th e surface level of th e lake changes. Sierra Assoc . Grp. v. Hardeman , No. 03

- 08

- 00324

- CV , 2009 WL 416465, at * 1 ( T ex. A pp.

— Austin Feb. 20 , 2009, n o pet. ) (mem . op .). The 670

- foot co nt our i s a line that is 670 fe et a b ove mean se a lev el

. C apit ol Rod & Gun Club v. Lo wer Co l o. River Auth

. , 622 S.W.2d 887, 889 (Tex. App.

— Austin 19 81, writ ref ’ d n.r.e. )

.3 Up town acquired the P rope rty from the Zieschang s in 2015, who ac quired 1.07

acr es of it (Tra ct 1 ) in 1972 an d t he re ma ining .49

- acre portion in 1997 from it s then

- own e r , Volente Group of Texas , Ltd. , after it was disc overed that th e Zieschang s had inadverten tly built the ir h ouse beyond the ir property line

. Tract 1 include s an easement on the pro perties to the

n ort h , so u th , and east of the Property, which are no w ow ned b y Ne ighbors . The e aseme nt was first granted in a 1956 deed from the origi nal ow ner of all the properties involved in this dispute and ha s been con veyed through offi c ial title recor d s to all subse quent ow ne rs. T he easement ’ s
tex t is reprinted infra i n th e Discussion section. Th e ease ment ’ s text identifies an area4

( desi gn ated a s the “ water fro nt ” ) , ly ing between Tract 1 and the shoreline of the lake and belonging to the servient estate (now owned by Ne ig hbors) , on which the dominant estate ( n ow b elonging t o Uptown) has certain ri ghts

. 2 The parties ’ dispute concerns the scope an d cont inued exis t ence of such rights , but there is no dispute th at Uptown ’ s chain of title includes the
easement as c onv ey ed in the 195 6 deed

.

In its or ig ina l petit ion, Up town pet i tioned the court “ to est ablish a prescriptive easement on real properties owned b y ” Neighb ors , alleg ing that it had recently purchase d the Prop erty from the Zieschangs

. Upt own allege d that its “ p red ec essors i n interest [the Zieschangs] used the Newc astle / Landers properties in a manner that w as open, not orious, continuo us, exclu s ive, and advers e beginning no later than 1972 for pu rposes of maintai ni ng , using and

acc essi ng a boat do ck an d acce ssing Lak e Travis. ” Therefore, Upt own contend e d , it is “ entitled to a prescr iptive easeme nt across the Newcastle/L anders properties for var ious p urposes as have been enjoyed in the past , ” which pu rposes includ e “ t h e ability to c onst ru ct, anchor and mainta in a b oat d ock, acc es s to the boat dock f rom [Upt own ’ s] property

. . . an d other recreatio nal
purposes such as (without limitation) sw imming , spor ts, l oung i ng and fish ing. ”

Neighbors filed a n o riginal join t cou nt erc laim for trespass and seeking a
p er m anent in

j u nc tion e nj oining future tre s pass , a lleging that Upt own had entered their properties and “ att empted to construct and maintain a bo at doc k ” without their cons ent

. In supplemental

cou nterclaims, Newcastle and Landers eac h pleaded for declaratory r elief unde r the Uniform Declaratory Judgments Act (UDJA) , see Tex. Ci v . Prac. & Rem. Code §§ 3 7.001

– .0 11, se ek ing

“ det er min at ions with respe ct to questions concerning the current viability and/or interp retation of

2 The land benefiting from an easement i s called the dominant est ate; the land burden ed by an easement is called th e servient estate. E as e men t , B lac k ’ s La w Dictionary ( 11 th ed

. 2019 )

.5

the access easement. ” Ne ighbors pleaded that th e ea sement “ merged with the dominant estate and no longer exist s ” by virtue of the Ziesc hangs ’ acquisi ti on of th e approximate .49

- acre porti on , which “ wholly encompassed the servient tract on whic h the easement existed ” and

“ exti ngui shed ” the easeme nt

. Al tern atively, they pleaded for a declaration con cerning the “ tru e b oundaries of the acces s eas ement and a n interp re tation of its limite d purp ose. ”

Up to wn filed a motion for partial summary ju dgment , arguing that t here is no
genu ine i ss ue as to any materia l fa ct necessar y to establish as a matter of law that it has a n express easement across N eig hbors ’ p ropertie s “ for access to Lake Trav is by horse, f oo t or vehicle, including automobile and boa t. ” Upt own argued tha t its express e asement “ necessarily includ es t he right to construct and maintain a road that would allow a vehicle to travel

acros s [Neighbo rs ] ’ land in a reasonably safe manne r (whi ch require s construct ion of a road) ” and to “ make re creational use of the lake, including . . . launching a boat and rem aining at the edge of the lake

. . . for the purpose of swi m ming, wading and other r ecr eational us es reaso na bly associated with use of Lak e T ravis. ” Ne ighbors fi le d t ra ditional and no

- evide nce motions for summar y judgment argu ing that (1) the express ea se me nt on which Uptown relies was extinguished in 1997 or , if it still exists, does no t a ut horize co nstruct i on of a road a s a matter o f law ; (2) Upt ow n ’ s prescriptiv e - eas ement cl aim fails because the evidence conclusive ly p roves that its title predecessors h ad “ no intent to appr opriate the right ” to maintain a boat d ock o n their respective properti es ; an d (3) th ere is no evidence of any of the required elements of Uptown ’ s prescri ptive

- easement claim

.

In its seco nd a m ended ( live ) pe tition , Upt own a llege s th at it is “ entitled to ju dgm ent ” est ablishing that it has an expr ess ease ment over Ne ighbors ’ pr op erties , incl uding the right to ma intain a boat do ck, to cons truct and maintain a road to allo w lake access , and to do a ll6

thing s “ reas onably ass ociated wit h re cr eatio na l u se of Lake Travis ” for itself and its guests an d inv itees. In the alter native, i t a l leges th at i t is entitled to a ju dgment establish ing that it has a prescriptiv e easement all ow ing use of Neighbors ’ pro perties “ for th e purpose of maint ai n in g a boat dock, and the right to do all things reasonably asso c iate d with recreational use of a bo at dock on the lake. ”

The trial court signed an order on the parties ’ c ross - m otions for sum mary judgment that grant ed in part and de nied in part each of th e mo tions. 3 The or der specified that (1) an express e asement ( E ase ment) exists providin g the ow n er of the domin ant estate ( currentl y, Upt own) “ acce ss to the water front, even th ough it may vary with the rise and fall o f the river and lake ” ; (2) th e E a s e m en t p r ovides for ingress and eg ress to the waterfront “ whither o n fo ot, horseback or in v ehicle s o f every ki nd ” a nd to “ recreational use of Lake Trav is at the shoreline ” including “ the right to remain at the edge of and in the lake on Defendants ’ pro per ty ” b u t d oes not provide “ the righ t to construct a road, boat ramp, or boat dock ” ; ( 3) the E asemen t w as not
ext in gui shed through the doc trine of merger; and (4) there is no evidence creating a genuin e issue of material fact on the essential elements of Uptow n ’ s pr escriptive

- easement claim

. In a la ter order, the tr ial cou r t awarded each Neighbor approxima te ly forty percent of their res pe ct ive

re quested at torney ’ s fees plus condition al appellate attorney ’ s fees , which re ndered the
summary - judgment order fi nal and ap peal able

. Upt own filed a not ice of appeal, and Neighbors

e a ch filed notices of c ros s - appeal.

3 The trial court signed a later Amended Order on Cross Motions for Summary Judgment , on Lan ders ’ s and Newcas tl e ’ s motions to modify . T he amended order is th e operative order for purpos es of this appeal and t h e o rder fr om which we cite the court ’ s findings and conclusions

.7 D ISCUSS ION The standards f

or s ummary judgmen t are well

- established , s ee Tex. R. Civ.
P. 166a (c) , (i) , and w e review de novo the trial court ’ s summary - ju dgme nt r uling , Provide nt Life & Accident Ins. v. Knott , 128 S.W .3d 211, 215

– 16 (Tex. 2003)

. When a n easement is unambiguous, we const rue it as a matt er of law. See Marcus Cable Assoc s., L.P. v. Krohn , 90 S.W.3 d 697, 70 3 (Tex. 2 002)

. On appeal, Upt own ch alle nge s the trial court ’ s delineati on of the Easement ’ s scope, r u ling on Uptown ’ s p rescri ptive

- eas em ent clai m, and awa rd s of attorney ’ s fee s. On cro ss - appeal, each Ne ighbor challe nge s the amount of attorney ’ s fees that th e trial court aw ard ed it , and Ne w c ast le additional ly challenges the trial court ’ s ruling on its

ex t ingu ishment claim

. Uptow n ’ s issues In three issues, U ptown ar gues that t he trial c ourt erred in (1 ) li miting the scope of the Easement by determ ining that it do es not include the righ t to b uil d an d maintain a road , boat
ramp, or boat dock on Neighbors ’ p rope rt ies ; ( 2) gr anting Neighbors summary judgment on i ts
presc ripti ve - eas ement clai m ; and (3) aw ard ing Neighbors a ttorn ey ’ s fee s in the absence o f evidence that the fees were reasonabl e and nec es sa ry and when such awards were n ot e qu itable and just

.
Wh e t h er t he tr ial cour t prope rly limited the scope of the Ea sement

An e asemen t confers upon one person the right to use the la nd of another for a
spe cific purpose , b ut it does not convey the pr o per ty it self

. Lakeside Launches, Inc. v. Austin Yacht Club, I

n c . , 75 0 S.W .2d 868, 870

– 7 1 (Tex. App.

— Austin 1988, writ d enied) ( deter mining that phra se “ easement and right

- of

- way ” granted right of passage over a nd across all la nd lying8

between specified 6 7 0

- f oo t co ntour line and waters of Lake Travis)

. Put another w ay , a n easement is a non

- p ossessory inter est in land that authorize s its ho lder to use t he pro perty for only particular purposes. Marcus Cable Assoc s. , 90 S.W.3 d at 700

. We apply bas i c prin ci ple s o f cont ract constru ction when considering an express ease me nt ’ s terms. Id. The

c o ntra cting pa rt ies ’ intentions, as expressed in the grant, deter m ine t he scope o f the conveyed
i nteres t. I

d. at 700

– 01

. W e generally construe language within a contr act ac cording to its “ plain, ordi nary, and generally accepted m ea ning. ” Piran ha Partner s v. Ne uhoff

, 596 S

. W.3d 740,
742

- 43 (Tex. 2020)

. When co nstru in g a contract, we must, if possible, give effect to all the

con tract ’ s terms so that none will be render ed m ea ningless , and we must re ad all of the provisions to gether s o as to give each provi s ion its in tended effect. See Kelley

- Coppedge, I nc. v. Hig hland s Ins. , 980 S.W.2d 462, 464 (Tex. 1998) ; Forbau v. Aetn a Life Ins. , 876 S.W.2d 132, 133 (Tex. 1994) . We mus t be particula rly wary of isol ating individual words, phras es , or clauses and of rea d ing the m out o f the context of the d ocument as a whole. S tate Farm L ife Ins. v.
B easton , 907 S. W.2d 430, 433 (Tex. 19 95) . For example, courts should presume that wor ds t ha t follow one another are not intended to be redundant. S ee Gulf Metals Indus., In c . v. Ch icago
I ns. , 993 S.W.2d 800, 8 05 (T ex. App.

— Austin 1 999, pet. d enied)

.

An easement ’ s exp ress terms, construed acco rding to their generally accepted meaning, d elin ea te the p urpo ses for which th e easement holder may use the p roperty, and nothing pa s ses by impli ca tion except what is “ r easonably nece s sary ” t o fa i rl y en joy the
ri ght s expressly granted. Marcus Cable A ssocs. , 90 S.W.3 d at 701 ; see Lakeside Launches , 750 S .W.2d at 871 ( “ In determining the sco pe of a n easement, w e may imply only those rig hts that are re asonably necessary to the fair enjoyment of the e asemen t with a s l it tle b urd en as9

possible to the servie nt owner. ” )

. Thus, if a n easement expressly deli neat e s the pu rpose s for which the holder may use th e property , a use purs u ing a differen t , non - deline at ed purpose is n ot allo wed. See Marcus Cable Asso cs. , 9 0 S.W.3d at 7 01 ; see also Da vis v. Jo hns t on , No. 03

- 10

- 00712

- CV , 2 012 WL 2499472, at * 16 (Tex. App

. — Au s tin June 28, 2012, no pet. ) (mem. op.) ( colle cting cases ho lding that “ in gress and egre ss ” to la ke does not grant righ t to use waterfront land for genera l recreationa l purposes or to ex e rc ise wate rf ron t privil eges such as moor ing bo at s and te thering b oat d ock s )

. A pp lyi ng th ese principles and the rules of contra ct constr uction, we consid er the Easeme nt ’ s express terms.

After first conveying fee t itle t o Tra ct 1, t h e relevant and undisputed deeds in Uptown ’ s chain of title additionally convey to Upt own , as grante e,

a n ease ment o ver, upon a nd ac ross all land owne d or controlled by [ g ran to r ] ly ing be tw een the a bove de scribed land [ Trac t 1 ] and t he Co lorado Rive r or the sho re line of [

Lake Tra v is ] as it is now or m ay be her e after established , being d esc ribe d b y metes and bound s as follows: BEGINNING at the Northeast c orner of Tract 1 for t he Northwest co rner of this tract; THENCE North 6 0 deg. 10 ' E. 1 38.6 f eet t o an iro n stake at the wa ter ’ s edge of Lake [Travis] for the Northeast co rner of this tract; THEN CE with th e water ’ s edge of Lake [Travis] South 120 deg. E. 10 0.0 feet to a point on t he water ’ s ed ge for the Southeast corner of thi s tract; T HENCE South 81 d eg. 31 ' W. 163.4 feet to an iron stake in a rock mound on the 715 foot contour and at the Sou thea st corner of Tract 1 for the Southwest corner of this tract; T HENCE with the 715 foo t contour and t he East boundary of Tract 1, North 12 de g. 1 1 ' E. 55.1 feet to an ir on stake in a rock mound and North 11 de g. 20 ' W. 44.9 feet to the PLA CE OF BEGINNING , an d c ontaini ng 0.33 ac res of land, more or less; And as the sa id water front may herea ft er vary wit h the r ise and fall of said river a n d lak e, pr ovide d, how ever, that as the shore line fluctuates with the rise and fall10

of the water the portion of the wat er f r on t contr olled by t he g rant ee herein shall be in the propor ti on which the frontage he reby conv ey ed bears to the total frontag e on th e lake of the l a nd co ntrol led by g rantor lying on each side of the land hereby conveyed , and the g rantee herein, his he irs and assign s, shall h ave the free and uninterrupted use and l ib erty and privil ege and e asement of pa ssing ove r a nd upon sa id land , tog eth er wit h free ing re ss to and egr ess from said river or lake w h et her on foot or on horseback or in v ehicles of e very k ind ; pr ovided, fu rther, t hat the easement hereby granted is subj ec t to all easements her e t ofore grant ed to Lower Co lo rado Riv er Autho rity an d to a n y oth er p er son u p on and over said land.
(Emphases added.) Notably, the Easement does not expressly designate tha t u se may be made of the servient estate for the purpose of ma intaining boat docks, bo at ramps, o r roads

. Ins tead, and

r elevant to the parties ’ dis pute , the Easement does four signifi cant thing s :

• It specifies the geographical boundaries of the servien t es tat e subject to the easement ( to which we refer herein as th e Easement Area) ;

• i t qu an tifies the po rtion of the Easement Area that is “ controll ed by the g rant ee ” ( to w hich we refer her ein as the Recreation Area) ;

• i t grants to the dominant estate b road rig hts to “ pass over and upon ” the Recreation Area ; and

• i t gra nt s to the dominant esta te rights of in gress to and egress from the lake

.
We will discu ss eac h item in tur n.

First ly , the E asement specifies that the Easement A rea is essentially a r ecta n gle bound ed on the west by t he 715

- foot contour (the eastern bound ar y of Tract 1 ), on th e e a st by the

v ar ying shoreline ( i.e., “ water ’ s e dge ” ) of Lak e Tra vis ( “ as it is now [in 19 56 ] or may be hereafter established ” ) , and o n the north and south as des cribe d in the metes

- and

- bounds description and extending beyond th e sp e ci fied markers in a st raig ht li ne to t h e shoreline (but not beyond) when the lake r ecede s belo w its h eight at the time of the 1 9 56 deed

.11 Second ly , the Easement acknowledges that because “ the said w ater front ” will
vary and the “ shore line ” will fluctuate , “ the por tion of th e wate r front cont r ol led by the g rantee ” (the Recreation Area) wi ll be a var iable area ra ther than a fixed one . The Recreation Area equals

“ the proportion which the f r on ta ge here by conveyed bears to the total fr ontage on the lake of th e land controlled by the g rantor lying on each side of the land conveyed. ” Neither p arty takes issue with th e trial court ’ s failure to m ake a finding on the length of th e waterfront or a t tend ant siz e of the Recreation Area , and we therefore do not further a ddress this aspect of th e Easement. 4

Third ly , later in the same sentence

— a fter qu antif ying t he Recreation Area to be

“ controlled by the grantee ”

— the Easement outlines the extent of suc h “ c ontrol

. ” It specif ies that the g rantee “ shall have the free and u ninterrupted use a nd lib erty and priv il ege and ease men t of passing over a nd upo n sa id la nd , ” w ith “ said lan d ” necessarily referring to the Recreation
Area

. W hil e t he phrase employs two expa nsive a djectives

— free and uni nterrupted

— and three expansive noun s

—use, liberty, and privil ege

— a ll of t hose terms , collectively, modify th e phrase “ passing over and upon said land , ” indicated by the single appear a nce of the p reposition

“ of. ” T he releva nt , common meaning of the word “ pass , ” as used here

— i.e., “ over and
up on said land ”

— mean s to “ m o v e, proceed, [or] go. ” S ee Merriam

- Webster D ictionary, https: //www. merriam

- webst er.com/dictionary/ pass (last visited March 19 , 2024) . Thus, th ese second and thi rd por ti ons of the Easement grant b road rights to the g rantee ( and its heirs an d

ass i g ns) o f being physically present on (i.e., of moving about and upon ) the R e creation A rea ,

a lways and i n the grantee ’ s sole discretion . H owever, we cannot conclude tha t th e righ t to be present and move about on the land , as ex pressed on the face of t he Ea sement , includes the right

4 The trial court ’ s amend ed summary

- judgment order reads, “ The parties are not disput in g the length of the shorel ine for wate rfront acce s s. Those details are containe d in the easemen t an d, a s t hey are not under dispute, the Court makes no ruling on that issue. ”12

to construct a boat do ck , boat ramp, or roa d

. S e e Marcus Cable Assocs. , 90 S.W.3d at 7 01

. Being physically present o r even lingering and re crea ting on land cannot re asonably be construed to include a ctivitie s th at would sig nif i cantl y alter the land such as erect ing structures and
im provements that are affixed to the land

.

Moreover, the E a sement A r ea expre ssly termina tes at the shoreline ( wher ever it

m ay be at any given time) and does not extend eas t ward of th e shoreline. Y e t a b oat dock

— whe ther tether ed t o t he Easement Area or attached to the submerged lake bed

— would necessarily be floating on the water a bove the lakebed and thus east of t he s horeline

. The same issue arises if this portion of the Ea sement w ere construed t o a llow t he construction of a ro ad to the la ke because the road would inevitably extend eastward of the Easement Area , at least when the lake level rises

. Furthermore , to co n strue the word s “ use , ” “ control , ” “ liberty , ” and “ privileg e ” as
gr anti ng the right t o constru ct a r oad and permanent ly alter the natural landscape

— when that express purpose is not delineated

— would expand the rights in the Easement to possessory rather than non - poss essory rights, w hich we may not do absent a n expr ess in t e ntio n in the ins tr ument of
convey ance. See id. (citing Restatement of Proper ty ’ s distinction between easement s

— which permit owner to use land for only s pe cified purposes

— and possessory land interest s

— which
pe rmit owner to ma ke any u se of pr opert y)

. We co nclud e that this portion of the Easement does not convey the right to construct or maintain boat docks , boat ramps, or road s .

F ourthly and finally, th e Easement additionally c on ve y s t he rig ht of “ f ree ingres s to and egres s from

. . . [ the] river or l ak e whether on foot or on horseback or in vehicles of every
ki nd. ” The right of ingress and egress is a s e pa rate and distinct o ne from the above

- d iscuss ed

r ight to pass over and upon the Recreat io n A rea , as evide nced by the fa ct that it fol lows the phrase , “ t ogether with. ” Otherwise , the ph rase con ferring the ri ght of ingress and egre ss would13

be redundant, an d we are to construe easements so that every p rovi sion is given effect and none are rend ered mea ningless. See Kel ley

- Co ppedge, I n c. , 980 S.W.2d at 4 64

. Uptown argues that thi s delineated purpose of free ingress and egress includes the right to c onstruct a roa d or boat
ramp down t o the lake be cause i t is “ incidental and necessary ” to “ reason ably enj oy ” th e ex press ri ght of ing ress a nd e gress , particu l ar ly in “ vehicles of every kind ” ( including boats). See Lakeside Launches , 750 S.W.2d at 871 ( stating t hat w hen rights are not expressly granted , courts
may imply only those rights reasonably ne cessary to fair en joyment o f use or purpos e sp ecified
in expr ess easement with as little burden as possible to servient owner )

.

In the context of the Easement, the ri ght of “ free ” entr ance to and exit from the lake , even in vehicles of every kind, reas onably mea ns that th e serv ient e state may no t restrict or imp ede th e grantee ’ s comings and goings across the Easement Area to reach the lake

. See
Me rriam

- Webster Dictio nary, https://www.merriam

- webster.com/diction ary/ free (last visited March 19 , 2024) ( defining “ f r ee ” a s “ not obstructed, restricted , or i mpeded ” ); id. , ht tps://www.merriam

- webster.com/dictionary/ ingress (last visited March 19 , 2024) (defining

“ ingress ” to mean en trance or “ the act of entering , ” o r “ t he right or ability to enter ” ) ; id. , htt ps://www.me rri am - webste r .com/dictionary/ ente r (last visited January 22 , 2024) (defining

“ enter ” to mean “ to come or go into ” ) ; i d. , https://www.merriam

- webster.com/dictionary/ egress (last visited March 19 , 2024 ) (d efining “ egress ” to mean exit o r “ t he act ion or righ t o f goin g or

c oming out ’ ); Ingr ess , Black ’ s Law Dictiona ry ( 11 th ed. 2019) (defining “ ingress ” to mean “ th e right or ability to enter ” ); Egress , Black ’ s Law Dictionary ( 11 th ed. 2019) (defining “ egre ss ” as

“ the right or ability to le ave ” )

. By specifying th at the gr antee has a right of “ fre e ” i ngress t o a nd

e gress fro m the lake, “ whether on foo t or on horseb ack or in veh icles of e very kind, ” the
Easement co ntempla tes that the grantor may not impede th e gr antee ’ s lake access when the14

g rant ee is using one of t he enum erated m eans of travel , if the means is capabl e of passing over the existing terrain. The delineation o f permissible travel modes prohibits the grantor from denying the grantee egress and in gres s when it is traversing the la nd via one of those mo de s.

B ut there is no expres s right conveyed in the Ea sement to c onstruct a road or alter the land to enable lake access by vehicle of any kind. When Texas c aselaw has addresse d road

use, c on stru ctio n , and m aint enance rights in the context of ingress

- and

- e gress easements, the

easeme nt s at iss ue expres sly men tion ed roads

. See, e.g. , Clearpoint Crossing Prop. Owners
Ass ’ n v. Chambe rs , 569 S.W.3d 195, 200 (Tex. App.

— Houston [1 st Dist.] 2018, pet. de nied ) ( construing fifty

- foot

- wide “ ro ad access easement ” co nv eyed “ for the purpose of co nstr ucting , maintaini ng, o perating, rep airing, and removing a road ” “ in order to provid e Grantee ” “ free and uninterrupted pedestrian and vehicular ingress to and egress fro m ” property ); United Servs. Prof ’ l Gr p. I n c. v. Hurt , N o. 05

- 14

- 00108

- CV , 20 15 WL 80 1350 9, at * 6 (T e x. Ap p.

— Da llas Dec. 7, 2015, no pet. ) ( mem. op.) (constr uing “ a 50 foot road easement for egress and ingress ” ); Unger v. Landry , N o . 01

- 03

- 01331

- CV , 200 5 WL 21396, at * 2

– 3 (Tex. App.

— Housto n [1 st Dist.] Jan. 6, 20 05, pet. denied ) (mem. op.) ( co nstrui ng easeme nt “ of passing in an d al ong a certain roadway now across a certain tract of land ” and providing metes

- and

- bounds description of easement that was thi rty fee t in widt h) ; A dams v. Norswort hy Ranch, Ltd. , 975 S. W. 2d 424,
428 (Tex. App.

— Aust in 1 998, n o pet. ) (co nstru ing “ easement of passing in and along a certain way or road , ” “ together with free ingress, egres s and regress ” )

. U nlike in th o se cases, wh ere in
t he easement expressly refere nced a “ road ” and usuall y p rovide d for specific s such as loc ation and width, here i t i s unlikel y based on the express text that the original grantor both (a) intend ed the grantee to have a right to build a road (when there i s no mention of a road) and (b) further, left the speci f

ics of such a right u nmentioned

.15 L imitin g the rig ht of i ngre ss and eg ress to disallow construction of a road , as the trial court did, is consistent with this Court ’s precedent s limiting the scope of e asements allowing ingress and egress to a lake, withou t m ore, to only that right. S ee Harb or Ven tures, Inc. v. Dalton , No. 03

- 10

- 00690

- CV, 2012 WL 1810205, at *11 (T ex. App.

— Austin May 18, 2012, pet. denied) (mem. op.) (concluding that express easemen t al lowing “ingress and egress” fr om lake did not contain imp lied grant to use property for gen eral r ecreati onal pur poses); Davis , 2012 WL 2499472, at *16 (determining th at easement granting right of “ingress and egress” to lake did not include rights to m aint ain boat docks or engage in re creational activities on sh ore);
Cummins v. Travis Cnt

y. Wate r Cont rol & I

mproveme nt Dist. No. 1 7 , 175 S.W.3d 34, 51

– 52 (Tex. App.

— Austi n 2005, pet. denied) (determining that easement allowing “free access” to lake
water a nd u se thereof “for domestic purpo ses,” as well as right o f “ ingress and egress” to lake , did n ot pro vide ri ght to u se servient la nd for recreational purposes or to build and maintain structures, including boat dock); Lakeside Launches , 750 S.W.2d at 869

– 7 1 (d etermining that “an easement a nd right

- of

- way” granted on ly right of ingress and egr ess but did n ot conv ey right to anchor and float commercial boat dock); Wall v. Lower Colorado River Auth. , 536 S.W.2d 688, 691 (Tex. App.

— Austin 1 976, writ ref’d n.r.e .) ( determining that easement gran ting “right of ingress a nd egress” to “the water’s edg e” did not gr ant imp lied rig ht to use and enjoy lakefront property and build and maintain structures and facilities that are “useful and appropriat e for lakefront prope rty, ” such as trailer houses).

F urthermore , and similar to our determination above a s to wh ether the Eas ement allo ws boat dock s, t he construction and maintenance of a road

— even if initially built only on exposed earth to the west of the shore line

— is no t re asonably contemplated by the Eas ement’s express referenc e t o ingress and egress beca use suc h road , or ev en just a portion ther eof, would16

inevitably be underwater whe n the lake level rises and would, thus, encroach beyond (i.e., eastward of) the water’s edg e. T he Easement A rea expressly extends only to “the sho re line of [Lake Travis] as it is n ow [in 1956 ] or may be hereafter es tablished,” and in no event extends eastward beyond the shore line. We conclude that the Easement’s grant of the right of “ fre e in gress to and egress from” the la ke does not include the rig ht to constru ct and maint ain a r oad

.

We hold that the trial court did not err in limiting the scope of the Easement in the
ways challenged by Uptown , and we accordingly o verrule Uptown ’ s firs t is sue.

Whether summary judgment ag ainst U pt own on its p res cri

ptive

- easement claim was pro per Up t own next a rgues t h at summa ry j udg ment against it o n its prescr ip ti ve easement claim entitling it to maintain a boat dock was improper because t h e evid en ce r aised a material fa ct issue on each e lem ent of th e c laim. T o e stablish a prescr ipti ve ease ment, Uptown ha s the b urden of prov ing that i t used Neighb ors ’ land in a particular ma nne r that wa s (1) open, ( 2) notorious, (3 ) exclusi ve , and ( 4) adv e r se (5) c o nti nuously (6) for ten years or more. S e e Harr ington v. Daw son - Co nway Ranch, Ltd. , 372 S.W.3d 711, 717 (T ex. App.

— E astla nd 2012 , pet. deni ed ) ; Cambridge Holdings, Ltd. v. Cambri dg e Co ndo s. Co uncil of Owners , No. 03

- 08

- 00353

- CV , 2 010 WL 233035 6, a t * 8 (Te x. A pp.

— Austin June 11, 2010, no pet. ) ( m em. op . ) ; see also D avi s , 2012 WL 2499472, at * 21 ( “ A prescr iptive easement may a rise fro m a proper ty

owner ’ s knowing acquie s cence (w hethe r actual or constructive) in a claimant ’ s adverse use of the propert y under a cla im of right continuously for ten yea r s or mo re. ” ). Uptown d oes not allege that it h as mai n tained a boat dock on N eigh b ors ’ pr o perties for any period of time , much less the re qu isite ten years . R ather, it b ases its prescriptive

- easem e nt claim on the Z ie sc hangs ’ alleged adverse use o f Neigh b ors ’ properties to tethe r a nd float a boa t dock for ove r thir ty years ,17

as exp resse d in its live petition: “ Beginning no later than 1972, [U pt own ’ s] predecessors in interest used the Defendants ’ prop e rty for pur poses of m ain taining and using a boat dock on the lake

. . . [, and] s uch use was prescriptive and wa s, for a t least 10 yea rs, o pen, no t o rious, continuous, exclusive, and adverse. ” To su pport this theory, Uptown proffered documents demonstrati n g th at through th e ch ain of title it purportedly has “ pr i vit y of estate ” with the
Zi es changs. See D avis , 2012 W L 2499 472, at * 21 ( hol ding that ten

- y ear requirement for prescriptive easement may b e established by tacking successive interests if there is p r ivity of estate b etwe en each holder and his succe ssor an d noting that adversity r equ irement for prescript ive eas ement is same as that requi red to p r ove adverse possessio n ) ; s ee also Tex. Civ.
Prac

. & R e m. Code § 16.023 ( “ Tacking of Successive Interests ” )

.

U ptown proffere d ev idence in the form of Mrs. Z ieschan g ’ s affidavit and deposit ion demo nstrating that t he Zies changs had continuousl y mai ntained a floating boat dock

on Lake Tra vis from 1973 unt il 2007 . The dock was always ancho red by cables attached a t the same two pla ces on the shore of the la ke

. M rs. Zie s chan g averred that t he G e or ge/Reed family

“ owned the la nd sur rounding ” the Zi escha ngs ’ pro p erty until 1996, wh en Vole nte bou ght the

surroun di ng land and later sold some of it to each Neighbor

. The Zieschangs removed the dock in 2007 only be cause o f its de ter ioration and intend ed to replace it but never in fa ct did because

o f health and p ersona l issues. Mrs. Zieschang testified that t h e seller from whom she and her husban d purchased the Pro pe r ty , Warren Jones, “ assur ed ” her that they had the ri ght to f loat a boat d ock “ because of th e easement ” as it was “ stat ed in the deed. ” M rs. Ziesc hang tes ti fied that when she and her hus ba nd conveyed the Proper ty to Up t o wn in 2015, t hey int en ded to con vey

“ all of the rights ” a n d “ any thing that was in the deed that Warr en Jone s had g iven to us wh en

we p urchased the p ropert y , ” plus the area late r purc hased fr om Volente and “ any easements ”18

they had because they had “ no reason to ke ep anything. ” The title ins trumen ts in t he record
pe rtai ning to the Zieschangs ’ conveyance o f the prop erty to Up town e x pressly refer ence and

conve y the property it self and th e Ease me nt as ori ginally appearing in the 1956 deed . They do
not expr essly r e f

erence a ny right or additional easement pe rmitting main tena n ce of a boat dock or any claim ther eto

.

In it s s ummary -

j u dgm e nt order, the trial court determine d that there was “ n o evide n c e creating a genuine issue of material fact on each of the essential elements ” o f the prescript ive

- easement claim

. H avin g r evie w ed the record, we agree that there i s no evidenc e of Uptown ’ s c o ntinuous use of Nei ghbors ’ properti es to tether and ma intain a b oat dock for te n
years or more . Although Uptown is correct that a s uccessor in title may tack its period of advers e

use or possession to that of it s predecessor , see D avis , 2012 WL 24994 72 , at * 21 , there is no

ev i d ence of any period of use by U ptown (o r by the Zieschangs af ter 2007) of Neighbors ’ properties for maintena n ce of a boat dock , and thus its attempt at “ tacki ng ” its adversity period onto the Zieschangs ’ i s in ap p o si te

. See Loeff le r v. Lytle Indep. S ch . Di s t. , 211 S. W.3d 331,
343

- 44 (Te x. Ap p . — San Antonio 2006, pe t. denied )

. In other words, Uptown is essentiall y claim ing a prescriptive easement through the Zie scha ngs ’ matur ed pre scriptiv e right

— that is, th rough the Zieschangs ’ pr es c riptive easement t ha t ha d legally matured, if at all, w ell b e fo re 2007 when they dismantled the boat dock and later conveyed the pro p erty to Uptown. See id. Uptown is therefore not att empt in g to “ t ack ” any period of its use of N eighbors ’ propertie s ont o

a period of the Zi eschangs ’ same use to maintain a boat dock

. As sever al of our sister court s ha ve recognized, “ [w]hen title by limitations h a s mature d there is no further place f or ‘ ta ckin g ’

. . . . And th e title so matured can not be transferred ora ll y, but can be conveyed only b y an19

instru ment in writing. ” See Ha by v. Howar d , 757 S.W.2d 34, 38 (T ex. App.

— San Anto nio 1988, writ denied ) ; accord L oeff l er , 211 S.W.3d at 343 ; M oser v. B atche lor , No . 06

- 04

- 00096

- CV, 20 05 WL 1122667, at *4 (T ex. App.

— Texar k ana May 13, 200 5, no pe t .) (me m. op.) ; Te rrill v. Tuckness , 985 S. W.2d 97, 11 0 (Te x. App.

— San An tonio 1998, n o pet. ) ; Dale v. Stringer , 57 0 S.W.2d 4 1 4, 418 (Tex. App.

— Texarkana 1978 , wri t ref ’ d n .r. e. ); Kl eckner v. McClure , 5 24 S.W.2d 608, 613 (Tex. App.

— For t Worth 1975, no writ )

.

This means that because the Z ieschan gs ’ p rescri pt ive easement matured, if at all, prior to Uptown ’ s ownership , the Zie s changs were required t o convey their presc ript ive

easeme nt to Upt own through a deed or other written instr umen t for it to claim th e righ t to use Ne ighbors ’ property for a b oat dock an d thus prove p rivity of estate

. See Terrill , 985 S.W.2d
at 110 ; Haby , 757 S. W.2d at 3 8

. E ven taking all the evide nce in th e light mos t fav orable to Upt ow n, no evidence demo nstrat es that, aft er the Zies changs ’ prescri ptive easement had m atured (in 2007 or ea rlie r ) , they convey ed such easement in writing to Upt o wn . Ac c ordingly, there is

no genuine issue of material f a ct o n the eleme nt of Upt own ’ s privi ty of estate with its
pr edecessor s that coul d meet th e element of continuous use of Neig hbors ’ properties for ten o r
more years , and the trial court did not err in g ranti ng Neighbors no - evidence summary judgment on Uptown ’ s p rescriptive

- e asement c laim. Ac cordingl y, we overrule U ptown ’ s s econd issue

.
W hether the trial cou rt erred in awarding Neighbors attorney ’ s fees

In its third i ssue, Uptown argues that th e tr ial court a bused its discretion in awarding Nei ghbors attorn e y ’ s fee s, cont e n ding that (1) t he evidenc e was legally ins ufficient to support a ny awar d of fees , and (2) it was neither e quitable nor just to award f ees because Up town

“ prevailed on the ma in issue ” in that Neighbors “ wanted to elimina te Uptown ’ s easement ”20

th rough their e xtinguish ment c oun terclaim s , which the tri al court rejected , a nd Neighb ors ’ counterclaims for de c laratory judgment were “ merely incid e ntal ” to i ts c laims for relief.

While t he U DJA authorizes award s of attorney ’ s fees, it does not re qu ire an a war d of them to an yone . See T e x. Civ. P rac. & Rem. C ode § 37. 009

. R at he r , it “ entrusts a ttorney fee awards to the t rial court ’ s sound discretion , subj ec t to the requireme nts that any fee s awarde d b e reasonable and necessa r y, which are m atters of fac t , and to the addition a l r equ ireme nts t hat fees be equitab le and ju st, which ar e matt ers of la w . ” Bocquet v. Herring , 97 2 S.W.2d 19, 21 (Tex. 1998 )

. “ Unrea so nable fees cannot be awarded, even if the court believed them just, b u t the court

ma y conclude tha t it is not e quitable or jus t to award even reasonable an d necessa ry fees. ” I d.
Fu rther, an award of attorney ’ s fees is not dependent on a finding that t he party “ substant ially prevailed. ” Barshop v. Medin a C nty. U ndergroun d Water Conserv ation Dist. , 92 5 S.W.2d 618 , 637 (T e x. 199 6)

.

I n its first argument, Up t own chal l enge s t he lega l sufficiency of the e vidence supporti ng the award to Neighbors of trial

- level attorney ’ s fees and conditional appellate attorney ’ s fees. As for the trial

- level fees, New c astle ’ s and Landers ’ s evide nce was i n the form

o f affidavits o f their atto rne ys , wit h att achments consis ting of billi ng stat ements, and the

a verments therein directly tr ack ed the requirements outl ined in Rohrmoos

. See Rohrmoos
Ventur e v. UTSW DVA H eal thca re, LLP , 578 S.W.3d 4 69, 50 1

– 02 (Tex . 2019) ( de l ineating
min im um lega lly s uff

icient evide nce t o s upport award of attorney ’ s fees ). The respective aff idavits of Newcast l e ’ s and Landers ’ s attorne ys contain the same type and level of in fo rmation that thi s Co urt has previously h e ld con stitutes legally suf f icien t evide nc e to su pport an award of trial

- level at torne y ’ s fees

. See, e. g. , Watts v. Watts , No. 03

- 21

- 00693

- CV , 2023 WL 8852152,
at * 8 (Tex. App.

— Austin Dec . 22, 2023, no pet. h.) (mem. op.) ; Co bb Dev

. v. McCabe , No. 03

-21

21

- 00 524

- CV , 202 3 WL 40 03513, at * 12 (Tex. A pp.

— Austi n Jun e 1 5, 2023 , pet. filed ) (me m.
op .) ; King v . King , No. 03

- 22

- 00329

- CV , 2023 WL 3873496, at * 14 (Tex. App.

— Au sti n June 8, 2023, no pet.) (mem. op. ).

Also w ithin this argu m e nt, Upto wn contends that Nei g hbors ’ atto rneys

“ pigg ybacked ” on each other ’ s wor k i n t hat man y of their pleadi ngs and filings we re iden tical or incorporated by reference the o ther ’ s . However , Up town does not cite any authority determining that co

- parties ’ bene fitt ing from one another ’ s plea d in gs or arguments makes thei r evidence of

a t to rne y ’ s fee s legally insuf ficient , and we have not fo und any

. Furthe r more, Uptown does not ide ntify any specific evidence of attorney ’ s f ees incurred by either Neighbor that is p urpo rtedly

unne cessary and un re asonable because it is d upli cative or merely “ p iggyback s , ” and we are not required to sift through the record to determine whether any of it is. See Green v. Port of Call
Homeowners Ass ’ n , No. 03

- 18

- 00264

- CV, 2018 WL 4100855 , a t *6 (Tex. App.

— Austin
Au g. 29, 2018, no pet.) (mem . op.) ( “ A s an appell at e court, i t is not our duty to perfo rm an independent review of the summary

- j udgment record for evidence supporting appellants ’ position. ” )

. We accordingly overrule the portion of U ptown ’ s thir d issue compl ai n ing about t he legal suf ficiency o f the ev ide nc e to suppo rt the award of trial

- l eve l a tt orney ’ s fees

. Ho we ver, we determine that Uptown ’ s argument about the t rial court ’ s award of conditional appellate attorney ’ s fees has m erit . To recover conditional a ppella te at t orney ’ s fees , a claim a nt needs to p ro vide opi nion testimony about the s ervices it reason ably believes will be necessary to defend the appeal and a reasonable hourly rate for those services. Yowell v. Granite Oper atin g Co. , 620 S.W.3d 335, 35 5 (Tex. 2020)

. The affida vits of Ne ighbors ’ at to rneys do n ot address appellate attorney ’ s fees at all , much less opine o n the estimated fe e s or anticipated tasks

reas onably necessary to defend an appeal before this Court or for any proceedings before the22

supreme court. Cf. id

. When discretionary app ellate attorney ’ s fees are authorized but the evidence is legally insufficient to support an award , the p roper remedy is to revers e and remand for a re determination of attorney ’ s fees. See Faith P. & Charles L. Bybee Found. v. Knutzen , 681 S.W.3d 818, 840

– 41 (T ex. App.

— Austin 2023, no pet.) ( reversing and r emanding for redetermin ation of appellate attorney ’ s fees under UDJA w here affidavit provided “ no e vidence any about such tasks [required by Yo well ] for an appeal ” ) ; Jimmie Luecke Chi ldren P ’ ship, L td.

v . Droe mer , No. 03

- 20

- 000 96

- CV , 2022 WL 243162, at * 8 (Tex. A pp.

— Austin Ja n. 27, 202 2, pet. denied ) (mem. op.) (same) ; Por ter v. Porter , No. 04

- 20

- 00229

- CV , 2021 WL 2117923, at *5 (Tex. App.

— San Anto nio May 26, 2021, no pet.) (mem. op.) (reversing and reman ding i ssue of trial and appellate attorney ’ s fees in divorce suit where party did not offer any evidence of appellate attorney ’ s fe es and evidence of trial fees was insufficiently detailed)

. The aw ards of conditional appellate fees are therefore not suppo rted by legally sufficient evidence and must be reversed , and we sustain th is p ortion of Upt own ’ s third iss ue . See Droemer , 2022 W L 243162,
at *8 ; Porter , 2021 WL 2117923, at * 5.

In its second a rgum ent within this issue , Up tow n contends that it was i neq uitabl e and unjust to award N eighbors any attorney’s fees because (1) they did not substa ntially prevail on the merits and (2) their claims were merely “incidental” to its claims fo r relief. As we hav e already noted, however, pr evailing on the merits i s n ot a r equisite of a fee award under the
UDJA. See Barshop , 925 S.W.2d at 637 . Secondly, to the e xtent that which party “substantially prevailed” on the merits has bearing on whether an awa rd is e quit able and just, our review of the record leads us to con clude that at the c ore of the parties’ dispute was the question of whether Uptown has a right to b uild and maintain a boat dock, ramp, and road on Neighbors’ properties.
The trial court det ermined tha t question against Uptown , an d we have affirmed such23

det ermin ation. Thus, we cannot conclude that the trial court abused its discretion in concluding th at an award of fees to Neighbors was equitable and just.

We also are not persuaded by U ptown’s arg umen t that Neighbors ’ cla ims wer e merely “incidental” to it s claims for re lief and t hat, therefore, an attorney’s fee award to them was inequitable and u njust. It was Neighbor s who first sought a declaratory judgment regarding the Easement’s sc ope . I n co ntra st, Uptown originally filed a cause of action under a
p re scriptive

- eas ement theo ry only , and it was not until later in an amended peti tion

— filed after Neighbor s had counterclaimed for a declaratory judgment regarding the E a sement ’ s limited
scope

— th at U pt ow n added i ts cla im for declar atory judgment

. Even th oug h the lawsuit b egan as

an attempt by Uptown to esta bli sh a prescriptive easemen t allowing a boat dock, upon Neighbors ’ counterclaims the dispute exp anded to include requests by both parties to cons true the express Easement and de termine whether it permi tte d rights includ ing a boat dock but also a road and ramp. Construction of the Easement an d its scope was at the cent er of the parties ’ dispute and falls sq uarely under the UDJA

. See T e x. C iv. Prac

. & Rem. Code § 3 7.00 4 ( p rovidin g that person interested un de r deed may ha ve determi ned “ any question of co nstruction or validity arising ” thereunde r and may obtain declaration of rights thereunder ).

We conclude th at Neig hbors ’ UDJA claims were sep arat e and distinct from Uptow n ’ s origi nal prescriptive

- easemen t c laim , were no t wholly s u bsumed therein or red undant thereof , and thus were no t “ merely inc idental ” to it

. See 12636 Research Ltd. v. Indian Bros.,
Inc. , No. 03

- 19

- 00078

- CV , 2021 WL 417027, a t * 1 8

- 19 ( Tex. App.

— Austin Fe b. 5, 202 1, no pet. ) (mem. op.); c

f. Jackson v. S tate Offic e of Admin. Hearings , 351 S.W.3d 290, 301 (Tex. 2011) (concluding t hat plaintiff’s claim arose squarely under Texas Public Information Act (TPIA), which did not allow f or r ecover y of attorney’s fee s under c ircumstances , and that24

a tte mpt to recove r fees und er UDJA was improper because recovery thereunder was “merely
incide ntal” to TPIA claim for relief). We overrule this final portion of Uptown ’ s third issue.

N e ighbors ’ issu es

I n two cross

- issues, Newcastl e argues that the trial cou rt erred in ( 1) denyin g its motion for summary judgment on its claim that the Easement was extinguished , and (2) failing to award it the entirety of its requested attorney’s fees . In one cro ss - i ssue, Landers argues that the tria l court abused its discr eti o n in failing to award hi m the entirety of his requested attorney’s
fees.

Whether Newcastle was entitled to summary judgment on its extinguishment claim

Newc as tl e moved for summary judgme n t on its c o unterclaim in which it asser ted
t hat the Easement ha d b een extinguis hed under the doctrine of merger when by a 1997 deed t he Zie schangs acqu i red t he po rtion of the E asement described by me te s and b ounds

. The

u n disputed summary

-

jud gment evidence est ablishe s that in 1972 the Zies chang s bui lt a house on what the y believed wa s their p roper ty . Howeve r, they re alized sometime later tha t the house, in fa ct, s at la rgel y outside their property bou nd aries a nd partly w it hi n the portion of the Eas em ent des crib ed by m etes and bounds . I n 1997 , t he pr operty on which the Zi eschangs ’ hou se sat be longed to third party Volente . In 1997, Volente b y qui tcla im d e ed co nveye d the metes

- a nd

bounds porti on of the E as ement to the Zi e sc hangs , plus additional land extendi ng t he Zies chang ’ s fee title s outhward some distance and eastwa rd to the 670

- fo ot co ntou r . Ne wcastle contends that Volente ’ s c on veyance of the metes

- and

- bounds p ortion of th e Ea sement extinguished the Ea s ement in i ts entire ty. We d is agree.25 “ U nder the m erge r doct r ine, i f an ease ment exists a nd then the own er of tha t

e a se me nt acqui res a gre ater esta te, the two estates merge into the greater of th e two and the les ser is e x tin g uished. ” C ecola v. Ruley , 12 S.W.3d 848 , 852 (Te x. App.

— T ex arkana 2000 , no pet. )

. T his is becaus e “ [o ]ne who owns fee simple title no longer n eed s a n easement ac ross h is own
pr operty, since the fee simple gives him the right to use all of th e propert y. ” Id. ; see also Howell
v. Este s , 12 S.W. 62 , 62 (T ex. 188 8) ( “ The princi ple i s ele ment ary th at, to const itut e an
easement , the dominant and the s erv i en t estates must be h eld by di fferent owners; and when the owner of an estate enjoys an easemen t over an oth e r, and ac quires title to the latter, the easement is the re by ex ti nguish ed. ” ). Un der the me rger do ctrin e, a n ea sement is terminated whe n “ all th e b e n e fi ts and b urdens co me into a si ngle ownership. ” See Teal Trading & Dev., LP v. Champee Sprin gs Ranche s P r op. Owners Ass ’ n , 534 S.W.3d 558, 578 n. 7 (Tex. A pp.

— San A nt onio 2017) , aff ’ d , 59 3 S. W.3d 3 24 (Tex . 202 0) ( cita tion omit ted).

Newca stle ’ s a rgu m e nt f

ails on this last point be cause less than all the benefits and burdens came into a s ingl e ownersh ip b y virtue of the Volente quitc laim deed. By s uch deed th e Zi eschangs ac quir ed o nly ( 1) t he porti on of the E asem ent Area speci fied by metes and boun ds in the 1956 o riginal d eed ( which extended eastward only up to the shoreline in 195 6 , which wa s then ab out thirty feet west of the 670

- foot contour ) plus (2) the lan d to the east of th e 1956 shor eline as far as the 670

- foot contour. However, t he Easemen t Area includes not just those two areas but all the land between the north and south boundar ies of th e metes

- and

- bounds

area that extends eastward all the way to t he water ’ s edge , as it change s ov er time. That area ’ s fee title remai ned held by V olente and is n ow held by N ei ghbor s. Acco rdingly , the trial court did not err in de nyi ng N ewcastle ’ s motion for summ ary judgment on its counterclaim of extinguishme nt through merger of the Ea se m ent. W e ov errule N ewcastle ’ s s econd issue.26

Whet her the trial court abus ed i ts discret ion in it s award of attorney’s fees Newcastle and Landers both assert the trial court ab used its discretion in failing to award them the entirety of their requested attorney’ s fe es. As already not ed, we review the trial court’s awar d of a ttor ney’s fee s under th e UDJA for an abuse of discretion, which occurs when a trial court rules arbitrari ly, unreasonably, or without regard to guiding legal principles o r without supporting evid ence. B ocquet , 972 S.W.2d at 21

. La nders and Newcastl e each arg ue s that t he trial co urt’s reduction by about sixty percent of its requested attorney’s fees

— which

w ere supported by “undisputed evidence”

— was arbitrary.

To support his argument, Land ers cites non - UDJA cases , in which an award of attorney’s fe es to t he p revailin g party w as statutor ily mandated and non

- discr etionary rather than subject to the trial court ’ s discretion

. See Rohrmoos , 578 S.W.3d at 487 (noting that in contract
cases, stat ute authorizes award of fees to prevailing party); Hoelscher v. Kil man , No. 03

- 04

- 00440

- CV, 2006 WL 358238, at *3

– 4 (Tex. App.

— Austin Feb. 16, 2006, no pet.) (mem. op.) ( no ting that statute stating party “ may recover ” fees for breach

- of

- contra ct claim was not discretion ary, unlik e stat utes such as UDJA stating that court “ may award ” fees)

. B ut, a s we have already noted, the UDJA entrusts the trial court with discretion to co nclude that it is
not equitable or just to award even reasonable and necessary atto rney ’s fees. See Bocque t , 972 S.W.2d at 2 1 ; see also Tex. C iv. Pr ac. & Rem. Co de § 37.0 09 (Courts “may award costs and reasonable and necessary attorney’s fees as are equit able and just.”). Moreover, in UDJA

ac tions, “courts have the authority to award l ess than an a mount deter mined by a jury to be reasonable and neces sary and . . . this is a matter committed to the trial court’s sound discretion.” Ridge Oil Co. v. Guinn I nvs., Inc. , 14 8 S.W.3d 143, 162 (Tex. 2004) . That is, the determination27

of whether an award of a ttorney’s fees would be equit able and just is not sus cept ible to direct
pr oof but instead is a matter of fairness in light of all the circumstances. See id. a t 162

– 63

.

Further, as we have already observed, the award of attorney ’ s fees is not dependent o n a find ing that the party “s ubstantially prevailed.” Ba rshop , 925 S.W. 2 d at 637

. The trial court is not required to award attorney ’ s fees to the prevailing party in a declaratory

judgment action and may even award attorney ’ s fees to the non - prevailing pa rty. Mo osavideen
v. Garrett , 300 S.W.3d 791, 802 (Te x. A pp.

— Ho uston [1 st Dist.] 2008, pet. denied ). “Thus, the

attorn ey ’ s fees provision grants the trial court broad discretion to (i) afford all parties the opportunity to request fees; ( ii) decline to aw ard fees ; and (iii) allow an award only when reasonab le, necess ary, equ it able, and just.” Feldman v. KPMG LLP , 438 S.W .3d 678, 685 (Tex. App.

— Houston [1st Dist.] 2014, no pet.)

. To find an abuse of discretion, the trial court must have r uled arbitrarily, unreaso nably, or without re f erence to any guiding pr inci ples o r h ave r ul ed without any supporting evidence. See Bocqu et , 972 S.W.2d at 21

. Although Up town did not obtain the full reli ef it sought, it did succeed in obtaining a declarati on t hat it has le gal righ ts to access the lake by traversing Neighbors ’ pr operti es and t o recreate on the shore , in contrast to Neighbors ’ claims that such rights no longer exist

. The trial court reasonably could have made an equitable and just determinat ion, in light of these ci rcumstances and its l egal conclusions , that
L ande rs was not ent itled to the entire amount of fees he incurred in this lawsuit.

Newcastle contends that the trial court improperly awar ded it fees for only those claims on which it pre vailed , as purp ortedl y indicated by the foll owing statement : “ [T] he Cour t fi nds that the Defendants . . . are entitled to recoup the portions of their reasonable, necessary, equitable and just atto rney ’ s fees and expenses related to the dec larations fo und by the Court
p u rs uan t to the [UDJA ]. ” To th e contrary, w e read that sta teme nt t o re fle ct not a d ecision by th e28

trial court to award fees for only the claims on which Neighbors prevailed, but to award fees for only th e claims falling under the UDJA ’ s p urvi ew and for whic h at to rney ’ s fees may be

reco ver ed

. The prescri ptive

- eas emen t claim ( and d efenses theret o) are not subject to the UDJA , cf. Tex. Civ. Prac. & Rem. Code § 37.004 ( “ Subject Matter of Relief ’ ) , and thus recovery of attorney ’ s fees would be gov erned not by th e UDJA but by the American Ru le requiring each party to b ear its own fees , s ee Rohrmoos Venture , 578 S.W.3d at 48 3

– 84

. However , ev en if
New ca stle ’ s rea ding of this statement in the trial court ’ s order were accurate , the trial court

non e thel ess was entitle d to c onsider who was the pre vailing party as to each iss ue a nd claim in th e case when consider ing the equity and justness of assessing fees because courts are to consider all the cir cumstances when mak ing awards

. See Ridge Oil Co. , 14 8 S.W .3d at 162 ; Moo sav ideen , 300 S.W.3d at 802

.

In light of all the ci rcum s tances h ere , including Upt own ’ s prevail ing on Neighbors ’ exti nguishment claims an d the fact that the prescriptive

- easement claim was outside the UDJA ’ s purview, we cannot concl ude that the trial cou rt acte d arbitrarily or abuse d its discretion in r edu cing Neighbor s ’ respect ive requests for att orney’s fees. We overrule Landers’s
sole cross - issue and Newcastle’s first c ross - issue.

CONCLU SION We affirm the trial court ’ s A mended O rde r on C ross M otions for S u mmary J udgment . We al so affirm the trial cour t ’s O rder on Defendant s ’ Motions for Award of
Att orney ’s Fees except for the portion awarding Landers and Newc astle c ont ingent appe llate attorney ’ s fees, which portion we revers e . W e r e mand for redeterm ination the issue of the29

r easonable , necessary, eq uit abl e , and jus t contingent a pp ellat e attorne y ’ s fees, if any , to which each Landers and Newcastle is entitled

.

_________________________ _________________ Thomas J. Bak er , Justice Before Justices Baker, Kell y, and Smith Affirmed in Part; Rever sed and Remanded in Part Filed: March 2 2 , 2024