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, Uptown 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

Easement rights to access Lake Travis—specifically, whether an express 

easement allows non-waterfront property to build a road and boat dock on adjacent lakefront 

properties and whether the non-waterfront property has prescriptive-easement rights to maintain 

a boat dock—are at issue in this case. The non-waterfront property owner, Uptown Cars, Inc.,

sued its neighbors, Newcastle Management Trust and Jerry Landers (together, Neighbors), to 

resolve the dispute. On the parties’ cross-motions, the trial court rendered final summary 

judgment determining that Uptown does not have the right to build and maintain a road or boat 

dock on Neighbors’ properties but does have rights to traverse 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, reverse it in part, and remand for further proceedings.
2

BACKGROUND

The undisputed evidence establishes that Uptown owns fee title to an 

approximately 1.577-acre tract of land (the Property) terminating at its east boundary at the 670-

foot contour on the shores of Lake Travis.

1

 Newcastle and Landers own the surrounding tracts, 

which each extend eastward from the 670-foot contour to the centerline of the lake. Below is an 

undated photograph depicting the Property (within the red outline) and the adjoining tracts. The 

photograph depicts a time when the lake level was higher than it is currently, making it appear 

that the Property has direct lake access, but it does not. The purple outline depicts the original 

area burdened by an express easement area and specified by metes and bounds in the express 

easement, although the easement extends on the east all the way to the shoreline of the lake, 

wherever it may be.

1 Lake Travis is a flood-control lake with widely varying surface levels; accordingly, the 

shoreline of Lake Travis moves as the surface level of the lake changes. Sierra Assoc. Grp. v. 

Hardeman, No. 03-08-00324-CV, 2009 WL 416465, at *1 (Tex. App.—Austin Feb. 20, 2009, no 

pet.) (mem. op.). The 670-foot contour is a line that is 670 feet above mean sea level. Capitol 

Rod & Gun Club v. Lower Colo. River Auth., 622 S.W.2d 887, 889 (Tex. App.—Austin 1981, 

writ ref’d n.r.e.).
3

Uptown acquired the Property from the Zieschangs in 2015, who acquired 1.07 

acres of it (Tract 1) in 1972 and the remaining .49-acre portion in 1997 from its then-owner, 

Volente Group of Texas, Ltd., after it was discovered that the Zieschangs had inadvertently built 

their house beyond their property line. Tract 1 includes an easement on the properties to the 

north, south, and east of the Property, which are now owned by Neighbors. The easement was 

first granted in a 1956 deed from the original owner of all the properties involved in this dispute 

and has been conveyed through official title records to all subsequent owners. The easement’s 

text is reprinted infra in the Discussion section. The easement’s text identifies an area 
4

(designated as the “water front”), lying between Tract 1 and the shoreline of the lake and 

belonging to the servient estate (now owned by Neighbors), on which the dominant estate (now 

belonging to Uptown) has certain rights.

2

 The parties’ dispute concerns the scope and continued 

existence of such rights, but there is no dispute that Uptown’s chain of title includes the 

easement as conveyed in the 1956 deed.

In its original petition, Uptown petitioned the court “to establish a prescriptive 

easement on real properties owned by” Neighbors, alleging that it had recently purchased the 

Property from the Zieschangs. Uptown alleged that its “predecessors in interest [the Zieschangs] 

used the Newcastle/Landers properties in a manner that was open, notorious, continuous, 

exclusive, and adverse beginning no later than 1972 for purposes of maintaining, using and 

accessing a boat dock and accessing Lake Travis.” Therefore, Uptown contended, it is “entitled

to a prescriptive easement across the Newcastle/Landers properties for various purposes as have 

been enjoyed in the past,” which purposes include “the ability to construct, anchor and maintain 

a boat dock, access to the boat dock from [Uptown’s] property . . . and other recreational 

purposes such as (without limitation) swimming, sports, lounging and fishing.”

Neighbors filed an original joint counterclaim for trespass and seeking a 

permanent injunction enjoining future trespass, alleging that Uptown had entered their properties

and “attempted to construct and maintain a boat dock” without their consent. In supplemental 

counterclaims, Newcastle and Landers each pleaded for declaratory relief under the Uniform 

Declaratory Judgments Act (UDJA), see Tex. Civ. Prac. & Rem. Code §§ 37.001–.011, seeking 

“determinations with respect to questions concerning the current viability and/or interpretation of 

2 The land benefiting from an easement is called the dominant estate; the land burdened

by an easement is called the servient estate. Easement, Black’s Law Dictionary (11th ed. 2019).
5

the access easement.” Neighbors pleaded that the easement “merged with the dominant estate 

and no longer exists” by virtue of the Zieschangs’ acquisition of the approximate .49-acre

portion, which “wholly encompassed the servient tract on which the easement existed” and 

“extinguished” the easement. Alternatively, they pleaded for a declaration concerning the “true

boundaries of the access easement and an interpretation of its limited purpose.”

Uptown filed a motion for partial summary judgment, arguing that there is no

genuine issue as to any material fact necessary to establish as a matter of law that it has an

express easement across Neighbors’ properties “for access to Lake Travis by horse, foot or 

vehicle, including automobile and boat.” Uptown argued that its express easement “necessarily 

includes the right to construct and maintain a road that would allow a vehicle to travel 

across [Neighbors]’ land in a reasonably safe manner (which requires construction of a road)”

and to “make recreational use of the lake, including . . . launching a boat and remaining at the 

edge of the lake . . . for the purpose of swimming, wading and other recreational uses reasonably

associated with use of Lake Travis.” Neighbors filed traditional and no-evidence motions 

for summary judgment arguing that (1) the express easement on which Uptown relies was 

extinguished in 1997 or, if it still exists, does not authorize construction of a road as a matter of 

law; (2) Uptown’s prescriptive-easement claim fails because the evidence conclusively proves 

that its title predecessors had “no intent to appropriate the right” to maintain a boat dock on their 

respective properties; and (3) there is no evidence of any of the required elements of Uptown’s 

prescriptive-easement claim.

In its second amended (live) petition, Uptown alleges that it is “entitled to 

judgment” establishing that it has an express easement over Neighbors’ properties, including the 

right to maintain a boat dock, to construct and maintain a road to allow lake access, and to do all 
6

things “reasonably associated with recreational use of Lake Travis” for itself and its guests and

invitees. In the alternative, it alleges that it is entitled to a judgment establishing that it has a 

prescriptive easement allowing use of Neighbors’ properties “for the purpose of maintaining a 

boat dock, and the right to do all things reasonably associated with recreational use of a boat

dock on the lake.”

The trial court signed an order on the parties’ cross-motions for summary 

judgment that granted in part and denied in part each of the motions.3 The order specified that 

(1) an express easement (Easement) exists providing the owner of the dominant estate (currently, 

Uptown) “access to the water front, even though it may vary with the rise and fall of the river 

and lake”; (2) the Easement provides for ingress and egress to the waterfront “whither on foot, 

horseback or in vehicles of every kind” and to “recreational use of Lake Travis at the shoreline”

including “the right to remain at the edge of and in the lake on Defendants’ property” but does

not provide “the right to construct a road, boat ramp, or boat dock”; (3) the Easement was not 

extinguished through the doctrine of merger; and (4) there is no evidence creating a genuine 

issue of material fact on the essential elements of Uptown’s prescriptive-easement claim. In a 

later order, the trial court awarded each Neighbor approximately forty percent of their respective 

requested attorney’s fees plus conditional appellate attorney’s fees, which rendered the 

summary-judgment order final and appealable. Uptown filed a notice of appeal, and Neighbors

each filed notices of cross-appeal.

3 The trial court signed a later Amended Order on Cross Motions for Summary Judgment, 

on Landers’s and Newcastle’s motions to modify. The amended order is the operative order for 

purposes of this appeal and the order from which we cite the court’s findings and conclusions.
7

DISCUSSION

The standards for summary judgment are well-established, see Tex. R. Civ. 

P. 166a(c), (i), and we review de novo the trial court’s summary-judgment ruling, Provident 

Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). When an easement is 

unambiguous, we construe it as a matter of law. See Marcus Cable Assocs., L.P. v. Krohn, 

90 S.W.3d 697, 703 (Tex. 2002). On appeal, Uptown challenges the trial court’s delineation 

of the Easement’s scope, ruling on Uptown’s prescriptive-easement claim, and awards of 

attorney’s fees. On cross-appeal, each Neighbor challenges the amount of attorney’s fees that 

the trial court awarded it, and Newcastle additionally challenges the trial court’s ruling on its 

extinguishment claim.

Uptown’s issues

In three issues, Uptown argues that the trial court erred in (1) limiting the scope of 

the Easement by determining that it does not include the right to build and maintain a road, boat 

ramp, or boat dock on Neighbors’ properties; (2) granting Neighbors summary judgment on its

prescriptive-easement claim; and (3) awarding Neighbors attorney’s fees in the absence of 

evidence that the fees were reasonable and necessary and when such awards were not equitable 

and just.

Whether the trial court properly limited the scope of the Easement

An easement confers upon one person the right to use the land of another for a 

specific purpose, but it does not convey the property itself. Lakeside Launches, Inc. v. Austin 

Yacht Club, Inc., 750 S.W.2d 868, 870–71 (Tex. App.—Austin 1988, writ denied) (determining

that phrase “easement and right-of-way” granted right of passage over and across all land lying 
8

between specified 670-foot contour line and waters of Lake Travis). Put another way, an 

easement is a non-possessory interest in land that authorizes its holder to use the property 

for only particular purposes. Marcus Cable Assocs., 90 S.W.3d at 700. We apply basic

principles of contract construction when considering an express easement’s terms. Id. The 

contracting parties’ intentions, as expressed in the grant, determine the scope of the conveyed 

interest. Id. at 700–01.

We generally construe language within a contract according to its “plain, 

ordinary, and generally accepted meaning.” Piranha Partners v. Neuhoff, 596 S.W.3d 740, 

742-43 (Tex. 2020). When construing a contract, we must, if possible, give effect to all the 

contract’s terms so that none will be rendered meaningless, and we must read all of the 

provisions together so as to give each provision its intended effect. See Kelley-Coppedge, Inc. v. 

Highlands Ins., 980 S.W.2d 462, 464 (Tex. 1998); Forbau v. Aetna Life Ins., 876 S.W.2d 132, 

133 (Tex. 1994). We must be particularly wary of isolating individual words, phrases, or clauses 

and of reading them out of the context of the document as a whole. State Farm Life Ins. v. 

Beaston, 907 S.W.2d 430, 433 (Tex. 1995). For example, courts should presume that words that 

follow one another are not intended to be redundant. See Gulf Metals Indus., Inc. v. Chicago

Ins., 993 S.W.2d 800, 805 (Tex. App.—Austin 1999, pet. denied).

An easement’s express terms, construed according to their generally accepted 

meaning, delineate the purposes for which the easement holder may use the property, and 

nothing passes by implication except what is “reasonably necessary” to fairly enjoy the 

rights expressly granted. Marcus Cable Assocs., 90 S.W.3d at 701; see Lakeside Launches, 

750 S.W.2d at 871 (“In determining the scope of an easement, we may imply only those rights 

that are reasonably necessary to the fair enjoyment of the easement with as little burden as 
9

possible to the servient owner.”). Thus, if an easement expressly delineates the purposes for 

which the holder may use the property, a use pursuing a different, non-delineated purpose is not 

allowed. See Marcus Cable Assocs., 90 S.W.3d at 701; see also Davis v. Johnston, No. 03-10-

00712-CV, 2012 WL 2499472, at *16 (Tex. App.—Austin June 28, 2012, no pet.) (mem. op.) 

(collecting cases holding that “ingress and egress” to lake does not grant right to use waterfront 

land for general recreational purposes or to exercise waterfront privileges such as mooring boats 

and tethering boat docks). Applying these principles and the rules of contract construction, we 

consider the Easement’s express terms.

After first conveying fee title to Tract 1, the relevant and undisputed deeds in 

Uptown’s chain of title additionally convey to Uptown, as grantee,

an easement over, upon and across all land owned or controlled by [grantor] 

lying between the above described land [Tract 1] and the Colorado River or the

shore line of [Lake Travis] as it is now or may be hereafter established, being 

described by metes and bounds as follows:

BEGINNING at the Northeast corner of Tract 1 for the Northwest corner of this 

tract;

THENCE North 60 deg. 10' E. 138.6 feet to an iron stake at the water’s edge of 

Lake [Travis] for the Northeast corner of this tract;

THENCE with the water’s edge of Lake [Travis] South 120 deg. E. 100.0 feet to a 

point on the water’s edge for the Southeast corner of this tract;

THENCE South 81 deg. 31' W. 163.4 feet to an iron stake in a rock mound on the 

715 foot contour and at the Southeast corner of Tract 1 for the Southwest corner 

of this tract;

THENCE with the 715 foot contour and the East boundary of Tract 1, North 12 

deg. 11' E. 55.1 feet to an iron stake in a rock mound and North 11 deg. 20' W. 

44.9 feet to the PLACE OF BEGINNING, and containing 0.33 acres of land, 

more or less;

And as the said water front may hereafter vary with the rise and fall of said river 

and lake, provided, however, that as the shore line fluctuates with the rise and fall 
10

of the water the portion of the water front controlled by the grantee herein shall 

be in the proportion which the frontage hereby conveyed bears to the total

frontage on the lake of the land controlled by grantor lying on each side of the 

land hereby conveyed, and the grantee herein, his heirs and assigns, shall have the 

free and uninterrupted use and liberty and privilege and easement of passing over 

and upon said land, together with free ingress to and egress from said river or 

lake whether on foot or on horseback or in vehicles of every kind; provided, 

further, that the easement hereby granted is subject to all easements heretofore 

granted to Lower Colorado River Authority and to any other person upon and 

over said land.

(Emphases added.) Notably, the Easement does not expressly designate that use may be made of 

the servient estate for the purpose of maintaining boat docks, boat ramps, or roads. Instead, and 

relevant to the parties’ dispute, the Easement does four significant things:

• It specifies the geographical boundaries of the servient estate subject to the 

easement (to which we refer herein as the Easement Area);

• it quantifies the portion of the Easement Area that is “controlled by the grantee”

(to which we refer herein as the Recreation Area);

• it grants to the dominant estate broad rights to “pass over and upon” the

Recreation Area; and

• it grants to the dominant estate rights of ingress to and egress from the lake.

We will discuss each item in turn.

Firstly, the Easement specifies that the Easement Area is essentially a rectangle

bounded on the west by the 715-foot contour (the eastern boundary of Tract 1), on the east by the 

varying shoreline (i.e., “water’s edge”) of Lake Travis (“as it is now [in 1956] or may be 

hereafter established”), and on the north and south as described in the metes-and-bounds 

description and extending beyond the specified markers in a straight line to the shoreline (but not 

beyond) when the lake recedes below its height at the time of the 1956 deed.
11

Secondly, the Easement acknowledges that because “the said water front” will 

vary and the “shore line” will fluctuate, “the portion of the water front controlled by the grantee”

(the Recreation Area) will be a variable area rather than a fixed one. The Recreation Area equals

“the proportion which the frontage hereby conveyed bears to the total frontage on the lake of the 

land controlled by the grantor lying on each side of the land conveyed.” Neither party takes 

issue with the trial court’s failure to make a finding on the length of the waterfront or attendant 

size of the Recreation Area, and we therefore do not further address this aspect of the Easement.4

Thirdly, later in the same sentence—after quantifying the Recreation Area to be 

“controlled by the grantee”—the Easement outlines the extent of such “control.” It specifies that 

the grantee “shall have the free and uninterrupted use and liberty and privilege and easement 

of passing over and upon said land,” with “said land” necessarily referring to the Recreation 

Area. While the phrase employs two expansive adjectives—free and uninterrupted—and three

expansive nouns—use, liberty, and privilege—all of those terms, collectively, modify the 

phrase “passing over and upon said land,” indicated by the single appearance of the preposition 

“of.” The relevant, common meaning of the word “pass,” as used here—i.e., “over and 

upon said land”—means to “move, proceed, [or] go.” See Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/pass (last visited March 19, 2024). Thus, these 

second and third portions of the Easement grant broad rights to the grantee (and its heirs and 

assigns) of being physically present on (i.e., of moving about and upon) the Recreation Area, 

always and in the grantee’s sole discretion. However, we cannot conclude that the right to be 

present and move about on the land, as expressed on the face of the Easement, includes the right 

4 The trial court’s amended summary-judgment order reads, “The parties are not 

disputing the length of the shoreline for waterfront access. Those details are contained in the 

easement and, as they are not under dispute, the Court makes no ruling on that issue.”
12

to construct a boat dock, boat ramp, or road. See Marcus Cable Assocs., 90 S.W.3d at 701. 

Being physically present or even lingering and recreating on land cannot reasonably be construed 

to include activities that would significantly alter the land such as erecting structures and 

improvements that are affixed to the land.

Moreover, the Easement Area expressly terminates at the shoreline (wherever it 

may be at any given time) and does not extend eastward of the shoreline. Yet a boat dock—

whether tethered to the Easement Area or attached to the submerged lakebed—would necessarily 

be floating on the water above the lakebed and thus east of the shoreline. The same issue arises 

if this portion of the Easement were construed to allow the construction of a road to the lake 

because the road would inevitably extend eastward of the Easement Area, at least when the lake 

level rises. Furthermore, to construe the words “use,” “control,” “liberty,” and “privilege” as 

granting the right to construct a road and permanently alter the natural landscape—when that 

express purpose is not delineated—would expand the rights in the Easement to possessory rather 

than non-possessory rights, which we may not do absent an express intention in the instrument of 

conveyance. See id. (citing Restatement of Property’s distinction between easements—which 

permit owner to use land for only specified purposes—and possessory land interests—which 

permit owner to make any use of property). We conclude that this portion of the Easement does 

not convey the right to construct or maintain boat docks, boat ramps, or roads.

Fourthly and finally, the Easement additionally conveys the right of “free ingress 

to and egress from . . . [the] river or lake whether on foot or on horseback or in vehicles of every 

kind.” The right of ingress and egress is a separate and distinct one from the above-discussed 

right to pass over and upon the Recreation Area, as evidenced by the fact that it follows the 

phrase, “together with.” Otherwise, the phrase conferring the right of ingress and egress would 
13

be redundant, and we are to construe easements so that every provision is given effect and none 

are rendered meaningless. See Kelley-Coppedge, Inc., 980 S.W.2d at 464. Uptown argues that 

this delineated purpose of free ingress and egress includes the right to construct a road or boat 

ramp down to the lake because it is “incidental and necessary” to “reasonably enjoy” the express 

right of ingress and egress, particularly in “vehicles of every kind” (including boats). See

Lakeside Launches, 750 S.W.2d at 871 (stating that when rights are not expressly granted, courts

may imply only those rights reasonably necessary to fair enjoyment of use or purpose specified 

in express easement with as little burden as possible to servient owner).

In the context of the Easement, the right of “free” entrance to and exit from the 

lake, even in vehicles of every kind, reasonably means that the servient estate may not restrict or 

impede the grantee’s comings and goings across the Easement Area to reach the lake. See

Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/free (last visited

March 19, 2024) (defining “free” as “not obstructed, restricted, or impeded”); id.,

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

“ingress” to mean entrance or “the act of entering,” or “the right or ability to enter”); id.,

https://www.merriam-webster.com/dictionary/enter (last visited January 22, 2024) (defining 

“enter” to mean “to come or go into”); id., https://www.merriam-webster.com/dictionary/egress

(last visited March 19 , 2024) (defining “egress” to mean exit or “the action or right of going or 

coming out’); Ingress, Black’s Law Dictionary (11th ed. 2019) (defining “ingress” to mean “the 

right or ability to enter”); Egress, Black’s Law Dictionary (11th ed. 2019) (defining “egress” as

“the right or ability to leave”). By specifying that the grantee has a right of “free” ingress to and 

egress from the lake, “whether on foot or on horseback or in vehicles of every kind,” the 

Easement contemplates that the grantor may not impede the grantee’s lake access when the 
14

grantee is using one of the enumerated means of travel, if the means is capable of passing over 

the existing terrain. The delineation of permissible travel modes prohibits the grantor from

denying the grantee egress and ingress when it is traversing the land via one of those modes.

But there is no express right conveyed in the Easement to construct a road or alter 

the land to enable lake access by vehicle of any kind. When Texas caselaw has addressed road 

use, construction, and maintenance rights in the context of ingress-and-egress easements, the 

easements at issue expressly mentioned roads. See, e.g., Clearpoint Crossing Prop. Owners

Ass’n v. Chambers, 569 S.W.3d 195, 200 (Tex. App.—Houston [1st Dist.] 2018, pet. denied)

(construing fifty-foot-wide “road access easement” conveyed “for the purpose of constructing, 

maintaining, operating, repairing, and removing a road” “in order to provide Grantee” “free and 

uninterrupted pedestrian and vehicular ingress to and egress from” property); United Servs. 

Prof’l Grp. Inc. v. Hurt, No. 05-14-00108-CV, 2015 WL 8013509, at *6 (Tex. App.—Dallas 

Dec. 7, 2015, no pet.) (mem. op.) (construing “a 50 foot road easement for egress and ingress”);

Unger v. Landry, No. 01-03-01331-CV, 2005 WL 21396, at *2–3 (Tex. App.—Houston [1st

Dist.] Jan. 6, 2005, pet. denied) (mem. op.) (construing easement “of passing in and along a 

certain roadway now across a certain tract of land” and providing metes-and-bounds description 

of easement that was thirty feet in width); Adams v. Norsworthy Ranch, Ltd., 975 S.W.2d 424, 

428 (Tex. App.—Austin 1998, no pet.) (construing “easement of passing in and along a certain 

way or road,” “together with free ingress, egress and regress”). Unlike in those cases, wherein 

the easement expressly referenced a “road” and usually provided for specifics such as location 

and width, here it is unlikely based on the express text that the original grantor both (a) intended

the grantee to have a right to build a road (when there is no mention of a road) and (b) further, 

left the specifics of such a right unmentioned.
15

Limiting the right of ingress and egress to disallow construction of a road, as the 

trial court did, is consistent with this Court’s precedents limiting the scope of easements allowing 

ingress and egress to a lake, without more, to only that right. See Harbor Ventures, Inc. v. 

Dalton, No. 03-10-00690-CV, 2012 WL 1810205, at *11 (Tex. App.—Austin May 18, 2012, 

pet. denied) (mem. op.) (concluding that express easement allowing “ingress and egress” from 

lake did not contain implied grant to use property for general recreational purposes); Davis,

2012 WL 2499472, at *16 (determining that easement granting right of “ingress and egress” to 

lake did not include rights to maintain boat docks or engage in recreational activities on shore); 

Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 51–52 

(Tex. App.—Austin 2005, pet. denied) (determining that easement allowing “free access” to lake 

water and use thereof “for domestic purposes,” as well as right of “ingress and egress” to lake, 

did not provide right to use servient land for recreational purposes or to build and maintain 

structures, including boat dock); Lakeside Launches, 750 S.W.2d at 869–71 (determining that 

“an easement and right-of-way” granted only right of ingress and egress but did not convey right

to anchor and float commercial boat dock); Wall v. Lower Colorado River Auth., 536 S.W.2d 

688, 691 (Tex. App.—Austin 1976, writ ref’d n.r.e.) (determining that easement granting “right 

of ingress and egress” to “the water’s edge” did not grant implied right to use and enjoy lakefront 

property and build and maintain structures and facilities that are “useful and appropriate for 

lakefront property,” such as trailer houses).

Furthermore, and similar to our determination above as to whether the Easement 

allows boat docks, the construction and maintenance of a road—even if initially built only on 

exposed earth to the west of the shoreline—is not reasonably contemplated by the Easement’s 

express reference to ingress and egress because such road, or even just a portion thereof, would 
16

inevitably be underwater when the lake level rises and would, thus, encroach beyond (i.e., 

eastward of) the water’s edge. The Easement Area expressly extends only to “the shore line of 

[Lake Travis] as it is now [in 1956] or may be hereafter established,” and in no event extends 

eastward beyond the shoreline. We conclude that the Easement’s grant of the right of “free 

ingress to and egress from” the lake does not include the right to construct and maintain a road.

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 overrule Uptown’s first issue.

Whether summary judgment against Uptown on its prescriptive-easement claim was proper

Uptown next argues that summary judgment against it on its prescriptiveeasement claim entitling it to maintain a boat dock was improper because the evidence raised a 

material fact issue on each element of the claim. To establish a prescriptive easement, Uptown 

has the burden of proving that it used Neighbors’ land in a particular manner that was (1) open, 

(2) notorious, (3) exclusive, and (4) adverse (5) continuously (6) for ten years or more. See 

Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 717 (Tex. App.—Eastland 2012,

pet. denied); Cambridge Holdings, Ltd. v. Cambridge Condos. Council of Owners, No. 03-08-

00353-CV, 2010 WL 2330356, at *8 (Tex. App.—Austin June 11, 2010, no pet.) (mem. op.); see 

also Davis, 2012 WL 2499472, at *21 (“A prescriptive easement may arise from a property

owner’s knowing acquiescence (whether actual or constructive) in a claimant’s adverse use of 

the property under a claim of right continuously for ten years or more.”). Uptown does not 

allege that it has maintained a boat dock on Neighbors’ properties for any period of time, much 

less the requisite ten years. Rather, it bases its prescriptive-easement claim on the Zieschangs’

alleged adverse use of Neighbors’ properties to tether and float a boat dock for over thirty years, 
17

as expressed in its live petition: “Beginning no later than 1972, [Uptown’s] predecessors in 

interest used the Defendants’ property for purposes of maintaining and using a boat dock on the 

lake . . . [, and] such use was prescriptive and was, for at least 10 years, open, notorious, 

continuous, exclusive, and adverse.” To support this theory, Uptown proffered documents 

demonstrating that through the chain of title it purportedly has “privity of estate” with the

Zieschangs. See Davis, 2012 WL 2499472, at *21 (holding that ten-year requirement for 

prescriptive easement may be established by tacking successive interests if there is privity of 

estate between each holder and his successor and noting that adversity requirement for 

prescriptive easement is same as that required to prove adverse possession); see also Tex. Civ. 

Prac. & Rem. Code § 16.023 (“Tacking of Successive Interests”).

Uptown proffered evidence in the form of Mrs. Zieschang’s affidavit and 

deposition demonstrating that the Zieschangs had continuously maintained a floating boat dock

on Lake Travis from 1973 until 2007. The dock was always anchored by cables attached at the 

same two places on the shore of the lake. Mrs. Zieschang averred that the George/Reed family 

“owned the land surrounding” the Zieschangs’ property until 1996, when Volente bought the 

surrounding land and later sold some of it to each Neighbor. The Zieschangs removed the dock

in 2007 only because of its deterioration and intended to replace it but never in fact did because 

of health and personal issues. Mrs. Zieschang testified that the seller from whom she and her 

husband purchased the Property, Warren Jones, “assured” her that they had the right to float a 

boat dock “because of the easement” as it was “stated in the deed.” Mrs. Zieschang testified that 

when she and her husband conveyed the Property to Uptown in 2015, they intended to convey 

“all of the rights” and “anything that was in the deed that Warren Jones had given to us when 

we purchased the property,” plus the area later purchased from Volente and “any easements”
18

they had because they had “no reason to keep anything.” The title instruments in the record 

pertaining to the Zieschangs’ conveyance of the property to Uptown expressly reference and

convey the property itself and the Easement as originally appearing in the 1956 deed. They do 

not expressly reference any right or additional easement permitting maintenance of a boat dock

or any claim thereto.

In its summary-judgment order, the trial court determined that there was “no 

evidence creating a genuine issue of material fact on each of the essential elements” of the 

prescriptive-easement claim. Having reviewed the record, we agree that there is no evidence of

Uptown’s continuous use of Neighbors’ properties to tether and maintain a boat dock for ten 

years or more.

Although Uptown is correct that a successor in title may tack its period of adverse

use or possession to that of its predecessor, see Davis, 2012 WL 2499472, at *21, there is no 

evidence of any period of use by Uptown (or by the Zieschangs after 2007) of Neighbors’

properties for maintenance of a boat dock, and thus its attempt at “tacking” its adversity period 

onto the Zieschangs’ is inapposite. See Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331, 

343-44 (Tex. App.—San Antonio 2006, pet. denied). In other words, Uptown is essentially

claiming a prescriptive easement through the Zieschangs’ matured prescriptive right—that is, 

through the Zieschangs’ prescriptive easement that had legally matured, if at all, well before 

2007 when they dismantled the boat dock and later conveyed the property to Uptown. See id.

Uptown is therefore not attempting to “tack” any period of its use of Neighbors’ properties onto 

a period of the Zieschangs’ same use to maintain a boat dock. As several of our sister courts

have recognized, “[w]hen title by limitations has matured there is no further place for ‘tacking’

. . . . And the title so matured cannot be transferred orally, but can be conveyed only by an 
19

instrument in writing.” See Haby v. Howard, 757 S.W.2d 34, 38 (Tex. App.—San Antonio 

1988, writ denied); accord Loeffler, 211 S.W.3d at 343; Moser v. Batchelor, No. 06-04-00096-

CV, 2005 WL 1122667, at *4 (Tex. App.—Texarkana May 13, 2005, no pet.) (mem. op.); Terrill

v. Tuckness, 985 S.W.2d 97, 110 (Tex. App.—San Antonio 1998, no pet.); Dale v. Stringer, 570

S.W.2d 414, 418 (Tex. App.—Texarkana 1978, writ ref’d n.r.e.); Kleckner v. McClure, 

524 S.W.2d 608, 613 (Tex. App.—Fort Worth 1975, no writ).

This means that because the Zieschangs’ prescriptive easement matured, if at 

all, prior to Uptown’s ownership, the Zieschangs were required to convey their prescriptive

easement to Uptown through a deed or other written instrument for it to claim the right to use 

Neighbors’ property for a boat dock and thus prove privity of estate. See Terrill, 985 S.W.2d 

at 110; Haby, 757 S.W.2d at 38. Even taking all the evidence in the light most favorable to

Uptown, no evidence demonstrates that, after the Zieschangs’ prescriptive easement had matured

(in 2007 or earlier), they conveyed such easement in writing to Uptown. Accordingly, there is 

no genuine issue of material fact on the element of Uptown’s privity of estate with its 

predecessors that could meet the element of continuous use of Neighbors’ properties for ten or

more years, and the trial court did not err in granting Neighbors no-evidence summary judgment 

on Uptown’s prescriptive-easement claim. Accordingly, we overrule Uptown’s second issue.

Whether the trial court erred in awarding Neighbors attorney’s fees

In its third issue, Uptown argues that the trial court abused its discretion in 

awarding Neighbors attorney’s fees, contending that (1) the evidence was legally insufficient to 

support any award of fees, and (2) it was neither equitable nor just to award fees because Uptown 

“prevailed on the main issue” in that Neighbors “wanted to eliminate Uptown’s easement”
20

through their extinguishment counterclaims, which the trial court rejected, and Neighbors’

counterclaims for declaratory judgment were “merely incidental” to its claims for relief.

While the UDJA authorizes awards of attorney’s fees, it does not require an award 

of them to anyone. See Tex. Civ. Prac. & Rem. Code § 37.009. Rather, it “entrusts attorney fee 

awards to the trial court’s sound discretion, subject to the requirements that any fees awarded be

reasonable and necessary, which are matters of fact, and to the additional requirements that fees 

be equitable and just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 

1998). “Unreasonable fees cannot be awarded, even if the court believed them just, but the court 

may conclude that it is not equitable or just to award even reasonable and necessary fees.” Id.

Further, an award of attorney’s fees is not dependent on a finding that the party “substantially 

prevailed.” Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 

637 (Tex. 1996).

In its first argument, Uptown challenges the legal sufficiency of the evidence 

supporting the award to Neighbors of trial-level attorney’s fees and conditional appellate

attorney’s fees. As for the trial-level fees, Newcastle’s and Landers’s evidence was in the form 

of affidavits of their attorneys, with attachments consisting of billing statements, and the 

averments therein directly tracked the requirements outlined in Rohrmoos. See Rohrmoos 

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501–02 (Tex. 2019) (delineating 

minimum legally sufficient evidence to support award of attorney’s fees). The respective 

affidavits of Newcastle’s and Landers’s attorneys contain the same type and level of information 

that this Court has previously held constitutes legally sufficient evidence to support an award of 

trial-level attorney’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.); Cobb Dev. v. McCabe, No. 03-
21

21-00524-CV, 2023 WL 4003513, at *12 (Tex. App.—Austin June 15, 2023, pet. filed) (mem. 

op.); King v. King, No. 03-22-00329-CV, 2023 WL 3873496, at *14 (Tex. App.—Austin June 8, 

2023, no pet.) (mem. op.).

Also within this argument, Uptown contends that Neighbors’ attorneys 

“piggybacked” on each other’s work in that many of their pleadings and filings were identical or 

incorporated by reference the other’s. However, Uptown does not cite any authority determining

that co-parties’ benefitting from one another’s pleadings or arguments makes their evidence of 

attorney’s fees legally insufficient, and we have not found any. Furthermore, Uptown does not 

identify any specific evidence of attorney’s fees incurred by either Neighbor that is purportedly 

unnecessary and unreasonable because it is duplicative or merely “piggybacks,” 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, at *6 (Tex. App.—Austin 

Aug. 29, 2018, no pet.) (mem. op.) (“As an appellate court, it is not our duty to perform an 

independent review of the summary-judgment record for evidence supporting appellants’

position.”). We accordingly overrule the portion of Uptown’s third issue complaining about the 

legal sufficiency of the evidence to support the award of trial-level attorney’s fees.

However, we determine that Uptown’s argument about the trial court’s award of 

conditional appellate attorney’s fees has merit. To recover conditional appellate attorney’s fees, 

a claimant needs to provide opinion testimony about the services it reasonably believes will be 

necessary to defend the appeal and a reasonable hourly rate for those services. Yowell v. Granite 

Operating Co., 620 S.W.3d 335, 355 (Tex. 2020). The affidavits of Neighbors’ attorneys do not 

address appellate attorney’s fees at all, much less opine on the estimated fees or anticipated tasks 

reasonably necessary to defend an appeal before this Court or for any proceedings before the 
22

supreme court. Cf. id. When discretionary appellate attorney’s fees are authorized but the 

evidence is legally insufficient to support an award, the proper remedy is to reverse and remand 

for a redetermination of attorney’s fees. See Faith P. & Charles L. Bybee Found. v. Knutzen, 

681 S.W.3d 818, 840–41 (Tex. App.—Austin 2023, no pet.) (reversing and remanding for 

redetermination of appellate attorney’s fees under UDJA where affidavit provided “no evidence 

any about such tasks [required by Yowell] for an appeal”); Jimmie Luecke Children P’ship, Ltd.

v. Droemer, No. 03-20-00096-CV, 2022 WL 243162, at *8 (Tex. App.—Austin Jan. 27, 2022, 

pet. denied) (mem. op.) (same); Porter v. Porter, No. 04-20-00229-CV, 2021 WL 2117923, at *5 

(Tex. App.—San Antonio May 26, 2021, no pet.) (mem. op.) (reversing and remanding issue of 

trial and appellate attorney’s fees in divorce suit where party did not offer any evidence of 

appellate attorney’s fees and evidence of trial fees was insufficiently detailed). The awards of 

conditional appellate fees are therefore not supported by legally sufficient evidence and must be 

reversed, and we sustain this portion of Uptown’s third issue. See Droemer, 2022 WL 243162,

at *8; Porter, 2021 WL 2117923, at *5.

In its second argument within this issue, Uptown contends that it was inequitable 

and unjust to award Neighbors any attorney’s fees because (1) they did not substantially prevail 

on the merits and (2) their claims were merely “incidental” to its claims for relief. As we have 

already noted, however, prevailing on the merits is not a requisite of a fee award under the 

UDJA. See Barshop, 925 S.W.2d at 637. Secondly, to the extent that which party “substantially 

prevailed” on the merits has bearing on whether an award is equitable and just, our review of the 

record leads us to conclude that at the core of the parties’ dispute was the question of whether 

Uptown has a right to build and maintain a boat dock, ramp, and road on Neighbors’ properties. 

The trial court determined that question against Uptown, and we have affirmed such 
23

determination. Thus, we cannot conclude that the trial court abused its discretion in concluding 

that an award of fees to Neighbors was equitable and just.

We also are not persuaded by Uptown’s argument that Neighbors’ claims were 

merely “incidental” to its claims for relief and that, therefore, an attorney’s fee award to them 

was inequitable and unjust. It was Neighbors who first sought a declaratory judgment regarding 

the Easement’s scope. In contrast, Uptown originally filed a cause of action under a 

prescriptive-easement theory only, and it was not until later in an amended petition—filed after

Neighbors had counterclaimed for a declaratory judgment regarding the Easement’s limited 

scope—that Uptown added its claim for declaratory judgment. Even though the lawsuit began as

an attempt by Uptown to establish a prescriptive easement allowing a boat dock, upon 

Neighbors’ counterclaims the dispute expanded to include requests by both parties to construe

the express Easement and determine whether it permitted rights including a boat dock but 

also a road and ramp. Construction of the Easement and its scope was at the center of the 

parties’ dispute and falls squarely under the UDJA. See Tex. Civ. Prac. & Rem. Code § 37.004

(providing that person interested under deed may have determined “any question of construction 

or validity arising” thereunder and may obtain declaration of rights thereunder).

We conclude that Neighbors’ UDJA claims were separate and distinct from 

Uptown’s original prescriptive-easement claim, were not wholly subsumed therein or redundant 

thereof, and thus were not “merely incidental” to it. See 12636 Research Ltd. v. Indian Bros., 

Inc., No. 03-19-00078-CV, 2021 WL 417027, at *18-19 (Tex. App.—Austin Feb. 5, 2021, no 

pet.) (mem. op.); cf. Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 301 (Tex. 

2011) (concluding that plaintiff’s claim arose squarely under Texas Public Information Act 

(TPIA), which did not allow for recovery of attorney’s fees under circumstances, and that 
24

attempt to recover fees under UDJA was improper because recovery thereunder was “merely 

incidental” to TPIA claim for relief). We overrule this final portion of Uptown’s third issue.

Neighbors’ issues

In two cross-issues, Newcastle argues that the trial court erred in (1) denying 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 cross-issue, Landers argues that the 

trial court abused its discretion in failing to award him the entirety of his requested attorney’s 

fees.

Whether Newcastle was entitled to summary judgment on its extinguishment claim

Newcastle moved for summary judgment on its counterclaim in which it asserted 

that the Easement had been extinguished under the doctrine of merger when by a 1997 deed the

Zieschangs acquired the portion of the Easement described by metes and bounds. The

undisputed summary-judgment evidence establishes that in 1972 the Zieschangs built a house on 

what they believed was their property. However, they realized sometime later that the house, in 

fact, sat largely outside their property boundaries and partly within the portion of the Easement 

described by metes and bounds. In 1997, the property on which the Zieschangs’ house sat 

belonged to third party Volente. In 1997, Volente by quitclaim deed conveyed the metes-andbounds portion of the Easement to the Zieschangs, plus additional land extending the 

Zieschang’s fee title southward some distance and eastward to the 670-foot contour. Newcastle 

contends that Volente’s conveyance of the metes-and-bounds portion of the Easement 

extinguished the Easement in its entirety. We disagree.
25

“Under the merger doctrine, if an easement exists and then the owner of that 

easement acquires a greater estate, the two estates merge into the greater of the two and the lesser 

is extinguished.” Cecola v. Ruley, 12 S.W.3d 848, 852 (Tex. App.—Texarkana 2000, no pet.).

This is because “[o]ne who owns fee simple title no longer needs an easement across his own 

property, since the fee simple gives him the right to use all of the property.” Id.; see also Howell 

v. Estes, 12 S.W. 62, 62 (Tex. 1888) (“The principle is elementary that, to constitute an

easement, the dominant and the servient estates must be held by different owners; and when the 

owner of an estate enjoys an easement over another, and acquires title to the latter, the easement

is thereby extinguished.”). Under the merger doctrine, an easement is terminated when “all the 

benefits and burdens come into a single ownership.” See Teal Trading & Dev., LP v. Champee 

Springs Ranches Prop. Owners Ass’n, 534 S.W.3d 558, 578 n.7 (Tex. App.—San Antonio 2017),

aff’d, 593 S.W.3d 324 (Tex. 2020) (citation omitted).

Newcastle’s argument fails on this last point because less than all the benefits and 

burdens came into a single ownership by virtue of the Volente quitclaim deed. By such deed the 

Zieschangs acquired only (1) the portion of the Easement Area specified by metes and bounds in 

the 1956 original deed (which extended eastward only up to the shoreline in 1956, which was 

then about thirty feet west of the 670-foot contour) plus (2) the land to the east of the 1956 

shoreline as far as the 670-foot contour. However, the Easement Area includes not just those 

two areas but all the land between the north and south boundaries of the metes-and-bounds 

area that extends eastward all the way to the water’s edge, as it changes over time. That area’s

fee title remained held by Volente and is now held by Neighbors. Accordingly, the trial court

did not err in denying Newcastle’s motion for summary judgment on its counterclaim of 

extinguishment through merger of the Easement. We overrule Newcastle’s second issue.
26

Whether the trial court abused its discretion in its award of attorney’s fees

Newcastle and Landers both assert the trial court abused its discretion in failing 

to award them the entirety of their requested attorney’s fees. As already noted, we review the 

trial court’s award of attorney’s fees under the UDJA for an abuse of discretion, which occurs 

when a trial court rules arbitrarily, unreasonably, or without regard to guiding legal principles or

without supporting evidence. Bocquet, 972 S.W.2d at 21. Landers and Newcastle each argues

that the trial court’s reduction by about sixty percent of its requested attorney’s fees—which 

were supported by “undisputed evidence”—was arbitrary.

To support his argument, Landers cites non-UDJA cases, in which an award of 

attorney’s fees to the prevailing party was statutorily mandated and non-discretionary rather than 

subject to the trial court’s discretion. See Rohrmoos, 578 S.W.3d at 487 (noting that in contract 

cases, statute authorizes award of fees to prevailing party); Hoelscher v. Kilman, No. 03-04-

00440-CV, 2006 WL 358238, at *3–4 (Tex. App.—Austin Feb. 16, 2006, no pet.) (mem. op.)

(noting that statute stating party “may recover” fees for breach-of-contract claim was not 

discretionary, unlike statutes such as UDJA stating that court “may award” fees). But, as we

have already noted, the UDJA entrusts the trial court with discretion to conclude that it is 

not equitable or just to award even reasonable and necessary attorney’s fees. See Bocquet, 

972 S.W.2d at 21; see also Tex. Civ. Prac. & Rem. Code § 37.009 (Courts “may award costs and 

reasonable and necessary attorney’s fees as are equitable and just.”). Moreover, in UDJA 

actions, “courts have the authority to award less than an amount determined by a jury to be 

reasonable and necessary and . . . this is a matter committed to the trial court’s sound discretion.” 

Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004). That is, the determination 
27

of whether an award of attorney’s fees would be equitable and just is not susceptible to direct 

proof but instead is a matter of fairness in light of all the circumstances. See id. at 162–63.

Further, as we have already observed, the award of attorney’s fees is not

dependent on a finding that the party “substantially prevailed.” Barshop, 925 S.W.2d at 637.

The trial court is not required to award attorney’s fees to the prevailing party in a declaratoryjudgment action and may even award attorney’s fees to the non-prevailing party. Moosavideen 

v. Garrett, 300 S.W.3d 791, 802 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). “Thus, the 

attorney’s fees provision grants the trial court broad discretion to (i) afford all parties the 

opportunity to request fees; (ii) decline to award fees; and (iii) allow an award only when 

reasonable, necessary, equitable, 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 ruled arbitrarily, unreasonably, or without reference to any guiding principles or have ruled 

without any supporting evidence. See Bocquet, 972 S.W.2d at 21. Although Uptown did not 

obtain the full relief it sought, it did succeed in obtaining a declaration that it has legal rights to 

access the lake by traversing Neighbors’ properties and to 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 determination, in light of these circumstances and its legal conclusions, that 

Landers was not entitled to the entire amount of fees he incurred in this lawsuit.

Newcastle contends that the trial court improperly awarded it fees for only those

claims on which it prevailed, as purportedly indicated by the following statement: “[T]he Court 

finds that the Defendants . . . are entitled to recoup the portions of their reasonable, necessary, 

equitable and just attorney’s fees and expenses related to the declarations found by the Court 

pursuant to the [UDJA].” To the contrary, we read that statement to reflect not a decision by the 
28

trial court to award fees for only the claims on which Neighbors prevailed, but to award fees for 

only the claims falling under the UDJA’s purview and for which attorney’s fees may be 

recovered. The prescriptive-easement claim (and defenses thereto) 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 governed not by the UDJA but by the American Rule requiring each 

party to bear its own fees, see Rohrmoos Venture, 578 S.W.3d at 483–84. However, even if 

Newcastle’s reading of this statement in the trial court’s order were accurate, the trial court 

nonetheless was entitled to consider who was the prevailing party as to each issue and claim in 

the case when considering the equity and justness of assessing fees because courts are to 

consider all the circumstances when making awards. See Ridge Oil Co., 148 S.W.3d at 162; 

Moosavideen, 300 S.W.3d at 802.

In light of all the circumstances here, including Uptown’s prevailing on 

Neighbors’ extinguishment claims and the fact that the prescriptive-easement claim was outside 

the UDJA’s purview, we cannot conclude that the trial court acted arbitrarily or abused its 

discretion in reducing Neighbors’ respective requests for attorney’s fees. We overrule Landers’s 

sole cross-issue and Newcastle’s first cross-issue.

CONCLUSION

We affirm the trial court’s Amended Order on Cross Motions for Summary

Judgment. We also affirm the trial court’s Order on Defendants’ Motions for Award of 

Attorney’s Fees except for the portion awarding Landers and Newcastle contingent appellate 

attorney’s fees, which portion we reverse. We remand for redetermination the issue of the 
29

reasonable, necessary, equitable, and just contingent appellate attorney’s fees, if any, to which 

each Landers and Newcastle is entitled.

__________________________________________

Thomas J. Baker, Justice

Before Justices Baker, Kelly, and Smith

Affirmed in Part; Reversed and Remanded in Part

Filed: March 22, 2024