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

NO. 03-10-00840- CV

Jim m ie Luecke Children Par tnership, Ltd., Ap pellant

v. Elain e P runcutz, John Pr uncutz, and Am y P ete rs, Appellees

F ROM TH E DISTRI CT COURT O F LEE CO UNTY, 335 TH JUDICI AL DISTRICT NO. 11,9 36, H ONO RAB LE TERRY L. F LENNIK EN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J immie Luecke C h i l dren Partnership, Ltd. (Partner ship) challeng es a final j u d gm en t i n wh ich the district court, following a bench trial in a partition suit, approve d a commissioners’ repor

t pa rtitioning land owne d by

the Partner ship and Appellee s Elaine Pruncutz, her husba nd J ohn Pruncutz, and her da ug hter Amy

Peters (c ollectively , Pruncutz). Pruncutz filed this suit to par t i t i o n i n kind a 525.39-ac re trac t of land betwee n their i n tere st and the interest owned by the Partnership. The trial court rende red an interlocutory judgme nt finding that the proper ty was susceptible to partition, deter mined Pruncutz and the Partnership eac h owned a 50% interest, o rd ere d that Pruncutz’s share of the proper ty should include the homestead, and appointed three commissioners to pa rtition the proper

ty . We a ffirme d the interlocutory judgme nt in a memorandum opinion. Jimmie Luecke Children P’sh i p , Ltd.

v. Pruncutz , No. 03-03-00388- CV, 2005 WL 910144 (Tex. App.—Aust in A p r . 2 1 , 2 0 0 5 , p e t. denied) (mem. op.).I n this appea l from the trial court’s final judgme nt approving the commissioners’

repor t, the Partnership challeng es only the location of the acc ess ease ment g rante d to its sever ed trac t by the par tition. W e af

firm the trial c ourt’s judg ment.

BACK GR OUND The commissioners’ repor t approve d by the trial court partitioned the 525.39-ac re proper ty at issue into two t ra ct s : (1) a 300-ac re trac t awa rded to the Partnership running along the wester

n and southern border s of the proper ty , with a narr ow strip of land extending north to

connec t to the only public road with acc ess to the proper ty , Fa rm-to-Mar

ket Road 2239 (F M 2239), and (2) a 225.39-ac re trac t awa rded to Pruncutz on the northea st po rt i on of the proper ty which includes Pruncutz’s homestead. 1

Wit h reg ard to acc ess, the commissioners’ repor t provides the Partners h i p a direc t

means of acc ess by gra n t i n g i t a narr ow strip of undevelope d land in the northwest portion of the Partnership’s trac t that connec ts direc tly to FM 2239. Be cause the commissioners awa rded 2 the Partnership a direc t means to acc ess its proper ty from a public road, the Texas Property Code did not require the commissioners to awa rd the Partnership an ease ment acr oss Pruncutz’s sever ed trac t. See Tex. Prop. Code § 23.006 (providing that commissioners—unless waived by the parties—sha ll g rant a p artitioned trac t without means of acc ess to a public road or ease ment appurte nant to the trac t an ease ment acr oss an adjoining partitioned trac t to provide rea sonable ingr ess an d egr es s ).
A diag ram of the partitioned prope rty is attache d as an a

ppendix. 1 Be cause Pruncutz’s trac t does not have d i re ct ac ce s s to a public road or an ease ment 2 to cr o s s an adjoining landowner ’s proper ty , the commissioners awa rded Pruncutz an ease ment to a cce ss F M 2239 along this na rrow strip of land owned by the Partnership. See Tex. Prop. Code § 23.006. Pruncutz’s easeme nt is not challeng ed by the Partner ship. 2Neve rtheless, the commissioners elec ted to also g rant the Partnership an additional means to acc ess

its proper ty by g ranting it an easement along the easte rn edge of Pruncutz’s trac t. This ease ment 3 p ro v ides the Partnership with acc ess to the southeaster n corne r of its trac t from an undedicat ed roadw ay connec ting to the ease ment on the northea st corne r of Pruncutz’s trac t and running to FM 2239 acr oss an adjoining landowner ’s proper ty
. The only commissioner prese nt at trial testified that the commissioners wanted to impartially provide both parties with “g ood acc ess” to their trac ts and that they g rante d the additional ease ment to provide the Partnership acc ess to the back of its proper ty during flooding

. The commiss ioners did not, howeve r, agr ee to the P artne rship’s re quest to provide another means of acc ess via an ease ment acr oss the middle of Pruncutz’s trac t. The ease ment soug ht by the Partnership would run along an undedicated roadw ay extending horizo n t all y acr oss the

m i d d l e p o rt ion of Pruncutz’s trac t—from its northea stern corne r to the wester n border wher e i t meets the Partnership’s trac t—and would bring the Partnership’s route within a couple hundred fee t of Pruncutz’s homestead. This roadw ay does not h av e d i rect acc ess to a public road, but rathe r

co nnects to the undedicated roadw ay on the northea st corne r of Pruncutz’s trac t that extends t o FM 2239 acr oss the adjoining landowner ’s proper ty
. Although the parties have historically acc essed their proper

ty from FM 2239 via the undedicated roadw ay ext en d i n g ac ross their neig hbor’s proper ty , neither party has a rec orded ease ment to trave l acr oss the adjoining landowner ’s proper ty
.

I n its brief, the Partnership asser ts that “no road curr ently exis ts along [t he Partnership’s] 3 ease ment.” This is co n t rar y to the undisputed evidenc e at trial. The only commissioner prese nt during the trial testified that there was an “existi ng road” along the Partnership’s ease ment providing acc ess to its proper

ty
. The g ener al partne r for the Partnership, J immie Luecke , confirme d on crossexamination that there was an exis ting road running along the Partnership’s ease ment curr ently used by the Partner ship to acce ss the southeast cor ner of the prope rty
. 3The P ar t n er s hip filed an objection t o the commi ssioners’ report—as authorized by

Texas Rule of Civil Procedur e 771—objecting to the acc ess g ran t ed to the sever ed trac ts by the partition. I n support of the Partnership’s objections, J immie L uecke —the g ener al partne r for the Partnership—testified that the access gr anted to the P artne rship in the pa rt i t i o n was “a lot worse” than the acc ess g rante d to Pruncutz beca use the Partnership’s ease ment was prone to flooding in heavy rain, but the ro ad way extending acr oss the middle of Pruncutz’s trac t had never flooded and had e x isted as long as he c ould remembe r. Afte r hea ring the evidenc e, the tria l court issued a final judgme nt confirming and partitioning the land in acc ordanc e with the commissioners’ repor t. The Partnership filed a motion for new trial alleg ing there was insuf fi ci en t ev i d ence to support the judg ment. I n two issues on appea l, the Partnership challeng es the sufficie ncy of t he evidenc e supporting the trial court’s final judgme nt, contending (1) the Partnership was entitled to an implied

ease ment as a m at t er o f law along the roadw ay extending acr oss the middle of Pruncutz’s trac t , and (2) the trial court’s implied finding that the commissioners’ repor t was equal and just is fac tually insufficient beca use the ease ment gi v en t o the Partnership is prone to flooding

. See Tex. R. C iv. P. 771.

STANDARD OF REVIEW

Two judgme nts are rende red in a p ar t ition suit. Griffin v. W olfe , 610 S.W .2d 466, 466 (Tex. 1980) (per curiam). The first judgme nt, sometimes ref err ed to as an interlocutory decr ee, deter

mines the interest of eac h of t h e j oint owner s and whether the proper ty is susceptible t o p ar t i t i o n . Tex. R. Civ. P. 760, 761; see also Snow v. Donelson , 242 S.W .3d 570, 572 (Tex. App.—Waco 2007, no pet.); Carson v. Ha g a ma n , 884 S.W .2d 194, 195 n.1 4(Tex. A

pp.—Eastland 1994, no writ). I f the proper ty is susc eptible to pa

rtition, the trial court will appoint commissioners to partition the proper ty in acc ordanc e with the respe ctive i ntere sts of the joint owne rs. Tex. R. Civ. P. 761. The commissioners then will issue a repor t pa rtitioning the land in acc ordanc e with the interlocut o ry decr ee and the require ments of Texas Rule of Civil Procedur e 769. Tex. R. Civ. P. 769. W i t h i n thirty day s of the date the commissioners’ repor t is filed, either party to the suit may file objections to the repor t. Tex. R

. C i v . P. 771. The party objecting to the commissioners’ repor t has t h e b urden of proving that the repor t is materia lly

err oneous or that it unequally and unjustly partitions the proper ty
. Id .; Ellis v. First City Nat’l Bank, 864 S.W .2d 555, 557 (Tex. App.—Tyler 1993, no wr it).

The second judgme nt, sometimes ref err ed t o as the final decr ee, approve s the repor t of the commissioners and partition s t h e p ro p erty
. Snow , 242 S.W .3d at 572; Marmion

v. W ells , 2 46 S.W .2d 704, 705 (Tex. Civ. App.—San Antonio 1952, writ ref ’d). I f the trial court finds the repor

t to be “er

roneous in any materia l respe ct, or u n eq u al and unjust,” the trial court must reje ct t he re port and a ppoint other commissioners to partition the l and. Tex. R. Civ. P. 771;

s ee a lso Snow , 242 S.W .3d at 572. Although the first judgme nt is often char acte rized as preliminary or interlocutory , both judgme nts are final for purposes of appea l. Marmion , 246 S.W .2d at 705. Matters decide d in the interlocutory decr ee cannot be revie wed i n an appea l from the final dec ree . Id

.

The P ar t nership here challeng es the leg al and fac tual sufficie ncy of the evidenc e supporting the trial court’s final decr ee. The trial court’s finding s in a partition suit, as in the trial of all other cases , may be attacke d on appea l for leg al and fac tual sufficie ncy . Carson , 884 S.W .2d at 198. Howeve r, the Partnership made no reque st to the trial court for finding s of fac t

5and conclusions of law. Absent such finding s and conclusions, we will assume the trial judge found

ever y fac t proposition nece ssary to sustain the j u d gm en t
. Gr i mes v. Colli e , 733 S.W .2d 338, 341 (Tex. App.—El Paso 1987, no writ). A trial court’s finding s are revie wable for leg al and fac tual sufficie ncy of the evidenc e by the same standards that are applied in revie wing evidenc e supporting a jury ’s finding s. Catali na v. Blasdel , 881 S.W .2d 295, 297 (Tex. 1994).

Be cause the Partnership attacks the leg al sufficie ncy of the trial court’s finding that there was not an implied ease ment along t h e undedicated roadw ay extending acr oss Pruncutz’s trac t—an issue upon which the Partnership had the burden of proof—it must demonstrate its claims

wer e established as a matter of law by the evidenc e in the trial rec ord. See Sterner v. Marathon Oil Co. , 767 S.W .2d 686, 690 (Tex. 1989). I n revie wing a “matter of law” challeng e, the revie wi ng court must first examine the rec ord for eviden ce t h at s upports the finding , while ignor ing all evidenc e to the contra

ry . Id. I f there is no evidenc e to support the finding , t h e revie wing court wi l l t h en examine the entire rec ord to deter mine if the contra

ry proposition is established

as a matter o f l aw . Id

. T h e point of err or should be sustained only if the contra ry proposition is conclusively

established. Id. For i t s fac tual sufficie ncy challeng e to the trial court’s implied finding that the partition repor

t was just and eq u al, the Partnership must demonstrate on appea l that the adver se finding , upon which it had the burden of proof, is ag ain s t t h e g reat weig ht and preponde ranc e of the ev i d en ce . Do w Chem. Co. v. Francis , 46 S.W .3d 237, 241 (Tex. 2001). I n revie wing fac tual sufficie ncy , we must ex am i n e the entire rec ord, considering both the evidenc e in favor of, and contr ar y t o , t he challeng ed finding s. Id. We may not pass upon the witnesses’

cre dibilit y or substitut e our judgme nt for that of the fac t finder, even if the evidenc e would support

6a differ ent result. Id. We may set aside the verdic t for fac tual sufficie ncy only if the evidenc e is so

weak or if the fi n d ing is so ag ainst the g reat weig ht and preponde ranc e of the evidenc e that it is clea rly wrongand unjust. Id.

DISCUSSIO N I n its first issue on appea l, the Partnersh i p contends it was entitled as a matter of law to an implied ease ment along the undedicated roadw ay extending east to west acr oss the middle of Pruncutz’s trac t. I mplied ease ments arise when it can be implied from the circ umstances surrounding the sever ance of a previously unifi ed t ra ct o f land that the parties intended for an

ease ment to pass to a sever ed trac t. See Mitchell v. Castellaw , 246 S.W .2d 163, 167 (Tex. 1 9 52) (“The basis of the doctrine [of implied ease ments] is that the law rea ds into the instrument that which the circumstances show both g rantor and gra ntee must have intended, h ad t h ey gi v en the obvious fac ts of the transac tion proper consideration.”); see also Seber v. Union Pac. R.R. Co. , 350 S.W .3d 640, 647–48 (Tex. App.—Houston [14t h Dist.] 2011, no pet.) (“[T] he circumstance s surrounding

an owner ’s conveyance of part of a previously unified trac t of land may cause an ease ment to a rise betwee n the two new pa

rce ls.”). When land is partitioned betwee n joint owner s, an implied ease ment may arise from

a joint owner ’s use of an exis ting roadw ay running from one part of a trac t of land to another , if—at the time of sever ance—the use of the roadw ay was appar ent, continuous, and rea sonably nece ssary to that part of the land to which it pr ovides ingr ess and eg ress. See Bec k v. Mills , 616 S.W .2d 353, 355 (Tex. Civ. App.—Houston [14t h Dist.] 1981, writ ref ’d); Zapata Cnty. v. Llanos , 239 S.W .2d 699, 701 (Tex. Civ. App.—San An t o n i o 1951, writ ref ’d n.r.e)

. At the time of partition, the dominant and servient estates are cre ated and eac h sever ed trac t takes its land subject to the roadw ay 7as it e x isted at the time of partition. Bec k, 616 S.W .2d at 355; see also D aniel v. Fox , 917 S.W .2d

106, 111 (Tex. A

pp.—San Antonio 1996, writ denied)

. “One takes by implied g rant and the other takes subjec t to such impli ed g rant of e aseme nt.” Bec k, 616 S.W .2d at 355.

To establish an implied ea s em ent as a matter of law, the Partnership had the burden of conclusively proving : (1) unity of owner ship betwee n the dominant and servient estates; (2) app ar en t use of the roadw ay ; (3) continuous use of the roadw ay , so that the parties must have intended it s u s e t o p ass by g rant to the Partnership; and (4) use of the roadw ay was rea sonably

nece ssary to the use and enjoy ment of the Partnership’s trac t. See Drye v. Eagle Rock Ranch, Inc. , 364 S.W .2d 196, 207 (Tex. 1963); Vinson v. Brown , 80 S.W .3d 221, 228–29 (Tex. App.—Austin 2002, no pet.) (ele ments of implied ease ment); see also Zapata Cnty. , 239 S.W .2d at 701 (noting that

nece s s i ty require d for implied ease ment arising from partition of land owned by joint owner s is that use which is rea sonably nece ssary for convenien t and comforta ble enjoy ment of the proper

ty

as it exis ted when the sever ance was made)

. Wh et h er these require ments have been met is to be deter mined as of the t ime of seve ranc e. Vinson , 80 S.W .3d at 229. “[A]l l elements necessa ry for

a finding of an implied ease ment are essential, and absent all the nece ssary elements, an imp l i ed

ease ment cannot e x ist.” Houston Bellaire , Ltd. v. TC P LB Portfol io I, L.P. , 981 S.W .2d 916, 920 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Proving an implied ease ment as a matter of law “is

a difficult burden; essentially [t he Partnership] must demonstrate with reg ard to these discrete issues, that they established all vital fac ts in support of these issues so conclusively that they wer e entitled to judgment a s a matter of law.” Vinson , 80 S.W .3d at 228. We conclude the Partnership faile d to me et its burden of proving an implied ease ment

as a matter of law. Wit h reg ard to the first element, unity of owner ship, the Partnership had the 8burden of

conclusively proving unity of owner ship be tween the dominant a nd servient e states as a unit or single trac t prior to sever ance . Koonce v. Brite Estate , 663 S.W .2d 451, 452 (Tex. 1984). To acc ess its tract fr om the ease ment soug ht, however , the Partner ship must trave l from FM 2239

acr oss lands owned by third parties to which it does not have a rec orded ease ment and to which it did not prese nt evidenc e demonstrating common owner ship. An implied ease ment cannot arise acr oss lands owned by third parties that wer e never owned in conjunction wit h the pa rt itioned trac t. See Carson , 884 S.W .2d at 198 (finding no imp l i ed ea s em en t when “acc ess t o appellant’ s proper ty is

acr oss lands which are owned by third parties and wer e never owned in conjunction with [partitioned trac t] ”); see also Holden v. W eidenfeller , 929 S.W .2d 124 , 130 (Tex. App.—San Antonio 1996, writ denied) (implied ease ment alongroad c ould not ex ist where por tion of land that road crossed belong ed to third party at time of sever ance ). The commissioners did not have the authority to g rant the Partnership an ease ment acr oss lands owned by third parties, and without acc ess o v er t he ad j o i n i n g proper

ty , the ease ment the Partnership seeks to imply would be a road to nowher e. Be cause a portion of the roadw ay providing acc ess to the Partnership’s trac t belong s to a third party , we c annot conc lude the Partne rship established as a matter of law the unity

of owne rship betwee n the dominant and ser

vient estates ne cessa

ry for a n implied easeme nt. 4

The ea s em ent g rante d to the Partnership on the easte rn edg e of Pruncutz’s trac t suffe rs 4 from the same defe ct as the ease ment the Partnership seeks to imply , i. e, b o th ease ments require the Partner ship to travel ac ross lands owned by third parties. Although the Partnership c ould lose acc ess to its trac t from the ease ment g rante d, the commissioners complied with the require ments of Property Code section 23.006 by

additionally

g rantingthe Partner ship direct acc ess to its proper ty from a public road. See Tex. Prop. Code § 23.006. We also note that the commissioners, unlike the Partnership, were not require d to establish unity of ownership betwee n the dom inant an d s er vient estates a s a matter of

law. 9Wit h reg ard to the second element—a ppare nt use of the ease ment—the evidenc e at t ri al wa s s u fficie nt to establish appar ent us e of the undedicated roadway at t he ti me of sever ance. See Drye , 364 S.W

. 2 d at 207 (roa d onto or out of g rante d are a in exis tence at time of sever ance establishes appa

rent use)

. We cannot, howeve r, co n clude that the Partnership established continuous use of the ea sement at the time of se vera nce, such that the par

ties must have intended f or an e aseme nt to pass by implication. See Drye , 364 S.W .2d at 208 (for an implied ease ment to arise, “use must have been c ontinuous—so that the parties must have int ended that its use pass by the gra nt”); Mitchell , 246 S.W .2d at 167 (basis of doctrine of imp l i ed ease ments is “that the law rea ds into the deed that which the circ umstances show both g rantor and g rante e must have inte n d ed ”); Scarborough v. Anderson Bros. Constr. Co. , 90 S.W .2d 305, 310 (Tex. Civ. App.—El Paso 1936, writ dism’d) (“Implied ease ments are based upon the presumed intent of the parties. They are implied to car ry into effe ct such intention.”).

The Texas Supreme Court has explained that implied e aseme nts ba sed on prior use of land are cre ated when an owner used one part of his land, the servient estate, for the benef it of anothe r portion of his land, the dominant estate. See Drye , 364 S.W .2d at 207. When the land is sever ed, those uses of t h e s er v i en t estate that wer e appar ent, continuous, and nece ssary at the time of sever ance pass by implication to the dominant estate. Id. T h u s , “[ t] he law rea d into the instrument that which both g rantor and g rante e must have intended had they both g iven the obvious fac ts of the transa ction proper consideration.” Id. Her e, howeve r, t he partition define d a means of acc ess to eac h trac t distinct from the ease ment the Partnership seeks. When la nd is pa rtitioned among joint owne rs and eac h owner

10is gr anted a cce ss to its trac t in acc ordanc e with t he re quirements of se ction 23.006 of the prope rty

code, it cannot be implied that the parties intended any additional ease ments to pass in the partition. See Tex. Prop. Code § 23.006 (providing that commissioners—unless waived by the parties—sha ll g rant a partitioned trac t without means of acc ess to a public road or ease ment appurte nant to the trac t

an ease ment acr oss an adjoining partitioned trac t to provide rea sonable ingr ess and eg ress). Rather, the g rant of an ex press ease ment—as in this case —neg ates any presumption of an ease ment by implication along another roadw ay wher e an ease ment was not awa rded. See Adams v. Norswor thy Ranch, Ltd. , 975 S.W .2d 424, 427 (Tex. App.—Austin 1998, no pet.) (“When an express ease ment exis ts the re can be no implied ease ment incidental to the g rant of the express ease ment except that which is r easona

bly nece ssary to the fair enjoy ment of the e x press e aseme nt.”); see also H olstrom

v. Lee , 26 S.W .3d 526, 531–32 (Tex. App.—Austin 2000, no pet.) (“I n deter mining whether an

ease ment should be implied, we consider fac tors such as the te rms of the c onvey ance .”). Fur ther, an ease ment may not arise by i m plication from a prior use when such use is discontinued by the partition. See Zapata Cnty. , 239 S.W .2d at 702 (“[U]pon seve ranc e of such

owner ship there arises by implication of law a g rant of the rig ht to continue such use, . . . unless the cont ra ry i s p rovided.” ); see also 28A C.J .S. Easeme nts § 83 (2013) (“Such an ease ment will not arise by implication

. . . wher e provision is made in the partition for a discontinuance .”). Her e, the partition discontinues the P artne rship’s us e of the road extending ac ro ss the m iddle of P runcutz’s trac t but g rants it two alterna tives to acc ess its pro p er t y

— t h ere by exti ng uishing any claim to

an ease ment by i m plication. See Adams , 975 S.W .2d at 427; Zapata Cnty. , 239 S.W .2d at 702. Moreove r, the Partnership objected to the acc ess g rante d in the partition and reque sted the trial court g rant it additional acc ess acr oss Pruncutz’s trac t. The trial court considere d the evidenc e, overr uled

11the objection, and approve d the commissioners’ repor t g ranting th e P ar t n er ship two alternate means of acc ess. Acc ording ly , t h i s wa s “n o t a situation in which the partition decr ee was m ere ly silent about a rec og nized road” and it could be implied from the circ umstances that the parties intend ed an ea sement to pass in the partition. Lasater v. Maher , 330 S.W .2d 481, 482 (Tex. App.—San Antonio 1959, no writ). Rather, the trial court expressly reje cted the Partnership’s reque st for an ease ment acr oss Pruncutz’s trac t, and i t ca n n o t b e implied that the parties intended such an ease ment to pa ss in the partition. See id. Acc ording ly , we conclude the Partnership failed t o conclusively establish continuous use of the easement such that the parties must have i n t en d ed for the e aseme nt to pass by implication in the partition. The final element to establish an implied ease ment as a m at t er of law is that of

nece s s ity

. When land is partitioned betwee n joint owner s, the deg ree of nece ssity require d for

an i m p l i ed ease ment is rea sonable nece ssity

. Zapata Cnty. , 239 S.W .2d at 702; see also Cotte r

v. Moore , 634 S

. W

. 2d 332, 335 (Tex. App.

— Corpus Christi 1982, writ ref ’d n.r.e.) ; Bec k, 616 S.W .2d at 355 (whe n land is partitioned, rea s o n able—rather than strict—nece ssity require d fo r i m p l i ed ease ment). To establish rea sonable nece ssity as a matter of law, the Partnership wa s require d to conclusively prove that the ease ment was nece ssary for the fair enjoy ment of its proper

ty

as it e x isted at the time of sever ance . Bec k, 616 S.W .2d at 355; Zapata Cnty. , 239 S.W .2d at 702;

see also Drye , 364 S.W .2d at 207 (mere convenie nce insufficient to establish implied ease ment, use must be nece ssary

and esse ntial to the proper e njoy ment of the e state g rante d). At the time of sever ance , the Partnership had two means to acc ess i t s proper ty —including direc t ac ce ss from a public road and an ease ment along the easte rn edg e of Pruncutz’s trac t. When, as here , a par t y “has acc ess to a part of his trac t of land by way of trave l

12over his own proper ty , this, as a matter of law, is a better and more direc t route than one which burdens an adjac ent landowner

. . . . I t does not matter that the route acr oss one’s own land is longe r,

more circ uitous, or in a

n inferior condition phy sically .” Adams , 975 S.W .2d at 429. Acc ording ly , we cannot conclude the Partnership has established, as a matter of law, that an ease ment acr oss the middle of Pruncutz’s trac t—in addition to the two means of acc ess provided by the partition—was

rea sonably nece ssary for the use and enjoy ment of the Partnership’s trac t. See id .; see also Vinson , 80 S.W .3d at 229 (appe llant failed to establish implied ease ment on lake fr o n t p ro perty was

rea sonably nece ssary as a matter of law when appellant had express ease ments to use other are as of subdivision with lake frontag e); Adams , 9 7 5 S.W .2d at 427 (“B eca use the Adamses have been g rante d an acc ess route along the Easeme nt Road pursuan t t o t h e ex press lang uag e of the written

ease ment, they cannot show that an additional ease ment route is rea sonably n ec es s ar y to the convenie nt and comforta

ble enjoy ment of the proper

ty as it exis ted when the sever ance was made.” ). Acc ording ly , we conclude the Partnership failed to establish an implied ease ment as a matter of law.

I n its second issue on appea l, the Partnership challeng es the fac tual sufficie ncy of the trial court’s implied finding that the partition repor t was just and equal. See Tex. R. Civ. P. 771; DeM arco v. Van Hee

s , 493 S.W .2d 553, 554 (Tex. Civ. App.—Houston [14t h Dist.] 1973, no writ). The burden of proof is on the party wh o at t ac k s t h e report of the commissioners to show that the portion allotted to him was not e qual and just. Vestal v. Jack son , 598 S.W .2d 724, 726 (Tex. Civ. App.—Waco 1980, no wr i t ). The P artne rship contends the repor t unequally and unjus tly divided

acc ess betwee n the trac ts beca use the ease ment g iven to the Partnership is prone to flooding , but the

ro ad gi ven to Pruncutz acr oss the middle of their trac t sits on highe r g round that does n o t fl o o d

. “The fairne ss of the division m u st be sustained unless the evidenc e shows conclusively that

13there i s i n eq u al i t y in the value of the share s.” Grimes v. Hall , 211 S.W .2d 956, 958 (Tex. Civ.

App.—Eastland 1948, no wr it).

As discussed above the commissioners’ repor t gra n ted the Partnership two means to acc ess its proper

ty —including direc t acc ess to its proper ty from a public road. S ee A d a ms , 947 S.W .2d at 429 (“When one has acc ess to a part of his trac t of land by way of trave l over his own proper ty , this, as a matter of law, is a better and more dir ec t ro u t e t h an o ne which burdens an adjac ent land owner . . . . I t does not matter that the rout e ac ro s s o n e’ s o wn land is longe r, more circ uitous, or in an inferior condition phy sically .”). Fur ther, alt h o u gh t h e g ener al partne r for the Partnership testified that its acc ess was “a lot worse” than Pruncutz’s beca use the ease ment awa

rded to the Partnership was prone to flooding , the commissioner testified that t h e easement g iven to the Partnership was specific ally g rante d t o p rovide acc ess during flooding

. See Price v. Price , 394 S.W .2d 855, 859 (Tex. Civ. App.—Ty ler 1965, wr it r ef’ d n.r.e.) (re port of the commissioners approve d by

trial court will not be set aside where testimony is conflicting ). Finally , the alter nate

ease ment the Partnership seeks would extend acr oss the entirety of Pruncutz’s trac t from its easte rn to wester n border s and bring the Partnership’s route closer to Pruncutz’s homestead. See Tex. Prop. Code § 23.006 (acce s s ea s em ent g rante d by commissioners acr oss partitioned trac t must be the shortest route to the adjoini ng trac t that “ca uses t he least amount of damag e to the t rac t subject t o the ease ment” and “is located the g reatest rea sonable distance from the primary residenc e and related improvements located on the trac t subje ct to the ease ment”). After revie wing all the evidenc e, we conclude t h e P artnership did not sustain its burden of proving the repor t of the commissioners unjustly or unequally partitioned the proper ty
. The Partnership has not shown that the trial court’s

14judgme nt is so aga inst the g reat weig ht and prepondera nce of the evidence that it is clear ly wrong and unjust.

CONCLUSION

For the fore g oing r easons, we aff irm the judg ment of the trial c ourt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: August 16, 2013

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