Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-17-00035-CV

Robert MEDINA and Christina MEDINA,

Appellants

v.

Timothy K. BOWERS,

Appellee

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2013-CI-11752

Honorable Michael E. Mery, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Irene Rios, Justice

Delivered and Filed: December 27, 2018

REVERSED, RENDERED, AND REMANDED

This appeal arises from a real property dispute between appellants, Robert Medina and 

Christina Medina, and appellee, Timothy K. Bowers, who are adjoining landowners. The trial 

court rendered a judgment declaring the Medinas have no existing easement or prescriptive rights 

over Timothy’s property and therefore, are enjoined from using or crossing over it. On appeal, the 

Medinas challenge the trial court’s judgment, raising eight issues for our review. Because we hold 

the Medinas have an easement by necessity over Timothy’s property to access Gardner Road, we 

reverse the trial court’s judgment and render judgment declaring the Medinas have a valid 
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easement by necessity over Timothy’s property. We also remand the cause to the trial court for 

reconsideration of the attorney’s fees. 

BACKGROUND

This appeal involves seven family members – Timothy; Timothy’s parents, Tracy and 

Rachel Bowers; and Timothy’s aunts and uncles, Stacy and Miriam Bowers and the Medinas –

who entered into a contract to purchase 60 acres of land from Dr. Sarah Nunneley in 2002. Tracy, 

who is Timothy’s father, negotiated the transaction on behalf of the family. Initially, the family 

members planned to purchase the property as tenants-in-common and then divide the land into 

four tracts with each couple and Timothy receiving a tract. At closing, Dr. Nunneley added an 

additional 2.027 acres of land to the transaction; these additional acres consisted of a triangular 

area that abutted Gardner Road. This triangular area was low-lying and known to frequently flood. 

When the additional acreage was added to the transaction, it was unclear how it would be allotted 

among the family members. Ultimately, the triangular portion was allotted to Timothy, and the 

family members divided the land as follows: a 25-acre tract to Tracy and Rachel Bowers; a 17-

acre tract to Timothy; a 5.027-acre tract to the Medinas; and a 15-acre tract to Stacy and Miriam 

Bowers. The 17-acre tract allotted to Timothy was comprised of two areas, including the triangular 

area, connected by a 20-foot strip of land. Each family members’ property also included a 20-foot

strip of land that ran along the southern portion of their tracts and gave them direct access to 

Gardner Road. The families’ tracts are depicted as follows:
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As depicted above, Tracy and Rachel Bowers and Timothy’s strips of land ran parallel to

each other directly to Gardner Road. This point of entry became known as the southern entrance. 

With regard to the strips of land allotted to the Medinas and Stacy and Miriam Bowers, their strips

ran parallel to the other strips until they reached the triangular area; at that point, their strips turned

upward and ran along the north boundary line of the triangular area to Gardner Road. This point 

of entry became known as the northern entrance. 

The record reflects the strips were developed with caliche into a common road that 

everyone used to access Gardner Road at both the northern and southern entrances. The record 

further reflects that when it rained, everyone used the northern entrance to access Gardner Road 

because the southern entrance was prone to becoming muddy and impassible. However, to access 
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the northern entrance, the family members had to cross over a portion of Dr. Nunneley’s property,1

and it is disputed whether all the family members had permission to use this portion of Dr. 

Nunneley’s property. According to Timothy, when the family divided the tracts among each other, 

Dr. Nunneley granted the Medinas and Stacy and Miriam Bowers an easement over a portion of 

her property necessary to access the northern entrance. This portion of property was a developed 

road that lead to the northern entrance. It became known as the Nunneley easement, and it ran 

along the portion of Stacy and Miriam Bowers’s strip of land above the triangular portion of land 

owned by Timothy. According to Timothy, the ongoing use of the Nunneley easement was 

conditioned on the Medinas and Stacy and Miriam Bowers’ maintenance of the easement. 

In 2007, Tracy asked Timothy whether he could use a portion of the triangular area that 

abutted Gardner Road near the southern entrance. At the time, neither Tracy nor Timothy lived 

on their tracts, and Tracy was beginning the process of building a road and dwelling on his 25-acre 

tract. However, the large trucks carrying construction materials were unable to access Tracy’s 25-

acre tract using the northern entrance or the caliche road leading up to the southern entrance. 

According to Timothy, he granted Tracy temporary permission to use part of the triangular portion 

of his land so the trucks could utilize the southern entrance and access Tracy’s property. 

Thereafter, Tracy hired a contractor to build a cement bridge in the triangular area on Timothy’s 

property for the trucks to use. The record reflects Tracy, Stacy, and the Medinas each signed

contracts relating to the construction of the cement bridge. The record further reflects the Medinas 

paid for one-fourth of the construction cost of the cement bridge. According to the Medinas, they 

did not know whether Timothy was involved in any of the decisions concerning the construction 

of the cement bridge. Timothy, however, contends it was his understanding that he granted only 

 1 Dr. Nunneley maintained ownership of the tract of land between the 62.027-acre property and Gardner Road
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Tracy temporary access to his property, and he was unaware Tracy worked with Stacy and the 

Medinas to construct the cement bridge. In fact, Timothy did not see the cement bridge until four 

years after it was completed. 

After the cement bridge was built, the Medinas, Tracy and Rachel Bowers, and Stacy and 

Miriam Bowers used the cement bridge to access the southern entrance. In order for the Medinas

to use the bridge, they drove along their 20-foot strip and then traveled across a portion of 

Timothy’s property to access the bridge. The record reflects that by the time the Medinas began 

crossing Timothy’s property to access the bridge, the Nunneley easement had expired because no 

one maintained or used it. In fact, the Millers, who had bought the property from Dr. Nunneley, 

relocated their fence line, which physically terminated everyone’s access to the Nunneley 

easement. 

On January 7, 2013, Timothy sent the Medinas a letter, demanding they stop trespassing 

on his property. According to Timothy, the Medinas were trespassing each time they utilized the 

southern entrance. Timothy alleged the trespass included “not only the large triangular section of 

[his] property abutting [Gardner Road] which includes a large portion of the concrete bridge, but 

also portions of [his] property stretching from the triangular portion back to the rectangular portion 

of [his] property.” 

When the Medinas refused to comply with Timothy’s request, Timothy filed suit against 

the Medinas asserting a trespass to try title claim and a declaratory judgment claim under the Texas 

Uniform Declaratory Judgments Act (UDJA). Timothy also sought injunctive relief. In his UDJA 

action, Timothy sought a declaration that the Medinas had no valid easement or prescriptive rights 

to use any portion of his property as well as attorney’s fees. With regard to his trespass to try title 

action, Timothy asserted the Medinas used his property without his permission each time they used 
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a portion of the cement bridge to access the southern entrance and a portion of his 20-foot strip 

located near his rectangular portion of property. 

The Medinas answered and counterclaimed for a declaration that they have a right to an 

easement over the portion of Timothy’s property that would give them access to Gardner Road. 

The Medinas also asserted several affirmative defenses, including estoppel, waiver, statute of 

limitations, statute of frauds, laches, right of ingress and egress, easement by estoppel, implied 

easement, easement by prescriptive use, adverse possession, prior use easement, and easement 

from implied necessity. 

The case was subsequently tried to the court, and after a four-day bench trial, the trial court 

granted Timothy declaratory and injunctive relief. Specifically, the trial court declared the 

Medinas had “no validly existing easement or prescriptive rights” over Timothy’s property to 

access Gardner Road at the southern entrance. The trial court further found the Medinas committed 

trespass, awarding Timothy $1.00 in nominal damages as well as attorney’s fees pursuant to the 

UDJA. Thereafter, the Medinas perfected this appeal. 

ANALYSIS

On appeal, the Medinas raise eight issues for our review. They first contend the trial court 

erred in granting “[Timothy’s] relief under the [UDJA] as [Timothy] did not provide factually or 

legally sufficient evidence to produce the essential elements of his Trespass to Try Title Claim.” 

The Medinas further contend the trial court erred in finding they did not establish their affirmative 

defenses of easement by estoppel, necessity, or by prescription over the portion of Timothy’s

property they needed to use to access the southern entrance. In the alternative, the Medinas argue 

the trial court erred by excluding certain evidence and finding Dr. Nunneley did not grant them

the right to ingress/egress across the portion of Timothy’s property they needed to use to access 

the southern entrance. In addition to these arguments, the Medinas argue the trial court erred: (1)
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by rendering a judgment that is substantively defective; (2) finding the designated responsible third 

party, Tracy, did not cause or contribute to Timothy’s damages; (3) excluding evidence and 

testimony of two witnesses based on unfair surprise and prejudice; (4) and awarding attorney’s 

fees and costs to Timothy. Finally, the Medinas contend Timothy’s claims are barred by 

limitations. 

Easement by Necessity

Here, the crux of this appeal centers on whether the Medinas have a right to cross over 

Timothy’s property to access Gardner Road at the southern entrance. We therefore begin our 

analysis by determining whether the trial court erred in finding the Medinas did not have an 

easement or any prescriptive rights over Timothy’s property. Specifically, we begin with the 

Medinas’ assertion that the trial court erred in finding they do not have an easement by necessity 

over the portion of Timothy’s property they need to use to access Gardner Road at the southern 

entrance. 

Standard of Review and Applicable Law

Whether a party is entitled to an easement by necessity is a question of law that we review 

de novo. Staley Family P’ship, Ltd. v. Stiles, 483 S.W.3d 545, 548 (Tex. 2016). A conclusion of 

law will be reversed if it is erroneous as a matter of law. Id. 

To establish an easement by necessity, the claimant must show: (1) unity of ownership of 

the dominant and servient estates prior to severance; (2) necessity of a roadway; and (3) existence 

of the necessity at the time of the severance of the two estates. Id. Whether these requirements 

are met is determined at the time of severance of the alleged dominant and servient estates. Ingham 

v. O’Block, 351 S.W.3d 96, 102 (Tex. App.—San Antonio 2011, pet. denied); Miller v. Elliott, 94 

S.W.3d 38, 43 (Tex. App.—Tyler 2002, pet. denied). 
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It is well established that if a claimant has another way to access the roadway from his own 

property, then he cannot claim an easement by necessity. Crone v. Brumley, 219 S.W.3d 65, 68 

(Tex. App.—San Antonio 2006, pet. denied); Scott v. Cannon, 959 S.W.3d 712, 721 (Tex. App.—

Austin 1998, pet. denied); Daniel v. Fox, 917 S.W.2d 106, 111 (Tex. App.—San Antonio 1996, 

writ denied). The fact that an alternate route would be inconvenient or expensive does not justify 

imposing an easement by necessity. Scott, 959 S.W.3d at 721. “However, an easement by 

necessity is not defeated by proof that the party seeking the easement has ‘a mere license to use a 

way across the land’ of another.” Crone, 219 S.W.3d at 68 (quoting Bains v. Parker, 143 Tex. 57, 

182 S.W.2d 397, 399 (1944)). Rather, the party seeking to establish an easement by necessity 

must prove that he has no other legal access to his property. Id. 

Application

As the parties seeking the easement by necessity, the Medinas had the burden to establish 

all elements of that claim. See Stiles, 483 S.W.3d at 548. Here, the parties dispute the third element 

– whether a necessity existed at the time of severance. According to the Medinas, a necessity 

existed when the tracts were severed because at that time, neither the northern entrance nor the 

Nunneley easement existed. The Medinas contend the only way for everyone to access Gardner 

Road was by the southern entrance, requiring them to cross a portion of Timothy’s property, 

including the portion now containing the cement bridge. Timothy, on the other hand, contends the 

northern entrance and the Nunneley easement existed at the time of severance, and thus, the 

Medinas had an alternate route. 

Here, it is undisputed that access to the northern entrance depended on use of the Nunneley 

easement, and it is undisputed that the Nunneley easement was located on Dr. Nunneley’s property. 

Assuming the northern entrance and Nunneley easement were in existence at the time of the 

severance, the record establishes that at most, the alternate route suggested by Timothy was only 
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temporary as it depended on the conditions placed on the Nunneley easement. See Garcia v. 

Gonzalez, No. 04-95-00971-CV, 1996 WL 425995, at *4 (Tex. App.—San Antonio July 31, 1996, 

no pet.) (mem. op.) (describing alternate route as temporary when route depended on conditions

placed on use of route). According to Timothy, the ongoing use of the Nunneley easement was 

conditioned on proper maintenance. See id. Moreover, because access to the northern entrance 

was dependent on use of the Nunneley easement located on Dr. Nunneley’s property, Timothy’s 

suggested route was not an alternate route over the Medinas’ property. See id. (holding route not 

alternate route when not across appellee’s own land); Sentell v. Williamson County, 801 S.W.2d 

220, 223 (Tex. App.—Austin 1990, no writ) (describing alternate routes as routes over one’s own 

property). Instead, the record shows the severance of the land by the seven family members after 

its purchase from Dr. Nunneley completely cut off the Medinas’ access to Gardner Road, making 

it landlocked and dependent on temporary access to the northern entrance. Because the Medinas 

had no legal right to access the Nunneley easement to the northern entrance, we conclude the 

temporary route suggested by Timothy was not an alternate route in existence at the time of 

severance. See Garcia, 1996 WL 425995, at *4; Sentell v. Williamson County, 801 S.W.2d at 23. 

We therefore hold no alternate route giving the Medinas legal access to Gardner Road existed at 

the time of severance, and as a result, the Medinas have an easement by necessity over the portion 

of Timothy’s property needed to access Gardner Road by the southern entrance. 

Having determined the trial court erred in finding the Medinas did not have an easement 

by necessity, we need not address the Medinas’ remaining challenges to the sufficiency of the 

evidence, exclusion of the evidence, and defects in the judgment. We now turn our attention to 

the Medinas’ challenge to the trial court’s award of attorney’s fees. 
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Attorney’s Fees

On appeal, the Medinas challenge the trial court’s award of attorney’s fees to Timothy 

based on the UDJA. According to the Medinas, this award is erroneous because Timothy’s 

declaratory judgment action duplicated his trespass-to-try-title claim for which attorney’s fees are 

unavailable. 

Standard of Review and Applicable Law

We review a trial court’s award of attorney’s fees under the UDJA for an abuse of 

discretion. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004); Florey v. Estate 

of McConnell, 212 S.W.3d 439, 447 (Tex. App.—Austin 2006, pet. denied). Under the UDJA, a 

court “may award ... reasonable and necessary attorney’s fees as are equitable and just.” TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009. However, a party may not recover attorney’s fees under the 

UDJA when the only issues, aside from attorney’s fees, concern trespass to try title or clearing of 

title. See Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 926 (Tex. 2013); 

Florey, 212 S.W.3d at 448. A trespass-to-try-title lawsuit is an action generally used to clear 

problems in chains of title or to recover possession of land unlawfully withheld from a rightful 

owner. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). However, no statute provides for 

the recovery of attorney’s fees for a trespass to try title claim. See TEX. CIV. PRAC. & REM. CODE 

ANN. § 37.004(c); Martin, 133 S.W.3d at 264–65; 1–10 Colony, Inc. v. Chao Kuan Lee, 393 

S.W.3d 467, 475 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (pointing out that UDJA 

and trespass-to-try-title statutes differ in pleading and proof requirements, and recovery of 

attorney’s fees). 

Application

Here, the Medinas are correct in that the only basis upon which Timothy could recover 

attorney’s fees is his UDJA claim so long as it was not based solely on his trespass to try title 
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claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(c); Martin, 133 S.W.3d at 264–65; 1–

10 Colony, Inc., 393 S.W.3d at 475. However, because we have determined that the trial court 

erred in granting declaratory relief in favor of Timothy, we need not determine whether the trial 

court erred in its award of attorney’s fees to Timothy. See Kachina Pipeline Co., Inc. v. Lillis, 471 

S.W.3d 445, 455 (Tex. 2015) (stating when an appellate court reverses a declaratory judgment, it 

may also reverse an attorney’s fee award). Rather, we reverse the trial court’s award of attorney’s 

fees and remand the issue of attorney’s fees to the trial court for further proceedings. See id. 

CONCLUSION

Because we hold the Medinas have an easement by necessity over Timothy’s property, we 

reverse the judgment of the trial court and render judgment declaring the Medinas have a valid 

easement by necessity over Timothy’s property. In light of our decision, we remand the cause to 

the trial court for reconsideration of the issue of attorney’s fees. 

Marialyn Barnard, Justice