Rinn v. Wennenweser (Tex.App.- Houston [1st Dist.] July 3, 2008)(Jennings)
(real estate law, easement dispute, validity)
AFFIRM TC JUDGMENT: Opinion by
Justice Terry Jennings  
Before Justices Taft, Jennings and Bland
01-07-00763-CV Leeland Rinn v. Max Wennenweser
Appeal from 155th District Court of Austin County
Trial Court Judge: Hon. Dan R. Beck

MEMORANDUM OPINION

Appellant, Leeland Rinn, challenges the trial court's rendition of judgment in favor of appellee, Max
Wennenweser, in Rinn's suit against Wennenweser seeking an easement over Wennenweser's
property. In five points of error, Rinn contends that the trial court's judgment "fails to sufficiently
describe the awarded easement," the trial court erred in finding that the "1901 easement" was a
"valid and subsisting easement," the trial court erred in entering its judgment because an
indispensable party was not before the court, and the trial court's failure to find an easement by
necessity or easement by prescription over the requested route (herein referred to as the "requested
easement") was contrary to the great weight and preponderance of the evidence.

We affirm.

Factual and Procedural Background

In his original petition, Rinn alleged that, in 1874, a large tract of land was partitioned into eight
separate tracts, which were then identified as timber tracts one through four and prairie tracts one
through four, and that an easement was established over all of the tracts for the mutual benefit of the
owners of these tracts. Rinn subsequently acquired ownership of timber tract three and
Wennenweser acquired ownership of timber tract four and prairie tract four. Rinn brought suit against
Wennenweser, alleging that he was entitled to the continued use of an original easement that
provided access to his property, and he sought a declaratory judgment that the original easement
remained valid. Alternatively, Rinn alleged the existence of an easement by necessity, prescription,
or estoppel.

At trial, Rinn sought to establish an easement somewhat different than the 1874 easement
referenced in his petition. Specifically, Rinn sought an easement to use a road that crossed over
Wennenweser's prairie tract four and ultimately approached a gate located on the southern portion
of Rinn's timber tract three. Rinn claimed that he had used this access road over Wennenweser's
prairie tract four for a period of 50 years.

Wennenweser disputed Rinn's requested easement, instead arguing that Rinn had access to his
timber tract three from its northern border through an easement that had been created in 1901
pursuant to a settlement agreement between all of the tract owners. Wennenweser presented
evidence that the 1901 easement allowed the timber tract owners, including Rinn, to access their
property by a road that extended the northern border of these tracts and that ultimately led to a
public road named Star Hill Road. However, other evidence indicated that, at some point after the
creation of the 1901 easement, Star Hill Road had been improved and straightened, leaving a short
gap between the location of the eastern end of the actual 1901 easement and the improved Star Hill
Road.

The trial court, in its judgment, found that the 1901 easement was "a valid and subsisting easement
in favor of [Rinn] for access to and egress from" his property. The trial court further found that
because the location of Star Hill Road had been moved in an eastward direction, a necessity existed
to create an easement between Star Hill Road, as it existed after it was improved and straightened,
and the southeastern end of the 1901 easement "in order that [Rinn] have access to and egress
from [Rinn's] property extending the complete distance between [Rinn's] property and the present
location of Star Hill Road along the route set out in the Amended Easement." Accordingly, the trial
court ordered that Rinn be awarded an easement to account for the gap between the improved Star
Hill Road and the 1901 easement. This awarded easement crossed the northern border of
Wennenweser's timber tract four to the southeastern end of the 1901 easement. The trial court, after
detailing the amended easement, ordered that Rinn was not entitled to any other easements across
Wennenweser's property, thus denying Rinn the requested easement to use a road crossing over
Wennenweser's prairie tract four to the southern border of Rinn's timber tract.

Description of Easement

In his first point of error, Rinn contends that the trial court's judgment "fails to sufficiently describe the
awarded easement." Rinn argues that "the easement is fatally defective because it is impossible to
determine at least one of the ending points of the easement," and Rinn asserts that nothing in the
judgment or attached documents "allows for the location of the southeastern end of the 1901
easement." Rinn further argues that "the metes and bo[u]nds . . . are inadequate" because the
surveyor used "indefinite marks" to define the easement.

In the trial court, Rinn never argued that the description of the 1901 easement was insufficient
because it is impossible to discern the southeastern end of the 1901 easement. To the extent that
Rinn is attempting to challenge the sufficiency of the description of the 1901 easement, we hold that
he has waived that issue for our review. See Tex. R. App. P. 33.1(a).

We further note that the trial court's judgment expressly incorporated a metes and bounds
description of the granted easement as well as a plat showing the exact location of the granted
easement. The judgment also incorporated the real property records for the relevant tracts of land
as well as the deed records evidencing the 1901 easement. Rinn has not cited any evidence in the
record, nor has he alleged, that the references to the general locations in the easement contradict
the otherwise sufficient description. We hold that the judgment provided a sufficient description of the
awarded easement. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 257 (Tex.
1984) (indicating that metes and bounds description is sufficient); Greer v. Greer, 144 Tex. 528, 191
S.W.2d 848, 849 (1946) (explaining that real property description in judgments must be "so definite
and certain . . . that the land can be identified with reasonable certainty" and that judgment may refer
to other writings to provide required certainty).

We overrule Rinn's first point of error.

The 1901 Easement

In his second point of error, Rinn contends that the trial court erred in finding that the 1901 easement
was a "valid and subsisting easement." Rinn asserts that the 1901 easement expired by its own
terms. However, as noted above, Rinn never challenged the validity of the 1901 easement during
trial, and he has waived that issue for our review. See Tex. R. App. P. 33.1(a). Morever, Rinn's
argument that the 1901 easement is no longer valid is based upon the conditional language in the
1901 easement. However, because the validity of the 1901 easement was not specifically raised in
the trial court, the record does not contain evidence establishing that the conditional language in the
1901 easement was satisfied and, thus, Rinn did not prove that the 1901 easement expired by its
own terms.

We overrule Rinn's second point of error.

Indispensable Party

In his third point of error, Rinn contends that the trial court erred in entering its judgment because an
indispensable party was not before the court. See Tex. R. Civ. P. 39. The indispensable party, who is
referred to by Rinn in the briefing only as "Mr. Parker," allegedly owned timber tract two, which is a
tract of land bordered on the west by Rinn's timber tract three, on the east by Wennenweser's timber
tract four, and on the north by the 1901 easement. (1) Thus, Mr. Parker allegedly owns a timber tract
that is located in between the timber tracts owned by the parties and that is encumbered, along its
northern border, by the 1901 easement, which was created to allow the owners of the timber tracts to
access their property from Star Hill Road.

As framed by Rinn himself, his third point of error is dependent upon his contention that the 1901
easement had expired by its own terms and was no longer valid. Based on Rinn's theory on appeal,
the owner of timber tract two, who Rinn alleges to be Mr. Parker, would be indispensable because, if
the 1901 easement had expired, the easement awarded to Rinn by the trial court would necessarily
have to encumber timber tract two. However, we have held that Rinn did not challenge the validity of
the 1901 easement in the trial court, and Rinn cannot raise this issue for the first time on appeal. See
Tex. R. App. P. 33.1(a). The easement awarded by the trial court, which only accounts for the gap
between the southeastern end of the 1901 easement and the improved Star Hill Road, does not
encumber timber tract two and, instead, the awarded easement encumbers only Wennenweser's
timber tract four. Wennenweser, who was before the trial court, does not complain on appeal about
the easement by necessity granted by the trial court that encumbers his timber tract. Thus, we hold
that nothing in the record support's Rinn's assertion that the trial court erred in entering its judgment
because an indispensable party was not before the court.

We overrule Rinn's third point of error.

Easement by Necessity and Prescription

In his fourth and fifth points of error, Rinn contends that the trial court's failure to find an easement
by necessity or prescription was "contrary to the great weight and preponderance of the evidence."

When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the
burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight
and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In
reviewing a claim that a finding is against the great weight and preponderance of the evidence, we
consider and weigh all of the evidence and may set aside the verdict only if the finding is so against
the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986). We note that the trial court acts as fact finder in a bench trial and
is the sole judge of the credibility of witnesses. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981);
HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.--Houston [1st
Dist.] 2005, no pet.).

Easement by Necessity

To establish an easement by necessity, Rinn was required to show (1) unity of ownership before
severance; (2) that access is a necessity and not a mere convenience; and (3) the necessity existed
at the time of severance of the two estates. Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex.
1984); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.--San Antonio 2006, pet. denied).

Focusing on the second element, we note that the trial court awarded Rinn an easement by
necessity to connect the gap between the 1901 easement and the improved Star Hill Road. Thus, the
judgment plainly affords Rinn access to his property. Rinn, however, asserts that any easement by
necessity should be located across prairie tract four because all of the relevant landowners impliedly
consented to the location of this easement. Rinn also complains that, even with the full use of the
awarded easement, a creek bisecting the northern and southern portions of his property renders it
"practically impossible" to access the southern portion of his property with hay-baling equipment,
which Rinn contends is the only "economially feasible means to use the south half of [his] property."

At trial, the parties hotly disputed whether the location of Rinn's requested easement across
Wennenweser's prairie tract four was based on necessity or mere convenience. Rinn conceded that
he had constructed a concrete low water crossing on his property that crossed the creek bisecting
his property, but Rinn testified in his deposition that the ability to use the low-water crossing was
extremely limited by high water levels throughout the majority of the year. However, during trial, when
presented with pictures of this low-water crossing, Rinn equivocated as to whether it was possible to
drive a pick-up across this low-water crossing at times of normal water. Rinn's wife also agreed that
she had crossed the creek in a pick-up using the low-water crossing several times.

Wennenweser, on the other hand, testified that he had seen Rinn's low water crossing and that it was
"absolutely" possible to haul hay across this low-water crossing. Wennenweser described it as a
"nice crossing." Photographs of the low-water crossing were introduced into evidence, and one of
these photographs depicts a pick-up or sports-utility vehicle crossing the low-water crossing, as
verified by one of Wennenweser's witnesses, during times of normal and usual water flow. Curtis
Rinn, who is Rinn's first cousin and who owns property bordering Rinn's timber tract, also testified
that he had seen "hay making equipment" using Rinn's low-water crossing. Additionally, Curtis Rinn
testified that the same creek that bisected Rinn's property bisected his property. Curtis Rinn stated
that he had constructed and used his own low-water crossing to cross the same creek and access
the southern portion of his property, he was able to haul hay with a trailer across his low-water
crossing, he could drive a pick-up across his low-water crossing, he had to occasionally clean his
low-water crossing after a high water event, he would spend approximately one hour to clean his
low-water crossing on those occasions, he spent no more than $100 a year to maintain his low-water
crossing, and his low-water crossing was impassable because of high water no more than 10 days a
year. Curtin Rinn further stated that his low-water crossing was in close proximity to Rinn's property--
approximately 20 to 40 feet away from Rinn's property line. Based on Curtis Rinn's testimony, the trial
court could have chosen to disregard Rinn's evidence regarding the ability and ease of maintaining
and using a low-water crossing over the creek that bisected Rinn's property.

The evidence supported an implied finding by the trial court that Rinn's request for an easement to
access his property by using a road that crossed Wennenweser's prairie tract four, as opposed to
the 1901 easement as modified by the trial court's judgment, was based on mere convenience and
not necessity. (2) Accordingly, we hold that the trial court's decision not to find an easement by
necessity over Wennenweser's prairie tract four was not against the great weight and preponderance
of the evidence so as to be clearly wrong and unjust. See Wilson v. McGuffin, 749 S.W.2d 606, 609
(Tex. App.--Corpus Christi 1988, writ denied) (noting that "[n]early every road can be impassable at
one time or another, which does not render an alternative route a necessary one other than for a
limited time" and concluding that easement requested over "[t]he high ground road was a mere
convenience for most of the time, and cannot be said to amount to a necessary one in the sense of
an easement by necessity").

Easement by Prescription

An easement by prescription rests on the claimant's adverse actions under a color of right. Mack v.
Landry, 22 S.W.3d 524, 531 (Tex. App.--Houston [14th Dist.] 2000, no pet.) (citing Scott v. Cannon,
959 S.W.2d 712, 721 (Tex. App.--Austin 1998, pet. denied)). "A person acquires a prescriptive
easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for
ten years." See id. (citing Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979)). "The hostile and
adverse character of the use necessary to establish an easement by prescription is the same as that
which is necessary to establish title by adverse possession." Id. (citing Othen v. Rosier, 148 Tex.
485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, we consider "whether
the adverse possessor's use, occupancy, and possession of the land is of such nature and character
as to notify the true owner that the claimant is asserting a hostile claim to the land." Id.

In support of a finding of exclusivity and hostility, Rinn contends that the evidence "demonstrated that
[he] used the property with an ownership interest, or a feeling of entitlement to use the property," and
he also asserts that he made improvements to the property. Rinn further asserts that "there has
been no persuasive evidence that the easement was used by anyone other than Rinn or his
employees" and that the evidence demonstrated that "the sole use of the easement was for access
to Rinn's property." The evidence does not support Rinn's assertions.

Although Rinn claimed that he had exclusive use of the easement, Rinn himself agreed that he had
never excluded Wennenweser or Wennenweser's predecessors in title from using any road on
Wennenweser's property. In contrast to Rinn's testimony, Wennenweser denied that Rinn had used
the requested easement exclusively, and Wennenweser stated that he used the road located on the
requested easement to access the western end of his property. Wennenweser also testified that Rinn
had used the road only with his and his predecessors' permission. To the extent Rinn and
Wennenweser presented conflicting testimony on Rinn's exclusive and adverse use of the road, the
trial court, as fact finder, was entitled to resolve that conflict against Rinn. See Murff, 615 S.W.2d at
700. Furthermore, although Rinn claimed to have improved the property, Wennenweser stated that
he, not Rinn, had hired a contractor to haul gravel to the road located on the requested easement.
He further stated that Rinn was "dreaming" up his claim that he had improved the road. Finally,
although Rinn claimed to have a key to access the gate on the requested easement, Wennenweser
denied that Rinn ever had a key. Although Wennenweser subsequently conceded that he had
loaned a key to Rinn on one occasion, Wennenweser maintained that, in order to access the road,
Rinn always had to call him first.

In sum, the evidence supported an implied finding by the trial court that Rinn's use of the requested
easement was not exclusive, adverse, or hostile. See Mack, 22 S.W.3d at 532 (stating that "[j]oint
continuous use alone without an independent hostile act attempting to exclude all other persons,
including the property owner from using the roadway, is not sufficient to establish an easement by
prescription" and holding that plaintiffs had failed to establish "requirement of hostility to transform
permissive use of an easement into an adverse use"). Accordingly, we hold that the trial court's
decision to not find an easement by prescription over Wennenweser's prairie tract four was not
against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. (3)

Conclusion

We affirm the judgment of the trial court.


Terry Jennings

Justice


Panel consists of Justices Taft, Jennings, and Bland.

1. Wennenweser, in his brief and at oral argument, contended that the current owner of the timber
tract in question is a "Mr. Fuller" not a "Mr. Parker."

2. At argument, Rinn relied on Daniel v. Fox, 917 S.W.2d 106, 111 (Tex. App.--Houston [1st Dist.]
1996, writ denied) to support his claim that access to his property through the 1901 easement did not
deprive him from an easement by necessity over Wennenweser's prairie tract four. In Daniel, the
appellant argued that because the appellees were able to reach their western portion of their ranch
through the "west easement," appellees were not entitled to an easement by necessity to reach the
eastern portion of their tract. Id. at 112. The court summarized evidence establishing that it would
have been prohibitively expensive for the appellees to construct a bridge on their property in order to
access the eastern portion of their tract. Id. Here, the record does not contain any evidence
establishing that it would be prohibitively expensive for Rinn to make improvements to the current
low-water crossing in order to improve his access to the southern portion of his property. Moreover,
the trial court heard conflicting evidence that hay-baling equipment could already use the current
low-water crossing during the majority of the year to access the southern portion of Rinn's land.

3. In support of his claim for an easement over prairie tract four, Rinn cites Scott v. Cannon, 959
S.W.2d 712, 721 (Tex. App.--Austin 1998, pet. denied). However, Scott is factually distinguishable.
The Scotts filed an affidavit in the real property records claiming an easement to a right to use a
road. Id. at 722-23. The Cannons, the owners of the land on which the alleged easement was
located, discovered the affidavit, at which time the Scotts reaffirmed their position to the Cannons
that they had the right to use the road. Id. The Cannons remained "quiet" in response to this
assertion, and the Scotts continued to use and maintain the road. Id. The court noted that there was
no evidence that, after this date, the Cannons had given the Scotts permission to continue using the
road or that the Scotts even looked to the Cannons for permission. Id. The court held that the Scotts'
"distinct and positive assertion" was sufficient to "transform permissive use of an easement into an
adverse use." Id. at 723. In this case, Wennenweser offered testimony that Rinn has always used the
requested easement only with the permission of Wennenweser or his predecessors.