Opinion issued October = 18,=20 2007
Robert and=20
Leta Mitchell appeal the trial court's grant of a take-nothing =
judgment=20
and award of attorneys' fees in favor of Arturo Garza. In three =
issues,=20
the Mitchells contend that the trial court erred in (1) refusing =
to=20
declare the existence of an easement by estoppel, (2) refusing to =
issue a=20
permanent injunction to remove the fence that interferes with =
their=20
easement, and (3) denying their request for attorneys' fees. We =
affirm.=20
Robert's=20
mother and stepfather continued to live in the Mitchell property =
until=20
Robert's mother died and his stepfather was moved to a nursing =
home. For a=20
couple of years after that, Robert's step-grandfather lived in the =
house=20
and also used the driveway. When Robert's step-grandfather died, =
tenants=20
began occupying the Mitchell property. Around 1980, the Mitchells =
stopped=20
renting the Mitchell property, and it was vacant. While vacant, =
the=20
Mitchells often visited to make repairs, and, In 1989,=20
the City of Houston replaced the curb in front of the Mitchell =
property.=20
In the process of replacing the curb, the City neglected to leave =
an=20
opening to the driveway. The Mitchells wrote a letter requesting =
that the=20
City fix the curb opening to the driveway. Soon thereafter, the =
City=20
restored the opening. Garza lived=20
in the neighborhood since 1988 and bought the adjacent property in =
2002.=20
He testified that he thought the Mitchell property was abandoned =
because=20
the "the grass [was] high" and he "hardly" saw anyone there. Garza =
also=20
testified that, when he did see people at the Mitchell property, =
they were=20
parked on the street. He indicated that he never talked to anyone =
that=20
lived at the Mitchell property about their using the part of the =
driveway=20
that was located on his property. Around 2003, Garza built a chain =
link=20
fence on his portion of the driveway. The fence left the Mitchells =
unable=20
to drive a vehicle to the back of the Mitchell property or to open =
a car=20
door when parked between the house and the fence. The Mitchells =
cannot=20
legally park on the street because of a nearby fire hydrant and =
also=20
cannot legally park in the front of the driveway because they =
would be=20
partially on the sidewalk. Around 2005, the Mitchells began =
renting out=20
the Mitchell property again, and their tenants, as of the time of =
trial,=20
were parking on the sidewalk. The=20
Mitchells filed suit against Garza, seeking declaratory and =
injunctive=20
relief. Specifically, the Mitchells argued that, because they have =
used=20
the driveway for more than 50 years, they acquired an easement on =
the=20
driveway, either by prescription, express grant, implication, =
necessity,=20
or estoppel. They alleged that by installing the fence on the =
driveway,=20
Garza trespassed onto and violated their use and enjoyment of the=20
easement. The Mitchells sought to have the trial court declare the =
existence of the easement and issue an injunction mandating that =
Garza=20
permanently remove the fence. Following a bench trial, the trial =
court=20
entered a take-nothing judgment on the Mitchells' claims for =
relief. The=20
Mitchells now appeal.
In issue=20
one, the Mitchells argue that the trial court erred in refusing to =
declare=20
the existence of an easement by estoppel. Specifically, the =
Mitchells=20
argue that the evidence demonstrated their entitlement to an =
easement by=20
estoppel and the trial court erred by not entering a judgment =
declaring=20
the existence of such an easement. We=20
disagree. Where a=20
party attacks the factual sufficiency of an adverse finding on an =
issue on=20
which he has the burden of proof, he must demonstrate on appeal =
that the=20
adverse finding is against the great weight and preponderance of =
the=20
evidence. To=20
establish the existence of an easement by estoppel, sometimes =
called=20
estoppel in pais, the Mitchells had the burden of proving =
the=20
following elements: (1) the=20
owner of the servient estate [here, the adjacent property] =
communicated a=20
representation, either by words or conduct, to the promisee [here, =
the=20
Mitchells]; (2) the=20
promisee believed the communication; and (3) the promisee relied =
on the=20
communication. See Storms v. Tuck, 579 S.W.2d 447, 452 =
(Tex.=20
1979). These elements apply at the time the communication creating =
the=20
alleged easement is made. We begin by=20
considering the Mitchells' legal sufficiency challenge. =
We also=20
must determine if there is evidence that an easement by estoppel =
was=20
created during Garza's ownership of the adjacent property. The =
Mitchells=20
testified that they never discussed their use of the driveway with =
anyone.=20
Likewise, Garza testified that he never talked with anyone from =
the=20
Mitchell property about using the driveway. Furthermore, no one =
complained=20
when Garza was installing the fence, which Leta Mitchell admitted =
was=20
properly placed on Garza's property line. We hold that there was =
legally=20
sufficient evidence to support the trial court's implied finding =
that an=20
easement by estoppel was not established while Garza was the =
adjacent=20
property's owner. In=20
contrast, Garza testified that, in the time he had lived in the=20
neighborhood, he had We next=20
determine if there is factually sufficient evidence to support the =
trial=20
court's implied finding that the Mitchells did not acquire an =
easement by=20
estoppel while Garza owned the adjacent property. To have an =
easement by=20
estoppel, the Mitchells had the burden of proving that Garza =
communicated=20
a representation, either by words or conduct, to them indicating a =
right=20
to use the driveway and that the Mitchells believed in and relied =
on the=20
communication. See Storms, 579 S.W.2d at 452 However,=20
acquiescing behavior or the failure to object by a servient estate =
may be=20
conduct that gives rise to a representation, if the dominant =
estate relied=20
on this conduct in a way that should preclude the servient estate =
from=20
denying it. See Wallace v. McKinzie, 869 S.W.2d 592,=20
595 After Garza=20
bought the adjacent property in 2002, the Mitchells continued to =
repair=20
and fix-up the Mitchell property. Garza testified that he =
sometimes came=20
home from work early and saw the Mitchells at the Mitchell =
property.=20
However, before the fence was erected, when they were =
visiting The=20
evidence is not so contrary to the trial court's take-nothing =
judgment as=20
to render that judgment clearly wrong or unjust. Accordingly, we =
hold that=20
the trial court did not err in refusing to grant the Mitchells an =
easement=20
by estoppel, and we overrule the Mitchells' first issue. Having =
overruled=20
issue one, we need not address issues two and three. We affirm=20
the judgment of the trial court. George C.=20
Hanks, Jr. Panel=20
consists of Justices Taft, Hanks, and Higley. 1.