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.