
    William REAVES and Linda Reaves, Appellants, v. Sheldon LINDSAY and Elaine Lindsay, Appellees.
    No. 01-09-00179-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 29, 2010.
    
      Sidney Levine, Attorney At Law, Sealy, TX, for Appellants.
    John V. Elick, Bellville, TX, for Appel-lees.
    Panel consists of Justices KEYES, HANKS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellants, William Reaves and Linda Reaves, appeal the trial court’s grant of summary judgment in favor of Appellees, Sheldon Lindsay and Elaine Lindsay, in a dispute over an express easement. Appellants argue that the trial court erred by determining that the easement prevented the installation of gates or cattle guards and by not determining that the installation of gates or cattle guards would not unreasonably interfere with the use of the easement. Alternatively, Appellants argue that the issue of whether installing gates or cattle guards would unreasonably interfere with the use of the easement is a question of fact that cannot be resolved by summary judgment. In a cross-point, Ap-pellees argue that Appellants do not own an interest in the land that is controlled by the easement.

We reverse and remand.

Background

All the portions of land related to this suit were once owned by Everett Luhn. This original property is located in Austin County, Texas and abuts F.M. Road 2502. Luhn sold the portion of property that is now owned by the Lindsays in 2000. This portion of land was not located on a public road. Accordingly, Luhn included in the sale of property an easement from the Lindsays’ property to F.M. Road 2502. The easement is roughly 30 feet wide and 1,800 feet long. The language granting the express easement provides:

There is hereby granted and conveyed to the Grantee, their heirs and assigns, a non-exclusive perpetual right-of-way and easement for the purpose of maintaining and keeping in repair a roadway and for the use, liberty, privilege and easement of passing and repassing in common with Grantor, his heirs and assigns, and others, over and across the following described tract of land.

Luhn sold the remainder of his property to a third-party, who then sold a portion of that property to the Reaveses in 2005. The land subject to the easement is part of the property bought by the Reaveses. The easement does not divide the Reaves-es’ property. Instead, it runs along the northwestern border of the Reaveses’ property.

The Lindsays’ property is fenced with a gate providing access to the easement. In 2006, the Reaveses sought to fence their property including either (1) installing a gate where the easement abutted F.M. Road 2502 or (2) installing a cattle guard where the easement abutted F.M. Road 2502 and installing a gate to the side of the cattle guard to allow passage of horses and pedestrians. The purpose of the fence and the proposed gates and cattle guard was to allow the Reaveses to raise cattle on their property. The Lindsays protested both options, insisting that the easement entitled them to access to F.M. Road 2502 without any gates or cattle guards.

The Lindsays brought suit seeking in-junctive relief and declaratory action to prevent the installation of any gates or cattle guards anywhere along the easement. The Reaveses brought a counterclaim seeking declaratory action to establish their right to install gates and cattle guards along the easement. Both parties filed motions for summary judgment. On February 3, 2009, the trial court granted the Lindsays’ motion and denied the Reaveses’ motion, ruling that the easement must be free of any gates or cattle guards. The Reaveses appealed.

Summary Judgment

In their first two points of error, the Reaveses argue that the trial court erred by ruling that, as a matter of law, they were prevented from installing gates or cattle guards on the easement. Alternatively, the Reaveses argue that the issue of whether installing gates or cattle guards would unreasonably interfere with the use of the easement is a question of fact that cannot be resolved by summary judgment. In a cross-point, the Lindsays argue that the Reaveses do not own an interest in the land that is controlled by the easement.

A. Standard of Review

We review a trial court’s granting of a summary judgments de novo. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Summary judgment is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). As must the trial court, we must indulge every reasonable inference in favor of the non-movant, take all evidence favorable to the non-movant as true, and resolve any doubts in favor of the non-movant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm if any of the summary judgment grounds is meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

Each party must carry its own burden, however, both as movant and in response to the other party’s motion, as non-movant. State v. Japage P’ship, 80 S.W.3d 618, 620 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (citing CU Lloyd’s v. Feldman, 977 S.W.2d 568, 569 (Tex.1998)). When, as here, both parties file motions for summary judgment and the trial court grants one motion and denies the other, we determine all presented questions and may render a different judgment if appropriate. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005); CU Lloyd’s, 977 S.W.2d at 569.

B. Scope of the easement

In their motion for summary judgment, the Lindsays presented four grounds for the trial court to determine that the Reaveses could not install gates or cattle guards on the easement: (1) the Reaveses did not own the property subject to the easement; (2) the express easement prevented the Reaveses from installing gates or cattle guards; (3) an implied easement prevented the Reaveses from installing gates or cattle guards; and (4) no gates or cattle guards had been erected since the creation of the easement. In its judgment, the trial court determined that the Reaves-es did own the property that was subject to the easement but did not indicate which of the remaining three arguments it was relying on to determine that no gates or cattle guards could be installed on the easement. We must affirm if any of the grounds not expressly rejected by the trial court is meritorious. Star-Telegram, 915 S.W.2d at 473.

1. Express Easement

The first ground the Lindsays presented to the trial court for granting summary judgment was that the express easement requires the road to be unobstructed. The language that created the easement held by the Lindsays provides:

There is hereby granted and conveyed to the Grantee, their heirs and assigns, a non-exclusive perpetual right-of-way and easement for the purpose of maintaining and keeping in repair a roadway and for the use, liberty, privilege and easement of passing and repassing in common with Grantor, his heirs and assigns, and others,- over and across the following described tract of land.

An easement is a non-possessory interest in another’s property that authorizes its holder to use that property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). When considering the rights and constraints under an express easement, a court first must consider the language of the easement itself. CenterPoint Energy Houston Elec., LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 388 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). In doing so, we apply basic principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700 (citing DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex.1999)).

The intent expressed in the grant by the contracting parties determines the scope of the easement. Id. at 700-01. Unless the language is ambiguous, we rely solely on the written instrument. Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 498 (Tex.App.Houston [1st Dist.] 2004, pet. denied). The express terms in the easement are given their generally accepted meaning. Marcus Cable, 90 S.W.3d at 701. In interpreting the rights conveyed by an easement, we consider all of the terms used, in order to give effect to all provisions. CenterPoint Energy, 264 S.W.3d at 388.

The easement does not specifically address the use of gates or cattle guards. Instead, the Lindsays argue that the terms “liberty” and “roadway” in the easement grant them the right to the easement without gates, cattle guards, and other obstructions.

The grant’s terms are not specifically defined so we must give them their plain, ordinary, and generally accepted meaning. Marcus Cable, 90 S.W.3d at 701 (citing DeWitt, 1 S.W.3d at 101). Liberty is defined as the “freedom from arbitrary or undue external restraint, esp. by a government.” Black’s Law Dictionary 743 (7th ed. 1999). Liberty is also defined as “the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views.” The New Oxford American Dictionary 976 (2d ed. 2005). These definitions suggest that liberty is a person’s right or freedom to act without arbitrary or oppressive restraint. It is not a right to act without any restraint whatsoever.

We cannot hold that liberty, as a matter of law, means the right to ingress and egress free of gates, cattle guards, or other obstructions as suggested by the Lind-says. The Lindsays’ interpretation extends beyond the plain and ordinary meaning of the term, which we cannot do in construing the express terms of the easement. Furthermore, there is no evidence in the summary judgment record that suggests that installing gates or cattle guards would be arbitrary or oppressive.

The Lindsays also claim that the term “roadway” in the easement grant supports a conclusion that the easement, as a matter of law, must be open and unobstructed. The Lindsays argue that the inclusion of the word “other” in the easement’s grant of the right to pass and repass “in common with Grantor, his heirs and assigns, and others” suggests that the road was meant to be open to the public and, accordingly, free from obstructions. The Lindsays rely on Burns for authority for this argument. Burns v. McDaniel, 158 S.W.2d 826 (Tex.Civ.App.-Eastland 1942, no writ).

In Bums, the original grantor sold a portion of his property reserving the area of land containing a road to be “kept open as a pass-way for the traveling public as well as for the grantors into and upon the lands adjacent to and eastward from the parcel of land herein conveyed.” Id. at 826. The grantee subsequently gated and locked the entryway to the road. Id. The court held that the language of the deed and other considerations compelled the conclusion that the lock on the gate had to be removed. Id. at 827. The court was also inclined to believe that the gate should be removed, but the record was not developed enough to make this determination. Id. The court remanded to the trial court for further consideration. Id.

We do not agree with the Lindsays that the use of the word “other” in the easement in this case compels the same conclusion as the use of the words to be “kept open as a pass-way for the traveling public” in Burns. The land was not dedicated as a public roadway. See Tex. Transp. Code Ann. § 281.003(a) (Vernon 1999) (requiring dedication to be explicit and voluntary grant and to be communicated to county commissioners court). We read the language of the easement to acknowledge that people other than the actual property owners may occasionally use the road. To argue that all roads that are not used exclusively by their owners are public roads would eviscerate the concept of private roads.

We construe the language of an easement as a matter of law when an easement is susceptible to only one reasonable, definite interpretation after applying established rules of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 703. We hold that the language of the easement does not address the issue of whether gates and cattle guards can be installed on the easement.

This does not end the inquiry, however. When an express easement is stated in general terms, the easement “implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.” Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974). No interest in real property passes by implication as incidental to a grant except what is reasonably necessary to the fair enjoyment of the property. Whaley v. Cent. Church of Christ of Pearland, 227 S.W.3d 228, 231 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The Reaveses argue that this is a balancing test, and we agree. The test for this case, then, becomes whether the Lind-says’ claim to a right to a roadway without any gates or cattle guards is reasonably necessary and convenient and whether this claimed right puts as little burden as possible on the Reaveses.

Neither of the parties presented much evidence relevant to this balancing test in their motions for summary judgment. The Lindsays correctly argue that they have the right to use the entire easement as a roadway. Williams v. Thompson, 152 Tex. 270, 281, 256 S.W.2d 399, 405 (1953). The Reaveses state that they intend to use their land to raise cattle, but do not explain why it would be too great of a burden to build a fence and gate alongside the easement tract rather than across the easement considering that their right to use the portion of land subject to the easement for raising cattle is secondary to the Lindsays’ right to use it as a roadway.

Additionally, the Lindsays argue that gates and cattle guards would be too much of a burden on them. The Reaveses point out, however, that there is a gate bordering the Lindsays’ property and the easement. This leaves unanswered the question of why a fence on them land is appropriate while gates or cattle guards on the easement would be inappropriate.

As a general rule, the questions of whether the use of an easement by the dominant estate is reasonably necessary and convenient and of whether the use is as little burdensome as possible on the servient estate are questions of fact for the trial court or jury. Gillett v. Van Horne, 36 S.W.2d 305, 307 (Tex.Civ.App.-El Paso 1931, writ dism’d); see also Forister v. Coleman, 538 S.W.2d 14, 15-16 (Tex.Civ.App.-Austin 1976, writ ref'd) (holding question of what is reasonable access across walkway easement is fact issue to be determined by jury); Carleton v. Dierks, 203 S.W.2d 552, 556 (Tex.Civ.App.-Austin 1947, writ ref'd) (holding question whether locking of gates and furnishing plaintiffs with keys was unreasonable interference with use of roadway by plaintiffs was fact issue for trier of fact to resolve). We hold that the record was underdeveloped on the issue of whether an easement without gates or cattle guards is reasonably necessary and convenient for the Lindsays while putting as little burden as possible on the Reaveses. Accordingly, this could not have been a basis for summary judgment for either party.

2. Implied Easement

The second ground the Lindsays presented to the trial court for granting summary judgment was that an implied easement requires the road to be unobstructed. The Lindsays argue, “The nature and condition of an easement at the time the easement is granted controls how it may later be used.” This is an incomplete statement of the law.

In order to establish an easement by implied grant, the party asserting its existence must show that (1) there was unity of ownership between the dominant and servient estate when the two were severed; (2) at the time the dominant estate was granted, there was apparent use of the easement; (3) use of the easement before the severance was continuous, indicating an intent by the owners to pass the easement by grant with the dominant estate; and (4) the easement must be reasonably necessary to the use and enjoyment of the dominant estate. Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

The Lindsays asserted in their motion for summary judgment that the easement did not have any gates, cattle guards, or fences at the time it was created in 2000. They go on to assert that, for the past 50 years, no gates, cattle guards, or fences existed around the area that is now the easement. Both of these statements lack any support in the evidence they relied on to support their motion. The only evidence of gates, cattle guards, or fences around the easement comes from the affidavit of Sheldon Lindsay. In it he avers that there were no gates, cattle guards, or fences around the easement when he bought it in 2004. Proof of the state of the easement in 2004 is no proof of its state in 2000 let alone the past 50 years.

The Lindsays also cite the deed from Luhn that created the express easement as proof. The deed makes no mention of gates, fences, or cattle guards. This is not proof, however, that none existed. Accordingly, there is no evidence to establish the second or third elements of an implied easement, which require proof of the state and use of the property at the time of the severance. See id.

Furthermore, there is no evidence in the record that a road without gates or cattle guards is reasonably necessary to the use and enjoyment of the dominant estate. The Lindsays argue that their age makes it difficult to mount and dismount horses without the aid of a riding block and that they would not be able to open or close the gates while mounted. We do not need to determine whether the age and health of the easement owner can be a consideration in determining whether an implied easement has been created because the Lindsays were not the purchasers of the easement at the time it was created. Accordingly, this cannot be a basis for arguing that an implied easement was created at the time the dominant and servient estates were severed. See id.

We hold that there is insufficient evidence in the record to support a determination that an implied easement existed that prevents the installation of gates or cattle guards along the easement. Accordingly, this could not have been a basis for granting summary judgment in favor of the Lindsays.

3. Use of the easement after grant

The third ground the Lindsays presented to the trial court for granting summary judgment was that the easement has been free of gates and cattle guards since the creation of the easement. The Lindsays do not explain how the use of the easement after its creation affects the application or scope of the easement. The Lindsays cite to this Court’s opinion in Unger as authority. Unger v. Landry, No. 01-03-01331-CV, 2005 WL 21396 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (mem. op.).

In Unger, a 30-foot wide easement had been created along the edge of a property. Id. at *1. A subsequent owner of that property built a fence encroaching 13 to 17 feet into the easement and relocated a drainage culvert onto the easement. Id. In reviewing the scope of the easement, we looked at the language of the express easement. Id. at *3. We did not consider any events after the easement was created. Id. The only events after the creation of the easement that were discussed were those challenged by the parties. Id.

While events occurring after the creation of an easement may be considered to allow for changes in the “manner, frequency, and intensity of an easement’s use ... to accommodate technological development,” those are not the facts of this case. Marcus Cable, 90 S.W.3d at 701-02. Otherwise, the only pertinent facts in determining the scope of an express or implied easement are the facts occurring up to the time of the creation of the easement. See Holmstrom v. Lee, 26 S.W.3d 526, 531-32 (Tex.App.-Austin 2000, no pet.) (holding intention of parties creating easement is of primary importance); Houston Bellaire, 981 S.W.2d at 919 (holding facts occurring at time of creation are relevant). Accordingly, this could not have been a basis for granting summary judgment in favor of the Lindsays.

We sustain the Reaveses’ first point of error arguing that the trial court erred in determining that the evidence showed as a matter of law that gates or cattle guards could not be installed on the easement. We overrule the Reaveses’ second point of error arguing that the trial court should have determined that the evidence showed as a matter of law that gates or cattle guards could be installed on the easement. We sustain the Reaveses’ third point of error that summary judgment was inappropriate because fact issues remain that prevent the rendition of summary judgment.

C. Ownership of the Land Subject to the Easement

In a cross-point, the Lindsays argue that summary judgment was appropriate by asserting the land subject to the easement was not owned by the Reaveses. In the judgment, the trial court specifically determined that the land subject to the easement was owned by the Reaveses. This issue was presented to the trial court in the Lindsays’ motion for summary judgment and was properly raised as a cross-point. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996) (holding courts must consider cross-points asserting grounds specifically denied by trial court).

Both the Reaveses’ and the Lindsays’ properties were once part of a larger tract of land owned by Everett Luhn. The first portion of his property that Luhn sold was the portion of property now owned by the Lindsays. Included in that sale was an easement across a portion of Luhn’s remaining property providing access from the Lindsays’ property to F.M. Road 2502.

Luhn sold the remainder of his property to a third party, who then sold a portion of that property to the Reaveses. The warranty deed in the sale of the property to the Reaveses provides:

This conveyance is made by Grantors and accepted by Grantees subject to the following exceptions from this conveyance and warranty, but only to the extent the same are valid and subsisting and relate to the Property:
(a) That certain non-exclusive perpetual right of way and easement containing 0.915 acre of land as described in Deed from Everett A.A. Luhn to Jewel M. Atkerson, et al, dated July 28, 2000, filed August 7, 2000, recorded in File No. 005268, Official Records of Austin County, Texas.

The easement mentioned in this portion of the deed is the easement that is the subject of this suit. The Lindsays cite this language in the deed as evidence of their argument that the Reaveses do not own “the servient estate under the easement.”

An easement is a non-possessory property interest that authorizes its holder to use the property of another for a particular purpose. Brownlow v. State, 251 S.W.3d 756, 760-61 (Tex.App.-Houston [14th Dist.] 2008, pet. granted) (citing Marcus Cable, 90 S.W.3d at 700). An easement does not convey title to property. Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex.2007). A general easement implies a grant of unlimited reasonable use insofar as that use is reasonably necessary and convenient. Brownlow, 251 S.W.3d at 760-61 (citing Coleman, 514 S.W.2d at 903). The owner of land subject to an easement otherwise retains title to the land and all that is ordinarily considered part of that land. Id. at 761 (citing Brunson v. State, 418 S.W.2d 504, 506 (Tex.1967)).

The easement in dispute is a right to maintain a road and a non-exclusive right-of-way along that road. All other rights and privileges that were part of the title for the portion of land subject to the easement were retained by Luhn. That title passed from Luhn to a third party and then from that third party to the Reaveses. The only thing excepted from conveyance to the Reaveses in the deed was the easement now held by the Lind-says. Just as grant of an easement does not convey title, the exception of an easement from a grant does not exclude the conveyance of title. See Flynn, 228 S.W.3d at 658 (holding easement does not convey title to property). Accordingly, the trial court correctly determined that, as a matter of law, the Reaveses own title to the portion of the property that is subject to the easement.

We overrule the Lindsays’ cross-point.

Conclusion

None of the parties established that they were entitled to judgment as a matter of law on the issue of whether gates or cattle guards could be installed on the portion of property subject to the easement. We reverse the trial court’s rendition of summary judgment on this issue and remand the cause to the trial court for further proceedings. 
      
      . We do not assert that this is an irreconcilable contradiction. It is only a fact issue that was not addressed in the motions for summary judgment. Furthermore, we do not assert that these are the only fact issues that can or must be weighed. The facts relevant to this balancing test are case-specific and additional matters may be identified and argued by the parties.
     