Union Pacific Railroad Company v. Charles Seber and Barbara Seber

Charles and Barbara Seber sued Union Pacific Railroad Company

contending that it wrongfully removed the Sebers’ private railroad crossing. The

Sebers claimed a right to use the crossing pursuant to an implied easement by prior

use. The trial court granted summary judgment in favor of the Sebers, declaring

that the Sebers have a right to use the crossing and ordering Union Pacific to

reinstall the crossing. Additionally, the trial court denied Union Pacific’s no2

evidence summary judgment motion. The trial court signed a final judgment

incorporating the earlier interlocutory order granting summary judgment; the final

judgment also awarded the Sebers attorney’s fees based on a bench trial. Union

Pacific appealed the trial court’s summary judgment orders and final judgment.

The Texas Supreme Court clarified the law on implied easements in

Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014), while this appeal was pending.

Relying on Hamrick, we conclude that the Sebers cannot assert an implied

easement by prior use. Accordingly, we reverse the trial court’s final judgment

based on an order granting the Sebers’ motion for summary judgment. We remand

the case to the trial court for further proceedings consistent with this opinion.

BACKGROUND

1

Union Pacific’s predecessor in interest condemned a railroad right-of-way

along Hufsmith-Kuykendahl Road in 1902 along with a 1.5 acre tract of land

adjoining the right-of-way, which the railroad used for a section house. The

railroad constructed a crossing over the right-of-way, which permitted access

between the otherwise landlocked 1.5 acre tract and Hufsmith-Kuykendahl Road.

The 1.5 acre tract later was severed from the right-of-way and conveyed to a

number of different owners until it became part of a larger tract of land, which the

Sebers now own.

The Sebers’ larger tract of land is landlocked along its northern and eastern

boundaries. The property’s western boundary abuts Stuebner-Airline Road. Union

Pacific’s railroad right-of-way runs along the property’s entire southern boundary.

The Sebers accessed their property from both Stuebner-Airline Road and the

1 We state only the relevant title history that the parties do not dispute, unless otherwise

noted. We express no opinion on whether our account of the title history is accurate as a matter

of law.

3

railroad crossing to Hufsmith-Kuykendahl Road until 2008, when Union Pacific

permanently removed the railroad crossing.2 The Sebers now access their property

only from Stuebner-Airline Road.

The parties’ dispute in this, their second appeal to this court, is whether

Union Pacific violated the Sebers’ rights when it removed the railroad crossing to

Hufsmith-Kuykendahl Road in 2008. We recount the case’s procedural history in

detail to clarify the parties’ contentions. We also address an intervening decision

from the Supreme Court of Texas that affects our disposition of this appeal.

I. The First Appeal

The Sebers filed suit on October 30, 2008, alleging that Union Pacific’s

2 A Union Pacific manager explained at his deposition: “[A] crossing usually consists of

some type of planking surface, concrete, timber, asphalt, something like that, on top of the track

structure. Then there’s a roadway approach that touches that. So [in closing a crossing] we

would traditionally remove the planking and pull the roadway back to open the ditches up if

there are ditches there. . . . The crossing boards are removed and set either side of the track

blocking the crossing. That’s all we did at that time.”

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removal of the private railroad crossing was “wrongful, constituted a trespass, and

was done in derogation of [their] vested rights.” The Sebers sought a declaratory

judgment that they were entitled to use the crossing and a mandatory injunction

requiring Union Pacific to replace the crossing. Alternatively, the Sebers sought

monetary damages, including exemplary damages, for (1) inverse condemnation of

their right to use the crossing; and (2) Union Pacific’s interference with their

“vested property rights.”

Union Pacific filed a motion for traditional summary judgment and

contended that (1) the Sebers had no legal right to use the crossing; (2) Union

Pacific’s railroad right-of-way entitled it to exclude the Sebers; (3) the Sebers’

claims were preempted by federal law; (4) the Sebers’ trespass claim failed as a

matter of law; and (5) the Sebers could not obtain exemplary damages.3

The Sebers filed a motion for partial summary judgment contending that

Union Pacific’s predecessor in interest conveyed an express easement to use the

crossing to the Sebers’ predecessor in title.

The trial court signed an order on January 26, 2010, granting Union Pacific’s

motion for summary judgment. The Sebers timely appealed.

On appeal, we affirmed the trial court’s (1) summary judgment in favor of

Union Pacific with respect to the Sebers’ trespass and exemplary damage claims;

and (2) denial of the Sebers’ partial summary judgment motion. See Seber v.

Union Pac. R.R. Co., 350 S.W.3d 640, 656 (Tex. App.—Houston [14th Dist.]

2011, no pet.). Additionally, we determined that the property deeds filed as

summary judgment evidence did not grant the Sebers’ predecessor in title an

3 Union Pacific also filed a no-evidence summary judgment motion; however, the trial

court did not rule on the no-evidence motion and we did not consider the motion on appeal. See

Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 645 n.2 (Tex. App.—Houston [14th Dist.] 2011,

no pet.).

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express easement to use the railroad crossing. See id. at 647. We determined,

however, that a fact issue existed as to whether the Sebers had an implied easement

to use the railroad crossing. See id. at 650.

We surveyed the law on implied easements in making our decision, noting at

the outset that “potentially confusing terminology pertaining to implied easements

[made] it more difficult to identify, apply, and analyze the correct governing

framework.” Id. at 647. We discussed two types of implied easements, which we

referred to then and will refer to now as “easements by necessity” and “easements

by prior use.” Id. at 647-48, 648 n.4.

“An easement by necessity has three requirements: (1) unity of ownership

of both parcels prior to separation; (2) access must be a necessity and not a mere

convenience; and (3) the necessity must exist at the time of severance.” Id. at 648

(citing Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984)). On the other

hand, we stated: “A party claiming an easement by prior use must prove that at the

time of the severance: (1) both parcels were under unified ownership; (2) the use

was apparent; (3) the use was continuous; and (4) the use was necessary to the use

of the dominant estate.” Id. (citing Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.

1966) and Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962)).4

“The Sebers expressly den[ied] that they claim[ed] an easement by

necessity.” Id. at 649. We determined that the dispute “center[ed] on an easement

by prior use.” Id. We then focused on the fourth element for establishing an

easement by prior use — that the party claiming the easement must prove that, at

the time the dominant and servient estates were severed, the “use was necessary to

4 An easement appurtenant requires a dominant and a servient estate. See Drye, 364

S.W.2d at 207; Seber, 350 S.W.3d at 646. The dominant estate is the estate to which the

easement attached; the servient estate is subject to the use of the dominant estate to the extent of

the easement granted or reserved. See Drye, 364 S.W.2d at 207; Seber, 350 S.W.3d at 646.

6

the use of the dominant estate.” See id. at 648-49; see also Bickler, 403 S.W.2d at

357; Drye, 364 S.W.2d at 207.

We determined that Texas law required the Sebers to show “only reasonable

necessity,” rather than “strict necessity,” to establish an implied easement because

the Sebers alleged an implied grant of an easement and not an implied reservation

of an easement. Id. at 649 (citing Mitchell v. Castellaw, 246 S.W.2d 163, 168

(Tex. 1952) and Howell v. Estes, 12 S.W. 62, 62-63 (Tex. 1888)). We further

determined that the “relevant timeframe for proving reasonable necessity [was] the

point at which the 1.5 acre tract was severed,” and that the Sebers did not have to

show that the implied easement remained a “continued necessity” at all times after

severance, including “when the Sebers became owners of the larger tract of land.”

See id. at 649-50, 650 n.5.

Applying our interpretation of Texas implied easement law and the relevant

standard of review, we held “that the grounds asserted in Union Pacific’s . . .

summary judgment motion did not establish as a matter of law that the Sebers

[were] foreclosed from invoking a right to use the crossing pursuant to an implied

easement by prior use.” Id. at 650. We also held that Union Pacific’s railroad

right-of-way did not entitle it to exclude the Sebers from the crossing and that

federal law did not preempt the Sebers’ claims. See id. at 651-52. Accordingly,

we reversed the trial court’s summary judgment order with respect to the Sebers’

claims, other than their claims for trespass and exemplary damages. See id. at 656.

We remanded the case to the trial court for proceedings consistent with our

opinion. See id.

II. The Second Appeal

The Sebers amended their petition following remand. They requested a

mandatory injunction requiring Union Pacific to replace the railroad crossing and a

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declaratory judgment “that they [had] obtained the right to use the railroad crossing

as an implied easement, based on the prior use of the land.” The Sebers,

alternatively, requested “all appropriate monetary relief.”

The Sebers filed a motion for traditional summary judgment in which they

contended that (1) Union Pacific’s predecessor in interest severed the 1.5 acre tract

from the railroad right-of-way in 1959; and (2) at the time of severance, an

easement to use the railroad crossing was reasonably necessary. The Sebers

argued that these circumstances established an implied easement by prior use. The

Sebers attached as summary judgment evidence a 1959 deed purporting to transfer

the 1.5 acre tract from Union Pacific’s predecessor in interest to W.E. Simpson,

whom the Sebers asserted was their predecessor in title. The Sebers also attached

to their motion Barbara Seber’s affidavit, in which she averred that the railroad

crossing was apparent in 1959 and in continuous use since at least 1902.

Union Pacific contended the Sebers had not established that the 1959 deed

conveyed an interest in the 1.5 acre tract and, therefore, the Sebers had not proved

unity of ownership of the dominant and servient estates at the time of severance.

According to Union Pacific, the 1902 condemnation decree did not award fee

simple title to the right-of-way and the 1.5 acre tract to Union Pacific’s predecessor

in interest. Union Pacific argued that its predecessor in interest had a lesser

interest in the condemned property that reverted back to the original owner when

the property ceased to be used for railroad purposes. Union Pacific argued that this

reversion occurred before execution of the 1959 deed because the deed states:

“The property herein described is not used or useful for railroad purposes.” Union

Pacific also argued that the Sebers had not proved through Barbara Seber’s

affidavit that the crossing was apparent and continuously used in 1959 and earlier

because Barbara Seber’s affidavit was not based on personal knowledge, was

8

conclusory, could not be readily controverted, and was inconsistent with her

deposition testimony.

Union Pacific also filed a no-evidence summary judgment motion, in which

it contended that the Sebers could not establish an implied easement by prior use

because the Sebers had no evidence that (1) the 1959 deed conveyed an interest in

the land; and (2) the railroad crossing existed or was in use in 1959. The Sebers

responded to Union Pacific’s no-evidence summary judgment motion with

substantially the same evidence they relied on in their summary judgment motion.

The trial court granted the Sebers’ traditional motion for summary judgment

on January 27, 2012, and denied Union Pacific’s no-evidence summary judgment

motion on February 17, 2012. The case proceeded to a bench trial on attorney’s

fees. The trial court signed a final judgment on September 25, 2013, in which it

awarded the Sebers $126,875 in reasonable and necessary attorney’s fees along

with additional amounts contingent upon successful defense of the judgment on

appeal. Union Pacific timely appealed.

Union Pacific argues in two issues that the trial court erred in applying the

law on implied easements by prior use to the summary judgment evidence. It

argues, as it did in the trial court, that its predecessor in interest “lost ownership” of

the 1.5 acre tract of land before it executed the 1959 deed. Union Pacific also

argues that Barbara Seber’s affidavit is no evidence, or at a minimum no

conclusive evidence, that the crossing was being used in 1959. In a third issue,

Union Pacific contends that the trial court erred in granting attorney’s fees to the

Sebers because they should not have prevailed on their claims.

III. Hamrick v. Ward

The Texas Supreme Court decided Hamrick v. Ward, 446 S.W.3d 377 (Tex.

9

2014), after the parties filed their appellate briefs. The supreme court used

Hamrick “to provide clarity in an area of property law that ha[d] lacked clarity for

some time: implied easements.” Id. at 379. In Hamrick the supreme court held that

the easement-by-necessity doctrine — and not the easement-by-prior-use doctrine

— must apply “to claims of landowners asserting implied easements for roadway

access to their landlocked, previously unified parcel.” Id. at 379; see id. at 382.

The supreme court described the facts of the case as follows. A landowner

constructed a dirt road along the eastern edge of his 41.1 acre parcel of land in the

1930s. Id. at 379. The landowner later severed the parcel into a two-acre parcel

and a 39.1 acre parcel. Id. The landowner sold the two-acre parcel in the 1950s to

a couple who used the dirt road to access their property. Id. The 39.1 acre parcel

was sold to a developer for construction of a subdivision in the 1990s. Id. The

developer paved roads within the larger parcel and planned to construct a paved

driveway to connect the two-acre parcel to one of the subdivision’s newly paved

roads. Id. The county, however, refused the developer permission to connect the

two-acre parcel to one of the newly paved roads because the two-acre parcel had

not been platted. Id. In response, the developer unilaterally filed a special

restriction amendment to the subdivision’s deed restrictions. Id. The special

restriction purported to create a prescriptive easement along the dirt road for the

owner of the two-acre parcel to access her property. Id. at 379-80. The developer

then sold lots over which the dirt road ran to homebuyers, whom the court referred

to collectively as “the Hamricks.” Id. at 380.

Tom and Betsey Ward purchased the two-acre parcel of land in the 2000s.

Id. They reinforced the dirt road with gravel and made use of the road to begin

construction of a new home. Id. The Hamricks sued to enjoin the Wards from

using the dirt road. Id. The trial court granted a temporary injunction, which

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prevented the Wards from using the dirt road for construction of their home. Id.

As a result, the Wards platted their property and built a driveway to provide the

Wards with access to one of the subdivision’s newly paved roads. Id. The Wards

then completed construction of their home. Id. The Wards filed a counterclaim

against the Hamricks arguing that they had an implied easement by prior use to use

the dirt road; the Wards requested a declaratory judgment regarding their right to

an easement. Id.

The trial court granted the Wards’ motion for summary judgment after

determining that the Wards had conclusively established the existence of an

easement by prior use. Id. The Hamricks appealed, and the court of appeals

determined that the summary judgment evidence conclusively established

beneficial use of the road prior to severance and the necessity of the road. See id.;

Hamrick v. Ward, 359 S.W.3d 770, 776-79 (Tex. App.—Houston [14th Dist.]

2011), rev’d, 446 S.W.3d 377 (Tex. 2014). The court of appeals unanimously held

that the Wards were required to prove necessity only at the time of severance,

rather than continuing necessity. See Hamrick, 446 S.W.3d at 380; Hamrick, 359

S.W.3d at 777. The court of appeals remanded because it determined that a fact

issue remained with respect to one of the Hamricks’ asserted defenses. See

Hamrick, 446 S.W.3d at 380; Hamrick, 359 S.W.3d at 785.

The Hamricks appealed to the Texas Supreme Court. They argued that the

court of appeals erred by concluding that the Wards were required to demonstrate

the necessity of the easement only at the time of severance. Hamrick, 446 S.W.3d

at 381. The Wards countered that the supreme court had never required continued

necessity for easements by prior use. Id. The supreme court determined that the

Wards could not prevail on an implied easement by prior use. Id. It held that “the

applicable doctrine for roadway access to previously unified, landlocked parcels is

11

the necessity easement.” Id.5 The court remanded the case to the trial court

because the Wards only pleaded theories of easement by prior use and easement by

prescription. Id. at 385. The court would not “foreclose the Wards from bringing

a necessity easement claim in light of [the court’s] clarification of the law.” Id.

In reaching its decision, the supreme court stated:

To successfully assert [an easement by necessity], the party claiming

the easement must demonstrate: (1) unity of ownership of the alleged

dominant and servient estates prior to severance; (2) the claimed

access is a necessity and not a mere convenience; and (3) the necessity

existed at the time the two estates were severed. . . . As this analysis

makes clear, a party seeking a necessity easement must prove both a

historical necessity (that the way was necessary at the time of

severance) and a continuing, present necessity for the way in question.

Id. at 382. Additionally, a party seeking an easement by necessity must prove

strict, rather than reasonable necessity. Id. at 379, 384.

IV. Post-Hamrick Supplemental Briefing

Union Pacific filed a supplemental brief in this court after the supreme court

issued Hamrick. Union Pacific argued that the Sebers are claiming a roadway

easement to a landlocked, previously unified parcel of land; therefore, Union

Pacific contends, the Sebers must pursue an easement by necessity theory under

Hamrick. Union Pacific further argues that the Sebers cannot prevail on an

easement-by-necessity theory because the crossing over Union Pacific’s railroad

right-of-way ceased to be necessary when the 1.5 acre tract of land became part of

the larger tract that borders Stuebner-Airline Road to the west. Union Pacific

requested that judgment in favor of the Sebers be reversed and judgment rendered

in favor of Union Pacific. Alternatively, it requested that we remand the case to

5 The supreme court referred to the two types of implied easements as “prior use

easements” and “necessity easements.” Hamrick, 446 S.W.3d at 381.

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the trial court for development of the easement-by-necessity issue.

The Sebers responded that the railroad crossing between their property and

Hufsmith-Kuykendahl Road is not a roadway; therefore, they contend that

Hamrick does not control. The Sebers argued that the railroad crossing is instead

an “improvement” and that Hamrick did not “impact the continued ability of such

improvements to qualify as [easements by prior use].” See id. at 384-85. The

Sebers requested that we affirm the trial court’s judgment because the evidence

established an easement by prior use. Alternatively, the Sebers requested that we

remand the case if we determine the crossing to be a roadway so that the trial court

can consider the issue of easement by necessity and other easement theories the

Sebers may assert in light of Hamrick.

ANALYSIS

I. The Sebers’ Traditional Motion for Summary Judgment

We consider first whether the railroad crossing between the Sebers’ property

and Hufsmith-Kuykendahl Road is a “roadway” or “other improvement.” See id.

at 384-85. Our resolution of this question determines the controlling implied

easement law under Hamrick, which, in turn, affects our analysis of whether the

trial court erred in granting traditional summary judgment in favor of the Sebers.

See id.; see also Tex. R. Civ. P. 166(a)(c) (a traditional summary judgment movant

must show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law); Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005) (an appellate court reviews the trial court’s summary

judgment de novo).

Hamrick determined that the dirt road at issue in that case, which later was

reinforced with gravel, was a roadway. Hamrick, 446 S.W.3d at 385. The court

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stated:

Roadways by nature are typically substantial encumbrances on

property, and we accordingly require strict, continuing necessity to

maintain necessity easements. By contrast, we created and have

primarily utilized the prior use easement doctrine for lesser

improvements to the landlocked parcel, such as utility lines that

traverse the adjoining tract. We have required, to some degree, a

lesser burden of proof for prior use easements (reasonable necessity at

severance rather than strict and continued necessity) because they

generally impose a lesser encumbrance on the adjoining tract (e.g., a

power line compared to a roadway).

Id. at 379.

The supreme court summarized the development of implied easement law.

See id. at 381-84. The court recognized in Alley v. Carleton, 29 Tex. 74 (1867),

that an implied easement by necessity “results when a grantor, in conveying or

retaining a parcel of land, fails to expressly provide for a means of accessing the

land.” Hamrick, 446 S.W.3d at 382 (citing Alley, 29 Tex. at 78). The implied

easement by necessity facilitates “continued productive use of the landlocked

parcel.” Id.

Two decades after Alley was decided, the supreme court found the

framework established for easements by necessity “to be ill suited for other

improvements that nonetheless are properly construed as implied easements.” Id.

These “other improvements” included the use of a stairwell in an adjacent building,

the right to graze cattle on an exposed lakebed, and the recreational use of

adjoining property. Id. at 382-84 (citing Howell, 12 S.W. at 62), Ulbricht v.

Friedsam, 325 S.W.2d 669, 677 (Tex. 1959), and Drye, 364 S.W.2d at 208). The

court established a doctrine of easement by prior use “for assessing whether to

recognize implied easements for improvements across previously unified adjoining

property.” Hamrick, 446 S.W.3d at 383. The doctrine of easement by prior use

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applied as follows: “‘[I]f an improvement constructed over, under, or upon one

parcel of land for the convenient use and enjoyment of another contiguous parcel

by the owner of both be open and usable and permanent in its character . . . the use

of such improvement will pass as an easement, although it may not be absolutely

necessary to the enjoyment of the estate conveyed.’” Id. (citing Howell, 12 S.W. at

63). The court applied the easement by prior use doctrine to, among other things,

“‘a part[ition] wall,’ ‘a drain or aqueduct,’ ‘a water [gas] or sewer line into the

granted estate,’ ‘a drain from the land,’ ‘light and air,’ ‘lateral support,’ and

‘water.’” Id. at 384 (citing Drye, 364 S.W.2d at 207-08).

The supreme court recognized that “the express elements required for prior

use easements do not restrict themselves to certain easement purposes.” Id. In at

least one prior case, “a party pursued a prior use easement (rather than a necessity

easement) for roadway access to a previously unified, landlocked parcel.” Id. at

385 (citing Bickler, 403 S.W.2d at 357).6 Nevertheless, the supreme court

“developed the two types of implied easements for discrete circumstances. The

less forgiving proof requirements for necessity easements (strict and continuing

necessity) simply serve as acknowledgment that roadways typically are more

significant intrusions on servient estates. By contrast, improvements at issue in

prior use easements (e.g., water lines, sewer lines, power lines) tend to involve

more modest impositions on servient estates.” Id. at 384. According to Hamrick:

“Applying this distinction to the Wards’ claimed easement does not entail

prolonged analysis. Their claimed easement concerns a roadway to access a

6 Bickler held that an easement to use a driveway attached to the dominant estate under

the doctrine of implied easement by prior use because there was no other legal access to and

from the dominant estate. Bickler, 403 S.W.2d at 356-59. Similarly, Ulbricht held that an

easement to graze cattle on an exposed lakebed and an easement to access property from the lake

attached to the dominant estate under the doctrine of implied easement by prior use. Ulbricht,

325 S.W.2d at 677; see Hamrick, 446 S.W.3d at 384 n.9.

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previously unified, landlocked parcel. This is precisely the factual scenario for

which we created the necessity easement doctrine well over a century ago, and . . .

the Wards must pursue a necessity easement rather than a prior use easement.” Id.

at 385.

Relying on Hamrick, the Sebers argue: “Here, the easement at issue is over

an improvement — a crossing that the railroad constructed over its tracks. This

improvement is the type that [Hamrick] held constitutes a lesser encumbrance on

property than does a roadway, and to which the [easement by prior use] doctrine

still applies.” The Sebers provide a dictionary definition of “improvement” as

“‘[a]n addition to real property, whether permanent or not; esp., one that increases

its value or utility or that enhances its appearance.’” (quoting BLACK’S LAW

DICTIONARY 761 (7th ed. 1999)). The Sebers argue that Hamrick’s holding does

not apply to “improvements” such as the crossing, but applies instead only to

“roadways.”

We determine, upon a close reading of Hamrick, that the Sebers misconstrue

Hamrick’s reasoning and holding. Hamrick did not create a dichotomy between

“roadways” and “improvements.” Instead, Hamrick treated a roadway as an

“improvement,” and it discussed easements by prior use as applicable to “other

improvements” that “involve more modest impositions on servient estates.” See id.

at 383-84.

The railroad crossing at issue in this case provided access to Hufsmith-

Kuykendahl Road for the 1.5 acre tract after it became landlocked. The crossing

also provided a means to travel over the railroad right-of-way. This

“improvement” — as both a roadway access and a means to travel over a railroad

right-of-way — is at least as significant an intrusion on the railroad right-of-way as

roadway access was on the servient estates in Hamrick. See id. at 385; cf. City of

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Houston v. Goings, 795 S.W.2d 829, 832 (Tex. App.—Houston [14th Dist.] 1990,

writ denied) (“A public bridge forming a connecting link in a street or highway is a

part of that street or highway.”). The improvement at issue here is more akin to a

roadway and less akin to “more modest impositions” such as water, sewer, or

power lines. See Hamrick, 446 S.W.3d at 384. Based on the reasoning and

holding of Hamrick, we conclude that the Sebers must pursue an easement by

necessity for roadway access over the railroad right-of-way. See Hamrick, 446

S.W.3d at 384-85.

It follows that the trial court erred in granting summary judgment in favor of

the Sebers on their pleaded theory of easement by prior use. To prevail on a

traditional motion for summary judgment, the movant must show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as

a matter of law. Tex. R. Civ. P. 166a(c). We review a trial court’s summary

judgment de novo. Valence, 164 S.W.3d at 661. We hold that the Sebers are not

entitled to summary judgment on their pleaded easement by prior use claim

because the Sebers cannot prevail on this claim as a matter of law. See Tex. R.

Civ. P. 166(a)(c); Hamrick, 446 S.W.3d at 385-86; Valence, 164 S.W.3d at 661.

We reverse the trial court’s final judgment based on the January 27, 2012 summary

judgment order.

II. Remand in the Interest of Justice

The Sebers did not plead an easement by necessity theory and — until this

point in the litigation — have expressly denied relying on such a theory. The

Sebers nevertheless request that we remand the case to allow the Sebers an

opportunity to plead and prove an easement by necessity theory or any other

easement theory that is not foreclosed by Hamrick. The Sebers argue that they

should be allowed the same opportunity on remand that was afforded to the Wards

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in Hamrick. See Hamrick, 446 S.W.3d at 385 (“Although we refrain from opining

as to whether the Wards will ultimately prevail on a necessity easement claim, our

clarification of the law entitles them to the opportunity to plead and prove such a

claim.”).

Union Pacific argues in its post-Hamrick supplemental brief that (1) the

Sebers’ only available claim is for an implied easement by necessity; and (2) any

easement by necessity terminated when the 1.5 acre tract was joined with the larger

tract that has access to Stuebner-Airline Road. Union Pacific requests that we

render judgment in its favor and remand the case to the trial court to determine

Union Pacific’s attorney’s fees award. Union Pacific also states: “If this Court is

concerned that the implied easement by necessity argument was not fully

developed in the trial court, then — like the Supreme Court did in Hamrick — it

can remand for further development of that issue.”

Union Pacific argued in its no-evidence motion for summary judgment that

the Sebers could not proffer evidence to support required elements of an easement

by prior use. Union Pacific understandably did not move for summary judgment

on an as-yet unpleaded claim for easement by necessity. Union Pacific

understandably did not argue in its motion for summary judgment that access to

Stuebner-Airline Road prevented the Sebers from establishing an easement by

necessity after the larger tract was joined with the 1.5 acre tract; the Sebers were

not pursuing a claim based on an easement by necessity at the time, and Hamrick

had not yet been decided.

Under these circumstances, the trial court could not properly have granted

summary judgment in favor of Union Pacific on an easement by necessity claim,

which had not been pleaded, and which had not been addressed in Union Pacific’s

no-evidence motion for summary judgment. See Johnson v. Brewer & Pritchard,

18

P.C., 73 S.W.3d 193, 204 (Tex. 2002) (“A court cannot grant summary judgment

on grounds that were not presented.”); see also G & H Towing Co. v. Magee, 347

S.W.3d 293, 298 (Tex. 2011) (“[A] trial court errs in granting a summary judgment

on a cause of action not expressly presented by written motion.”); Dubose v.

Worker’s Med., P.A., 117 S.W.3d 916, 922 (Tex. App.—Houston [14th Dist.]

2003, no pet.) (“The trial court may not grant summary judgment as a matter of

law on a cause of action not addressed in the summary judgment proceeding.”).

Union Pacific does not cite any authority for the proposition that we may render

judgment under these circumstances. Cf. Hamrick, 446 S.W.3d at 385 (“[W]e

procedurally cannot hold that the Wards prevailed on a theory they have not

advanced in the trial court.”). We reject Union Pacific’s request to render

judgment in its favor with respect to an easement by necessity theory that was not

pursued in the trial court.

Furthermore, we have broad discretion to remand a case in the interest of

justice after reversing the trial court’s judgment. See Tex. R. App. P. 43.3(b);

Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no

pet.); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.]

2007, no pet.) (a court of appeals, unlike the Texas Supreme Court, cannot remand

in the interest of justice without first reversing the trial court’s judgment). We may

exercise our discretion to remand as long as there is a probability that the case, for

any reason, has not been fully developed. See Ahmed, 261 S.W.3d at 196. We

also may remand if a case needs further development because it was tried on an

incorrect legal theory. Id.

We have determined that summary judgment in favor of the Sebers based on

an easement-by-prior-use theory is erroneous because an easement by prior use is

unavailable to the Sebers following Hamrick. The Sebers asserted at oral argument

19

that access to their property from Stuebner-Airline Road is impeded during certain

times of the year due to wet conditions. The parties have not adequately developed

facts or arguments regarding whether this impediment or other circumstances

affect the Sebers’ right, if any, to an easement by necessity. See Mitchell v.

Castellaw, 246 S.W.2d 163, 168 (1952) (“[E]ven the term ‘strict necessity’ is not

hopelessly inelastic for sensible application to varying sets of facts.”). Under the

circumstances, we remand the case in the interest of justice to allow the Sebers an

opportunity to plead and pursue an easement-by-necessity theory or any other

easement theory that has not been foreclosed by Hamrick, and to allow the parties

to develop facts and arguments accordingly. See Tex. R. App. P. 43.3(b).

The dissent misses the mark by contending it is erroneous to remand in the

interest of justice, and to do so “without addressing the railroad company’s

rendition arguments” asserting there is no evidence on two elements of a claim for

easement by prior use.

The dissent does not contend that we can ignore Hamrick. The dissent stops

well short of concluding that a necessity easement claim does not fit the

circumstances here under Hamrick. The dissent does not explain how any useful

purpose would be served by determining on appeal whether the Sebers proffered

evidence on two particular elements of a prior-use easement claim that is

unavailable to them as a matter of law after Hamrick. If such a claim is legally

unavailable to the Sebers, then purported fact issues on particular elements of the

legally unavailable claim are not “material” under Texas Rules of Civil Procedure

166a(c) and (i); further, discussing immaterial fact issues is not “necessary to final

disposition of the appeal” under Texas Rule of Appellate Procedure 47.1.

The dissent’s main thrust appears to be that rendition arguments must be

decided before remand arguments under the general rule discussed in Bradleys’

20

Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (“Generally,

when a party presents multiple grounds for reversal of a judgment on appeal, the

appellate court should first address those points that would afford the party the

greatest relief.”) (citing Tex. R. App. P. 43.3). But the general rule has exceptions.

One of those exceptions allows a remand in “the interests of justice” in appropriate

circumstances. See Tex. R. App. P. 43.3(b).7

The appropriate circumstances for a remand in the interest of justice are

present here in light of Hamrick’s clarification of many decades of muddled

terminology and less-than-clear analysis accompanying efforts to distinguish

between implied prior-use easements and implied necessity easements. See

Hamrick, 446 S.W.3d at 381-82, 384-85. In their supplemental briefs, Union

Pacific and the Sebers both have invited this court to remand for further

proceedings in light of Hamrick. We believe the appropriate course is to exercise

our discretion under Texas Rule of Appellate Procedure 43.3(b); accept an

invitation extended by both parties; and follow Hamrick’s lead by remanding so

that we do “not foreclose the [Sebers] . . . from bringing a necessity easement

claim in light of [Hamrick’s] . . . clarification of the law.” See Hamrick, 446

S.W.3d at 385.

7 Relying on Natural Gas Pipeline Company of America v. Pool, 124 S.W.3d 188, 201

(Tex. 2003), the dissent contends it is invoking a distinct “greatest-degree-of-finality rule” that is

separate from the general admonition to determine rendition issues before remand issues. Ante at

4-5. Pool immediately followed this phrase by citing and discussing Bradleys’ Electric. See

Pool, 124 S.W.3d at 201 (citing Bradleys’ Elec., Inc., 995 S.W.3d at 677). Therefore, it is

questionable at best whether use of the phrase “greatest degree of finality” in Pool announces a

free-standing decisional “rule” that is distinct from the general direction to address rendition

issues first as discussed in Bradleys’ Electric and many other cases. In any event, nothing about

the appearance of this phrase in Pool suggests that the supreme court intended to restrict the

availability of remand in the interest of justice in appropriate circumstances – or to read implicit

limits into Texas Rule of Appellate Procedure 43.3 that do not appear in the rule’s text.

We reverse the trial court’s September 25, 2013 final judgment, which

incorporates the erroneous January 27, 2012 summary judgment order. In light of

our disposition, we do not assess the propriety of the trial court’s denial of Union Pacific’s no-evidence summary judgment motion, which was aimed solely at the

Sebers’ claim for an easement by prior use. We reverse the trial court’s final

judgment awarding attorney’s fees to the Sebers because the fee award was

predicated on the trial court’s erroneous summary judgment in favor of the Sebers

on an easement-by-prior-use claim that is unavailable to the Sebers after Hamrick.



We remand the case to the trial court for further proceedings consistent with this

opinion.