On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 18-6165-442Before Sudderth, C.J.; Gabriel, J., and WallachJ.[1]Memorandum Opinion by Chief Justice SudderthMEMORANDUM OPINIONI. IntroductionIn June 2009, Appellants Wilson Street and Pamela Street bought 9898 Cottonwood Springs, Pilot Point, Texas, a 12.82-acre tract of land containing a 2,700- square-foot home, a barn, and a pasture, to retire on and enjoy with their horses and dog. The dirt road extension from the paved portion of Cottonwood Springs runs past the Streets’ fenced pasture and to the entrance to their property.Nine years later, Appellees Chad L. Chance and Susan Chance bought the 57.104-acre adjacent property; their deed states, “This instrument was prepared based on information furnished by the parties, and no independent title search has been made.” The Chance property’s metes-and-bounds description references a September 7, 2001 amending plat that shows the “Future Extension Cottonwood Springs” and references the recorded instrument under which the Chances’ grantor was conveyed the property and in which the metes-and-bounds description also referenced the 2001 amending plat.After Chad told Wilson that he planned to build a gate across the dirt portion of Cottonwood Springs that the Streets had been using to access their home, the Streets sued, seeking an easement under multiple theories, a declaratory judgment, and a temporary restraining order, as well as a temporary injunction[2] to prevent the Chances from interfering with their use of the road. Several rule 11 agreements later,[3] the trial court held a hearing on the Streets’ application for a temporary injunction and denied it.In a single issue in this accelerated interlocutory appeal,[4] the Streets appeal the denial of their application for temporary injunction. We reverse.II. Temporary InjunctionA temporary injunction is an extraordinary remedy and does not issue as a matter of right. Putnam v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (op. on reh’g). The issue before the trial court at a temporary injunction hearing is whether the applicant is entitled to preserve the status quo of the subject matter of the suit pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see Clint ISD v. Marquee 487 S.W.3d 538, 555 (Tex. 2016) (citing Butnam, 84 S.W.3d at 204). On appeal, our consideration is limited to whether the trial court abused its discretion in deciding that issue. Davis, 571 S.W.2d at 862. An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence, id., and we may not substitute our judgment for the trial court’s judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204; see Hiff v. If 339 S.W.3d 74, 78 (Tex. 2011); Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.—Houston [1st Dist.] 2011, no pet.).Accordingly, we do not review the merits of the underlying case, Mattox, 336 S.W.3d at 762, because the propriety of a temporary injunction against interference with an easement does not depend on the controversy’s ultimate merits but rather on whether there is a bona fide dispute as to the easement’s existence and whether injunctive relief is essential to preserve the continued exercise of that right pending the controversy’s adjudication. Petty v. Winn Exp/. Co., 816 S.W.2d 432, 433 (Tex. App.—San Antonio 1991, writ denied) (op. on reh’g) (quoting Richter v. Hickman, 243 S.W.2d 466, 468 (Tex. Civ. App.—Galveston 1951, no writ)); see Frey v. CST Props., LLC, No. 04-13-00450-CV, 2014 WL 783324, at *5 (Tex. App.—San Antonio Feb. 26, 2014, no pet.) (mem. op.) (“In our review, we may not assume that the evidence presented at the temporary injunction hearing will be the same as the evidence developed at trial, and we may not infringe on the applicant’s right to a full trial by determining the merits of the underlying case.”).To obtain an injunction to maintain the status quo, an applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. Where there is conflicting evidence on the probability of a right of recovery, a trial court’s decision to deny an injunction cannot be held to be an abuse of discretion. Fry, 2014 WL 783324, at *7. An injury is “irreparable” if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. The “status quo” is the “last, actual, peaceable, non-contested status which preceded the pending controversy.” Marqueg, 487 S.W.3d at 555 (quoting In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (internal quotations omitted)).A. Easement[5]An easement does not convey title to property; instead, it is a nonpossessory interest that authorizes its holder to use the property for only particular purposes. Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007) (defining easement); see Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018) (same). Because it is an interest in land, an easement is subject to the statute of frauds and statute of conveyances, but there are exceptions for, among other things, easements by public dedication. Anderson v. Tall Timbers Corp., 378 S.W.2d 16, 23 (Tex. 1964).[6] And a purchaser is bound by every recital, reference, and reservation contained in or fairly disclosed by any instrument that forms an essential link in the chain of title under which he claims a piece of property and has a duty to investigate because he is charged with notice of the contents of those links. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982) (reciting that the rationale for the rule is that any description, recital of fact, or reference to other documents puts the purchaser on notice to investigate until “a complete knowledge of all the matters referred to and affecting the estate is obtained” (quoting Loomis v. Cobb, 159 S.W. 305, 307 (Tex. Civ. App.—El Paso 1913, writ ref’d))); see Tex. Prop. Code Ann. § 13.002 (“An instrument that is properly recorded in the proper county is (1) notice to all persons of the existence of the instrument; and (2) subject to inspection by the public.”); Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 169 (Tex. 2013) (stating that the rule that a purchaser is deemed to have notice of all recorded instruments, not just the most recent ones, is the same as recited 30 years before in Westland Oil).A dedication for public use requires the following: (1) the person who makes the dedication must have the ability to do so, i.e., have fee simple title; (2) there must be a public purpose served by the dedication; (3) the person must make either an express or implied offer; and (4) there must be an acceptance of that offer. Spinuzyi v. Town of Corinth, 665 S.W.2d 530, 532 (Tex. App.—Fort Worth 1983, no writ) (discussing presumption in favor of an intent to dedicate land to public use “when the origin of the use of a road by the public, and the ownership of the land at that time, are so shrouded in obscurity that no proof can be adduced to show the intention of the owner when the public use began”); see Gutierrez v. Cty. of Zapata, 951 S.W.2d 831, 837, 840 (Tex. App.—San Antonio 1997, no writ) (“The only requirement of an express dedication is the showing of a declaration or some express manifestation of the purpose to devote the land to the public use.”); see also Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 256—57 (Tex. 1984) (holding that there was an implied dedication of the road for public use and an equitable easement to the road vesting in Zavala County when “[t]he uncontroverted evidence is that for over 30 years there ha[d] been continuous use of the road by the public generally” and that it had been used as a mail and school bus route). Compare Braun v. Braun, No. 04-09-00486-CV, 2010 WL 2513428, at *6 (Tex. App.—San Antonio June 23, 2010, pet. denied) (mem. op.) (“An express dedication occurs if an owner of land makes express reference in his plat description to a roadway not yet opened; this reference operates as an immediate dedication of the roadway to the public.”), with Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 906 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“[M]erely recording a map or plat which shows streets or roadways, without more, does not constitute a dedication, as a matter of law, of such streets as public roadways.”).Additionally, when a person purchases a lot with reference to a subdivision plat, he or she immediately acquires private rights of easement over the streets shown on such plat as abutting the purchased lot, whether or not such streets are ever accepted or opened by the public. Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966); see City of San Antonio v. Olivares, 505 S.W.2d 526, 530 (Tex. 1974) (“Texas courts have generally recognized that abutting property owners have private rights in existing streets and alleys in addition to their rights in common with the general public. This right is in effect a private right of ingress and egress[,] . . . a right of passageway to and from the property.”). In Olivares, the court, referencing Dykes, also noted that it had “consistently held that the conveyance of land by reference to a map or plat, upon which lots and streets are laid out, results in the purchaser or one holding under him, acquiring by implication a private easement in the alleys or streets shown on the plat.” 505 S.W.2d at 530; see State v. Delany, 197 S.W.3d 297, 299 (Tex. 2006) (“Texas has long recognized that property abutting a public road has an appurtenant easement of access guaranteeing ingress to and egress from the property.”).B. Temporary Injunction HearingBefore the hearing on the Streets’ temporary injunction application began, the trial court admitted their first 20 exhibits and the Chances’ exhibits 1—15 and 17-A through 17-D into evidence. Many of these exhibits were deeds illustrating the parties’ chains of title.These documents reflect that One Terra Land LGM Inc. (OTL) acquired 319.6336 acres in September 1996 that was subject to—among other things—”[r]ights of third parties, if any, with respect to any portion of the property lying within the boundaries of any public or private road shown on the Survey.” The record does not reflect what roads, if any, were present on the property at the time of OTL’s acquisition, but in 1998, OTL filed a plat for 191.0250 acres out of the 319.6336 acre- tract, which it identified as the Butterfield Junction Addition. The plat shows the paved portion of Cottonwood Springs ending in a “temporary turn-around.” During his direct examination, Wilson testified that 9898 Cottonwood Springs was not part of the 1998 plat for the Butterfield Junction Addition.OTL, owner of “Lot 8,” and William and Elizabeth Bonds, owners of “Lot 6,” filed an amending plat on September 7, 2001, for Lots 8R and 6R, covering 20.63 acres.[7] As illustrated below, on the right side of the 2001 amending plat, the “Future Extension Cottonwood Springs (60 ROW)” is shown with a dotted line. The back of the plat states that the property owners dedicated “to the public use forever, the streets, rights-of-way, and public easements” shown on the amending plat. Wilson testified that the future extension of the Cottonwood Springs Road shown on the 2001 amending plat as a 60-foot right of way abutted 194 feet of his property, running to the entrance of his property.In 2004, the Streets’ predecessors acquired the 12.82-acre property from OTL out of part of the unplatted portion and part of Lot 8R, Block D of the Amending Butterfield Junction Addition. The metes-and-bounds description starts at a “capped iron rod found in the West R.O.W. of Cottonwood Springs for the Southeast corner of Lot 6R, Block D of Butterfield Junction Addition.”The Chances’ predecessor-in-interest, Wildland LLC, acquired its March 25, 2005 special warranty deed from OTL for four tracts of land with exceptions that included “valid and existing visible and apparent easements, rights of way and prescriptive rights, if any, that are not of record but are shown on a survey of the Property furnished to Grantee at or before execution and delivery of this Deed.” That survey was not offered at the temporary injunction hearing. The deed also excepted “[a]ny and all . . . easements, rights of way and other matters of record affecting the Property.” The last page of the metes-and-bounds descriptions of the tracts stated that the conveyance was made “expressly subject to all valid and subsisting easements, restrictions, [and] rights-of-way . . . properly of record, if any.” Three of the four tracts referenced the 2001 amending plat in their metes-and-bounds descriptions.The Streets acquired their home in 2009. At the hearing, they offered, and the trial court admitted into evidence, a 2008 land title survey of their property, performed for a bank and provided to the Streets by the sellers before the Streets bought the property. The 2008 survey shows the relevant portion of Cottonwood Springs as a 60-foot right of way. A more recent plat filed on November 4, 2018, “Minor Plat, Lot 1, Block A Four Horse Addition,” was offered by the Chances and entered into evidence. The 2018 plat also shows the Cottonwood Springs right of way. And a statement on the back of the plat states, “This plat has been performed without the benefit of a title commitment. There may be easements and/or other encumbrances that affect the subject tract that are not shown hereon.”The Chances also offered, and the trial court admitted into evidence, the order and minutes from the Denton County Commissioners Court meeting on August 11, 2009—approximately two months after the Streets bought their home—when the commissioners voted to accept the public roads in the Butterfield Junction Subdivision for county maintenance. The county’s background memo states that although the subdivision was platted in April 1998, the roads had not been accepted into county maintenance even though they were “heavily used for residential traffic including school buses.” The Engineering Division of the Denton County Department of Public Works noted in its inspection of the Butterfield Junction Subdivision that the 1998 plat dedicated all “‘public and private streets . . . shown hereon for public use forever,’” and noted that it was undisputed that members of the traveling public had been using the roadways in and out of the subdivision since its inception, including school buses, the U.S. Postal Service, construction vehicles, and garbage vehicles. The 2009 inspection stated that Cottonwood Springs was an asphalt road 700 feet long.The Chances’ June 8, 2018 deed from Wildland LLC states that it was prepared “based on information furnished by the parties, and no independent title search ha[d] been made.” The Chances purchased part of tract 1 and all of tracts 2 and 3 of the four tracts that Wildland acquired from OTL, and the property’s legal description references Wildland’s deed from OTL, stating that it is “part of tract one and all of tracts two and three as described in the deed to Wildland, L.L.C., a Texas liability company, recorded in document #2005-45820, real property records, Denton County, Texas and being more particularly described as follows . . . .” The ensuing metes-and- bounds description references the 2001 amending plat, the Streets’ 12.82-acre tract of land, and Cottonwood Springs as “a road within said Butterfield Junction Addition.”Aerial photographs of Butterfield Junction and Cottonwood Springs, offered by the Streets and entered into evidence by the trial court, show the intersection of Cottonwood Springs with Stagecoach Pass, as well as the portion of Cottonwood Springs that remains a dirt road. The Streets also offered, and the trial court admitted, street-level photographs of the unimproved dirt road at issue, with fencing on each side, along with photographs of the creek at their property line. One of the creek photos shows Wilson standing at the creek bottom, which he described as “a 15-foot drop,” while another depicts how far beneath the fence line the creek runs. Wilson testified, “There’s about six feet there of surface, and then it drops into the drainage canal.” He further testified that the western boundary of the Streets’ property was a master drainage creek for the entire Butterfield Junction development, which ranged from 20 to 30 feet wide and up to 15 feet deep in most places, making it not traversable by vehicle. Because of the creek, Wilson testified that if he and his wife had no access to the dirt road portion of Cottonwood Springs located in the right of way, there would be no other way to drive a vehicle to their house.[8]Wilson also testified that he and his wife had relied on the existence of the road and right of way when they purchased the property and would not have purchased the property if there had been no access to it. Chad told him in July 2018 that he intended to put a gate on the road to block access to it because he did not want “[the Streets'] people to get mixed up with [his] people.” Chad had suggested that Wilson cut a hole in the Streets’ fence and drive across their pasture for access to their home. Wilson testified that there was no road across the pasture; that because the pasture was seven to eight feet lower than the road, it became muddy and impassable when it rained; and that if he had to build a road there, he would no longer be able to use the pasture for his horses.During Wilson’s cross-examination, Wilson acknowledged that none of the deeds in the case had a complete metes-and-bounds description of the particular right of way the Streets were claiming and that the amended plat did not indicate how far the future right of way extended. He also agreed that prior to the issue arising in 2018, he and his wife had not seen the amended plat and had not read or relied on any of the deeds. And he agreed that the survey, which was given to the Streets by the seller when they purchased their property, did not have a metes-and-bounds description of the right of way. But on redirect, Wilson stated that the survey that the seller had provided to him reflected the Cottonwood Springs 60-foot right of way and that the Streets had relied on the fact that there was a 60-foot-wide right of way extending 194 feet to the entrance of their property.The trial court admitted over the Streets’ objections the Chances’ exhibits 16, 19, and 21, which were the Streets’ title insurance policy and documents pertaining to a mediated settlement offer that the Streets’ title insurance company had agreed to accept from the Chances. Cf. Tex. R. Evid. 408(a) (stating that evidence of furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in attempting to compromise a claim and conduct or statements made during compromise negotiations about a claim are not admissible either to prove or disprove the validity or amount of a disputed claim).Alliant, a title insurance company, issued a policy to the Streets on August 20, 2009, to cover the 12.82-acre property. One of the covered risks included “No right of access to and from the Land.” The policy lists the duty of the insured claimant to cooperate “[w]henever requested by [Alliant] . . . at [Alliant's] expense” by providing “all reasonable aid (i) in . . . effecting settlement,” and states that if Alliant is prejudiced by the insured’s failure to furnish the required cooperation, its obligations to the insured under the policy terminate. The policy also provides that Alliant had the option to pay or otherwise settle with other parties for and in the name of the insured claimant any claims insured against under the policy. But it also states that if Alliant cured the lack of a right of access to or from the land in a reasonably diligent manner by any method, “it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damages caused by the insured.”The mediated settlement agreement (MSA) reflected, in pertinent part, that Alliant would pay the Chances $50,000 on or before December 14, 2018, at which time the Chances would execute and deliver to Alliantto hold in trust for acceptance by [the Streets] a Deed Without Warranty conveying to [the Streets] a portion of a tract of land owned by [the Chances] and constituting a 16 foot by 187 foot . . . not more than 16 feet south of [the Streets'] northeastern property corner[] rectangle of land more particularly described as beginning at the most northern area of [the Chances'] property abutting Cottonwood Springs in the Butterfield Junction Addition . . . and moving south to an east/west line 16 feet south of [the Streets'] northeastern property corner in the subdivision. [The Streets] may only accept the Deed and the conveyance of the Property by providing [the Chances] with: (i) a fully executed release of [the Chances] from any and all claims, causes of action, and damages they have or may have against [the Chances], whether known or unknown at the time, and in a form reasonably acceptable to [the Chances], and (ii) dismissal of any pending litigation against [the Chances] with prejudice against refiling the same.The MSA also provided that if the Streets filed suit or asserted any claims against the Chances prior to or following the dismissal of the action to assert a claim to use, occupy, possess, own, or control any of the Chances’ land other than the proposed conveyance, and the Streets prevailed, then Alliant would return the deed held in trust to the Chances within 30 days of Alliant’s receipt of notice of a final judgment rendered in favor of the Streets. The MSA stated that the Chances would agree to extend the existing temporary injunction until December 14, 2018. Alliant’s attorney signed the MSA on October 11, 2018 “for the benefit of Wilson Street and Pamela Street,” and the Chances, their attorney, and the mediator signed it. The Streets did not.The Chances’ Exhibit 21 is a December 4, 2018 deed without warranty from them to the Streets, referencing the property identified in the MSA as 0.063 acres of land, with a survey map attached showing the location of the proposed conveyance. The Chances had signed it, but the Streets had not.Wilson acknowledged that he and his wife had filed a claim with Alliant regarding the right of way and that Alliant had hired an attorney who went to mediation and signed a MSA. But he disagreed that they had to accept the Chances’ settlement offer of a 16-foot by 172-foot piece of land that would allow them to access their property, stating that the offer did not provide sufficient access.On redirect, Wilson stated that the terms of the MSA required the Streets to provide a fully executed release of the Chances from any and all claims and to dismiss with prejudice any pending litigation with the Chances and that they had not accepted any deed offered by the Chances, had not executed any releases of their claims against the Chances, and had not instructed their counsel to dismiss the lawsuit with prejudice.Wilson identified the .063-acre portion the Chances had offered, which was approximately 16 feet out of a 60-foot right of way. Wilson said that there was “[a]bsolutely not” a way to get a truck pulling a horse trailer through that section, which made it unacceptable and impractical. He also said that if that were the only access, it would devalue his property.C. Probable Right to RecoveryThe Streets argue that the trial court abused its discretion by denying their application for temporary injunction because they pleaded and presented some evidence supporting each of their causes of action and proved a probable injury in the interim.The amending plat shows the future extension of Cottonwood Springs by means of a dotted line. A plat showing a dotted line is some evidence of an intention to dedicate. City of Dallas v. Crow, 326 S.W.2d 192, 196 (Tex. Civ. App.—Dallas 1959, writ ref’d n.r.e.). In Crow, on rehearing, the court held that because the purported owner of the road in dispute had sold lots by reference to the plat representing the street as a dotted line, he could not later repudiate his intention to dedicate that street. Id. at 199 (op. on reh’g) (holding that the land in question had been dedicated as a public street). It is undisputed that OTL had the ability to make the dedication, and the plain language of the 2001 amending plat makes clear that a dedication of the 60- foot right of way that constituted Cottonwood Springs’s future extension was intended “to the public use forever.” See Spinuzyi, 665 S.W.2d at 532; see also Dykes, 406 S.W.2d at 181 (private right to use platted street regardless of public acceptance).The Chances contend that the amending plat had to comply with local government code section 232.001 to support a dedication to public use and that because it failed to state the dimensions of the entire future extension, “the alleged public dedication of it argued by the Appellants is illegal and unenforceable.”[9] Local government code chapter 232 covers the county regulation of subdivisions. See generally Tex. Loc. Gov’t Code Ann. §§ 232.001—.109; Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 480 & n.3 (Tex. 2018) (“The County’s plat application and approval process for proposed subdivisions is governed by chapter 232 of the Texas Local Government Code and the Fort Bend County Regulations of Subdivisions.”).[10] But the 1998 plat and 2001 amending plat[11] merely constitute some evidence in support of the Streets’ dedication argument and demonstrate that the Chances were on notice of the possibility of an easement on the portion of their property through which the dirt road portion of Cottonwood Springs runs because both plats were filed for record and referenced in the Chances’ deed and their predecessor’s deed. Further, as the Streets point out, they are not seeking a right to use the entire future extension of Cottonwood Springs but rather merely access to the portion that allows them access to their home.The Chances also argue that because Wilson was the only witness to testify and because the trial court could have chosen to disbelieve all of his testimony, we must uphold the denial of the Streets’ temporary injunction application. But even if the trial court disbelieved every word spoken by Wilson, the face of the deeds, the 1998 plat, the 2001 amending plat, and the photographic evidence all weigh in favor of a probable right of recovery. Because the Streets’ evidence at the least presented a bona fide dispute as to the existence of an express or dedicated public easement with regard to the 60-foot right of way up to and along their property, see Petty, 816 S.W.2d at 433, they have shown a probable right to recovery.D. Probable, Imminent, and Irreparable InjuryThe Chances also claim that because of the MSA, the Streets have no probable, imminent, and irreparable injury and that their application for temporary injunction is moot. But the Streets did not agree to the settlement, and their insurer cannot force them to comply with it.[12] Accordingly, because the record reflects that the Streets had only one usable entrance to their property—the one in dispute—they were entitled to maintenance of the status quo until trial on the merits with regard to the existence and dimensions of an easement that would allow them to access their property. We sustain the Streets’ sole issue.III. ConclusionHaving sustained the Streets’ sole issue, we reverse the trial court’s order denying their application for temporary injunction and remand this case to the trial court for the trial court to grant the requested temporary injunction in accordance with this opinion./s/ Bonnie SudderthBonnie SudderthChief JusticeDelivered: May 30, 2019
