Court of Appeals
Tenth Appellate District of Texas
10-18-00219-CV
Fort Worth & Western Railroad Company,
Appellant
v.
Nathan D. Albert and Chisholm Trail Redi-Mix, LLC,
Appellees
On appeal from the
18th District Court of Johnson County, Texas
Judge Kenneth C. Curry, presiding
Trial Court Cause No. DC-C201600307
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
This easement dispute is before us on remand after review by the Texas
Supreme Court. That Court reversed this Court’s judgment, in part, and
remanded for consideration of the unaddressed issues on appeal. We reverse
and remand the trial court’s judgment.
Factual and Procedural Background
At issue is a railroad crossing across property owned by Fort Worth &
Western Railroad Company (“FWWR”), which connects a ten-acre tract of land
(the “Property”) purchased by Nathan Albert to State Highway 171 in Johnson
County. The Property was purchased by Albert individually in April of 2016
for the purpose of constructing and operating a cement mixing plant to be
owned by Chisholm Trail Redi-Mix, LLC (“Chisholm”). Chisholm was formed
for this purpose by Albert and two others, Rusty Simpson (“Simpson”) and
Brad Friermood (Friermood).
In 1959 or 1960, a single-lane gravel road crossing the railroad track was
constructed by the Property’s previous owner pursuant to a license agreement
with FWWR’s predecessor-in-title, Gulf, Colorado & Santa Fe Railway
Company. The license agreement was not assignable by that owner without
written permission from the railroad. The Property changed hands several
times until Albert purchased the Property in 2016. The previous owner did not
attempt to assign the license to the subsequent owners, and none of the
subsequent owners attempted to acquire a new license to use the crossing.
However, all of the subsequent owners continued to use the gravel road
crossing for various purposes, including agricultural, commercial, and personal
use, despite lacking a license to do so.
Fort Worth & Western Railroad Co. v. Albert Page 2
After Albert purchased the Property for the benefit of Chisholm, he and
his partners in Chisholm constructed and began operating a concrete plant on
the Property. Their trucks used the crossing as it was the sole point of ingress
and egress to the Property. FWWR sent Albert a letter in May of 2016 to
inform him and Chisholm that they did not have the right to use the crossing
to access the Property.
In late May of 2016, Albert and Chisholm filed a declaratory judgment
action seeking the establishment of an easement by estoppel, easement by
necessity, and a prescriptive easement. That same day, FWWR filed
counterclaims for trespass and damages as well as injunctive relief. A jury
ultimately found in favor of Albert on each of the easement theories and
rejected FWWR's claims for trespass and injunctive relief against Albert and
Chisholm. The trial court entered judgment pursuant to the jury's findings,
awarded attorney’s fees to Albert, and denied FWWR’s claim for attorney's
fees.
FWWR appealed to this Court and argued that the evidence was legally
and factually insufficient for the jury to have found an easement by estoppel,
easement by necessity, and prescriptive easement, and that the trial court
erred by denying its claims for trespass and injunctive relief. FWWR further
argued that the trial court erred by overruling its objections to the jury charge
Fort Worth & Western Railroad Co. v. Albert Page 3 pertaining to the geographic boundaries of the easement and the permitted
uses of the easement, and that the trial court erred by awarding attorney’s fees
and costs to Albert rather than to FWWR.
This Court held that the evidence was legally and factually insufficient
to support the jury’s findings of easement by estoppel, easement by necessity,
or easement by prescription and rendered judgment that there was no
easement by estoppel, necessity, or prescription. Fort Worth & W. R.R. Co. v.
Albert, No. 10-18-00219-CV, 2022 WL 554108, at *7 (Tex. App.—Waco Feb. 23,
2022), aff'd in part, rev’d in part and remanded, 690 S.W.3d 92 (Tex. 2024).
We further held that the evidence was factually insufficient to support the
jury’s finding denying FWWR’s claim for trespass and remanded to the trial
court for a new trial on that claim along with FWWR’s request for injunctive
relief and attorney’s fees. Id. at 6–7.
On review, the Texas Supreme Court affirmed this Court’s holding that
there was insufficient evidence to support the jury’s findings of easement by
estoppel and easement by necessity and rendering judgment that there was no
easement by estoppel or necessity. Albert v. Fort Worth & W. R.R. Co., 690
S.W.3d 92, 100 (Tex. 2024). The Court held that there was legally sufficient
evidence to support the jury’s finding of easement by prescription and reversed
this Court’s judgment that the evidence was legally insufficient to support the
Fort Worth & Western Railroad Co. v. Albert Page 4 finding of easement by prescription. Id. The Court remanded the proceeding
to this Court to consider the unaddressed charge issues involving the
easement’s boundaries and permitted uses. Id.
Issues On Remand
The Texas Supreme Court remanded the proceeding for this Court to
consider the two unaddressed issues raised by FWWR in the original appeal.
Id. The unaddressed issues include the fifth and sixth issues. In the fifth
issue, FWWR argues that the trial court erred in overruling its objections to
the jury charge and entering judgment where legally and factually insufficient
evidence established the geographic boundaries of the easement to be created.
In the sixth issue, FWWR argues that the trial court erred in overruling its
objections to the jury charge and entering judgment granting Albert an
easement where the jury charge and judgment are silent as to the permitted
uses of the easement to be established. However, we must first address the
factual sufficiency of the evidence to support the jury’s finding of a prescriptive
easement.
Factual Sufficiency of the Evidence
On appeal to this Court, FWWR challenged the legal and factual
sufficiency of the evidence to support the jury’s finding of a prescriptive
easement. Fort Worth & W. R.R. Co., 2022 WL 554108, at *4. We determined
Fort Worth & Western Railroad Co. v. Albert Page 5 that the evidence was both legally and factually insufficient to support the trial
court’s finding. Id. at 5, 7. The Texas Supreme Court held that the evidence
was legally sufficient to support the jury’s finding of a prescriptive easement
and concluded that this Court erred by reversing that “portion of the trial
court’s judgment on the verdict on legal-sufficiency grounds.” Albert, 690
S.W.3d at 100. Albert did not challenge this Court’s conclusion that the
evidence was factually insufficient to support the jury’s finding on prescriptive
easement, and the Texas Supreme Court did not address that issue in its
review.
The Court applied the standard of review for a legal-sufficiency challenge
to a jury verdict. Albert, 690 S.W.3d at 97. When reviewing a legal-sufficiency
challenge to a jury verdict, we view all evidence in the light most favorable to
the verdict. Albert, 690 S.W.3d at 97; City of Keller v. Wilson, 168 S.W.3d 802,
807 (Tex. 2005). We credit favorable evidence if a reasonable juror could do so
and disregard contrary evidence unless a reasonable juror could not. Albert,
690 S.W.3d at 97.
The Court examined the record in the light most favorable to the verdict
and asked whether that evidence “rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions.” Albert, 690 S.W.3d at
99. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
Fort Worth & Western Railroad Co. v. Albert Page 6 1997) and City of Keller, 168 S.W.3d at 807). The Court concluded that the
testimony of Simpson and Friermood provided evidence by which a reasonable
juror could have found that Albert’s predecessors in interest used the gravel
crossing in an adverse, open-and-notorious, continuous, and exclusive manner
for at least ten years. Id. Thus, the Court held that the evidence adduced at
trial was legally sufficient to support the jury’s finding that Albert is entitled
to a prescriptive easement for use of the railroad crossing. Id. at 100. The
Texas Supreme Court concluded this Court erred by reversing the jury’s
finding of a prescriptive easement on legal-sufficiency grounds. Id.
This Court previously conducted a factual-sufficiency review and
determined that the evidence was factually insufficient to support the jury’s
finding of a prescriptive easement. Fort Worth & W. R.R. Co., 2022 WL 554108,
at *5,7. In a factual-sufficiency review, we consider all of the evidence in the
record in a neutral light and set aside the jury’s verdict only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In its analysis, the Texas
Supreme Court did not consider all of the evidence in a neutral light as
required by a factual-sufficiency review. Because our previous holding that
the evidence was factually insufficient to support the jury’s finding of a
Fort Worth & Western Railroad Co. v. Albert Page 7 prescriptive easement was not challenged and remains in effect, we remand
the proceeding to the trial court for a new trial on that claim.
FWWR’s Trespass Claims
In addition, this Court previously held that the evidence was factually
insufficient to support the jury’s finding on FWWR’s trespass claims and
remanded the proceeding for a new trial on those claims as well as FWWR’s
request for injunctive relief and attorney’s fees. Fort Worth & W. R.R. Co.,
2022 WL 554108, at *6. The Texas Supreme Court noted this Court’s holding
on FWWR’s trespass claims but did not address those claims or reverse this
Court’s holding. See Albert, 690 S.W.3d at 97. Therefore, this proceeding
remains remanded to the trial court for a new trial on FWWR’s trespass and
injunctive relief claims.
Jury Charge Issues
The Texas Supreme Court remanded the proceeding for this Court to
consider the unaddressed fifth and sixth issues relating to the jury charge.
Because we remand this proceeding for a new trial on the claim of a
prescriptive easement, FWWR’s claims for trespass and injunctive relief, and
attorney’s fees, we need not address the issues relating to jury charge error.
See TEX. R. APP. P. 47.1.
Fort Worth & Western Railroad Co. v. Albert Page 8
Conclusion
Having reversed the trial court’s judgment as to the factual sufficiency
of the evidence on the finding of a prescriptive easement and the trespass
claims, we remand this proceeding to the trial court for a new trial on the
prescriptive easement issue, the trespass and injunctive relief claims, and for
a reconsideration of attorney’s fees.
LEE HARRIS
Justice
OPINION DELIVERED and FILED: August 27, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Reversed and remanded
CV06
Fort Worth & Western Railroad Co. v. Albert Page 9