Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00110-CV
WEEMS & KELSEY MANAGEMENT COMPANY NO. 2, LTD, Appellant
V.
MARATHON PIPE LINE LLC AND BLANCHARD PIPE LINE LLC,
Appellees
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 20-CV-0301
MEMORANDUM OPINION
The State of Texas filed a petition to condemn a strip of land containing a
pipeline then owned and operated by Marathon Pipe Line LLC and Blanchard Pipe
Line LLC. While the condemnation proceeding remained pending, Weems & Kelsey
Management Company No. 2 Ltd.—which claimed it owned the strip of land in fee—sued Marathon and Blanchard for trespass in connection with the presence of
the pipeline on the land. The jury found that Marathon and Blanchard were not
trespassing and separately, that they had a prescriptive easement over the property.
The trial court entered a take nothing judgment against Weems.
On appeal, Weems argues that (1) the trial was compromised by admission of
the special commissioners’ award issued in the condemnation proceeding, the
submission of a jury question related to the award, and the trial court’s failure to
instruct the jury that Weems owned the property in fee, (2) there is insufficient
evidence supporting the jury’s finding that Marathon and Blanchard had a
prescriptive easement over the property, and (3) the trial court erred in not awarding
Weems damages on its trespass claim against Marathon and Blanchard.
In two cross-points on appeal, Marathon and Blanchard argue that the trial
court erred by (1) denying their motion for directed verdict on Weems’ trespass
claim because the claim was barred by limitations, and (2) construing two deeds
involving the property as conveying to the grantee a railroad easement rather than a
fee simple interest in the property.
We affirm the trial court’s judgment.
Background
In 1901, Weems & Kelsey Management Company No. 2, Ltd.’s (“Weems”)
predecessors-in-interest executed two deeds granting Galveston Houston and
2
Northern Railway Co. a one-mile-long and 100-foot-wide tract of land in Galveston
County, Texas “for right of way and Railway purposes.”1 Southern Pacific
Transportation Company (“Southern Pacific”) later acquired the right-of-way from
Galveston Houston and Northen Railway and began operating a line of the Southern
Pacific Railroad.
In 1972—while Southern Pacific was still operating its rail line—Weems
purchased a largely undeveloped 639-acre parcel of land abutting the right-of-way
(“W&K Parcel”).2 At the time, the W&K Parcel included a cow pasture, a powerline,
and some pipelines. Over the next four decades, Weems negotiated easement
agreements for several additional pipelines to be installed on the W&K Parcel. In
time, most of the W&K Parcel was sold for residential development, leaving a corner
tract and a mile-long pipeline corridor surrounded by development.
1
The right-of-way was granted in two half-mile segments by two deeds dated 1900
and 1901 (the “1901 deeds”). The parties to the appeal disagree over whether the
1901 deeds conveyed to the railroad company a railroad easement or a fee simple
interest in the property. Marathon and Blanchard maintain that the deeds conveyed
a fee simple interest, while Weems contends they conveyed only a railroad
easement. At some point in the litigation, the parties agreed to have the trial court
resolve that issue of law under Rule of Civil Procedure 166(g), and the trial court
concluded that the 1901 deeds conveyed a railroad easement and that ownership of
the property had reverted to Weems. It is unclear whether that interlocutory order
remained unmodified at the time of trial. Weems argues that the order remained and
merged with the final judgment, and Marathon challenges the order in a cross-point
arguing that the trial court erred in concluding that the 1901 deeds conveyed only a
railroad easement. Given our disposition, we need not resolve this dispute. For
purpose of our analysis, we refer to the conveyances as a right-of-way. 2
The W&K Parcel ran along the southwest line of the right-of-way.
3
In 1977 or 1978, Gulf Oil Corporation approached Weems about obtaining an
easement to install a pipeline on the W&K Parcel. Rather than installing the pipeline
on the W&K Parcel, however, Gulf Oil obtained a licensing agreement for the
pipeline from Southern Pacific. Gulf Oil installed the pipeline on the right-of-way
that bordered the W&K Parcel and ran along State Highway 146.
Although the right-of-way had been an active freight corridor when Weems
purchased the W&K Parcel in 1972, about ten years later, Southern Pacific began
discontinuing rail operations on the right-of-way by removing tracks and
dismantling infrastructure. Sometime later, in September 1996, Union Pacific
Railroad (“Union Pacific”) acquired Southern Pacific’s interest in the right-of-way.
At that time, Union Pacific also filed an application with the Surface Transportation
Board (“STB”)—the federal administrative agency charged with regulating rail
transportation—for permission to abandon its common carrier obligations associated
with the rail line on the right-of-way. The STB granted Union Pacific conditional
approval of its application in 1996.3
3
The STB is the federal administrative agency with exclusive jurisdiction over the
regulation of rail transportation under the Interstate Commerce Commission
Termination Act. See In re Union Pac. R.R. Co., 582 S.W.3d 548, 552 (Tex. App.—
Houston [14th Dist.] 2018, no pet.); see also 49 U.S.C. § 10501(b). A railroad
company cannot terminate rail service without consent from the STB. To obtain
consent to terminate rail service, a railroad company may apply for permission to
discontinue service, seek permission to terminate through abandonment
proceedings, or file a request for an exemption from abandonment proceedings. See
49 U.S.C. § 10903. If the STB grants the railroad company’s application without
imposing conditions, the rail line is removed from the national transportation
4
In 2009—while Union Pacific’s application with the STB remained
pending—Weems’ general partner, Mavis Kelsey, filed an affidavit in the Galveston
County real property records asserting unencumbered ownership of the right-of-way,
reasoning that because Union Pacific had abandoned the one-mile-long, 100-footwide right-of-way, the western half of the right-of-way—a 50-feet-wide tract
abutting the W&K Parcel (“Property”)—had reverted to Weems under common
law.4 Consistent with the 2009 affidavit, Weems began exercising purported rights
over the Property, but it did not at that time contact the pipeline owner to assert its
system, and the railroad’s common carrier obligations for the line and the STB’s
jurisdiction terminate. Baros v. Tex. Mexican Ry. Co., 400 F.3d 228, 234–35 (5th
Cir. 2005); Chi. Coating Co. v. United States, 892 F.3d 1164, 1165 (Fed. Cir. 2018).
“In contrast, where an abandonment is conditional, the STB retains jurisdiction over
a railroad right-of-way until it has been abandoned pursuant to the conditions
imposed by the agency” and the STB “retains exclusive, plenary jurisdiction to
determine whether there has been an abandonment sufficient to terminate its
jurisdiction.” Baros, 400 F.3d at 234–35.
4
Sometime after execution of the 1901 deeds, the tracts on either side of the right-ofway were sold off creating a “strip.” As noted, Weems argued that Union Pacific
held only a railroad easement over the right-of-way and therefore when Union
Pacific abandoned the right-of-way, the Property—the western half of the right-ofway—reverted to Weems. Marathon argued that the 1901 deeds conveyed a fee
simple interest to Union Pacific’s predecessor-in-interest, and thus, Weems did not
acquire title to the Property. Marathon concedes, however, that if the 1901 deeds
conveyed a railroad easement—as Weems argues—then Weems at some point
acquired a fee simple interest in the Property. For purposes of our analysis, we
assume, without deciding, that the 1901 deeds conveyed a railroad easement and
that at some point prior to the filing of the underlying suit, Weems acquired a fee
simple interest in the Property.
5
ownership claim or otherwise demand that the pipeline owner pay rent or remove its
pipeline from the Property.5
In 2013, Weems leased the purportedly abandoned right-of-way for grazing
and instructed its tenant to exclude any trespassers. That same year, Marathon and
Blanchard (collectively, “Marathon”)6 acquired the Gulf Oil pipeline from BP—
Gulf Oil’s successor. The pipeline was located on the western half of the right-ofway—the same Property over which Weems was now asserting unencumbered
ownership.
Although Weems started claiming ownership over the Property in 2009, in
August 2016, Weems contacted Union Pacific to express interest in purchasing the
5
It is unclear from the record whether Weems asserted a fee simple title over the onemile-long, 100-foot wide right-of-way, or only over the western half of the right-ofway consisting of a one-mile-long, 50-feet-wide tract abutting the W&K Parcel
where the pipeline was installed. In its appellate brief, Weems asserts that it “owns
the . . . half of the strip containing Marathon’s pipeline” pursuant to the strip-andgore doctrine and the “centerline rule”—a “corollary of the strip-and-gore doctrine.”
See Escondido Servs., LLC v. VKM Holdings, LP, 321 S.W.3d 102, 106 (Tex.
App.—Eastland 2010, no pet.) (“The strip and gore doctrine is essentially a
presumption that, when a grantor conveys land he owns adjacent to a narrow strip
that thereby ceases to be of benefit or importance to him, he also conveys the narrow
strip unless he plainly and specifically reserves the strip for himself in the deed by
plain and specific language.”); Strait v. Savannah Ct. P’ship, 576 S.W.3d 802, 813
(Tex. App.—Fort Worth 2019, pet. denied) (explaining that the centerline
presumption “provides that a conveyance of land abutting a road or public highway
presumptively conveys ownership to the center of the abutting road or highway”). 6
Marathon Pipe Line LLC and Blanchard Pipe Line LLC are subsidiaries of
Marathon Petroleum Corporation. Blanchard Pipe Line LLC owned the pipeline and
Marathon Pipe Line LLC operated the pipeline during the relevant time period.
6
railroad’s interest in the right-of-way. Union Pacific informed Weems that the Texas
Department of Transportation wanted to purchase the right-of-way for an expansion
of State Highway 146. And indeed, on or about February 17, 2017, the State—on
behalf of the Texas Department of Transportation—and Union Pacific entered into
a purchase and sale agreement for the sale of Union Pacific’s interest in the right-ofway to the State. As part of the transaction, Union Pacific sent a certified letter to
Marathon—dated August 23, 2017—terminating the pipeline license agreement
(originally granted to Gulf Oil in 1978) effective 30 days from receipt of the letter.
It is undisputed that Marathon did not secure a further license agreement for the
pipeline after this termination date.
On August 29, 2017, Union Pacific transferred its interest in the right-of-way
to the State through a deed without warranty. At that time, Union Pacific notified the
STB that all conditions set by the STB’s conditional approval of Union Pacific’s
application to abandon its common carrier obligations had been satisfied. The STB
approved Union Pacific’s application on September 22, 2017, thus terminating
Union Pacific’s common carrier obligations associated with the right-of-way.
According to Kelsey, Weems has owned and possessed the Property since then.
Meanwhile, after learning of Weems’ ownership claim to the Property, the
State—while still negotiating its purchase and sales agreement with Union Pacific—
filed a petition to condemn Weems’ fee interest in the Property. The State filed its
7
petition in district court in February 2017. In November 2017—after conducting a
hearing—the special commissioners awarded Weems $1,000 for the condemned
property. Weems filed objections to the special commissioners’ award and the
State’s condemnation suit proceeded in the district court.
On January 22, 2018, the State deposited the commissioners’ award into the
registry of the court as permitted under Section 21.021 of the Property Code. See
TEX. PROP. CODE § 21.021. The State also filed a “Notice of Deposit,” confirming
its statutory compliance with Section 21.021 and stating that “the State of Texas is
now entitled to enter upon and take possession of said property.”
The record reflects that on October 10, 2017—months after the State filed its
condemnation proceeding and while it remained pending—Marathon emailed
Kelsey a map of the right-of-way and a copy of the pipeline license agreements
Marathon acquired as part of its acquisition of BP in 2013.7 Marathon’s right-of-way
specialist emailed the documents to Kelsey at his request. In his email, the Marathon
right-of-way specialist told Kelsey, “Looking at the map attached, it appears that you
were correct in that one pipeline is within the RR right of way.”
Two years later, in January 2019, Weems added Marathon as a defendant to a
pending lawsuit Weems filed in 2018 against current and former operators of two
pipelines installed on the Property. Weems asserted claims against Marathon for
7
In the email, Marathon refers to the pipeline license agreements as “easements.”
8
trespass, fraud, and declaratory relief. Weems alleged that the Marathon pipeline had
been installed on the W&K Parcel, that Marathon was trespassing on the W&K
Parcel because Marathon was operating the pipeline without an easement or
permission from Weems, and that Marathon and its predecessors had fraudulently
misrepresented to Weems that the pipeline was installed on the right-of-way.
Marathon’s right-of-way supervisor testified that even though Marathon and Weems
discussed the pipeline in 2017, Weems made “no claim of ownership to Marathon
or raised any complaint to Marathon about the continued presence of the pipeline”
until Weems filed suit in 2019.
Weems apparently agreed. Kesley testified that it asked Marathon to remove
the pipeline in 2019. On May 16, 2019, Weems notified Marathon in writing that
Marathon had to remove the pipeline from the W&K Parcel within 60 days unless
Marathon obtained an easement from Weems. In response, Marathon conducted a
survey and hydro-excavated the pipeline, confirming that the pipeline was not
located on the W&K Parcel, but rather on the Property—the right-of-way. After
Marathon confirmed that the pipeline was not located on the W&K Parcel, Weems
amended its petition in October 2021, asserting that Marathon’s pipeline was on the
Property, that Weems owned the Property (because when Union Pacific abandoned
the right-of-way the Property reverted to Weems), and that Weems had demanded
that Marathon remove the pipeline from the Property and Marathon refused.
9
The parties proceeded to trial.8 Weems presented Kelsey and a real estate
appraiser as its witnesses, and Marathon presented its right-of-way and public
engagement manager and the surveyor it had hired to confirm the location of the
pipeline. The parties also submitted excerpts from the depositions of two Union
Pacific representatives. Marathon moved for a directed verdict based on limitations.
The trial court denied the motion and ultimately submitted three liability-related
questions to the jury, which the jury answered in favor of Marathon. The jury
returned a verdict finding that Weems did not have a present right to possess the
Property, that Marathon had not committed trespass, and that Marathon had acquired
a prescriptive easement over the Property.
The trial court rendered a final judgment in Marathon’s favor and ordered that
Weems take nothing on its claims against Marathon. This appeal followed.
Discussion
In its first issue, Weems argues that the trial was compromised by the
admission of the special commissioners’ award issued in the condemnation
proceeding, the submission of a question related to the award, and the trial court’s
8
At some point, Union Pacific and the State of Texas were also parties to the
litigation. Weems sued Union Pacific [20-CV-0301] asserting a claim for trespass
to try title and a suit to quiet title and that suit was consolidated with Weems’ suit
against Marathon and Blanchard. At some point, the State of Texas also intervened
in the suit. [18-CV-0514]. During the pretrial conference, Weems announced it had
settled its claims with Union Pacific. The State did not participate in the trial and,
on December 15, 2023, it non-suited its petition in intervention.
10
failure to instruct the jury that Weems owned the Property.9, 10 We address each
argument in turn.
Admission of Commissioners’ Award
A. Standard of Review and Applicable Law
When a party with eminent domain authority desires to condemn land for
public use but cannot agree on settlement terms with the property owner, the
condemning party must file a petition for condemnation in a proper court in the
county in which the land is located. See City of Tyler v. Beck, 196 S.W.3d 784, 786
(Tex. 2006). The trial court will then appoint three special commissioners to conduct
a hearing and determine just compensation. Id.
Once the commissioners make an award, either party may challenge the award
by filing objections in the trial court. TEX. PROP. CODE § 21.018(a). Upon the filing
9
“Multifarious issues bring forth combined complaints based on more than one legal
theory within a single issue.” Walker v. Walker, 642 S.W.3d 196, 212 (Tex. App.—
El Paso 2021, no pet.) (internal citation omitted). While “we may consider
multifarious issues when we can determine, with reasonable certainty, the alleged
error about which the complaint is made,” we “may disregard points of error that
are multifarious.” Id.; Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas 2008,
no pet.) (same). Although Weems’ first issue is multifarious, we address its
arguments as we understand them.
10
Marathon argues that the only evidentiary objection Weems preserved is relevance.
In its reply brief, Weems responds that it preserved at least five evidentiary
challenges to the admission of the award, including lack of authentication, hearsay,
and relevance. We need not decide this issue, because assuming, without deciding,
that Weems preserved its evidentiary objections, we conclude below that the
admission of the award was not an abuse of discretion, and even if it was, any error
in admitting the award was harmless.
11
of objections, the award is vacated, and the administrative proceeding converts into
a judicial proceeding in the district court, with the condemnor—here the State—as
the plaintiff and the condemnee—here Weems—as the defendant. See Beck, 196
S.W.3d at 786; see also PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d
472, 476 (Tex. 2008) (stating when condemnee files objections to commissioners’
award, award is vacated and “generally not admissible in the trial court proceeding”).
Whether to admit or exclude evidence is a matter committed to the trial court’s
sound discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001). The erroneous admission of evidence requires reversal “only if the error
probably (though not necessarily) resulted in an improper judgment.” Nissan Motor
Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004); see TEX. R. APP. P. 44.1(a)
(stating error harmful if it “probably caused the rendition of an improper judgment”
or “probably prevented the appellant from properly presenting the case to the court
of appeal”).
A “court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX. R. EVID. 403; Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (stating unfair prejudice is “an undue
12
tendency to suggest [a] decision on an improper basis, commonly, though not
necessarily, an emotional one”).
B. Analysis
Weems argues that the trial court abused its discretion by admitting the special
commissioners’ award into evidence because once Weems objected to the award in
the condemnation proceeding, the award became a nullity and was inadmissible for
any purpose. Weems argues that courts consistently have held that admission of a
prior special commissioners’ award or even the fact of the award is reversible error,
and further that the error here was prejudicial on its face. Weems also argues that the
award violates the “project-influence rule.”
We conclude that the trial court did not abuse its discretion in admitting the
award. And even if it had, we cannot conclude that “the error probably resulted in
an improper judgment.” Although a special commissioners’ award is generally
inadmissible in judicial condemnation proceedings following a party’s objections to
the award, the inadmissibility of the award is grounded in the de novo character of
the judicial trial that follows when objections are filed. See generally PR Invs. &
Specialty Retailers, Inc., 251 S.W.3d at 476 (stating when condemnee files
objections to award, award is vacated and generally not admissible because the
“statutory scheme calls for. . . a trial de novo in the trial court where the
commissioners’ award is not even admissible as evidence of damages”). In other
13
words, the exclusion of the award is rooted in the premise that a de novo trial is not
confined to the record of the condemnation’s administrative phase. Id. (explaining
that proceedings before the special commissioners “are not considered” and “the
case is tried to the court de novo”). Weems has not directed us to, and we have found
no cases holding that a commissioners’ award is inadmissible in matters outside
condemnation proceedings. Indeed, the only authorities Weems cites are cases
involving eminent domain proceedings. See State v. Hilton, 412 S.W.2d 41, 43 (Tex.
1967) (involving appeal from eminent domain proceeding); Hill v. State, 289 S.W.2d
801, 801 (Tex. Civ. App.—Texarkana 1956, no writ) (same).
The same is true with respect to the project-influence rule. That rule provides
that “any change in property value that results from the government manifesting a
definite purpose to take property as part of a governmental project must be excluded
from an award of adequate compensation.” Caffe Ribs, Inc. v. State, 487 S.W.3d 137,
142 (Tex. 2016). Here again, the authorities Weems cites all involve condemnation
proceedings. See id. (involving appeal from condemnation proceedings). Weems has
not cited, and we have not found, any cases involving the project-influence rule
outside of condemnation proceedings. We thus reject Weems’ argument that the trial
court erred in admitting the award based on the project-influence rule or the practice
that precludes the admissibility of a commissioners’ award in condemnation
proceedings.
14
Weems also argues that the trial court abused its discretion in admitting the
special commissioners’ award because the adequacy of compensation in a
condemnation proceeding is not relevant for purposes of assessing trespass damages,
and because the special commissioners’ calculation of Weems’ damages in the
condemnation proceeding is unreliable and constitutes hearsay. Assuming Weems
preserved these objections for our review and that the trial court abused its discretion
in admitting the award based on these grounds, the jury never reached the issue of
damages and thus the portion of the special commissioners’ award compensating
Weems $1,000 in the condemnation proceeding could not have caused the rendition
of an improper judgment. See TEX. R. APP. P. 44.1(a) (stating error harmful if it
“probably caused the rendition of an improper judgment” or “probably prevented
the appellant from properly presenting the case to the court of appeal”).
Weems last argues that the admission of the special commissioners’ award
was prejudicial on its face because the award “showed that a prior jury or special
commission had heard the case and found [that] Weems [] had no claim to the
[P]roperty” and that “fee simple title” was vested in the State. It also argues that the
award was prejudicial because it suggested that Weems “did not have a right to
remain [on the Property] before the State took possession.” The special
commissioners’ award, however, does not state that the commissioners “found
Weems [] had no claim to the property” or that fee title was “vested” in the State. It
15
instead states that the State “filed a written [p]etition for [c]ondemnation” of the
Property and is seeking “a decree of condemnation vesting in the [the State] the fee
simple title in and to the hereinafter-described land,” and that the commissioners
heard evidence of damages “that will be” sustained by virtue of the condemnation,
concluding that Weems would be entitled to $1,000 in compensation for such a
taking. The special commissioners’ award thus does not indicate that Weems has
been divested of its interest in the Property, that the State had acquired title to the
Property, or that Weems “did not have a right to remain [on the Property]” before
the State took possession. We thus conclude that the trial court did not abuse its
discretion in admitting the special commissioners’ award on this ground, and even
if it had, we cannot conclude that the error probably resulted in the rendition of an
improper judgment.11 TEX. R. APP. P. 44.1(a); see also Interstate Northborough
11
We note that substantially similar information was later admitted into evidence.
Marathon introduced the State’s Notice of Deposit into evidence without
objection. Weems argues that the Notice of Deposit did not give the jury “nearly
the same picture” because the notice gives no “indication that the deposit is the
total fair market value” and does “not suggest that by merely depositing the
award the State has taken possession.” (Emphasis in original). The Notice of
Deposit, however, provides that the State “desires to enter upon and take
possession of the property sought to be condemned in this proceeding pending
litigation, and in order to do so, deposits this amount” of $1,000 “awarded
against the State of Texas by the Commissioners.” It further provides that “by
reason of this deposit on January 22, 2018, the State of Texas is now entitled to
enter upon and take possession of said property, as provided by Texas Property
Code Section 21.021.” We conclude that the objected to commissioners’ award
and this unobjected to Notice of Deposit—while not identical—convey
substantially similar information, and thus, for this additional reason, we
conclude there is no reversible error in the admission of the commissioners’
16
P’ship, 66 S.W.3d at 220 (“Whether to admit or exclude evidence is a matter
committed to the trial court’s sound discretion.”).
We overrule the portion of Weems’ first issue challenging the admission of
the special commissioners’ award.
Jury Question and Instructions
In its first issue, Weems also argues that the trial court compounded its error
in admitting the commissioners’ award by submitting Question No. 1 concerning
Weems’ possessory rights in the Property. And it argues that once it admitted the
commissioners’ award into evidence and decided to submit Question No. 1, the trial
court erred by refusing to provide a “curative instruction” instructing the jury that
Weems owned the Property.
A. Standard of Review
A trial court must submit questions, instructions, and definitions raised by the
pleadings and evidence. See TEX. R. CIV. P. 278. “A trial court may refuse to submit
a jury question only if no evidence exists to warrant its submission.” Sewing v.
Bowman, 371 S.W.3d 321, 339 (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d)
(“Conflicting evidence presents a fact question for the jury to decide.”). We review
award. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004)
(stating trial court’s erroneous admission of evidence “is deemed harmless and is
waived if the objecting party subsequently permits the same or similar evidence to
be introduced without objection”).
17
a trial court’s decision to submit or refuse a particular question or instruction for
abuse of discretion. Certain Underwriters at Lloyd’s, London v. Prime Nat. Res.,
Inc., 634 S.W.3d 54, 66 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Shupe
v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006)).
Trial courts have “great latitude and considerable discretion” in determining
jury instructions. Koukhtiev v. Hiner, No. 01-13-00356-CV, 2014 WL 4952430, at
*3 (Tex. App.—Houston [1st Dist.] Oct. 2, 2014, no pet.) (mem. op.) (quoting La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)). A jury charge instruction
is proper if it assists the jury, is supported by the pleadings or evidence, and
accurately states the law. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.
2002). A jury instruction is improper if it comments on the weight of the evidence
or “nudge[s]” or “tilt[s]” the jury. Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d
718, 724 (Tex. 2003). “To be a direct comment on the weight of the evidence, the
issue submitted must suggest to the jury the trial court’s opinion on the matter.”
Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682, 703 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (quoting H.E. Butt Grocery Co. v. Bilotto, 985
S.W.2d 22, 24 (Tex. 1998)).
When a trial court refuses to submit a requested instruction on an issue raised
by the pleadings and evidence, “the question on appeal is whether the request was
reasonably necessary to enable the jury to render a proper verdict.” Sewing, 371
18
S.W.3d at 339. The omission of an instruction constitutes reversible error only if the
omission probably caused the rendition of an improper judgment. Id. “Error in the
omission of an issue is harmless ‘when the findings of the jury in answer to other
issues are sufficient to support the judgment.’” Id.
B. Submission of Jury Question
Question No. 1 asked the jury: “Does Weems [] have a present right to possess
the Property?” and the jury answered, “No.” Weems argues that the trial court
compounded its error—referencing the admission of the commissioners’ award—by
submitting this jury question that “inquired into the legal import of the special
commissioners’ award” and constituted “an improper comment on the weight of the
evidence by indicating to the jury that Weems [] may have been dispossessed by the
State and lacked a possessory interest in the property” and because it constituted
surplusage in that the charge asked “multiple questions regarding [Weems’]
ownership.”12 It also argues that the question misstated the law of trespass by
“adding terms to the definition of trespass”
Addressing this last argument first, we note that Question No. 1 does not
include any definitions, and Weems does not fully elaborate on the argument that
12
We have already concluded that the trial court did not abuse its discretion in
admitting the commissioners’ award. Thus, to the extent that Weems’ challenge to
the submission of Question No. 1 is premised on the trial court’s alleged error in
admitting the special commissioners’ award, we overrule the issue.
19
the question “added” terms to the definition of trespass. Weems also fails to include
a meaningful analysis on its argument that the question constituted an improper
comment on the weight of the evidence. Weems states that an impermissible
comment occurs when “in light of the entire charge, the judge has ‘assumed the truth
of a material controverted fact or exaggerated . . . pertinent evidence.” But Weems
does not fully explain how the trial court judge did either. It merely argues, without
more, that submitting the question constituted an improper comment on the weight
of the evidence “by indicating to the jury that Weems [] may have been dispossessed
by the State and lack[ed] a possessory interest in the [P]roperty.”13
We conclude that Question No. 1 was not an improper comment on the weight
of the evidence. Nothing in the jury charge refers to the special commissioners’
award, the condemnation proceeding, or the State’s interest in the Property. Question
13
Weems’ entire argument on this point is articulated in two paragraphs of its opening
brief. It does not cite any legal authority for this proposition or non-conclusory
analysis. See TEX. R. APP. P. 38.1(i); Ross v. St. Luke’s Episcopal Hosp., 462
S.W.3d 496, 500 (Tex. 2015) (“Failure to provide citations or argument and analysis
as to an appellate issue may waive it.”) (citing ERI Consulting Eng’rs, Inc. v.
Swinnea, 318 S.W.3d 867, 880 (Tex. 2010)). In its reply brief, Weems cites
authority on this issue, but it does not provide a meaningful analysis. Bank of Am.,
N.A. v. Barth, No. 13-08-00612-CV, 2013 WL 5676024, at *3 (Tex. App.—Corpus
Christi–Edinburg Oct. 17, 2013, no pet.) (mem. op.) (holding that party who “cit[ed]
to the record and authority for the first time in its reply brief” had nevertheless
waived issues due to inadequate briefing). In any event, even if properly before us,
for the reasons noted, we overrule the issue. See Bertucci v. Watkins, 709 S.W.3d
534, 541–42 (Tex. 2025) (holding that our appellate procedures “require adequate
briefing” and failure to “comply with these rules can result in waiver,” but where
possible courts should endeavor to reach the merits).
20
No. 1 asked the jury to determine whether Weems had a present right to possession
of the Property. The question did not focus the jury’s attention on any facts
associated with the issue of possession or ownership or otherwise indicate the trial
court’s opinion on the evidence. See Indian Beach Prop. Owners’ Ass’n, 222 S.W.3d
at 703 (holding jury questions did not improperly comment on weight of evidence
when questions were “worded in a simple manner and ask[ed] the jury to decide a
unique factual dispute” and did not suggest trial court’s opinions on these matters).
Cf. Harris Cnty. v. Int’l Paper Co., No. 01-15-00354-CV, 2016 WL 5851895, at *20
(Tex. App.—Houston [1st Dist.] Oct. 6, 2016, no pet.) (mem. op.) (“By singling out
a particular fact with the expression ‘mere fact,’ the court’s instruction constituted a
comment on the weight of the evidence.”). And, as we conclude below, the question
was relevant to the issues at trial. See TEX. R. CIV. P. 277 (“The court shall not in its
charge comment directly on the weight of the evidence or advise the jury of the effect
of their answers, but the court’s charge shall not be objectionable on the ground that
it incidentally constitutes a comment on the weight of the evidence or advises the
jury of the effect of their answers when it is properly a part of an instruction or
definition.”).
To the extent Weems argues that the trial court abused its discretion by
submitting Question No. 1 because it was surplusage, or because Weems owned the
Property in fee simple and asking whether Weems had a present right to possess the
21
Property suggested to the jury that an owner must have possession of the property to
recover on its claim, or because it added terms to the definition of trespass, we reject
Weems’ claim. Under common law, there are two types of trespass claims—trespass
quare clausum fregit and trespass on the case. See Coastal Oil & Gas Corp. v. Garza
Energy Tr., 268 S.W.3d 1, 9 (Tex. 2008). Trespass quare clausum fregit “was limited
to physical invasions of plaintiffs’ possessory interest in land,” while trespass on the
case “provided an action for injury to a non-possessory interest, such as reversion.”
Id. at 9 n. 21 (citing treatise and case stating that it is “axiomatic that at common law
the gist of the action of trespass quare clausum fregit is injury to the possession, and
that, generally speaking, the plaintiff must show actual or constructive possession at
the time of the trespass”). Although property ownership allows an owner to maintain
a trespass claim, whether the owner has a right to possession determines the type of
damages the owner may recover for the trespass.14
Weems did not seek damages for permanent injury to the Property. It instead
sought damages for lost rentals—a temporary injury to possession. See Coinmach
14
Although non-possessory interest holders have standing to bring trespass actions,
they must demonstrate concrete harm in the form of permanent harm to the property.
See Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 10 (Tex. 2008)
(“Thus a landlord cannot sue for a mere trespass to land in the occupation of his
tenant. He is not without legal remedy, in the form of an action on the case for the
injury to the reversion; but in order to maintain it, he must show more than the
trespass—namely, actual permanent harm to the property of such sort as to affect
the value of his interest.”) (quoting W. Page Keeton, Dan B. Dobbs, Robert E.
Keeton & David G. Owen, Prosser and Keeton on the Law of Torts § 13, at 78 (5th
ed.1984)).
22
Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 921 (Tex. 2013) (describing
lost rentals as temporary injury and appropriate measure of trespass damages for
temporary loss of use of land); see also Coastal Oil & Gas Corp., 268 S.W.3d at
9-11 (holding that mineral owner who had no present right to possess minerals had
standing to sue for form of trespass to recover damages for permanent injuries to
such property but was not entitled to sue for trespass based on nominal damages).
Whether Weems had a present right to possess the Property was thus relevant and
did not add a new requirement to the trespass claim.
For this reason, and because Question No. 1 did not misstate the law of
trespass or improperly comment on the weight of the evidence, we conclude the trial
court did not abuse its discretion by submitting Question No. 1 to the jury. See
Certain Underwriters, 634 S.W.3d at 66 (stating charge error reviewed for abuse of
discretion); Koukhtiev, 2014 WL 4952430, at *3 (stating trial courts have “great
latitude and considerable discretion” in determining jury instructions). We overrule
Weems’ first issue on this point.
C. Omission of “Curative” Instruction
In its first issue, Weems also argues that the trial court previously declared
that it owned the Property in fee simple absolute, and thus Weems “established as a
matter of law that it had a present right of possession, subject of course to the State’s
concurrent right to take possession.” Weems argues that the trial court erred in
23
refusing to instruct the jury that Weems owned the Property because “such an
instruction of the law was essential to curing the damage caused by admission of the
special commissioner’s award.” Because we have concluded that the admission of
the commissioners’ award was neither error nor harmful, we conclude the trial court
did not abuse its discretion by not giving the requested “curative” instruction to cure
the alleged error. See Certain Underwriters, 634 S.W.3d at 66 (stating charge error
reviewed for abuse of discretion).
To the extent that Weems argues that the instruction was necessary given the
erroneous submission of Question No. 1, we have already concluded that the trial
court did not err in submitting the instruction based on the grounds asserted by
Weems. And we further hold that it was not error for the trial court not to give a
“curative” instruction on ownership because—as we have noted and as further
discussed below—the question of possessory rights was relevant to the issues at trial.
We thus overrule Weems’ first issue on this point.
Trespass
In response to Question No. 2, the jury found that Marathon “did not trespass
on the Property.” Weems argues that the trial court erred in rendering a take nothing
judgment against it on its trespass claim against Marathon because Weems
conclusively demonstrated that it had fee simple title to the Property, Marathon’s
pipeline is on the Property, and Weems never consented to or authorized Marathon
24
to continue to operate and maintain the pipeline on the Property.15 We construe this
argument as a challenge to the legal sufficiency of the evidence supporting the jury’s
finding of no trespass.
A. Standard of Review
The test for legal sufficiency is “whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review.” City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When conducting a legal sufficiency
review, we “view the evidence in the light most favorable to the verdict, crediting
favorable evidence if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not.” Id. at 807.
When an appellant challenges the legal sufficiency of an adverse finding on
an issue on which it had the burden of proof—as Weems does here—the appellant
“must demonstrate on appeal that the evidence establishes, as a matter of law, all
vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001). We first examine the record for evidence that supports the finding,
15
Marathon argues that although Weems acknowledged that lack of consent is an
element of its trespass claim, it failed to address the issue in its opening brief and
therefore waived the issue due to inadequate briefing. In its opening brief, Weems
argues that Marathon “remained on Weems & Kelsey’s Property without permission
long after the consent granted by the License was terminated.” We find this is
sufficient to overcome briefing waiver on this issue. See Lion Copolymer Holdings,
LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020) (stating appellate
courts “should hesitate to resolve cases based on procedural defects and instead
endeavor to resolve cases on the merits”).
25
while ignoring all evidence to the contrary. Id. If there is no evidence to support the
finding, we then examine the entire record to determine if the contrary position is
established as a matter of law. Id. “The point of error should be sustained only if the
contrary proposition is conclusively established.” Id. A matter is conclusively
established only if reasonable people could not differ as to the conclusions to be
drawn from the evidence. See City of Keller, 168 S.W.3d at 816. If the evidence
shows there was a conflict, then the elements were not conclusively established. See
Gilbreath v. Horan, 682 S.W.3d 454, 491 (Tex. App.—Houston [1st Dist.] 2023,
pet. denied) (citing Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)).
So long as the evidence falls within the zone of reasonable disagreement, we
may not substitute our judgment for that of the factfinder. City of Keller, 168 S.W.3d
at 822. Jurors are the sole judges of the credibility of the witnesses and the weight
to give their testimony, and they may choose to believe one witness and to disbelieve
another. Id. at 819.
B. Applicable Law
“Trespass” is defined as “an unauthorized entry upon the land of another.”
Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015)
(quoting Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011)). The gist of a claim
for trespass to real property is the injury to the right of possession. Coastal Oil &
Gas Corp., 268 S.W.3d at 9. The Supreme Court has defined “trespasser” to mean
26
“someone who ‘enters upon the property of another without any right, lawful
authority, or express or implied invitation, permission, or license.’” Envtl.
Processing Sys., 457 S.W.3d at 424 (quoting Tex.-La. Power Co. v. Webster, 127
Tex. 126, 91 S.W.2d 302, 306 (1936)).
The elements of a trespass claim are (1) entry (2) onto the property of another
(3) without consent or authorization. See id. at 419. Trespass is also available against
a person who remains on property without consent.16 See Coinmach, 417 S.W.3d at
915 (analyzing whether holdover tenant who remained on property upon termination
of lease was liable for trespass). Lack of consent or authorization is an element of a
trespass cause of action that a plaintiff must prove. Envtl. Processing Sys., 457
S.W.3d at 425. It was thus Weems’ burden to prove that Marathon’s presence on the
Property was unauthorized or without consent. See id.
In Question No. 2, the jury was instructed that “trespass” means “to enter or
remain on the property of another without having consent or authorization of the
owner. To constitute trespass, the entry or remaining upon another’s property need
not be in person but may be made by causing or permitting a thing to cross or remain
across the boundary of the property.” We review the sufficiency of the evidence
16
Weems claims it did not plead traditional trespass but rather pled that Marathon
“remained on Weems[’] Property without permission long after the consent granted
by the License was terminated.”
27
against the charge as submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.
2000).17
C. Analysis
Weems does not dispute that Marathon’s presence on the Property was lawful
until Marathon’s license agreement terminated on or about September 25, 2017.
Rather, Weems argues that Marathon committed trespass when it remained on the
Property “without permission long after the consent granted by the License was
terminated.”
Weems argues that Marathon’s lack of consent “is not seriously disputed in
this case” because there is conclusive evidence that Weems never gave Marathon a
license or otherwise granted it permission to be on the Property, and Weems
demanded that Marathon remove the pipeline after the license agreement ended.
17
Weems and Marathon each submitted proposed questions for Weems’ trespass
claim. Although their proposed questions were identical, Weems and Marathon
proposed instructing the jury using different definitions of the term “trespass.” The
trial court adopted Weems’ proposed instruction and included Weems’ definition of
trespass in Question No. 2, to which Marathon did not object. No party challenges
the submission of Question No. 2 or the instruction on trespass on appeal. When a
party in a civil action does not challenge a jury question or instruction on appeal, an
appellate court limits its review to the legal question and the sufficiency of the
evidence supporting the jury’s finding, measured against the charge as actually
submitted. See Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 407 (Tex. 2016)
(“Our review is restricted to the jury charge as submitted when there was no
objection to the instruction.”) (citing Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue, 271 S.W.3d 238, 254 (Tex. 2008)); Osterberg v. Peca, 12 S.W.3d 31, 55
(Tex. 2000) (stating “it is the court’s charge, not some other unidentified law, that
measures the sufficiency of the evidence when the opposing party fails to object to
the charge”).
28
Although the State obtained constructive possession of the Property when it
deposited the commissioners’ award into the registry of the court on January 22,
2018, Weems argues it maintained actual possession of the Property, and the State
(at the time of trial) had not taken actual possession. According to Weems, the State
could not “interfere with Weems’ operations, charging rent [to an agricultural
tenant], and excluding trespassers without taking actual possession for highway
purposes.” Weems further argues “there is no issue of implied consent” because
Weems expressly demanded that Marathon vacate the Property in May 2019.
Marathon responds that Weems did not conclusively establish that Marathon
lacked consent to remain on the Property because Marathon initially had a pipeline
license agreement to be on the Property, there was evidence that Marathon had
Weems’ implied consent to remain on the Property after Marathon’s license
agreement terminated in September 2017, and the State—upon securing possession
of the Property on January 22, 2018—did not oppose but rather consented to
Marathon’s continued presence on the Property.
1. Weems did not conclusively establish lack of consent
We begin our review by determining if any evidence supports the jury’s
finding that Marathon did not trespass on the Property. See Dow Chem. Co., 46
S.W.3d at 241. The record reflects that Weems’ predecessor-in-interest granted
Union Pacific’s predecessor-in-interest a right-of-way over the Property in 1901,
29
that in 1978 Union Pacific’s predecessor-in-interest gave Marathon’s predecessorin-interest a license to install and maintain the pipeline on the right-of-way, and that
the license agreement was assigned to Marathon when Marathon acquired the
pipeline in 2013. Union Pacific’s common carrier obligations over the right-of-way
terminated on September 22, 2017—when the STB approved Union Pacific’s
application for abandonment—and Marathon’s license agreement terminated shortly
after, on or about September 25, 2017.
It is undisputed that Marathon remained on the Property after its license
agreement terminated and that Weems never gave Marathon a license or easement
to remain on the Property. Marathon presented evidence, however, that as early as
2017, Weems knew that the STB had granted Union Pacific’s application and that
Marathon’s pipeline remained on the Property. Although there was some initial
confusion over the location of the pipeline, the record reflects that Weems believed
as early as 2017 that the pipeline was on the Property, and Marathon confirmed that
belief on October 10, 2017, when Marathon emailed Kelsey a map of the right-ofway and a copy of the pipeline license agreements, stating that Kelsey was correct
“in that one pipeline is within the RR right of way.” Weems did not then ask
Marathon to remove the pipeline from the Property. Indeed, it did not demand
removal of the pipeline from the Property until May 2019, when Weems sent a notice
to Marathon demanding that Marathon remove the pipeline from the Property unless
30
it acquired an easement from Weems. Consistent with the documentary evidence,
Marathon’s corporate representative testified that prior to May 2019, Weems had
not communicated to Marathon that it was trespassing on the Property or that it had
to remove its pipeline.
This evidence supports a finding that Marathon had implied consent from
Weems to remain on the Property between the time Marathon’s license agreement
terminated in September 2017 and when Weems formally demanded that Marathon
vacate the Property in May 2019. See Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12
S.W.3d 827, 835 (Tex. App.—Dallas 2000, no pet.) (“Consent to enter will only be
implied if the owner (i) has actual knowledge that people have been entering the land
and (ii) fails to take reasonable steps to prevent or discourage those persons from
entering the land.”).
The record also reflects that the State deposited the commissioners’ award and
thus acquired possessory rights over the Property on January 22, 2018—sixteen
months before Weems formally demanded that Marathon remove the pipeline in
May 2019—and that the State consented (both impliedly and expressly) to
Marathon’s presence on the Property. Marathon’s corporate representative testified
that the State knew “exactly where Marathon’s pipeline” was and did not request
that Marathon “remove its pipeline.” Marathon’s witness also testified that Marathon
had the State’s express consent and authorization to remain on the Property. This is
31
some evidence that Marathon had both implied and express consent from the State
to remain on the Property after the State acquired possessory rights over the Property
on January 22, 2018.
Based on the evidence before us and deferring to the jury’s resolution of any
conflicts and inconsistencies in the evidence, we conclude that there was some
evidence to support the jury’s finding that Marathon had implied or express consent
to remain on the Property after its license agreement terminated in September 2017
and Weems did not otherwise conclusively establish as a matter of law that Marathon
did not have consent to remain on the Property. See Dow Chem. Co., 46 S.W.3d at
241 (stating appellant challenging legal sufficiency of adverse finding on issue on
which it had burden of proof “must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue” and “point of
error should be sustained only if the contrary proposition is conclusively
established”); City of Keller, 168 S.W.3d at 816 (stating matter conclusively
established only if reasonable people could not differ as to conclusions to be drawn
from evidence); see also Gilbreath, 682 S.W.3d at 497 (holding element not
conclusively established in light of conflicting evidence).
2. The State had possessory rights over the Property
Condemnation proceedings involve two phases: one administrative and one
judicial. When a condemnor and a landowner cannot agree on the value of real estate
32
to be condemned, the trial court “appoint[s] three disinterested real property owners
who reside in the county as special commissioners to assess the damages of the
owner of the property being condemned.” TEX. PROP. CODE § 21.014(a). When the
appointed commissioners make an award, either party may challenge the award by
filing objections in the trial court. Id. § 21.018(a). Upon the filing of objections, the
award is vacated and the administrative proceeding converts into a judicial
proceeding, at which time the district court will “try the case in the same manner as
other civil causes.” Id. § 21.018(b).
Section 21.021 of the Property Code—titled “Possession Pending
Litigation”—provides that the “condemnor may take possession of the condemned
property pending the results of further litigation” by depositing the amount of the
commissioners’ award into the registry of the court. Id. § 21.021(a)(1). “A
condemnor takes constructive possession of [the] property when it deposits the
commissioners’ award into the registry of the court.” Hooks v. Fourth Court of
Appeals, 808 S.W.2d 56, 60–61 (Tex. 1991) (orig. proceeding).18
18
“‘Constructive possession is that which exists without actual personal occupation of
land . . . , but with an intent and capability to maintain control and dominion.
Possession may, but need not, imply title.’” Mehan v. WAMCO XXVIII, Ltd., 138
S.W.3d 415, 418 (Tex. App.—Fort Worth 2004, no pet.) (quoting Blankenship v.
Citizens Nat’l Bank, 449 S.W.2d 77, 79 (Tex. Civ. App.—Amarillo 1969, writ ref’d
n.r.e.)).
33
Weems argues that the State could not have granted consent to Marathon to
remain on the Property because Weems owned the Property in fee, and while the
State had a right to take possession of the condemned Property upon deposit of the
commissioners’ award into the registry of the court, the State had not exercised its
right to take possession at the time of trial and thus could not interfere with Weems’
rights to exclude trespassers.19 According to Weems, the language of Section 21.021
is permissive, arguing that under Section 21.021, a condemnor “may take possession
of the condemned property pending litigation” but “it does not say possession is
taken when the deposit is made.” (Emphasis in original.) Relying on Hooks, Weems
argues that while a condemnor takes “constructive possession of property when it
deposits the commissioners’ award into the registry of the court,” that right “might
‘never [be] actually exercised.”
Neither Section 21.021 nor Hooks supports Weems’ position. While Section
21.021 provides that a condemnor “may” take possession of the condemned property
by depositing the commissioners’ award into the registry of the court, it does not say
that after payment of the deposit, the condemnor “may” take possession of the
property. The permissive language in Section 21.021 concerns not the State’s rights
19
The judicial phase of the condemnation proceeding remained pending at the time of
trial.
34
of possession upon deposit of the award, but the State’s right to pay the deposit
which right “might ‘never [be] actually exercised.”
Texas law establishes that upon deposit of the commissioners’ award, the
State obtains immediate possessory rights to the condemned property, including the
right to exclude all others and to maintain trespass actions against third parties. The
Supreme Court in Hooks made this clear when it held that a condemnor “takes actual
possession of property when it invades or appropriates the property,” and it takes
“constructive possession of property when it deposits the commissioners’ award into
the registry of the court.” Hooks, 808 S.W.2d at 60–61 (emphasis added) (explaining
that when condemnor “deposited the commissioners’ award into the court registry
[it] thereby gained the right to possess the property”). More relevant here, a “taking
occurs on the date [on] which the condemnor lawfully takes either actual possession
by physically entering the land or constructive possession by the deposit of the
commissioner’s award.” Beutel v. Dallas Cnty. Flood Control Dist., No. 1, 916
S.W.2d 685, 692 (Tex. App.—Waco 1996, writ denied) (emphasis added) (citing
City of Fort Worth v. Corbin, 504 S.W.2d 828, 830 (Tex. 1974)); see generally City
of Houston v. Adams, 154 Tex. 448, 457, 279 S.W.2d 308, 315 (1955) (“When the
City has made the deposit . . . , the City shall be allowed immediately to take
possession of its rights in Mrs. Adams’ property, pending the final hearing of the
cause on its merits.”); Thomas v. Hous. Auth. of City of Dallas, 153 Tex. 137, 139,
35
264 S.W.2d 93, 94 (1953) (stating that upon condemnor’s deposit of amount of
special commissioners’ award with court registry, the “landowner is out the use of
his land; he has been dispossessed and in justice and equity he is entitled to have the
money which has taken the place of the land”) (discussing predecessor to Section
21.021). Weems’ argument to the contrary is incongruous with this well-settled law.
See generally Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d
508, 519 (Tex. App.—Houston [14th Dist.] 1987, writ denied) (“Having thus strictly
complied with § 21.021, HL & P was rightfully in possession of the property and
cannot be guilty of a trespass.”).
To the extent Weems argues that the State had to take actual possession over
the Property to consent to Marathon’s continued presence on the Property, we reject
that argument as well.20 Nothing in Section 21.021 suggests that the State’s
20
Relying on Brown v. City of Dallas, Weems argues that the State had to obtain a
writ of possession before it could take actual possession of the Property. 549 S.W.2d
787, 789 (Tex. App.—Waco 1977, no writ). As noted, the State was not required to
take actual physical possession of the property to exercise its possessory rights—
the “taking” occurred when the State deposited the commissioners’ award. See
Davidson v. Harris Cnty., 454 S.W.2d 830, 833 (Tex. App.—Houston [1st Dist.]
1970, writ ref’d n.r.e.) (“The condemning authority is given the option of depositing
the amount of the award and ‘taking’ the property at that time or delaying the
‘taking’ until the judgment has become final. A property owner has no similar right
of election, but must abide by the election of the condemnor.”); TEX. CONST. art. I,
§ 17(a) (“No person’s property shall be taken, damaged, or destroyed for or applied
to public use without adequate compensation being made . . . ”). Moreover, we are
not bound by Brown nor do we find it persuasive on this point, in part because the
condemnor in that case had not fully complied with the requirements of Section
21.021’s predecessor statute when it bulldozed a building on the condemned land.
Brown, 549 S.W.2d at 788. Weems does not dispute that here, the State fully
36
possessory rights are contingent on it taking actual possession. A party with
constructive possession of real property has the right to enter and exclude others
from the property. See Pentagon Enters. v. Sw. Bell Tel. Co., 540 S.W.2d 477, 478
(Tex. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.) (“Constructive possession
is sufficient to enable the owner to maintain an action for trespass.”); see generally
Russell v. State, No. 02-14-00178-CV, 2015 WL 1743745, at *3 (Tex. App.—Fort
Worth Apr. 16, 2015, no pet.) (mem. op.) (“A condemnor that complies with
property code section 21.021 is rightfully in possession of the property and cannot
be guilty of trespass.”). Such rights naturally carry with them the corresponding right
to consent to the entry of others on the property. See generally Langston v. State,
complied with Section 21.021. Furthermore, Section 21.021 does not require a
condemnor to obtain a writ of possession prior to taking actual possession of the
property, and Hooks suggests that it is not necessary for the condemnor to obtain a
writ of possession for the condemnor to take actual possession, because a
condemnor merely needs to “invade[] or appropriate[] the property” to take actual
possession. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991).
Weems has not directed us to, nor have we found, any other opinion requiring a
condemnor who has deposited the commissioners’ award to obtain a writ of
possession prior to taking actual possession of the condemned property.
Marathon argues that to the extent it was necessary for the State to have actual
possession of the Property before it could consent to Marathon’s presence,
Marathon presented evidence that the State had begun work on the highway
expansion project and, although the State had not started work on the Property, it
had nevertheless taken preparatory steps by coordinating with Marathon and the
operators of other existing pipelines on the Property regarding the State’s
engineering plans and clearing trees to the north of the Property. We also note that
the State arguably took possession of a portion of the Property by allowing
Marathon to keep its pipeline on the condemned land. See generally id. (stating
condemnor “takes actual possession of property when it invades or appropriates the
property”).
37
315 S.W.2d 90, 91 (Tex. App.—Waco 1958, no writ) (affirming temporary
injunction order when landowners refused State Highway Department employees
permission to enter land after State had deposited award with court registry, and
State obtained temporary injunction order prohibiting landowners from interfering
with construction of highway on condemned easement, including interfering with
State’s agents, servants, employees or contractors or subcontractors, and their agents
and employees). Weems has not pointed to any legal authority holding that (1) a
condemnor with constructive possession of land—such as the State here—cannot
consent to a third party’s continued presence on the land, or (2) that after a
condemnor deposits a commissioners’ award into the registry of the court, a
condemnee—Weems here—can maintain a suit for trespass for lost rentals against
a third party to whom the condemnor has given consent to remain on the property.
Although Weems argues that absent actual possession, the State did not have
the right to interfere with its efforts to exclude trespassers, Weems does not appear
to dispute that the State, having constructive possession, had the right to consent to
Marathon’s use of the Property.21 Given as much, we need not decide what rights
21
While the State was not an owner in fee at the time of trial, the State did not have to
be an owner in fee to exercise rights such as possession and exclusion. When the
State deposited the commissioners’ award, it acquired constructive possession and
the right to possess the property. See generally Hooks, 808 S.W.2d at 60-61 (“A
condemnor takes constructive possession of [the] property when it deposits the
commissioners’ award into the registry of the court.”); Thomas v. Hous. Auth. of
City of Dallas, 153 Tex. 137, 139, 264 S.W.2d 93, 94 (1953) (stating that although
38
Weems continued to have over the Property, if any, once the State deposited the
award into the registry of the court, because well-settled law establishes that the State
obtained possessory rights over the Property upon deposit of the commissioners’
award. See Hooks, 808 S.W.2d at 60–61.
Weems’ position to the contrary would require us to hold that the State, after
“taking” the Property by depositing the special commissioner’s award into the
registry of the court—and thus acquiring the right to immediate possession including
the right to exclude others—nonetheless lacked the right to grant consent to a third
party—here Marathon—to remain on the Property. That would be an anomalous
landowner retains title to property until condemnation proceeding concludes,
landowner has nevertheless been “dispossessed” of its right to possession of
property when condemnor deposits award in court registry). Texas law recognizes
that parties can hold portions of the ownership bundle without holding the entire
bundle, and the State’s deposit of the commissioners’ award gave it the possessory
and exclusion rights sufficient to grant consent to Marathon to remain on the
Property. The right to exclude others from the use of property is “one of the most
essential sticks” in the bundle of ownership rights. See generally Lightning Oil Co.
v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 48 (Tex. 2017) (explaining that
“property owner’s rights are often described as a bundle of rights, or a bundle of
sticks. And an owner of realty has the right to exclude all others from the use of the
property, one of the most essential sticks in the bundle of rights that are commonly
characterized as property.”) (internal quotation marks omitted); Ridge Nat. Res.,
L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 113 (Tex. App.—El Paso
2018, no pet.) (“A property owner is free to retain all rights in a piece of real estate
for himself or herself, or else sever the sticks from one another and distribute
individual rights in whatever fashion or combination he or she so chooses.”) (citing
Lightning Oil Co., 520 S.W.3d at 48); see also Severance v. Patterson, 370 S.W.3d
705, 710 (Tex. 2012) (“Limitations on property rights may be by . . . state
condemnation with payment of just compensation. . . .”). The jury therefore
reasonably could have found that the State was an owner of possessory rights in the
Property with the right to consent to Marathon’s presence.
39
result. It would be incongruous to hold that the State upon deposit has the right to
exclude others but not the right to grant permission to a third party to remain on
property the State has “taken” by virtue of the deposit. The State’s constructive
possession is legally recognized as a taking, and the State’s right to possess is
enforceable against others for trespass. See generally City of Fort Worth, 504 S.W.2d
at 830 (holding taking occurs on date condemnor acquires constructive possession
by depositing commissioner’s award or takes actual possession of property); Beutel,
916 S.W.2d at 692 (same).
Marathon produced evidence that the State consented to its presence on the
Property after the State deposited the commissioners’ award into the registry of the
court in January 2018, and that Weems—through inaction—impliedly consented to
its presence on the Property from the time Marathon’s license agreement terminated
in 2017 until Weems made a formal demand in May 2019. We thus cannot say that
Weems conclusively established that Marathon did not have consent or authorization
to remain on the Property after its license agreement terminated. See Dow Chem.
Co., 46 S.W.3d at 241 (stating legal sufficiency challenge of party with burden of
proof on issue should be sustained only if party conclusively established all vital
facts in support of issue); City of Keller, 168 S.W.3d at 816 (stating matter
conclusively established only if reasonable people could not differ as to conclusions
to be drawn from evidence).
40
We overrule Weems’ challenge to the legal sufficiency of the evidence
supporting the jury’s finding that Marathon did not trespass on the Property.
Weems’ Remaining Issues
Weems also argues there is insufficient evidence supporting the jury’s finding
that Marathon had a prescriptive easement over the Property, and that the trial court
erred in not awarding Weems damages for lost rentals on its trespass claim. Having
overruled Weems’ challenge to the legal sufficiency of the evidence supporting the
jury’s finding that Marathon did not commit trespass, we need not consider whether
there is legally sufficient evidence supporting the jury’s finding that Marathon had
a prescriptive easement over the Property, and thus, had a lawful right to be on the
Property, or whether the jury erred by not awarding Weems damages on its trespass
claim. See Reid Estates Civic Club v. Boyer, Inc., No. 01-09-00282-CV, 2011 WL
6938513, at *7 n.8 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem.
op.) (describing easement by prescription as defense to trespass claim); see also TEX.
R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as
brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”).22
22
Given our disposition of this appeal, we need not address Marathon’s cross-points
on the issue of limitations or the legal construction of the 1901 deeds. See TEX. R.
APP. P. 47.1.
41
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Morgan.
42