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Click here for the full text of this decision FACTS:Steven and Susan Scown appeal from a summary judgment granted in favor of appellees, Arthur “Van” Neie Jr. and Sue Lynn Neie, establishing an easement running along the northeastern edge of appellants’ property. This dispute involves a paved road abutting appellants’ property referred to generally as Moseley Lane in Alpine, Texas. Appellants own a three-acre tract abutting Mosely Lane. Appellees own a 10-acre tract on the other side of Moseley lane and access a portion of their ten-acre tract from the portion of Moseley lane abutting Appellants’ three-acre tract. It appears from the record that Mr. Neie Sr. originally acquired the three-acre tract by assumption of the note of Mr. Carl E. Thain and Mary Thorne Thain sometime in 1963. By deed dated July 16, 1974, Mr. Neie Sr. also purchased the 10-acre tract from his brother, Edgar H. Neie. There is no dispute that prior to 1976, Mr. Arthur Van Neie Sr. owned both the three-acre tract and the ten-acre tract at issue in this case. Susan Scown is the daughter of Arthur Van Neie Sr. and she is married to Steven Scown. In 1976, Neie Sr. sold the three-acre tract to appellants. Shortly after conveying the three-acre tract to appellants, Neie Sr. sold the 10-acre tract to Elton Miles, appellees predecessor in interest. Then, in 1977, appellants reconveyed the three-acre tract to Neie Sr. Neie Sr. remained the record owner of the three-acre tract until 1999 when he reconveyed the three-acre tract to Appellants. Arthur Van Neie, Jr. is the son of Arthur Van Neie Sr. He and his wife purchased the 10-acre tract from Miles. At some point, appellants began construction of a fence across Moseley Lane which would have blocked access to that portion of Moseley Lane which abuts their property. Appellees’ sought a restraining order temporarily halting the construction of the fence by appellants which was ultimately granted by the trial court. Appellees also filed suit seeking a declaratory judgment that the disputed portion of Moseley Lane was an implied easement or in the alternative, that the disputed portion of Moseley Lane had been impliedly dedicated as a public roadway. Appellees then filed a motion for summary judgment which the trial court granted. Appellants timely filed their notice of appeal. HOLDING:The court affirms the judgment, but deletes that portion of the order granting summary judgment on grounds that an implied easement exists in favor of appellees. The test for whether an implied easement by grant exists is 1. whether there was unity of ownership of the dominant and servient estates and that the use was 2. apparent, 3. in existence at the time of the grant, 4. permanent, 5. continuous, and 6. reasonably necessary to the enjoyment of the premises granted. The test required to support a finding of implied easement by grant is less burdensome than that required to support a finding of implied easement by reservation. Finally, whether the operative set of facts exist to establish an implied easement is determined at the time of severance. Neie Sr. could only have “reserved” an implied easement in the three-acre tract at the time of the 1976 conveyance. For appellees to prove the existence of an implied easement, they were required to plead and prove the elements of an implied easement by “reservation.” Because the trial court granted the summary judgment motion based on an implied easement by “grant” rather than an implied easement by “reservation,” summary judgment on this ground was improper. There is legally sufficient evidence on which a trial court could find that Neie Sr. impliedly dedicated the disputed portion of the three-acre tract as a public road. In his deposition testimony, Neie Sr. stated that he had always believed that the disputed section of roadway was a public road. Neie Sr. testified that Moseley Lane is currently paved with asphalt and to his knowledge had been paved at least twice by the county. When he decided to put up a cattle guard on the disputed road, he sought permission from the county. There was some evidence that members of the public used Moseley Lane. According to the plat incorporated into the final order granting summary judgment, it is apparent that a fence separates the three-acre tract and the disputed portion of Moseley Lane. The court finds that there is legally sufficient evidence on which a trial court could find that Neie Sr. impliedly dedicated the disputed portion of the three-acre tract as a public road. OPINION:Chew, J.; McClure, J., Chew and Guadarrama, J.J.

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