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Click here for the full text of this decision FACTS:Robert and Leta Mitchell purchased the house located at 7823 Capitol in 1959. Robert Mitchell’s mother and stepfather had been living in the house since at least 1954 and continued to do so after the Mitchells’ acquisition. A single, shale-covered driveway was located between the Mitchell property and the adjacent house at 7827 Capitol. To use their portion of the driveway, the Mitchells believed that they had to use part of the driveway on the adjacent property. Robert’s mother and stepfather continued to live in the Mitchell property until Robert’s mother died and his stepfather moved to a nursing home. For a few years after that, Robert’s stepgrandfather lived in the house and also used the driveway. When Robert’s stepgrandfather died, tenants began to occupy the Mitchell property. Around 1980, the Mitchells stopped renting the Mitchell property, and it was vacant. While vacant, the Mitchells often visited to make repairs. In 1986, they began storing furniture in the house. They generally made monthly trips to the Mitchell property with six months being the longest period without a visit. At one point, the owner of the adjacent property had a portion of the driveway asphalted, during which some asphalt spilled over and covered a portion of the driveway on the Mitchell property. In 1989, the city of Houston replaced the curb in front of the Mitchell property. In the process of replacing the curb, the city neglected to leave an opening to the driveway. The Mitchells wrote a letter requesting that the city fix the curb opening to the driveway. Soon thereafter, the city restored the opening. Beginning in 1998, Garza lived in the neighborhood of the Mitchell home. He bought the adjacent property in 2002. He testified that he thought the Mitchell property was abandoned because the “the grass [was] high” and he rarely saw anyone there. Garza also testified that when he did see people at the Mitchell property, they were parked on the street. Garza indicated that he never talked to anyone that lived at the Mitchell property about their using the part of the driveway that was located on his property. Around 2003, Garza built a chain link fence on his portion of the driveway. The fence left the Mitchells unable to drive a vehicle to the back of the Mitchell property or to open a car door when parked between the house and the fence. Around 2005, the Mitchells began renting out the Mitchell property again, and their tenants, as of the time of trial, were parking on the sidewalk. The Mitchells filed suit against Garza, seeking declaratory and injunctive relief. Specifically, the Mitchells argued that, because they had used the driveway for more than 50 years, they acquired an easement on the driveway, either by prescription, express grant, implication, necessity or estoppel. They alleged that by installing the fence on the driveway, Garza trespassed onto and violated their use and enjoyment of the easement. The Mitchells sought to have the trial court declare the existence of the easement and issue an injunction mandating that Garza permanently remove the fence. Following a bench trial, the trial court entered a take-nothing judgment on the Mitchells’ claims for relief. The Mitchells appealed. HOLDING:Affirmed. To establish the existence of an easement by estoppel, the court stated that the Mitchells had the burden of proving that: 1. Garza property made a representation, either by words or conduct, to the Mitchells; 2. the Mitchells believed the communication; and 3. the Mitchells relied on the communication. The court noted that no easement by estoppel may be imposed against a subsequent purchaser for value, who has no notice, actual or constructive, of the easement claimed. Therefore, to assert their right to an easement against Garza, the court found that the Mitchells had the burden of proving that Garza had actual or constructive notice of an existing easement or that the easement was created while Garza was the owner of the adjacent property. The court found legally sufficient evidence to support an implied finding that Garza was a purchaser for value without notice of the Mitchells’ easement. The court also found legally sufficient evidence to support the trial court’s implied finding that an easement by estoppel was not established while Garza was the adjacent property’s owner. Next, the court also held that there was factually sufficient evidence to support the trial court’s implied finding that Garza lacked actual or constructive notice of the Mitchells’ alleged easement by estoppel. Finally, the court found that factually sufficient evidence supported the trial court’s implied finding that Garza’s behavior did not represent to the Mitchells a right to use the driveway. Accordingly, the court held that the trial court did not err in refusing to grant the Mitchells an easement by estoppel, OPINION:Hanks, J.; Taft, Hanks and Higley, JJ.

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