Full Opinion

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