Leola King WALLACE, Susan Lee Wallace, Bilby Joe Wallace, and Bert Carol Wallace, Appellants, v. A.D. McKINZIE and Velma McKinzie, Appellees, 869 S.W.2d 592

DODSON, Justice. Appellants, Leola King Wallace and her children, Susan Lee Wallace, Bilby Joe Wallace, and Bert Carol Wallace (the Wallaces), appeal from a judgment granting a permanent equitable easement of ingress and egress across their property in favor of ap-pellees, A.D. McKinzie and his wife, Velma McKinzie (the McKinzies). We affirm. In four points of error, the Wallaces assert that the trial court erred in awarding the McKinzies an equitable easement over the road leading to

Section 44 because (1 & 2) the evidence is legally or factually insufficient to support the jury’s finding that the McKin-zies have an equitable easement.

Alternatively, if any evidence supports the equitable easement finding, the Wallaces contend (3) the evidence, findings, and the judgment fail to describe the easement with sufficient certainty allowing the easement to be located, and (4) the McKinzies failed to plead that they were entitled to a permanent easement, and without any unity of title between the McKinzies and the Wallaces the easement awarded should be an easement in gross, as a matter of law, and not a permanent easement. The Wallaces own Sections 29, 30, 31, 32, 43, 45, 46, and the south one-half of

Section 44, in Block L, H. & T.C. Railroad Company Survey, Kent County, Texas. The McKinzies own the north one-half of

Section 44. This property is landlocked by the Wallaces’ property —

Section 43 to the north,

Section 31 to the east, the south one-half of

Section 44 to the south, and

Section 45 to the west. A road, maintained and considered by the Wallaces as a county road for some time, extends northwest from a farm-to-market road located east of the properties. The road passes through

Section 31 and the southwest corner of

Section 32 into

Section 43 and ends at a windmill in the west half of

Section 43. Along the road, about one-forth of the way through

Section 43, a turn-off road, approximately 400 yards in length, heads south into

Section 44. This is and has been the only road providing access to

Section 44 since the McKinzies purchased their north one-half of that

section in 1920. A.D. McKinzie and his niece, Cornelia Cheyne, executed and filed an affidavit in the deed records of Kent County, claiming an easement by prescription over the roads on Wallaces’ property for the purpose of ingress and egress to

Section 44. The Wallaces discovered the affidavit and initiated this suit to cancel the affidavit and remove the resulting cloud on their title to the property. The McKinzies responded by affirmatively pleading, among other things, that they were entitled to an easement by estoppel. To support the theory of easement by es-toppel, the McKinzies claimed detrimental reliance on two representations. First, A.D. McKinzie testified that he had a conversation about the roadway with Bert Wallace, and that he believed what he was told. After this conversation, A.D.

McKinzie cut brush, tried to keep water from running down the road, and made improvements to his property. Second, A.D. McKinzie explained that he reached an agreement with Bilby Wallace to place double locks on the gate in the road at the eastern boundary line of

Section 43. This arrangement allowed both parties access to the road. After reaching this agreement, A.D. McKinzie continued to clear brush and work the road leading to

Section 44. The jury found that the McKinzies had an equitable easement over the road leading to

Section 44. Based on this finding, the trial court granted the McKinzies a permanent equitable easement of “sufficient width to permit the full possession, use and enjoyment of said

Section 44.” The Wallaces now challenge the existence, description, and permanence of the easement. By their first and second points of error, the Wallaces claim the evidence is legally and factually insufficient to support the jury’s answer to question number three because “no evidence exists that any representation was made to the McKinzies or that they relied to their detriment.” We disagree.

In reviewing a legal insufficiency point, we must look at the record in the light most favorable to the finding to see if any probative evidence or any reasonable inferences therefrom support the finding, while at the same time disregarding all evidence or reasonable inferences therefrom to the contrary. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In reviewing a factual insufficiency point, we must look at the entire record to determine if probative evidence exists to support the finding.

If it does, we must determine whether the evidence is so weak or the answer so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust to support the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Question number three, the accompanying instruction, and the jury’s answer read: Do you find that Defendants [the McKinzies] have an equitable easement over the “road to

Section 44?” Answer “Yes” or “No” ANSWER: Yes 10-2 Instruction: In connection with this question you are instructed that in order to establish an equitable easement, Defendants must establish each of the following elements: (1) the landowner or a predecessor to his interest makes a representation to the adjacent landowner or a predecessor to the adjacent landowner’s interest that certain rights exist to use the landowner’s property; (2) the adjacent landowner believes such representation to be true; and (3) the adjacent landowner relies upon such representation.

Here, we are neither concerned with the correctness of the definition of equitable easement nor the trial court’s application of the equitable easement in the judgment. Those matters are not challenged in this Court. Our only inquiry is whether probative evidence supports the jury’s finding on the elements of representation and reliance. The doctrine of equitable estoppel or estoppel in pais is grounded on the condition that justice forbids one to gainsay his own acts or assertions. See Campbell v. Pirtle, 790 S.W.2d 372, 374 (Tex.App.—Amarillo 1990, writ denied).

As the court stated in Campbell, “the formal equitable estoppel or estoppel in pais — arises when one is not permitted to disavow his conduct which induced another to act detrimentally in reliance upon it.” Id. In Brown v.

Federal Land Bank of Houston, 180 S.W.2d 647, 652 (Tex.Civ.App.—Fort Worth 1944, writ ref'd w.o.m.), the court stated: There are so many ways in which estop-pel may arise, they need not be defined here, but broadly speaking, the general rule seems to be laid down in 17 Tex.Jur. 128, sec. 2, where this is said: “The idea or notion which inheres in the word ‘estoppel’ is that one, who by his speech or conduct has induced another to act in a particular manner, ought not to be permitted to adopt an inconsistent position, attitude or course of conduct and thereby cause loss or injury to such other.” (Emphasis added).

Further, “one who by his conduct has induced another to act in a particular manner should not be permitted to adopt an inconsistent position and thereby cause loss or injury to the other.” Fabrique, Inc. v. Corman, 796 S.W.2d 790, 792 (Tex.App.—Dallas 1990), unit denied per curiam, 806 S.W.2d 801 (Tex.1991). Thus, it is well settled that es-toppel may arise from conduct or from a failure to act. North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678, 684 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref'd n.r.e.).

The evidence shows that for a period of over seventy years the McKinzies have used the road in question, for ingress and egress to their landlocked property. The Wallaces have never objected to the McKin-zies’ use of the road. Neither have the Wal-laces ever told the McKinzies they could not use the road. Thus, through their permissive and acquiescing behavior, the Wallaces have engaged in representations by their conduct.

This evidence alone constitutes legally sufficient evidence (i.e., some evidence) to support the jury’s finding that the Wallac-es made a representation to the McKinzies that certain rights exist to use the Wallaces’ property. This same conduct-evidence and the reasonable inferences therefrom also support the jury’s determination that the McKinzies relied on the Wallaces’ representation. In fact, the only inference available from the evidence is that the McKinzies relied on the Wallaces’ conduct, which permitted the McKinzies to use the road in question for ingress and egress to the property.

Thus, the evidence is also legally sufficient to support the finding that the McKinzies relied on the representation made by the Wallaces. In addition to this conduct-evidence, A.D. McKinzie testified that he had a conversation with Bert Wallace. He acknowledged that he believed what he was told in that conversation. A.D. McKinzie also testified that he entered into an agreement with Bilby Wallace to place double locks on the gate where the road intersects with the eastern boundary line of

Section 43. Further testimony revealed that, after those conversations, A.D. McKinzie cleared brush, worked the road, and made improvements to the McKinzie property. Under these circumstances, we conclude that the jury’s answer was not clearly wrong or manifestly unjust. Points one and two are overruled. In their third point of error, the Wallaces argue that the judgment is void and unenforceable as a matter of law because the evidence, findings, and the judgment fail to describe the easement with sufficient certainty. We disagree.

The judgment provides: It is further ORDERED, ADJUDGED, AND DECREED that the Defendants have a permanent equitable easement across Plaintiffs’ land for ingress and egress to their property; said easement is on or over the approximate 400 yard road, originating from the old county road which currently runs through Plaintiffs’ property. Defendants have a permanent easement on and over the 400 yard road going to

Section 44, from the county maintained road in

Section 48, which enters

Section 44 from the north near the middle of

Section 44. Said easement will follow, generally, the existing approximate 400 yard road, from the county road existing in the southeast comer of

Section 43, Kent County, Texas and entering

Section 44 at the existing gate to the A.D. McKinzie property. Said county road and easement are further located and shown as a road on a map attached to this judgment; the pertinent portion of said map is included as a portion of this judgment on the following page three (3), with the county road and easement marked accordingly. Said easement will be of sufficient width to permit full possession, use and enjoyment of said

Section 44. (Emphasis added). It is well settled that the rule relating to the sufficiency of descriptions of easements is the same as that required in conveyances of land. Vrabel v. Donahoe Creek Watershed Authority, 545 S.W.2d 53, 54 (Tex.Civ.App.—Austin 1976, no writ); Bear v. Houston & T.C. Ry. Co., 265 S.W. 246, 249 (Tex.Civ.App.—Galveston 1924, no writ). In that regard, the description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty. Greer v.

Greer, 144 Tex. 528, 191 S.W.2d 848, 849 (1946). The certainty required must be such that a surveyor can go upon the land and locate the easement from the description given. Vrabel, 545 S.W.2d at 54. It is also proper to attach to an instrument conveying land a map showing the property conveyed, and such map can be looked to in aid of a defective written description in the instrument. River Road Neighborhood v. South Texas Sports, 720 S.W.2d 551, 558 (Tex.App.—San Antonio 1986, writ dism’d)..

Here, the judgment recites that the McKinzies have an easement on the 400 yard road originating from the old-county-maintained road in

Section 43. The judgment further describes the easement as the 400 yard road “which enters

Section 44 from the north near the middle of

Section 44.” The judgment then makes reference to an attached map. The map displays the roads mentioned in the judgment and identifies each of the relevant sections of the survey. Consequently, we conclude that the judgment, along with the attached map, describe with sufficient certainty the easement granted to the McKinzies. Point three is overruled.

The Wallaces’ fourth point of error reads: Alternatively, if any evidence supports the equitable easement finding, then the district court erred in rendering judgment awarding the MeKinzie defendants a “permanent” equitable easement on the Wallace ranch because the McKinzies failed to plead that they were entitled to a permanent easement and instead pled and secured a finding on equitable estoppel, but without any unity of title ever existing between the McKinzies and the Wallaces; hence, any easement is an easement in gross as a matter of law and not a permanent easement.

By this point of error, the Wallaces first contend that the trial court erred in rendering judgment awarding the McKinzies a “permanent” equitable easement on the Wal-laces’ ranch because the McKinzies failed to plead they were entitled to a permanent easement. In that regard, we note that the Wallaces do not specifically claim that the McKinzies’ pleadings failed to give them fair notice that the McKinzies were claiming a permanent easement as required under Rule 47(

a) of the Texas Rules of Civil Procedure. Nevertheless, the Wallaces do claim that the McKinzies’ pleadings simply do not support the permanent easement rendered by the trial court. In support of their position, the Wallaces rely upon Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944) and Johnson v. Faulk, 470 S.W.2d 144, 148 (Tex.Civ.App.—Tyler 1971, no writ). However, these cases deal with pleadings and requirements for implied easements and easements by necessity. They do not speak to the pleading and requirements of an equitable easement that the trial court rendered in this instance.

In the case before us, the McKinzies, by their pleadings, sought to establish an equitable easement which they had used for more than seventy years. They acknowledge that their property was landlocked by the Wallaces’ property. The McKinzies allege the Wallaces brought this action to establish that the McKinzies had no easement over the Wallace property for ingress and egress, in a effort to effectuate a purchase of the McKin-zie property, by the Wallaces, at a less than market value price.

The thrust of the McKinzies’ pleadings is to establish a permanent easement to their property to prevent it from being landlocked without ingress and egress. Also, we note that the McKinzies’ failure to use the word “permanent” in connection with pleading easement by estoppel is not fatal. See Roark v.

Allen, 633 S.W.2d 804, 810 (Tex.1982) (concluding, in a medical malpractice action involving the manner in which the doctor delivered a child, that the failure to use the word “negligent” in connection with the delivery or otherwise specifically indicate that the doctor failed to exercise ordinary care was not fatal to the pleaded action). In this instance, the Wallaces received fair notice that the McKinzies were claiming a permanent easement for ingress and egress to their otherwise landlocked property. See Tex.R.Civ.P. 47(

a) and 90. The Wallaces’ pleading challenge is overruled. Under the fourth point of error, the Wal-laces further contend that the McKinzies’ equitable easement is an easement in gross, as a matter of law, because there is no unity of title between the Wallaces and the MeKin-zies. To support their position, the Wallaces rely on a statement from Forister v.

Coleman, 418 S.W.2d 560, 559 (Tex.Civ.App.—Austin 1967), writ ref'd n.r.e. per curiam, 431 S.W.2d 2 (Tex.1968) to the effect that, when an easement is established by estoppel, the “easement can become legally attached to the dominant .estate only if the same person has unity of title to both the easement and the dominant estate.” (Emphasis added). In that regard, we must point out that there is unity of title between the easement and the dominant estate. The dominant estate is the north one-half of

Section 44, owned by the McKinzies, and, by the judgment, the McKin-zies were granted ownership of the easement. In essence, the Wallaces seem to contend that there must be unity of title between the dominant estate and the ser-vient estate before the court can impress an equitable easement (i.e. easement by estop-pel). Nevertheless, they do not cite us to authority to support that position, nor have we found any authority which makes such a limitation on the imposition of an equitable easement as opposed to other types of easements, such as an implied easement. See Bickler v.

Bickler, 403 S.W.2d 354, 357 (Tex.1966); Haskins v. Winters, 641 S.W.2d 603, 607 (Tex.App.—Dallas 1982, writ ref'd n.r.e.). Moreover, the law does not favor easements in gross, and an easement will never be presumed to be in gross if it can fairly be construed to be appurtenant. McWhorter v. City of Jacksonville, 694 S.W.2d 182, 184 (Tex.App.—Tyler 1985, no writ); Ginther v. Bammel, 336 S.W.2d 759, 763 (Tex.Civ.App.—Waco 1960, no writ); Stuart v. Larrabee, 14 S.W.2d 316, 319 (Tex.Civ.App.—Beaumont 1929, writ ref'd). The Wallaces’ fourth point is overruled. Accordingly, the trial court’s judgment is affirmed.

REYNOLDS, C.J., dissenting. . If the Wallaces prevail in their contention that the easement is in gross and not appurtenant, the MeKinzie property will be forever landlocked to any subsequent owner of the property other than the Wallaces.