# Orleans Harbour Homeowners Ass'n v. W. Harbour, LLC Supreme Court of Texas, No. 24-1063 **Orleans Harbour Homeowners Ass'n v. W. Harbour, LLC, No. 24-1063, is before the Supreme Court of Texas. Key issue: Does an easement by estoppel require a vendor-vendee relationship, and was there legally sufficient evidence of an affirmative representation by the neighbor's predecessors to support a jury's finding of a general recreational easement over a four-foot strip?** Practice areas: real property ## Key issues - Does an easement by estoppel require a vendor-vendee relationship, and was there legally sufficient evidence of an affirmative representation by the neighbor's predecessors to support a jury's finding of a general recreational easement over a four-foot strip? - Was the driveway strip sufficiently described to support the adverse-possession judgment, and was there a justiciable controversy over the boundary line that the court of appeals could revive? ## Factual History Orleans Harbour Homeowners Association owns Lot 34 on Lake Austin and West Harbour, LLC owns adjoining Lot 35, which it bought in 2019 from a line of earlier owners that included Stanley and Dorothy Depwe (Brief on the Merits (Respondent), PDF p. 11; Brief on the Merits (Petitioner), PDF p. 23). The Association says that in 1987, to avoid excavating to replace a failing bulkhead entirely on its own land, its homeowners and the Lot 35 owners met and agreed it would build a new wall a few feet out on Lot 35, creating a four-foot "Peninsula Strip," and it has used and maintained that area for decades, including for boats (Brief on the Merits (Petitioner), PDF pp. 17-21). It also built a driveway and fence that encroached on Lot 35, which it maintained for over 30 years without complaint (Brief on the Merits (Petitioner), PDF pp. 22-23). West Harbour says the Depwes gave only limited permission in 1987 to enter their land to build the bulkhead and made no representation granting an easement (Brief on the Merits (Respondent), PDF p. 33). ## Procedural History The Association sued to establish its rights, and West Harbour counterclaimed for a declaration of the boundary line; the trial court granted the Association's plea to the jurisdiction on that counterclaim because the Association had stipulated to West Harbour's claimed boundary (Brief on the Merits (Petitioner), PDF pp. 24-25). After a four-day jury trial, the jury found an easement by estoppel over the Peninsula Strip for general recreational use and adverse possession of the driveway strip, and the court entered judgment with $197,066.83 in attorney's fees (Brief on the Merits (Petitioner), PDF p. 25; Brief on the Merits (Respondent), PDF p. 32). The appeal was moved by docket equalization from the Third Court of Appeals to the Fourteenth, which reversed and rendered on the easement for lack of a vendor-vendee relationship and lack of an affirmative representation, reversed and remanded the adverse-possession judgment because the survey description was not supported by the record, and reversed the plea to the jurisdiction as to the boundary (Brief on the Merits (Petitioner), PDF pp. 12, 26). The Supreme Court granted review on May 29, 2026. ## Issues Presented - The Association (Brief on the Merits (Petitioner), PDF p. 14): (1) whether a vendor-vendee relationship is required for an easement by estoppel, based on Third Court opinions the Association says misread this Court's precedent; (2) whether the evidence of a landowner's representation of permissive use was insufficient; (3) whether the driveway strip was insufficiently described; and (4) whether there was a justiciable controversy over the boundary line. - West Harbour (Brief on the Merits (Respondent), PDF pp. 32-33): that the court of appeals followed binding Third Court authority requiring a vendor-vendee relationship and correctly found no evidence of an affirmative representation conveying an easement. ## Standard(s) of Review The Association challenges the court of appeals' reversal of jury findings for legal and factual insufficiency, including its construction of the 1987 writing, and West Harbour argues that permissive use, however long, cannot support an easement by estoppel as a matter of law (Brief on the Merits (Petitioner), PDF p. 27; Brief on the Merits (Respondent), PDF p. 33). ## Legal Arguments **Whether the Association proved an easement by estoppel.** **The Association (Petitioner):** The courts of appeals are in conflict on whether an easement by estoppel requires a vendor-vendee relationship, West Harbour does not defend the Third Court's rule on the merits, and the jury had ample evidence of the Lot 35 owners' representation, including the 1987 deal and decades of recreational use (Brief on the Merits (Petitioner), PDF pp. 26-27). In reply, it says Texas and sister states recognize easements by estoppel on facts showing definite, known and continuous recreational use (Reply Brief (Petitioner), PDF p. 2). **West Harbour (Respondent):** The lack of a vendor-vendee relationship is fatal under binding Third Court authority, and in any event no evidence shows the Depwes made an affirmative representation in 1987 beyond limited permission to build the bulkhead, so the Association's later use and the neighbor's silence are immaterial, and Texas law does not recognize an indefinite recreational-use easement (Brief on the Merits (Respondent), PDF pp. 32-33). **The other rulings.** **The Association (Petitioner):** The court of appeals wrongly found the driveway strip insufficiently described despite sufficient evidence, and wrongly found a justiciable boundary dispute when the Association repeatedly said it did not contest West Harbour's claimed line (Brief on the Merits (Petitioner), PDF pp. 14, 26). ## Stated Reasons the Court Should Take the Case The Association argued the Court should resolve the split of authority on whether an easement by estoppel requires a vendor-vendee relationship and stop a new line of authority requiring more than the jury found (Brief on the Merits (Petitioner), PDF p. 27). West Harbour argued the Association's grant-worthy question distracts from evidentiary deficiencies that required reversal (Brief on the Merits (Respondent), PDF p. 32). ## Oral Argument - **The 1987 bulkhead deal.** Asked about the 1987 meeting, the Association's counsel said the homeowners needed to replace the retaining wall, and agreeing to extend it over the line avoided excavating their own land. (Oral Argument, 0:08:41; 0:10:44) - **Is the writing enough?** Asked to parse the court of appeals' view that the writing covers only permission to construct, counsel pointed to other evidence, chiefly the testimony of the Association's former board member. (Oral Argument, 0:13:15) - **Representation or acquiescence?** A Justice asked whether Borchers requires the burdened owner's representation; counsel cited testimony that the owners "had no problem with it," and the Justice asked if that is passive acquiescence. (Oral Argument, 0:14:56) - **The vendor-vendee requirement.** Asked whether Borchers repudiates the Third Court's vendor-vendee line, counsel said its footnote left the question undecided but did not list it as a required element. (Oral Argument, 0:22:03) - **What was represented?** West Harbour's counsel said the evidence shows only permission to build the Association's bulkhead, and the former board member never testified that lake access or recreation was discussed. (Oral Argument, 0:23:44; 0:25:17) - **Notice to the buyer.** Asked whether West Harbour had notice of the use when it bought, counsel said it had none beyond a memorandum about the bulkhead; a Justice noted the writing was filed. (Oral Argument, 0:27:47) - **A neighborly accommodation.** Counsel said the typical case is buying property after something was represented, or paying your neighbor to allow a use, but here it was just a neighborly thing. (Oral Argument, 0:29:52) - **What can West Harbour do?** Asked what West Harbour could do about a sign, low fence, slide or dock, counsel said the easement is too indefinite because nothing specific was discussed in 1987. (Oral Argument, 0:32:54) ## Practice Area Tags real-property ## Procedural Posture/Vehicle Petition for review from the Fourteenth Court of Appeals (Houston), transferred from the Third Court by docket equalization; granted May 29, 2026. Argued September 17, 2026. ## Amicus Involvement None noted --- Source: The SCOTX Report, https://scotxreport.com/cases/24-1063. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.