MEMORANDUM OPINION
SANDEE BRYAN MARION, Chief Justice.
The underlying dispute involves three ranches in La Salle County, Texas: (1) El Caballero Ranch owned by El Caballero Ranch, Inc.; (2) 7 C's Ranch owned by Laredo Marine, L.L.C.; and (3) Grace River Ranch owned by Grace River Ranch, L.L.C. El Caballero and Laredo Marine appeal a final judgment entered after a jury trial. The final judgment also incorporated two prior orders granting motions for summary judgment. The only issues presented in this appeal are whether the trial court erred in granting summary judgment in favor of Grace River and declaring a public road and a private easement across El Caballero Ranch and 7 C's Ranch to be valid and subsisting.1
BACKGROUND
In 1939, the owner of a tract of land (the "Property"), which included the property currently referred to as El Caballero Ranch, 7 C's Ranch, and Grace River Ranch, executed a deed conveying to La Salle County "an easement and right of way for road purposes." (referred to herein as the "Public Road"). The 1939 deed provided the easement was "for road purposes only and so long as a road is maintained upon said premises; and whenever a road shall cease to be maintained on said land, then and thereupon said easement and all rights hereby conveyed shall cease and terminate." The 1939 deed also recited the consideration to be $10.00 paid by the county judge of La Salle County and the "further consideration of the building and maintaining of a road on the land."
In 1995, Patrick Welder, Jr., who was the owner of the Property, conveyed the property currently known as the Grace River Ranch to John and Sue Mundy. As part of the conveyance, Welder and the Mundys entered into an Access Easement Agreement which granted the Mundys a non-exclusive easement "for the purpose of providing a vehicular and pedestrian access route." (referred to herein as the "Private Access Easement"). In December of 2012, the Mundys conveyed the property to another party which conveyed the property to Grace River that same month.
It is undisputed that the Public Road and the Private Access Easement are in the same general location depicted on the following map:
In 1997, Welder conveyed the property currently known as El Caballero Ranch to El Caballero's parent company which subsequently conveyed the property to El Caballero. In 1999, Welder conveyed the property known as 7 C's Ranch to Laredo Marine's predecessors-in-interest, and the property was eventually conveyed to Laredo Marine. The deeds documenting the conveyances recognized the existence of both the Public Road and the Private Access Easement.
In 1997 or 1998, a bridge that spanned a low water crossing along the route of the Public Road and Private Access Easement washed out. As a result, the Mundys temporarily stopped using the portion of the Public Road and Private Access Easement located north of the low water crossing on the property owned by El Caballero while awaiting the repair of the bridge. In 2000, El Caballero constructed a metal locked gate on the north end of the Private Road and Public Access Easement. Because the Mundys were not using the Public Road and Private Access Easement north of the low water crossing at that time, the evidence established the Mundys were unaware of the gate and, therefore, never requested access through the gate.
When Grace River acquired the Grace River Ranch in December of 2012, Grace River requested access through the gate. After El Caballero denied Grace River access, the underlying litigation ensued with Grace River seeking a declaration that both the Public Road and the Private Access Easement still existed across both El Caballero Ranch and 7 C's Ranch. The trial court granted summary judgment in Grace River's favor declaring both the Public Road and the Private Access Easement were valid and subsisting.2
During a subsequent trial on Grace River's claims for private nuisance and breach of the Access Easement Agreement, the trial court concluded liability on the claims was conclusively established as a matter of law based on the locked gate; however, the jury awarded no damages on either claim. The trial court subsequently signed a final judgment incorporating the prior summary judgments and awarded Grace River attorney's fees and costs based on the jury's findings.
After El Caballero and Laredo Marine filed their notice of appeal, the trial court considered cross motions for supersedeas bond and "signed an order setting $110,250.00 as the amount of bond necessary for Grace River to post to immediately enforce the judgment and access the easements during the pendency of the appeal." See El Caballero Ranch, Inc. v. Grace River Ranch, L.L.C., No. 04-16-00298-CV, 2016 WL 4444400, at *2 (Tex. App.-San Antonio Aug. 24, 2016, no pet.). This court previously affirmed the trial court's supersedeas order. Id. at *6.
STANDING
We must first address whether El Caballero has standing to appeal because it sold the El Caballero Ranch to a third party during the pendency of this appeal. Pending before the court is Grace River's motion to dismiss El Caballero's appeal for lack of subject matter jurisdiction. In the motion, Grace River asserts that because the El Caballero Ranch was sold to a third party during the pendency of the appeal, El Caballero lacks standing to pursue the appeal. Based on our reasoning and holding in Jay Kay Bear Ltd. v. Martin, No. 04-14-00579-CV, 2015 WL 6736776, at *4-7 (Tex. App.-San Antonio Nov. 4, 2015, pet. denied), we agree. Because it sold the property, El Caballero lacks a present interest in El Caballero Ranch. See id. As a result, it does not have a legally cognizable interest that is prejudiced or injuriously affected by the trial court's judgment. See id. Accordingly, El Caballero does not have standing to pursue this appeal.3 See id. Therefore, we dismiss El Caballero's appeal for lack of jurisdiction and consider only the appeal of Laredo Marine.
STANDARD OF REVIEW
"We review a trial court's order granting summary judgment de novo." Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). To prevail on a traditional motion for summary judgment, the movant must show "there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." TEX. R. CIV. P. 166a(c); see also Hansen, 525 S.W.3d at 681. "A [no evidence] motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent [fails to produce more than a scintilla of] summary judgment evidence raising a genuine issue of material fact on those elements." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) ("More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.") (internal quotation omitted). Whether reviewing a traditional or no evidence summary judgment, we consider all the evidence in the light most favorable to the nonmovant and resolve any doubts in the nonmovant's favor. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
PUBLIC ROAD
Laredo Marine asserts the trial court erred in granting summary judgment in favor of Grace River regarding the existence of the Public Road because: (1) La Salle County ceased to maintain the Public Road in the 1960's; (2) the dedication of the Public Road was never accepted; (3) the 1939 deed did not convey La Salle County fee simple title; and (4) the 1939 deed only created an easement for the County's use not for use by the public.4 Grace River responds: (1) the only requirement in the 1939 deed was that the Public Road be maintained; (2) the summary judgment evidence conclusively established the dedication of the Public Road was accepted; (3) the 1939 deed was not required to convey fee simple title; and (4) the 1939 deed did not limit the use of the Public Road to the County's use. Grace River further asserts that once the Public Road was accepted, it could only be abandoned by compliance with the provisions of the Texas Transportation Code setting forth the statutory requirements that must be met to abandon a public road.
"We apply basic principles of contract construction and interpretation when considering an express easement's terms." Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). "The contracting parties' intentions, as expressed in the grant, determine the scope of the conveyed interest." Id. at 700-01.
"The construction of an unambiguous contract is a question of law, [which is] reviewed de novo." Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). In construing a contract, courts must "harmonize and give effect to all provisions of the contract so that none will be rendered meaningless." Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 443 (Tex. 2017) (internal quotation omitted). "Courts may not rewrite the parties' contract, nor should courts add to its language." In re Davenport, 522 S.W.3d 452, 457 (Tex. 2017). "When the terms are plain, definite and unambiguous, . . . the court cannot vary [those] terms." Id. at 457-58; see also Krohn, 90 S.W.3d at 701 ("When the grant's terms are not specifically defined, they should be given their plain, ordinary, and generally accepted meaning.").
Laredo Marine argues the trial court erroneously construed the terms of the 1939 deed in declaring the Public Road easement had not terminated. When the "controlling facts are not in dispute, the question of whether [an] easement [has] terminated is one of law." Sentell v. Williamson Cty., 801 S.W.2d 220, 223 (Tex. App.-Austin 1990, no writ); see also Olivares v. Brown & Gay Eng'g, Inc., 401 S.W.3d 363, 369 (Tex. App.-Houston [14th Dist.] 2013), aff'd, 461 S.W.3d 117 (Tex. 2015) (noting issue that is ordinarily question of fact becomes question of law if the controlling facts are undisputed).
The 1939 deed provided for the easement to continue "so long as a road is maintained upon said premises." "An easement that terminates upon the happening of a particular event or contingency, as here, is denominated a `determinable easement.'" Sentell, 801 S.W.2d at 222 n.3.
Laredo Marine argues the easement terminated because La Salle County stopped maintaining the Public Road over 40 years ago. Grace River counters that the 1939 deed does not require the maintenance to be conducted by La Salle County. In its brief, Grace River asserts it is undisputed that the Public Road is maintained, just not by La Salle County. In its reply brief, Laredo Marine contends Grace River did not make this argument in the trial court. After the trial court granted summary judgment in favor of Grace River, Laredo Marine filed a motion for reconsideration raising the discontinuation of the County's maintenance. In its response to the motion, Grace River asserted, "The fact that the county neglects maintenance or that the county road is maintained at private expense does not detract from its public character." Therefore, we believe the issue of whether private maintenance of the road was sufficient to prevent the easement from terminating was an argument presented to the trial court.
The summary judgment evidence presented to the trial court included the affidavits of the foremen of both 7 C's Ranch and El Caballero Ranch. Jim Tibbett, the foreman of 7 C's Ranch, states in his affidavit that the portion of the Public Road located on 7 C's Ranch has not been maintained by "anyone other than 7 C's Ranch personnel." Similarly, Robert Seidel, the foreman of El Caballero Ranch, states in his affidavit that the portion of the Public Road located on El Caballero Ranch has "not been maintained by the County or anyone other than El Caballero personnel since March 15, 1998." From the record, it appears to be undisputed that La Salle County ceased to maintain the Public Road which is now maintained by personnel from 7 C's Ranch and El Caballero Ranch.
The conditional language in the 1939 deed stating that the easement continued "so long as a road is maintained," appears to support Grace River's assertion because that language does not state who has to maintain the road. However, the 1939 deed recites the consideration for the deed to be $10.00 paid by the county judge of La Salle County and the "further consideration of the building and maintaining of a road on the land." Because the $10.00 is paid by La Salle County as the grantee, we believe the proper way to "harmonize" the provisions in the deed is to construe the "further consideration" as an additional obligation imposed on La Salle County, thereby requiring La Salle County to build the road, which it did, and also to maintain the road, which for many years it has not. Therefore, harmonizing and giving effect to all provisions in the 1939 deed, we hold the deed granted a determinable easement that terminated when La Salle County ceased to maintain the Public Road. Although Grace River argues La Salle County could not abandon or discontinue the Public Road without complying with certain statutory requirements, nothing in the statute would allow a county to retain title to a determinable easement that terminated under the terms of the deed that granted it.5 See Cosgrove v. Cade, 468 S.W.3d 32, 38 (Tex. 2015) (recognizing need for stability and certainty regarding titles to real property). Accordingly, we reverse the portion of the trial court's judgment declaring the Public Road to be valid and subsisting and render judgment that the Public Road easement terminated.6
PRIVATE ACCESS EASEMENT
Laredo Marine also asserts the trial court erred in granting summary judgment declaring the Private Access Easement still existed across the 7C's Ranch because the evidence raised fact issues regarding the affirmative defenses of adverse possession or abandonment.
A. Adverse Possession
Laredo Marine does not contend that it adversely possessed the Private Access Easement. Instead, the allegation in the underlying lawsuit was that El Caballero adversely possessed the portion of the Private Access Easement located on El Caballero Ranch. As we previously held, El Caballero no longer has standing to appeal the trial court's judgment declaring the Private Access Easement to be valid and subsisting. In addition, Laredo Marine "has no standing to prosecute any claim for adverse possession [El Caballero] might have." See Davis v. Mueller, 528 S.W.3d 97, 103 (Tex. 2017). Accordingly, we have no jurisdiction to consider the trial court's ruling with regard to the adverse possession claim.
B. Abandonment
Laredo Marine also contends the trial court erred in declaring the Private Access Easement was still in existence because it raised a genuine issue of material fact with regard to whether the Private Access Easement had been abandoned.
"Abandonment is in the nature of an affirmative defense because the party urging it implicitly confesses the existence of the easement." Smith v. Killion, No. 11-11-00083-CV, 2013 WL 1859336, at *5 (Tex. App.-Eastland Apr. 30, 2013, no pet.) (mem. op.). "An abandonment does not occur unless there is an intent to abandon." Smith, 2013 WL 1859336, at *5 (citing Milligan v. Niebuhr, 990 S.W.2d 823, 826 (Tex. App.-Austin 1999, no pet.)). "Nonuse alone does not result in abandonment of an easement; rather, the `circumstances must disclose some definite act showing an intention to abandon.'" Id. (quoting Dallas Cty. v. Miller, 166 S.W.2d 922, 924 (Tex. 1942)); see also Toal v. Smith, 54 S.W.3d 431, 437 (Tex. App.-Waco 2001, pet. denied) ("Abandonment of an easement will not result from non-use alone.") (emphasis in original).
In this case, the evidence established the Mundys as the prior owners of Grace River Ranch continued to use the portion of the Private Access Easement located on Laredo Marine's 7 C's Ranch. Even if we were to consider the Mundys' actions with regard to the portion of the Private Access Easement on El Caballero Ranch, the evidence only established that the Mundys' stopped using that portion of the easement. Apart from nonuse, Laredo Marine cites to no evidence in the record to establish some definite act by the Mundys or Grace River evidencing an intention to abandon the Private Access Easement. Because nonuse alone is not sufficient to show abandonment, Laredo Marine did not produce sufficient evidence to raise a fact issue on the affirmative defense of abandonment.
Because Laredo Marine did not present sufficient evidence to raise a genuine issue of material fact with regard to the affirmative defense of abandonment, the portion of the trial court's judgment declaring the Private Access Easement to be valid and subsisting is affirmed.
CONCLUSION
El Caballero's appeal is dismissed for lack of jurisdiction. The portion of the trial court's judgment declaring the Public Road to be valid and subsisting is reversed, and judgment is rendered that the Public Road easement terminated. The remainder of the trial court's judgment is affirmed.
