Easements in Texas - Real Estate Center - Trinity Waters

Easementsin TexasJudon FambroughSenior Lecturer and Attorney at LawTechnical Report 422

Easements in TexasJudon FambroughSenior Lecturer and Attorney at LawTexas A&M UniversityRevised September 2010© 2010, Real Estate Center. All rights reserved.

Contents1 Summary1 Private Easements in Texas2 Creation of Private Easements4 Termination of Private Easements6 Public Easements in Texas6 Easements by Dedication11 Termination of Public Easements12 Conclusion13 Appendix A. Synopsis of Private Easements14 Appendix B. Synopsis of Public Easements15 Glossary

Easements in TexasJudon FambroughSenior Lecturer and Attorney at LawSummaryEasements play a vital role in everyone’s life. People daily traverse easements either granted, dedicatedor condemned for public rights-of-way. Also, people constantly use energy transported along pipeline andutility easements. In rural areas, many tracts of land not served by public roadways would be renderedpractically valueless if it were not for private easements crossing neighboring properties.An easement is defined as a right, privilege or advantage in real property, existing distinct from the ownershipof the land. In other words, easements consist of an interest (or estate) in real property that does notconstitute full ownership. Most commonly, an easement entails the right of a person (or the public) to usethe land of another in a certain manner.Easements should not be confused with licenses. A license is merely permission given to an individualto do some act or acts on the land of another. It does not give rise to an interest in land as do easements.Licenses need not be in writing to be effective and generally are revocable at any time. Tickets to entertainmentor sporting events serve as a good example of licenses.This publication explains two broad categories of easements — private and public. Private easementsare those in which the enjoyment and use are restricted to one or a few individuals. Public easements arethose in which the rights of enjoyment and use are vested in the public generally or in an entire community.The publication describes the various types of private and public easements, how they are created andhow they are terminated.Private Easements in TexasMark and John had been farming and ranching in aparticular community for more than 50 years. Severalyears ago Mark purchased some grazing land in a remotesection of the county. There was no public access.However, John orally had permitted Mark to cross partof his property in order to reach the land. The agreementwas never written nor recorded.Recently, John died and his heirs sold the land tosome people new to the area. The buyers were not toldof the oral agreement and threatened to bring legal actionto terminate Mark’s passage over their land. Withoutthe easement, Mark must curtail his cattle operations.This is just one example of the importance of privateeasements. As will be demonstrated, unless the creationof a private easement is carefully documented and recorded,its legality is questionable.In GrossPrivate easements may be divided into two groupsdepending on the possessing entity. If an individual orbusiness owns the easement, it is said to be an easementin gross. Pipeline easements are in gross. As a generalrule, an easement in gross is a personal right that cannotbe assigned or otherwise transmitted. The easement thusterminates upon death of the individual owner or thedemise of the business. There is authority to the contrarywhere the easement in gross is (1) placed in writing and (2)explicitly made assignable by the instrument creating it.The language making an easement in gross transferablegenerally reads: "The terms, conditions and provisionsof this contract shall extend to and be bindingupon the grantee, his heirs, successors and assigns."AppurtenantThe other type of private easement, known as anappurtenant easement, attaches to or is incident to aparticular tract of land, not to a particular individual orbusiness. Appurtenant easements require two differentestates (or tenements) for their existence—a dominantestate and a servient estate. The owner of the dominanttenement has the right or privilege to use an easementacross the land of the servient tenement. The servienttenement is burdened by the easement.Appurtenant easements may be classified further aseither affirmative or negative. An affirmative easementgives the dominant tenement the right to actively use theeasement on the servient tenement’s land. A negativeeasement restricts the use of the servient tenement’s landin favor of the dominant tenement.1

An example will clarify these two types of easements.Suppose landowner "A" wants to build a dam that willback water across landowner "B’s" property. To keep "B"from suing, "A" seeks an affirmative easement from "B"allowing "A" to flood a portion of "B’s" land. If "A" is successful,"A’s" land will be the dominant tenement, and"B’s" land will be the servient tenement. "B’s" land willbe burdened by the standing water.Suppose further that "B" becomes dependent uponthe supply of water provided by "A’s" dam. "B" wants toinvest in some livestock but needs the assurance of apermanent source of water. Here "B" will seek a negativeeasement from A. The negative easement wouldrestrict A from destroying the dam or draining the water.These are rights "A" would have except for the negativeeasement.The only duty an easement imposes on the owner ofthe servient estate is that of a negative nature. The servientowner may not interfere with the use and enjoymentof the dominant estate’s easement across the land. Anyrepairs or works necessary to effectuate the use and enjoymentof the easement must be made by the dominantowner.Appurtenant easements are easily transferable. Aconveyance of the dominant tenement automaticallyincludes the easement across the servient tenement’sland. A transfer of the servient estate will include theeasement burdening it if the purchaser has actual orconstructive notice of the easement’s existence. If thedominant tenement purchases the servient tenement’sland, the easement terminates. One cannot own aneasement across his or her property.Creation of Private EasementsAn easement may be created by various means. Eachhas its own distinct requirements. Because easementsrepresent interests in land, they generally require somewritten, tangible evidence prescribed by Section 5.021of the Texas Property Code for their creation. The writtenrequirements may be waived where the person claimingthe easement has (1) paid consideration for the easementin money or services, (2) began using the easementand (3) made valuable and permanent improvementsto the easement.The written document creating an easement need notbe recorded to be effective. However, to give constructivenotice to subsequent purchasers as described inSection 13.002 of the Texas Property Code, easementsnormally are recorded.An easement may be created in three ways without awritten document. They are (1) by implication, (2) by estoppeland (3) by prescription. The party claiming suchan easement may have to resort to a judicial processknown as a declaratory judgment to claim it.Easements by ImplicationImplied easements may be created one of three ways:(1) by reservation, (2) by grant or (3) by way of necessity.Each is distinctive.Easements by implied reservation or grant. The creationof an implied easement by either reservation orgrant requires the prior existence and use of the easement.Furthermore, the prior use must have been apparent,permanent, continuous and necessary for the enjoymentof the property granted. In each implied easementcase, the court views the implied easement as merelyan oversight on the part of the grantor and grantee at thetime of the conveyance.For instance, suppose "A" owns a 40-acre tract of landwith a public road running along its southern boundary."A’s" house sits along the northern part of the 40-acretract. It is served by a private road running north andsouth. A decides to sell the southern 20 acres to "B."However, A forgets to reserve a right-of-way easementacross the 20 acres to access the home.This is a classical example of when the court mostlikely would approve an implied reservation for "A."The easement must have been apparent, permanentand continuously used at the time of the grant. The onlyother requisite is that there are no other available accessroutes this route is necessary.An implied grant of an easement can be illustrated bythe same set of facts. Suppose "A" decided to sell thenorthern 20 acres. "A" retains title and possession to thesouthern 20 acres along the public roadway. If A doesnot grant an easement to "B" across the southern 20acres when title is conveyed, the courts may approve aneasement by implied grant.The implied grant would require the same elementsas the implied reservation. In other words, the easementmust be apparent, permanent, continuous and necessaryfor "B’s" use and enjoyment of the property.There is some case authority that holds the courts willrecognize an implied grant more readily than an impliedreservation. The rule is based on the proposition that thelaw will imply an easement in favor of the grantee morereadily than one in favor of the grantor. The propositionassumes that if the grantor intended to reserve anyright over the property granted, he or she should haveexpressly done so in the deed. However, not all casesare uniform on this point.Easements by way of necessity. Finally, an impliedeasement may arise by way of necessity. This easementdiffers primarily from the other two implied easementsin that no prior existence or use of the easement isrequired. As the name implies, an easement of thisnature arises only where routes of ingress and egress arecompletely nonexistent.For an implied easement by way of necessity to arise,the following three conditions must be fulfilled. First,there must have been unity of ownership of the dominantand servient estates at the time of conveyance or atsome prior time. Second, the easement must be absolutelynecessary for the grantee to enter and leave theproperty. Third, the necessity for the easement existed atthe time of the severance of the dominant and servientestates.As to the issue of unity of ownership, case law requiresthat sometime in the chain of title after the land2

was patented, the tract needing the easement and thetract preventing the easement must have been undercommon ownership. (A patent occurs when the sovereignconveys ownership to a private individual.) Commonownership of the two tracts by the sovereign doesnot meet the test.Absolute necessity requires that no other passagewayto and from the conveyed property can exist. Ifthe grantee can use another way either at the time ofconveyance or thereafter, the right-of-way by necessitycannot be claimed. The mere showing that it would bemore expensive or less convenient to obtain anotheraccess route is not sufficient to give rise to an impliedeasement by necessity.The issue of what constitutes absolute necessity hasraised some interesting modern-day issues. For instance,any piece of property is accessible by air via a helicopteror parachute. Thus, no tract of land is ever absolutelyinaccessible. Yet no case has ever been found in whichan easement was denied because of its accessibilitysolely by air.Similarly, if a tract of land is accessible only by navigablewater, is it absolutely landlocked? Only ten caseshave denied an easement because of such accessibility.Of these, only two were decided after 1925; five weredecided prior to 1900. Eight cases recognize an easementdespite access by water. All but one of these caseswere decided after 1927. Although none were Texascases, the trend seems to be toward a more relaxedstandard of necessity.Just as the grantee can acquire an implied easementby way of necessity, so can the grantor. Should thegrantor retain a tract with no access, the law allows thegrantor to claim an implied easement by way of necessity.The servient estate in the hands of the grantee underthe conveyance is charged with the burden.Because an easement by necessity requires no prioruse, the location of the easement may present problems.The case law holds that it should be placed in a "convenientway" across the surrounding land. If a particularroute is used by common consent, that fixes the location.Thereafter, the location can not change, exceptwith the consent of both parties.If the location can not be derived by common consent,the selection belongs to the servient tenement(the one crossed), giving due regards to the dominantowner's rights. If the servient tenement does not selectthe route, the right rests with the dominant tenement.Again, once selected, the route can not change exceptwith common consent.Statutory Easement for Landlocked PropertyThe law has not always been consistent regardinglandlocked property in Texas. Prior to 1963, any personhaving land without an easement could statutorilycondemn a private right-of-way to and from the propertyaccording to the Texas Revised Statutes Article 1377b(2).However, in 1963, the Texas Supreme Court held thisstatute contrary to Article 1, Section 17 of the TexasConstitution because it lacked public purpose. (SeeEstate of Waggoner v. Gleghorn, 378 S.W. 2d 47.)The second statutory attempt also failed (Texas RevisedStatutes, Article 6711). It authorized the commissionerscourt to declare and open a public highway, atpublic expense, across lands of nonconsenting owners.The action could be taken upon the sworn applicationof one or more landlocked landowners.This statute also lacked the necessary public purposerequirement. It was declared unconstitutional in 1962by the Texas Supreme Court (Maher v. Lasater, 354 S.W.2d 923.) The high court, in reversing a prior decision,wrote, "In deciding that question (case) we assumed,but did not hold, that it is of public importance thatevery person residing on land be provided access toand from his land so that he may enjoy the privilegesand discharge the duties of a citizen." The court furtherstated, "The legislature may not authorize that which theconsitution prohibits."Effective Sept. 1, 1995, the Texas Legislature passeda new statute that mirrors the former Article 6711. Thenew law is found in Subchapter B, Chapter 251 of theTexas Transportation Code.Again, on a sworn application, a landlocked propertyowner may request that a road be condemned by thecommissioners court. The procedure is outlined in thestatute. Only time will tell whether the new law canwithstand the constitutional test.For more information, see "Don't Fence Me In," publication1130.Easements by EstoppelAnother way an easement may be created withoutwritten expression is by estoppel. Here the easementarises from the acts and/or oral expressions of the grantorthat indicates the existence, creation or conveyanceof an easement. Should the grantee rely on such demonstrationsand accept the grantor’s offer and be damagedthereby, the grantor will be estopped (or legally prevented)from denying the existence of the easement.For example, suppose "A" wants to induce a buyerinto purchasing a lot in an undeveloped subdivision.The prospect is shown a platted map with a roadwayindicating a convenient access route to and from the lot.If the prospect should purchase the lot, "A" would belegally precluded from asserting the nonexistence of theeasement.However, an easement by estoppel based on silencecan be established only when the landowner has a dutyto speak. If a person (or family) has a revocable right(or permission) to cross another's land, the landownerhas no duty to advise subsequent generations that theeasement is revocable at will. Therefore, the user cannotcomplain when the easement is unilaterally revoked.A claim of an easement by estoppel by silence will notapply.Easements by PrescriptionThe last way an unexpressed easement may be createdis by way of prescription—sometimes referred to3

as by way of limitations. Prescriptive easements arise inmuch the same manner as title accrues by adverse possession.The requirements basically are the same. Theonly difference is that adverse possession ripens intotitle to the land, whereas a prescriptive right maturesinto an easement.There are five basic requirements for a prescriptiveeasement. The absence of any one is fatal to the creationof the easement. First, the use of the land must beadverse to the owner of the land. In other words, the usemust begin and continue without the actual or impliedpermission of the landowner.Second, the use must be open and notorious. Thismeans the use must be asserted in such a manner as toserve notice of the claim not only to the landowner butall persons in the immediate area. Secretive use is insufficient.A clear and positive use must be evident. An exceptiondoes exist for the latter requirement. The courtshave substituted actual knowledge and acquiescence ofthe owner of the servient tenement in the place of openand notorious use. Acquiescence may be implied fromthe circumstances.Third, the use must be exclusive. The use of an easementcommon with others or even with the owner isinsufficient to create a prescriptive right. This rule, however,is a rule of evidence raising a rebuttable presumptionthat permission was given the claimant when boththe owner and claimant use the easement concurrently.The rule does not apply where concurrent use by theowner and claimant occur after the prescriptive periodhas matured (i.e., the claimant has used the easementfor ten years).Fourth, the use must be in the same place and withindefinite lines. The practice of passing over land in differentplaces does not establish a prescriptive right exceptwhere the divergences are only slight. Also, the travelover unenclosed and unimproved land will not entitlethe traveler to a prescriptive right unless the way is definitelymarked.Fifth, the use must be continuous and uninterrupted.Thus, the assertion of the enjoyment of the land cannotmature into a prescriptive right based on occasionalpassage. Likewise, any time the adverse usage is interrupted,the running of the prescriptive period is annihilatedand must begin anew. It has been held thatplacing a fence across a road for a week is a sufficientinterruption.In Texas, the three-, five-, ten- and 25-year statutesdealing with adverse possession have been held inapplicableto the creation of prescriptive easements. Thecourts, however, judicially have placed the requiredperiod of continuous, uninterrupted adverse use forprescriptive easements at ten years.The courts have placed certain limitations and stipulationsas to when the prescriptive period begins. Forexample, the period will not run if the owner of theservient estate is suffering under a legal disability suchas infancy or insanity or is the ward of an estate whenthe adverse use begins. The period will run once thedisability is removed. An intervening disability occurringafter the period has started will not suspend (or toll) therunning of the prescriptive period.The following example illustrates the rules. Assume"A" inherits land. "A" is 16 years of age. The same year"B" begins crossing the land without "A’s" permission.Because "A" is a minor, the prescriptive period will notcommence. However, once "A" reaches the legal age of18, the prescriptive period will start to run.In another example, suppose "A" inherits the landwhen "A" is 21 years of age, the same year "B" beginscrossing the land without "A’s" permission. Five yearslater "A" is adjudicated insane. Here the prescriptiveperiod will continue to run. Intervening disabilities willnot suspend the running of the ten-year period.The courts have, in limited instances, applied thedoctrine of tacking in cases involving appurtenant prescriptiveeasements. Tacking entails adding the periodsof consecutive adverse users together in determining thenecessary ten-year period. However, certain qualificationsare necessary. (1) There must be no interruptions inthe use between users. (2) The users must be successiveowners of the dominant tenement. (3) The documentconveying the dominant estate must contain the followinglanguage: "together with all and singular the rightsand appurtenances thereto in anywise belonging to thesaid grantees."Termination of Private EasementsPrivate easements may be extinguished in as many, ormore, ways than they can be created. In fact, the mannerin which some easements arise determines directlythe means by which they can be terminated. Withoutgoing into any great detail, the following is a brief synopsisof the various ways easements may be dissolved.Transfer of Servient Estateto Bona Fide PurchaserRegardless of the method of creating the easement,the most universal means of terminating private easementsinvolves the conveyance of the servient estate toa bona fide purchaser (BFP).A BFP is someone who pays “valuable consideration”for the property and takes title “without having actualor constructive notice” of a third party’s claim. (Bonafide purchasers are sometimes referred to as InnocentPurchasers.)Texas case law to some degree clarifies and definesthese requirements.“Valuable consideration” means the buyer paid a significantamount for the property. Although the amountmay be less than fair market value, it cannot be nominalor grossly inadequate.For example, the recipient of a gift deed, where noconsideration changes hands, cannot claim BFP status.However, even if consideration is paid, the recipientof title to land via a quitclaim deed cannot achieve thestatus of a BFP either.4

“Actual knowledge” refers to any oral or written representationsthe buyer receives prior to closing concerningthe title to or use of the property.“Constructive notice” refers to the information affectingtitle to the property contained in the deed records aswell as any facts a physical inspection or visible examinationwould reveal.To ascertain the information in the deed records(sometimes called the real property records), the buyermay:• examine the recorded documents personally or hiresomeone to do the same using the county clerk’s indicesto trace title;• require the seller to prepare an abstract of title andhave it examined by an attorney chosen by the buyer; or• purchase title insurance.Thus, constructive notice may be given by having theeasement recorded in the county deed records in compliancewith the Texas Property Code, Section 13.002.By doing so, any subsequent purchaser of the propertyis charged (imputed) with knowledge of the easementeven though the buyer does examine or have the deedrecords examined.For more information regarding BFPs and protectionafforded by the recording statutes, see the Center’spublication entitle “Deeds and the Texas RecordingStatutes” http://recenter.tamu.edu/pdf/1267.pdfFinally, prospective purchasers should personallyinspect the property for evidence of an easement notdisclosed in the deed records.If no open and apparent use of an unrecorded easementexists across the property, then the BFP takes freeof them.Effective Oct. 1, 1991, Procedural Rule P-37 wasadopted by the Texas State Board of Insurance regardingguaranteeing the right of access in a title insurancepolicy. All title policies issued after Oct. 1, 1991, ensurethe right of access unless a specific exception is added.Neither the width of the access nor access to a publicthoroughfare is insured.Easements arising without written expression haveinherent problems whenever the servient estate is transferred.Because there is no written document to record,the only way knowledge can be given to the prospectivebuyer is by actual notice. Consequently, all easementsshould be placed in writing and recorded to preservetheir existence.For instance, consider the previous example involvingMark and John. Mark probably will lose the easementbecause it was never recorded. The new purchasersprobably took title to the servient estate without actualor constructive knowledge of the easement. Even if thepurchasers had actual knowledge, the easement couldnot survive Mark's death. Oral easements in gross arenontransferable as mentioned earlier.Operation of LawEasements may be extinguished by operation of law.The foreclosure on delinquent promissory notes securedby a mortgage or deed of trust on real property willterminate all easements created subsequent to the mortgagebeing placed on the land. The first in time prevailsin such an instance.Likewise, condemnation will terminate all existingeasements across the condemned land. The rights ofthe public in condemned property are paramount to anindividual’s right.AbandonmentEasements may be extinguished by abandonment.Abandonment takes place whenever cessation of useoccurs accompanied by a clear intent never to use theeasement again. Mere nonuse does not constitute abandonment.However, the intent may be inferred from thecircumstances if such evidence is clear and definite.Failure of ConditionNoncompliance by the grantee with a condition ofthe grant is another way an easement may terminate.However, the condition must be explicitly coupled witha right of forfeiture. For example, an easement will terminatewhen it is conditioned on the use by the granteewithin a stipulated period. Also, the failure of thegrantee to pay half of the easement's upkeep is anotherexample of a conditional easement.MergerAs mentioned earlier, the merger of the dominant andservient tenements under a common owner terminatesall appurtenant easements between the two estates.Expiration of Designated TermThe expiration of the designated number of years in agrant will extinguish a term easement. For example, aneasement granted for a term of 15 years expires automaticallyat the end of the designated 15-year period.Adverse PossessionAdverse possession of an easement by the servienttenement for ten continuous years will terminate aneasement. For instance, suppose "A" grants "B" a rightof-wayeasement in 1950. The easement leads to someproperty recently acquired by "B." "B" intends to live onthe property following retirement. In 1970, "B" retires.However, in the meantime, "A" erected a fence acrossthe easement and also a barn and catch pens. Otherportions of the easement were plowed and placed incultivation.In such an instance, the easement granted in 1950may have terminated if it has been "actually and visiblyappropriated, commenced and continued under a claimof right inconsistent with and hostile to the claim of 'B',"as described in the Texas Civil Practice and RemediesCode, Section 16.026. The character of the claim mustindicate unmistakably an assertion of exclusive ownershipby "A" for ten consecutive years.5

Expiration of PurposesThe removal of the purpose or reason for creating aneasement will terminate it. For example, an easementgranted explicitly for the construction of a reservoir willterminate when the reservoir is completed. An easementgranted to serve a particular oil well will expire whenthe well ceases production.MisuseThe misuse of an easement generally will not causethe easement’s termination. Also, the use of an easementfor an unauthorized purpose or in an excessive manneris not sufficient to cause a forfeiture. However, suchabuses do give rise to damages on the part of the servienttenement. Misuse can result in termination when themisuse creates an impossibility to use the easement forthe purpose originally granted.Change of ConditionA change in condition also may extinguish certaineasements. For example, an implied easement by wayof necessity is only a temporary right. It continues onlyso long as the necessity exists. Should the necessity dissipate,so will the easement.Grant of ReleaseLastly, an easement can terminate by a release beinggranted by the owner. However, the release shouldbe placed in writing and recorded in the county landrecords. If not, serious title problems could result in thefuture.In fact, the latter point cannot be overemphasized.Regardless of how an easement is extinguished, a carefullywritten release should be prepared, signed by theparty granting the release and placed in the county landrecords. Otherwise, subsequent conflicts may arise disputingthe easement's continued existence.Public Easements in TexasThe Philmores owned a residence approximately oneblock from an elementary school in a heavily populateddistrict of a city. There were no sidewalks in the neighborhood.A heavy concentration of children traversedthe area twice daily going to and coming from school.To help relieve some of the danger of having thechildren travel on the side of the street, the Philmoresconstructed a sidewalk on their property. The childrenbegan using the sidewalk, but the Philmores failed toanticipate the adverse effects. The children caused thefamily dog to bark, the paper was generally missingeach morning and minor acts of vandalism occurred ontheir property.The Philmores finally decided to dismantle the sidewalk.However, they were served with a restrainingorder by the city attorney’s office. The city contendedthat the Philmores had granted the public an irrevocableeasement across the land.Public easements, as mentioned earlier, are thoseeasements to which the right of enjoyment and use arevested in the public generally or in an entire community.Aside from purchasing, there are three ways publiceasements may be created. Each method is unique andhas different requirements. The three ways public easementsmay arise without purchasing are: (1) by dedication,(2) by prescription and (3) by condemnation.Once created, the uses for which public right-of-wayeasements can be used have been construed broadly.An easement for city streets includes the right for themunicipality to lay sewer, gas and water lines. WestTexas Utilities Co. v. City of Baird, 286 S.W. 2d 185.An easement for a state highway includes the right fora municipality to lay a gas pipeline within it. Grimes v.Corpus Christi Transmission Co., 829 S.W. 2d 335.Easements by DedicationDedication is perhaps the most common means bywhich public easements arise. Dedication is defined asa method of creating or transferring an interest in land,consisting of an easement only and not title. It is the actof devoting or giving property, or an interest therein, forsome proper object. It is a voluntary transfer that doesnot require consideration.There are two distinct types of dedication—statutoryand common law. Both types require an intent on thepart of the owner to dedicate (or set apart) the easementand a reciprocal acceptance of the easement by thepublic generally, by the governing body of a municipalityor by the county.Statutory DedicationStatutory dedication is the simpler of the two typesof dedication to explain. As the name implies, statutorydedication must be carried out in compliance withall relevant statutes. Different procedures are requireddepending on the location of the land. If the land islocated in a municipality or a municipality’s extraterritorialjurisdiction, Chapter 212 of the Texas Local GovernmentCode governs. If the land is located in a rural area,yet outside the extraterritorial jurisdiction of a municipality,Chapter 232 of the Texas Local Government codecontrols. Finally, if the dedication occurs in countieshaving a population of 50,000 or less, Section 281.001et seq. of the Texas Transportation Code governs (andlimits) the procedure.Note: Both Chapters 212 and 232 deal with subdivisionplats. The dedication of streets and alleys within the subdivisionsis the context in which the statutes are addressed here.Chapter 212. Section 212.001 et seq. of the TexasGovernment Code requires the following:• The platted land must be situated within the limitsor in the extraterritorial jurisdiction of a municipality.• The owner of the land must intend to lay out a subdivision,an addition to the municipality, suburbanlots, building lots or any lot, street, alley, park orsome other portion for public use.6

• The owner must accurately describe the proposedsubdivision or addition by metes and bounds in a plat.The plat must contain precise dimensions of all theproposed streets, alleys, squares, parks or other portionsintended to be dedicated to public use.• The plat must be acknowledged by the owner andfiled for approval with the municipal planningcommission (if there is one) or with the governingbody of the municipality. Section 212.007 ofthe Government Code describes the procedure forapproving a plat of land lying in the extraterritorialjurisdiction of more than one municipality.• The municipal authority responsible for approvingplats must act within 30 days after filing, otherwisethe plat shall be deemed approved by inaction. Ifthe plat must be approved by the governing body ofthe municipality in addition to the planning commission,the governing body shall act on the platwithin 30 days of its approval (by whatever means)by the planning commission.• Once approved, the plat must be filed of record inthe county in which the land lies.The plat manifests the owner’s intent to give appropriateeasement to the public in the proposed streets, alleysand public areas. The approval of the plat, however,does not indicate the municipality’s acceptance of theeasements. According to the Texas Local GovernmentCode, Section 212.011, "The approval of a plat is notconsidered an acceptance of any proposed dedicationand does not impose on the municipality any dutyregarding the maintenance or improvement of any dedicatedparts until the appropriate municipal authoritiesmake an actual appropriation of the dedicated parts byentry, use, or improvement."Chapter 232. Section 232.001 et seq. of the TexasLocal Government Code applies to platted land locatedoutside the limits of a municipality or a municipality’sextraterritorial jurisdiction. Whenever the owner of suchland divides the tract into two or more parts for a subdivision,a plat must be prepared and recorded. Before theplat can be recorded, it must:• describe the subdivision by metes and bounds;• locate the subdivision with respect to an originalcorner of the original survey of which it is a part;• state the dimensions of the subdivision and of eachlot, street, alley, square, park, or other part of thetract intended to be dedicated to public use or forthe use of purchasers or owners of lots frontingon or adjacent to the street, alley, square, park, orother party;• be acknowledged by the owner or the proprietor, orby the owner’s or proprietor’s agent; and• be filed with the commissioners court of the countyfor approval by an order entered in the minutes.Once approved, the plat must be filed with the countyclerk for recording according to the Texas PropertyCode, Section 12.002.Note: Before approving the plat, the commissionerscourt may:• require a right-of-way on a street or road that functionsas a main artery in a subdivision, of a widthof not less than 50 feet or more than 100 feet;• require a right-of-way on any other street or road ina subdivision of not less than 40 feet or more than70 feet;• require that the shoulder-to-shoulder width on collectorsor main arteries within the right-of-way benot less than 32 feet or more than 56 feet, and thatthe shoulder-to-shoulder width on any other streetor road be not less than 25 feet or more than 35feet;• adopt, based on the amount and kind of travel overeach street or road in a subdivision, reasonablespecifications relating to the construction of eachstreet or road;• adopt reasonable specifications to provide adequatedrainage for each street or road in a subdivisionin accordance with standard engineeringpractices;• require that each purchase made between a subdividerand a purchaser of land in the subdivisioncontain a statement describing the extent to whichwater will be made available to the subdivisionand, if it will be made available, how and when;and• require that the owner of the tract to be subdividedexecute a good and sufficient bond in the mannerprovided by law.There is no provision regarding how soon the commissionerscourt must act on the plat after submission.Neither is there a provision providing acceptance of theplat by inaction.Section 281.001 et seq. of Transportation Code.Unlike Chapters 212 and 232, Chapter 281 of theTransportation Code requires no formal platting for thededication of private roads. The chapter applies only todedications occurring after 1980 in counties having apopulation of 50,000 or less.Basically, the chapter restricts the ways these countiesmay acquire a public interest in private roads to:• purchase,• condemn,• dedicate and• a judgment of adverse possession (sometimesreferred to as a prescriptive easement, discussedlater.)The chapter specifies how the dedication may andmay not occur. The dedication must be an explicit voluntarygrant of the private roadway for public purposescommunicated to the commissioners court in writing inthe county where the property is located. A dedicationconveyed orally or by overt acts is invalid.7

In turn, the commissioners court may accept the dedicationand assert a public interest in the road by:• entering a resolution in the commissioners court recordsrecognizing the interest acquired in the roadway,the circumstances by which it was acquired,and the effective date of the acquisition; and• giving written notice of the acceptance to the ownerof the land from which the road was acquired inperson or by registered mail.Section 281.004 prohibits counties from acquiringa public interest in a private road in certain circumstances.It states that counties may never claim adversepossession of a private road when the county commissionersmaintain a private road with:• the owner’s permission or• public funds when the public has no recordedinterest in the roadway.Common Law DedicationAll common law dedications require the followingfour elements: (1) a person competent to dedicate, (2)a public purpose served by the dedication, (3) an offeror tender of the dedication and (4) an acceptance of theoffer or tender.As to the element of capacity, any person having thecapacity to make a grant of land has the capacity tomake a valid dedication. However, in addition to havingthe capacity to dedicate, the person also must own anunqualified and undivided fee title to the land. A co-tenantcannot make a valid dedication without the joinderof the other co-tenants.As to the element of public purpose, the dedicationmust be for a use beneficial to the public and notprohibited by statute. If the easement is reserved for aspecific group, then there is no public purpose involvedand no dedication of a public easement can occur.As to the element of the offer or tender, it must bebased on a manifest desire of the landowner to devotethe land to a public use. If there is no intent, there canbe no offer.The intent to dedicate must be based on a clear, unequivocalact or declaration of the landowner. A secretintent is insufficient. The courts will presume an intentin very limited situations.The intent also must be unqualified. The intent mustbe such that the public has an irrevocable right to enjoythe property, independent of any whim of the landownerand beyond recall. The intent must be to divestthe owner of the interest immediately and not at somefuture time. However, it is not necessary that the ownerintend immediate use by the public.The way the offer is communicated to the public determineswhether or not it constitutes an express or impliedcommon law dedication. Whichever way is used,both the manifestation and communication must be soclear and convincing that a reasonable person would beinduced to act in reliance thereon.Express DedicationIf the dedication is expressed, it may be declared eitherorally or placed in writing. Perhaps the oral declarationis the weaker of the two. It has been held that oraldeclarations may be, in and of themselves, sufficient toconstitute an offer of dedication. However, as a generalrule, oral declarations serve only to explain the conductof the owner.For instance, in one case, a developer made casualcomments about his intent to place streets and alleysat a certain place within a proposed subdivision. Later,when the developer began selling the lots, he did so bymaking references to a map where the suggested streetsand alleys were omitted. Here the courtsmaintained the references to the map negated the priorcasual comments.Written expressions of intent to dedicate are morecommon than oral representations. Generally, the writtenexpression of intent will appear either in a dedicatorydeed or incorporated in a proposed plat. If theintent is embodied in a dedicatory deed, the deed mayname either a city or the public generally as the grantee.The mere fact the deed does not meet the requirementsof conveyance set forth in Sections 5.021 and 5.022 ofthe Texas Property Code is irrelevant because a writtendedication may be shown by a simple contract.Plat designation is the most common form of a writtendedication. It can occur when the owner lays out a townsite or an addition to a town or city on a plat and delineatesthe proposed streets, parks or other public places.It also can occur when any part of a town site or additionis sold by reference to a plat containing designatedpublic (not private) areas.If the dedication takes the form of a map or plat,it generally is necessary to record or file the plat toestablish effective communication of the offer to thepublic. If recorded, it constitutes an unequivocal offerof dedication.Note: As long as the plat or map has not been recorded,a common law dedication is possible. If, however,the plat or map is recorded, it must be done in compliancewith Chapters 212 or 232 of the Texas LocalGovernment Code as mentioned earlier. Such recordingconstitutes a statutory dedication, not a common lawone. Most dedications in Texas via a map or plat arestatutory.Effective communication can be established withoutrecording by placing the plat in the possession of publicauthorities so that it is readily accessible to the generalpublic. The exhibition of the plat to a few individualsmay create a private easement by estoppel as mentionedearlier but not a public easement.Implied DedicationImplied common law dedications may be communicatedto the public in two ways. One is by the affirmativeacts of the owner, the other by inactions or acquiescenceon the owner’s part.8

If affirmative acts are the means of communication,the acts must amount to an invitation or encouragementto the public to use the land. For instance, openingproperty to public use or even fencing off part ofthe land and making repairs thereon convenient for thepublic’s use have been held sufficient affirmative acts togive rise to an implied dedication.Inactions or acquiescence sufficient to give rise to animplied dedication is more difficult to ascertain. However,by disregarding certain private interests for a considerablelength of time, a landowner may have dedicatedland for public use by implication. Allowing the publicto use a strip of land without objections serves as a goodexample. The landowner may not deny the implications.The duration of the owner’s inactions or acquiescenceis important only when the attitude or intent cannot beclearly ascertained. For example, where a landownersilently permits the public authorities to grade, repair orotherwise improve a private road, such inactions havebeen held sufficient evidence to establish an impliedintent to dedicate but not in counties where Article6812(h) applies.When the attitude or intent cannot be established, theperiod of the use then becomes more important. Thecourts will presume an intent if the period of inactionsextends for several years. Generally a ten-year period isused, but 50-, 40-, 35-, 20-, eight- and six-year periodsalso have been adhered to by the courts.Before indulging in any presumptions, the courts mustexamine the existing evidence as to the owner’s attitudeand the general character of the land used by the public.For instance, if permission was given to cross the land,the owner must have intended it to be permanent, nottemporary, and it must have extended to the public generallyand not to select individuals.Likewise, mere use by the public is not in and of itselfsufficient to disclose an intent to dedicate. This fact isparticularly true when the public use does not interferewith the owner’s use of the property. Thus, the ownerhas no occasion to declare overtly his or her intentionsin the matter. No intention to dedicate can be ascertainedwhen the use is promiscuous, occasional or undefined.No public easement can arise when the use isconfined to a particular class of persons as distinguishedfrom the public generally.Finally, to complete the dedication, the offer or tenderof the use must be accepted by or on behalf of thepublic. Acceptance must take place within a reasonabletime after the tender but before it is revoked.Also, the offer may lapse by the expiration of adesignated period imposed by the owner. Revocationalso can occur by the owner’s devoting the property tosome inconsistent use or by vacating a filed plat in accordancewith Chapters 212 or 232 of the Texas LocalGovernment Code as will be discussed later.Any public action that shows an unequivocal intent toappropriate the property to the purpose for which it wasset aside is sufficient to constitute a binding acceptance.Once accepted, the dedication becomes immediatelyoperative. The owner becomes divested of all rights inthe property consistent with the purpose to which theeasement was dedicated.The acceptance may be either formal or informal.In most instances, an informal acceptance transpires.The following are examples of cases in which informalacceptance occurred: (1) establishing roads, streets andalleys by a city in conformity to the plat filed by theowner, (2) purchasing land by individuals relying on theexistence of a valid dedication, (3) taking possession of,or assuming control over, the dedicated land and improvingor repairing it, (4) failing to assess property taxesagainst the dedicated land and (5) using the dedicatedland by the public.The purchasing of land by individuals relying onthe existence of a valid dedication (example number2 above) needs further amplification as a result of itsunique interpretation in Texas. Under Texas case law, itis possible for a private easement and a public easementto exist simultaneously on the same roadway or thoroughfare.Here is how it can happen.As mentioned earlier under private easements, aneasement by estoppel may arise when a purchaserrelies on a map or plat for the placement of easements.If the same map or plat is filed in the county landrecords, and if the city or county accepts the dedication,a public easement arises simultaneously along thesame route. Each easement is independent of the other.Each easement has separately vested rights; each mustterminate independently.Easements by PrescriptionThe second way public easements may be created isby prescription. There appears to be only one major differencebetween the requirements for creating a publicprescriptive easement and a private prescriptive easement.The difference is that a private easement requiresone or a few individuals to use the land continuously forten years, while a public easement requires a similar useby the public generally.All the other requirements remain the same. The useof the land must be hostile and adverse to the owner ofthe land. The use must be open and notorious. The usemust be exclusive. Finally, the use must be continuousand uninterrupted for ten years.There is a unique statutory twist dealing with publicprescriptive easements. According to Sections 16.030and 16.061 of the Texas Civil Practice and RemediesCode, ". . . no person may acquire by adverse possessionany right or title to any part or portion of any road,street, alley, sidewalk or grounds which belong to anytown, city or county or which have been donated ordedicated for public use. . . ." In other words, the publiccan gain a public prescriptive easement across privateland, but a private individual or individuals cannot gaina private prescriptive easement across public land.Two important rules regarding public prescriptiveeasements have been established by case law. First, apublic prescriptive easement cannot arise where the use9

y the public is merely for pleasure and recreation. Suchuses are not for general travel and do not impart sufficientnotice to the landowner that the property is beingused or claimed by the public.The other proposition is that the use must be exclusiveand not shared by the owner. If the enjoyment is consistentwith the right of the owner, it confers no rights inopposition to such ownership.There is a significant difference between acquiescenceas used in association with implied dedications and prescriptiveeasements. The two major differences are: (1)acquiescence assumes the owner intended to dedicatethe land by his or her inactions; prescriptive easementsassume the owner at all times objected to the public useof the land and (2) acquiescence requires some publicuse during the period; prescriptive easements requirecontinuous use for the entire ten years.Note. As discussed earlier, acquiescence cannot constitutea dedication of a private road for public use incounties having populations of 50,000 or less.Easements by CondemnationThe third and last way for a public easement to arise isby way of condemnation. Condemnation is the procedureby which private land is taken for a public purpose.The power is generally lodged in the federal and stategovernments. In Texas, the legislature has delegated thepower to various agencies and subdivisions of the statesuch as counties, cities, towns and villages.Certain legal restraints are placed on the condemnationprocess. For instance, (1) the taking must be toachieve some public purpose, (2) the condemnor cannotcondemn more land than is necessary for the undertaking,(3) the landowner must be paid just or adequatecompensation for the taking and finally (4) the processmust be carried out in compliance with due process ofthe law. The precise procedure is contained in Sections21.011 through 21.016 of the Texas Property Code.Without going into any detail, the following chartcontains a brief synopsis of the entities and accompanyingempowering statutes permitting the condemnationof public easements in Texas. The list is not necessarilyinclusive of all relevant entities and statutes.EntityTexas HighwayDepartmentIncorporatedcities and townsCounty CommissionersCourtHome-Rule andGeneral-LawMunicipalitiesEmpowering StatuteTexas Transportation Code,Section 224.001 et seq.Texas Local Government Code,Section 251.001 et seq.Texas Local Government Code,Section 261.001 et seq.Texas Transporation Code,Section 311.001 et seq.The chart does not contain the statutes grantingrailroads, pipeline and utility companies the right tocondemn easements. The purpose of the omission istwofold. First, the easements permitted under the pertinentstatutes are not for public thoroughfares. Second,the subject is covered in depth in the Real EstateCenter’s technical report 394, entitled Understandingthe Condemnation Process in Texas.Easements Created by County Road MapEffective Sept. 1, 2003, through Sept. 1, 2009, Texaslegislators approved a new means by which countycommissioners may acquire a public interest in privateroadways. The method, known as the County Road Map,is outlined in Sections 258.001 through 259.006 of theTexas Transportation Code. No payment is required forthe acquisition.Basically, the county commissioners may (not shall)propose a county road map indicating each road inwhich the county claims a public interest under Chapter281 of the Texas Transportation Code (this Chapterwas discussed earlier as it applies to counties having apopulation of 50,000 or less), under any other law of theState of Texas, or as a result of continuously maintaininga private road with public funds commencing beforeSept. 1, 1981.The term continuous maintenance is defined in thestatute as grading or other routine road maintenance beginningbefore Sept. 1, 1981, and continuing to the datethe landowner files a protest (discussed later.)After the county commissioners develop the countyroad map, they must conduct a public meeting whereprivate landowners whose land is being taken may protestthe county’s claim.Before the public meeting is held, the county commissionersmust advertise the meeting at least once aweek for four consecutive weeks in a local newspaperof general circulation. The notice must:• advise the public that the commissioners court hasproposed a county road map including each roadin which the county claims a public interest,• identify the location at the courthouse where theproposed map may be viewed by the public duringregular business hours, and• state the date and location of the forthcoming publicmeeting where landowners may file a protest.The commissioners court must display the proposedmap at the indicated location beginning at the timestated in the notice until the map is formally adopted bythe commissioners court. The map must be legible anddrafted on a scale where one inch represents no lessthan 2,000 feet.In addition to filing a protest at the public meetingconcerning the taking of their private road via thecounty road map, landowners may file a written protestwith the county judge at any time prior to the publicmeeting.If a protest is filed, the county commissioners mustappoint a jury of five disinterested property owners,known as a jury of view, to hold a public hearing on theissue. The jury examines any county road maintenance10

ecords from before Sept. 1, 1981, and other informationconcerning the county’s claim.After examining the evidence, the jury determines thevalidity of the county’s claim based on a majority voteof the five individuals. Evidently, the only issue the jurymust resolve is whether the county has continuouslymaintained the property (roadway) starting before Sept. 1,1981.The determination by the jury is final, conclusive andbinding on the commissioners court. The commissionersmust revise the proposed county road map according tothe jury’s determination.Within 90 days after the initial public meeting, thecommissioners court may formally adopt the proposedcounty road map as revised after public comments andafter the determination by the jury. The county clerkmust maintain the county road map adopted by thecommissioners court in a place accessible to the public.Failure to include in the county road map a roadwaypreviously acquired by the county by purchase, condemnation,dedication or a court’s final judgment ofadverse possession does not affect the status of thoseroadways because of the omission.While the determination by the jury is binding on thecounty commissioners, it is not binding on landowners.A person who files a protest with the county commissionersat the public meeting or files a protest with the countyjudge prior to the meeting and loses the protest may filea suit in district court no later than two years after thedate the county road map was formally adopted. Thecourt will then proceed with the determination of thecounty’s interest in the roadway. However, the county,not the landowner, has the burden of proving it has continuouslymaintained the road in question commencingbefore Sept. 1, 1981. Again, this appears to be the onlyissue to be resolved.Unless contested, the county road map as formallyadopted by the commissioners court is conclusive evidencethat the public has access over the road, and thecounty has authority to spend public funds to maintain it.Before the enactment of Chapter 258 of the TexasTransportation Code, the continuous maintenance of aprivate road by the county was a factor to be consideredin establishing a public interest in a private roadway.Under the new statute, it appears that the continuousmaintenance of a private road that began before Sept. 1,1981, is conclusive proof of the fact.Did the legislature intend to create a new method ofacquiring a county road without having to compensatelandowners? Does the statute violate Article I, Section17, of the Texas Constitution that states, “No person’sproperty shall be taken, damaged or destroyed for orapplied to public use without adequate compensationbeing made, unless by the consent of such person . . .”?Termination of Public EasementsThe means by which public easements terminate arequite limited. In fact, the abandonment of the easementand the statutory vacating of a dedicated plat are theonly two sure means of dissolving public easements.AbandonmentAs with the abandonment of private easements, theparty asserting the abandonment must show by clearand satisfactory evidence that (1) acts of relinquishmentor cessation of use have transpired and (2) the intent torelinquish permanently the use is present. As before, theprimary difficulty is ascertaining the intent of the publicto permanently cease use. Mere disuse is insufficient.The county’s failure to open up streets for 42 years afterthe dedication occurred has been held insufficient toestablish abandonment. Likewise, the negligence ofcounty officials to keep the right-of-way clear of advertisingsigns and other obstructions falls short of indicatingan intent to abandon a portion of a right-of-way.The courts have held an abandonment can occur inone of the following two situations: (1) when the use ofthe land becomes practically impossible or the purposeof the dedication wholly fails or (2) when some affirmativeact or acts clearly indicate an intent to relinquishpermanently the use to which the property was dedicated.Perhaps some actual case examples can clarify theserules. As to the first rule, two cases stand clearly inpoint. The first case arose in a proposed subdivisionon the outskirts of Corpus Christi in 1890. A developerproposed to open a huge subdivision along the coast.The plans, maps and plats were drafted and filed ofrecord. Streets and public areas were indicated on theplats. However, the project collapsed entirely after itsinception. The land was turned back into agriculturaluses. Later, certain persons in the subsequent chainof title wanted the proposed streets and public areasestablished.Here the court held that the evidence, taken as a whole,discloses a complete abandonment of the proposedenterprise in all its essential features that amounted to adestruction of the general scheme and purpose. Giventhis, a condition exists in which "the object of the use forwhich the property was dedicated wholly fails."The other case involved a dead-end road less thanone mile long. The courts held an abandonment hadoccurred when the county undertook the following twoprojects at the road’s intersection with the main highway.First, a culvert was placed under the main highwayso that one end of the culvert opened directly in thecenter of the intersecting road. Next, bar ditches weredredged along the main highway, making it impossibleto enter or leave the road in question. Here the courtsheld the use of the land had been rendered practicallyimpossible for its intended use.As to the second rule involving intent, again twocases serve as prime examples. The first case occurredin Travis County, Texas. It involved a public use project.The state dedicated certain land to the county as a sitefor a courthouse and jail. The courthouse and jail wereerected and maintained on the site for several years. Thebuildings were then abandoned when a new court-11

house and jail were built at another location. Such actswere held to show clearly an intent to abandon the sitepermanently.The other case is more complicated. A developerfiled in the county records a plat showing a main thoroughfarerunning through a proposed subdivision. Asthe subdivision developed, the primary thoroughfareemerged on a parallel street about a half mile away. Theproposed thoroughfare was never opened. It was keptfenced without objections for 20 years and never usedby the public. Here, evidence was sufficient to show anabandonment of the street by the county. Possibly, thecourts could have ruled that the streets had never beenaccepted by the public generally or by the county.In situations where it is possible for a private and publiceasement to co-exist along the same route, the courtsnoted that each easement must be terminated on itsown merits. The courts stated in the above case that thecontroversy did not involve the rights of the purchaserswho had bought property in the addition in reference tothe recorded plat. The private rights were separate anddistinct from the rights of the county and the generalpublic. Thus, the private rights to an easement cannot beprejudiced by any abandonment or refusal to accept thededication on the part of the county.Again, referring to the example involving the Philmores’sidewalk, in all probability the restraining orderwould be upheld. The sidewalk could not be removedby the Philmores if the court found that a valid dedicationand acceptance had occurred.Vacating PlatVacating a dedicated plat also can terminate publiceasements. The procedure required for the cancellationdepends on whether or not the original plat was filedpursuant to Chapter 212 or Chapter 232 of the Texas LocalGovernment Code.If Chapter 212 was the enabling statute, the requirementsvary depending on whether or not any lots havebeen sold. If no sales have transpired, the developermust obtain approval from the municipal planning commissionor the governing body of the municipality forthe proposed cancellation. If so, a written instrumentdeclaring the cancellation of the plat or any part thereof shall be executed, acknowledged and recorded in thesame office as the original plat.If sales have already occurred, the procedure remainsbasically the same. The only difference is that the originalpetition to cancel all or a part of the plat must be filed by allthe owners of the lots in the subdivision, not the developer.Otherwise, the procedure is the same.If the original plat was filed pursuant to Chapter 232,then the entity owning the land must file an applicationto cancel all or any part of the subdivision with thecommissioners court of the county where the land islocated. The commissioners court must publish noticeof the proposed cancellation in a county newspaperfor three weeks preceding any action. The notice shallcommand any interested party desiring to protest thecancellation to appear at a specified time.At the hearing, if no one protests, and if it can beshown that the cancellation will not interfere with theestablished rights of any purchaser in the subdivision,then the commissioners shall give the owner permissionto file the proposed cancellation in the land records. Ifthe cancellation interferes with the established rights ofpurchasers, the cancellation may still be approved if thepersons so adversely affected agree to the action.Even if protest is raised, cancellation of the plat may begranted. However, those adversely affected may sue thedeveloper for damages not to exceed the purchase price ofthe lot. The suit must be brought within one year after thecommissioners grant the cancellation.All delinquent property taxes on the subdivision mustbe paid before the cancellation.ConclusionThe importance of private and public easements cannotbe overemphasized in today’s society. Easementsplay a vital role in everyone’s life.Most controversies associated with easements focuson when the easements arise and when they terminate.Both the statutory and case law in Texas containextensive information on the subject. This publicationexplains these laws. However, it is not a substitute forcompetent legal counsel.The following chart summarizes the requirementsnecessary for public easements.Most of the chart depicts the requirements for easementsarising by dedication. Under any form of dedication,the owner must intend to dedicate the easementfollowed by a reciprocal acceptance of the easement bythe public generally, by the governing body of a municipalityor by a county. Thus, the first part of the chart isdevoted to the ways offers are tendered followed by theways they maybe accepted.12

Appendix ASynopsis of Private EasementsThe following chart summarizes the minimum requirementsnecessary for the various private easements exceptthe new statutory easement for landlocked property.Each of the private easements will be either an easementin gross or an appurtenant easement. An easementin gross is one owned by a private individual or businessentity. An appurtenant easement is one that attaches toa certain piece of property and not to any individual orbusiness entity.Types of Private EasementsMinimum Implied Implied By Way By ByRequirements Reservation Grant of Necessity Estoppel PrescriptionPrior existence X XPrior use X XApparent X X XPermanent X X XContinuous X X XNecessary X X XPrior unityof ownershipXOpen and hostileWithout permissionExclusiveUninterruptedfor ten yearsRelianceby purchasingXXXXX13

Appendix BSynopsis of Public EasementsTypes of Public EasementsExpressMinimum Statutory Common Law Common Law Prescriptive EasementRequirements Dedication Dedication Dedication Easement CondemnationOFFERS:XOralXWrittenXPlat X XAffirmative actsXACCEPTANCES:Some public use X X XReliance by purchasing X XEstablish roads, X X Xstreets, etc.Improve roads, X X Xstreets, etc.Failure to assess X X Xproperty taxesCompliance X Xwith relevant statutesContinuous public useX(ten years)Open and hostileXpublic useAdverse public useXExclusive public useXPublic purpose X X X XPublic necessityXJust compensationX14

GlossaryAccrueVested; acquired; accumulated.AcknowledgmentThe formal declaration before an authorized official(generally a notary public) by the person who executedan instrument stating that the act or deed was donefreely.AcquiescenceConduct recognizing the existence of a transactionand giving implied consent to it.AdjudicateTo settle a dispute in the exercise of judicial authority,usually in a court of law.Adverse possessionA method of acquiring title to land by possession for astatutory period under certain conditions.Appropriation of landThe act of selecting, devoting or setting apart land fora particular use or purpose.AppurtenantBelonging to or incidental to land as opposed to belongingto a person or individual.AssignTo transfer an interest or title in land.Chain of titleSuccessive conveyances affecting a particular parcelof land, arranged consecutively, beginning with the governmentor original source of title to the present.ConcurrentRunning together; acting in conjunction.CondemnationThe process by which private property is taken forpublic use upon the award and payment of just compensation.ConsiderationThe price bargained for and paid for a promise. Generally,it is the money offered to induce another to entera contract.Constructive noticeCircumstances established by law that imply knowledgeof certain facts to purchasers of real property.CorporateA municipality.CotenancyAny joint ownership or common interest in property.Dedicatory deedA deed, executed without consideration, giving propertyfor a public purpose.DelegatedGranted; given.EstoppelA bar or impediment precluding one from alleging ordenying certain facts that are inconsistent with a previousposition.Fee title or fee simpleA term applied to an estate in land which connotesthe largest possible estate (or title) therein. Completeownership, subject only to eminent domain.ForfeitThe loss of an estate or right by the act of law or as aconsequence of error, fault, offense or crime.GranteeThe person who receives a conveyance of property.GrantorThe person who makes a conveyance of property.HeirsThe persons who inherit property, whether real orpersonal, by rules of descent and distribution wheneversomeone dies without a will.Hostile and adverseHaving the character of an enemy; in resistance or oppositionto a claim having opposite interests.ImplicationAn inference of something not directly declared butarising from what is admitted or expressed.LandlockedA tract of land having no legal way (access) to enterand leave.MortgageA document pledging property as security for a debt.NecessaryIndispensable or an absolute physical necessity.PlatA map or representation on paper of a piece of landsubdivided into lots with streets, alleys or similar features,usually drawn to scale.15

PrescriptionA means of acquiring an easement by open, continuous,exclusive use under the claim of right for a statutoryperiod.Promissory noteA written promise to pay a specific sum of money at acertain time.Rebuttable presumptionA legal presumption that holds until disproved.RecordedA document that has been filed in the public landrecords.RevocableAn agreement that can be canceled or repealed by thegranting party.Stranger to titleSomeone not in the chain of title to a piece of property.SuccessiveFollowing one after another in a line or series.SuccessorsThe person who follows another in the ownership ofproperty.TackingThe adding or combining of successive periods ofadverse possession to achieve the necessary statutorytime to claim title.TenementAn interest in land or in any permanent solid objectaffixed thereto such as a house or dwelling.Term easementAn easement given for a certain period of time afterwhich it terminates.UnequivocalClear; plain; free from uncertainty or doubt.Unity of ownershipA designation of land that at one time was under acommon or the same owner.VacateTo annul; to cancel or rescind; to render an act void.VestedAn interest that is absolute or incapable of beingdefeated.897-100-42216

MAYS BUSINESS SCHOOLTexas A&M University2115 TAMUCollege Station, TX 77843-2115http://recenter.tamu.edu979-845-2031800-244-2144 orders onlyDIRECTORGARY W. MALERADVISORY COMMITTEEDOUGLAS A. SCHWARTZ, CHAIRMANEl PasoJAMES MICHAEL BOYDHoustonCATARINA GONZALES CRONHoustonTOM H. GANNLufkinCELIA GOODE-HADDOCKCollege StationDAVID E. DALZELL, VICE CHAIRMANAbileneD. MARC McDOUGALLubbockBARBARA A. RUSSELLDentonRONALD CHARLES WAKEFIELDSan AntonioLARRY JOKL, EX-OFFICIOBrownsville17