Easements in Texas - Real Estate Center - Trinity Waters

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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
Page 1 and 2: Easementsin TexasJudon FambroughSen
Page 3: Contents1 Summary1 Private Easement
Page 7 and 8: as by way of limitations. Prescript
Page 9 and 10: Expiration of PurposesThe removal o
Page 11 and 12: In turn, the commissioners court ma
Page 13 and 14: y the public is merely for pleasure
Page 15 and 16: house and jail were built at anothe
Page 17 and 18: Appendix BSynopsis of Public Easeme
Page 19 and 20: PrescriptionA means of acquiring an

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