Easements in Texas - Real Estate Center - Trinity Waters

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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
Page 1 and 2: Easementsin TexasJudon FambroughSen
Page 3 and 4: Contents1 Summary1 Private Easement
Page 5: An example will clarify these two t
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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