law-easement, easement by necessity, easement agreement, access disputes, utility easement, billboard
easement, condemnation of easement interest in land
TEXAS SUPREME COURT DECISIONS: EASEMENT LAW
State of Texas v. Central Expressway Sign Ass'n. No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill)(admissibility of
expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion of
expert witness testimony was erroneous and harmful, judgment reversed)
SWBT v. Harris County Toll Road Authority, No. 06-0933 (Tex. 2009)(Jefferson)(eminent domain, county
entity immune to claim for reimbursement of costs of telephone line relocation necessitated by toll road
project, SWBT has no vested property interest in use of public way for transmission equipment).
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16,
2008)(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake,
condemnation power)
PETITIONS FOR REVIEW DENIED BY TEXAS SUPREME COURT IN
COURT OF APPEALS CASES INVOLVING LITIGATION OVER EASEMENTS
08-0411
ROBERT D. SMITH, CRAIG B. LYON, CARL WALCHSHAUSER, THE FRANKIE R. PUTNAM, SR. TRUST,
FRANK PUTNAM, INDIVIDUALLY, THE CLEAR CREEK AIR ESTATES PROPERTY OWNERS ASSOCIATION,
INC. AND ROBERT E. ADAMS v. BENJAMIN F. HUSTON, MARY E. HUSTON, BENJAMIN E. HUSTON, DIANA A.
HUSTON, THOMAS WESSIE HUSTON AND CRISTY R. HUSTON; from Denton County; 2nd district (02-07-
00117-CV,
251 SW3d 808, 03-20-08, pet. denied Aug 2008)(dispute over access to and fees associated with an airstrip,
easement, declaratory judgment)
08-0420
CAROL SYLVIA SMITH v. PAMELA WEBB AND ANN HOSEK; from San Patricio County; 13th district
(13-06-00523-CV, ___ SW3d ___, 04-30-08) (easement by necessity)
Appellees, Pamela Webb and Ann Hosek, filed a petition asking the trial court to
declare an easement by necessity to their property across Parcel J, a tract of land owned
by appellant, Sylvia Smith. After a bench trial, the trial court entered its judgment declaring
an easement by necessity across appellant's land. The trial court also awarded attorney's
fees to appellees. By seven issues, appellant challenges the trial court's grant of an
We note that after the parties rested on April 21, the trial court also told them in open court that it
would not rule that appellees would have to go through the railroad boundary easement and its award of
attorney's fees under the Uniform Declaratory Judgments Act (the Act). We affirm.
Present Necessity of Access
Appellant contends by her third and fourth issues that present access was not a
necessity, a challenge to the second element of proving an easement by necessity. See
Koonce v. Brite, 663 S.W.2d 451, 452 (Tex. 1984). We disagree.
Because appellees rely upon an easement by necessity, they had the burden of
proving all the elements necessary to establish the easement. Crone v. Brumley, 219
S.W.3d 65, 68 (Tex. App.–San Antonio 2007, pet. denied) (citing Duff v. Matthews, 158
Tex. 333, 311 S.W.2d 637, 640 (1958) and Bains, 182 S.W.2d at 399)). The elements
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include (1) unity of ownership prior to separation; (2) access as a necessity and not a mere
convenience; and, (3) necessity existing at the time of the severance. Koonce, 663
S.W.2d at 452 (citing Duff, 311 S.W.2d at 641). Additionally, while easements by necessity
are temporary because their existence is dependent on the necessity that created them
and terminate upon the cessation of the necessity, see Bains, 182 S.W.2d at 399, once
the location of a way of necessity is established, its location may be changed only with the
expressed or implied consent of both parties. Samuelson v. Alvarado, 847 S.W.2d 319,
323 (Tex. App.–El Paso 1993, no writ); Meredith v. Eddy, 616 S.W.2d 235, 240 (Tex. Civ.
App.–Houston [1st Dist.] 1981, no writ).
It is undisputed that unity of ownership existed between the dominant and servient
estates in 1981 and that Parcel K was landlocked. Thus, a necessity existed at the time
of the severance. See Koonce, 663 S.W.2d at 452. Appellant claims there was no present
necessity; however, because before the judgment was signed, she tendered an alternate
easement across Parcel J along the railroad right of way. We will confine our analysis,
therefore, to whether a present necessity existed. See id.
In this case, testimony established that the Webb family accessed Parcel K by
crossing Parcel J along the brush-line path for forty-eight years. The evidence also
established that on the day of trial the trial court sent a letter to the parties informing them
that it was declaring an easement by necessity in favor of appellees following the brush line
running through Parcel J. The trial court informed the parties of its ruling in writing. The
location of the easement had been established.
On July 7, 2006, at the hearing on the entry of the order and before any evidence
was admitted regarding the tender of another easement, the trial court again informed the
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parties that it would sign the judgment declaring an easement of necessity along the
location of the brush line on Parcel J. Because the easement had been established,
appellant could not have tendered a different easement without the agreement of
appellees. See Samuelson, 847 S.W.2d at 323. There is no evidence of such agreement.
We conclude, therefore, that appellees did not lose entitlement to the easement along the
brush line.
Moreover, the trial court received a copy of the easement tendered by appellant to
appellees on May 25, 2006, and a copy of correspondence from appellees' counsel
rejecting the proposed easement. However, the trial court made it clear that he was
allowing appellant to make a record at the hearing but that she would have to file a motion
for new trial with everything attached. No motion for new trial or motion to reopen the case
for new evidence was filed in this case.
We conclude, giving no effect to the customary presumption of intent to create an
easement, that appellees established all of the elements required to show entitlement to
an easement by necessity. We overrule issues three and four.
08-0282
THE KITTEN FAMILY LIVING TRUST AND JERRY KITTEN v. SOUTH PLAINS LAMESA RAILROAD, LTD. AND
LARRY DALE WISENER; from Lubbock County; 7th district (07-06-00209-CV, ___ SW3d ___, 01-28-08, pet
denied June 2008) (lease agreement and easement agreement, merger doctrine, merger clause, ambiguity)
07-0947
LOUISE WALKER AND THE JAMES WALKER FAMILY LIMITED PARTNERSHIP v. CHAD L. LAMPMAN AND
TRACI L. LAMPMAN; from Bosque County; 10th district (10-06-00096-CV, ___ SW3d ___, 08-08-07, pet.
denied Jun 2008) [Concurrence in 10-06-00096-CV] (land dispute, easement law, permanent injunction)
Landowners, who were the defendants in the trial court, appeal from a judgment that (1) declares that a public
roadway exists along a 2.563 acre tract of land in Bosque County owned by them, (2) permanently enjoins
them from blocking, obstructing, or closing the roadway in any manner, (3) awards the plaintiffs
(appellees) attorney’s fees for trial and in the event of an appeal, and (4) assesses costs. Because we find
that the court did not err, we will affirm the judgment.
07-1002
JOHN SPOOR, SUSAN LYNN SPOOR, AND CLAUDINE SPOOR, INDIVIDUALLY AND AS INDEPENDENT
EXECUTRIX OF THE ESTATE OF DONALD EUGENE SPOOR, DECEASED v. SOUTHTEX 66 PIPELINE
COMPANY, LTD.; from Brazoria County; 14th district (14-05-01181-CV, 238 SW3d 538, 10-23-07, pet. denied
Feb. 2008)(UDJA, easement, trespass to try title)
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