law-easement, easement by necessity, easement agreement, access disputes, utility easement, billboard easement,
condemnation of easement interest in land
What is an easement?
An easement is a non-possessory interest in another’s property that authorizes the holder to use that
property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.
2002). An easement does not convey the property itself. Lakeside Launches, Inc. v. Austin Yacht
Club, Inc., 750 S.W.2d 868, 871 (Tex. App.—Austin 1988, writ denied). For an easement appurtenant
to exist either by implication or in writing, there must be (1) a dominant estate, to which the easement
is attached; and (2) a servient estate, which is subject to the use of the dominant estate to the extent
of the easement granted or reserved. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.
In determining whether an easement has been granted expressly, we look to the same rules of
construction applicable to deeds. Callejo v. City of Garland, 583 S.W.2d 925, 927 (Tex. App.—Dallas
1979, writ ref’d n.r.e.). Generally, a written instrument is required to validly convey an estate in land.
See Tex. Prop. Code Ann. § 5.021 (Vernon 2003). Subject to some exceptions, a writing also is
required to create an easement. Drye, 364 S.W.2d at 203.
“A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use
such as is reasonably necessary and convenient and as little burdensome as possible to the servient
owner.” Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974).
IMPLIED EASEMENT. An implied easement is an exception to the rule that easements appurtenant
must be created or transferred in writing. Drye, 364 S.W.2d at 203. It is “universally recognized” that
— “without aid of language in the deed, and indeed sometimes in spite of such language” — the
circumstances surrounding an owner’s conveyance of part of a previously unified tract of land may
cause an easement to arise between the two new parcels. Mitchell v. Castellaw, 246 S.W.2d 163, 167
(Tex. 1952). Such an implied easement may arise in favor of the parcel granted (an implied grant), or
in favor of the parcel retained by the grantor (an implied reservation). Id. “The basis of the doctrine is
that the law reads into the instrument that which the circumstances show both grantor and grantee
must have intended, had they given the obvious facts of the transaction proper consideration.” Id.
EASEMENT BY ESTOPPEL. Generally, easements must be in writing. Machala v. Weems, 56 S.W.3d
748, 757 (Tex. App.-Texarkana 2001, no pet.). An easement by estoppel is an exception to this
general rule. See Cleaver v. Cundiff, 203 S.W.3d 373, 375 (Tex. App.-Eastland 2006, no pet.). To
prove an easement by estoppel, the proponent is required to demonstrate that (1) there was a
representation communicated, either by word or action, to him, (2) he believed the communication,
and (3) he relied on the communication to his detriment. See Holden v. Weidenfeller, 929 S.W.2d 124,
131 (Tex. App.-San Antonio 1996, writ denied). Once created, an easement by estoppel is binding
upon successors in title if reliance upon the existence of the easement continues. Id. The
representations creating an easement by estoppel may be verbal or nonverbal. Cleaver, 203 S.W.3d
However, use alone does not create an easement by estoppel. Id. at 377. The doctrine is grounded in
the principle that "justice forbids one to gainsay his own acts or assertions." Wallace v. McKinzie, 869
S.W.2d 592, 595 (Tex. App.-Amarillo 1993, writ denied). The doctrine prohibits one, who by his
speech or conduct has induced another to act in a particular manner, from changing positions to the
detriment of the other who acted in reliance on his speech or conduct. See id. at 595-96. "In order to
create an easement by estoppel, something must be said or done by the owner of the servient estate
at the time of the grant of the dominant estate that induces the acceptance of the grant." Allen v.
Allen, 280 S.W.3d 366, 381 (Tex. App.-Amarillo 2008, pet. denied) (quoting Lakeside Launches, Inc.
v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex. App.-Austin 1988, writ denied)).
Because the doctrine of easement by estoppel is a judicial means of acquiring an interest in property
based solely on communication or conduct, it must be strictly applied. See Allen, 280 S.W.3d at 381.
Thus, the communication or conduct should be certain, precise, and clear. Id. Application of the
doctrine is "rare and nebulous" outside cases involving a property owner's (1) dedication of a street,
alley, or square, (2) selling land with reference to a map, and (3) allowing a purchaser to expend
money on an alleged servient estate. Id. (quoting Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196,
209 (Tex. 1962)).
EASEMENT BY ESTOPPEL. "The doctrine of easement by estoppel holds that the owner of the
alleged servient estate may be estopped to deny the existence of an easement by making
representations that have been acted upon by the owner of the alleged dominant estate." Holden v.
Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.-San Antonio 1996, writ denied). "Three elements are
necessary to the creation of an easement by estoppel: 1) a representation communicated, either by
word or action, to the promisee; 2) the communication was believed; and 3) the promisee relied on the
communication." Id. (citing Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979)). "These elements apply
at the time the communication creating the alleged easement is made." Id. "An easement by estoppel,
once created, is binding upon successors in title if reliance upon the existence of the easement
PRESCRIPTIVE EASEMENT. A prescriptive easement is created by a "claimant's adverse actions
under color of right." Allen, 280 S.W.3d at 377. To establish a prescriptive easement, Erwin was
required to prove that he used Ferris's land in a manner that was open, notorious, continuous,
exclusive, and adverse for the requisite time. Brooks v. Jones, 578 S.W.2d 669, 679 (Tex. 1979). The
absence of any of these elements is fatal to the claim of a prescriptive easement. Allen, 280 S.W.3d
at 377. When the property owner and the claimant of the easement both use the property, the
claimant's use is not exclusive of the owner's use, and thus, not considered adverse. Id. A prescriptive
easement requires adverse possession for a period of ten years. Mack v. Landry, 22 S.W.3d 524,
531 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Also, a claimant fails to create a prescriptive
easement by his use of property with the permission of the owner no matter how long the use
continues. Allen, 280 S.W.3d at 377.
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
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
PETITIONS FOR REVIEW DENIED BY TEXAS SUPREME COURT IN
COURT OF APPEALS CASES INVOLVING LITIGATION OVER EASEMENTS
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)
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
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
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
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.
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)
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,
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.
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)