October 01, 2018
Author: Karen Ann Bogisch
Organization: Goldsmith & Bogisch
INTRODUCTION
When buying a piece of property, the purchaser generally believes that he will have exclusive use of the land which is being bought. However, that is not necessarily the case. Third parties or even the general public may have a right to use a portion of the land either as a road, for a pipeline, electrical lines, or telephone cables, or even for a park. Generally, these rights are acquired through an easement, either public or private, or by dedication to the public use. An examination of the records of the county in which the land is located should reveal any express easements which have been granted across the land or whether an individual made a written express dedication for the public to use the land for a particular purpose. However, implied easements, prescriptive easements, easements by necessity, easements by estoppel, and implied dedications are not found in the public records unless there has been a lawsuit regarding an easement or dedication related to the land in question. These types of third party rights are generally created by the use of a portion of the property as a road and, if the issue has not already been litigated to a final judgment, are only revealed by a physical inspection of the property. If there is any kind of road, no matter how primitive across the property, an easement or dedication may exist. Interviewing neighbors and long-time community members can shed light on whether such road is being used by a neighbor to access their property or by the general public. This paper will set out the legal standards for prescriptive easements, easements by implication, necessity and estoppel, and for dedications, both express and implied.
There are two cases in particular which discuss a number of the concepts which are covered by this paper. They are Mack v. Landry, 22 S.W.3d 524 (Tex. App.— Houston [14th Dist.] 2000) and Scott v. Cannon, 959 S.W.2d 712 (Tex. App.—Austin 1998, review denied). The facts of each are as follows:
A. Mack v. Landry:
• The Macks purchased approximately five acres of land in 1992. The gravel road in question intersects their property at two different points along the east and north boundary lines. The Macks’ north boundary line is the south boundary line of the Landry 2.25 acre tract of land.
• The gravel road connects to a concrete bridge built by Landry’s predecessors in title which connects to the west end of a public road.
• Landry purchased his property in 1994 from the Knauf family.
• Henry Knauf testified that the bridge and road were the only means of reaching their property, and that no prior owners of the Mack property disputed his right to use the bridge and road.
• In 1992, the Macks approached Henry Knauf about putting a chain across the road for security purposes. The Macks did not tell Knauf that he could no longer use the bridge and roadway. In fact, the Macks testified that the Landrys were free to continue to use the graveled portion of the roadway and the bridge.
• The Landrys have a construction business and after purchasing the property used the road and bridge with large equipment making wide swings off the road to get through the fence.
• The Macks filed for an injunction preventing the Landrys from using the road and bridge.
B. Scott v. Cannon:
• The Scotts and Cannons have been neighbors for over 30 years.
• The only access from Highway 290 to the Scotts’ property is a roadway which crosses two pieces of property owned by the Cannons.
• There is existing unpaved access to the Scotts’ property from a public road, but the road from 290 has been the main access for as long as can be remembered.
• Neither the Cannons nor their predecessors in interest ever expressly dedicated the road to public use or granted an express easement to anyone.
• The Scotts’ property was never purchased from the Cannons or their predecessors in title.
• In 1963, an affidavit was executed by two long time residents stating that they believed the road was a public road. The affidavit was filed of record in Hays County.
• In 1972, the Cannons’ attorney discovered the affidavit. After the discovery, the Cannons informed the Scotts that the road was not a public road.
• The Scotts continued to use the road subsequent to 1972.
• In 1996, Sprint approached the Cannons about using their property for a tower. The Cannons refused. Sprint then approached the Scotts who granted permission and told Sprint it could use the road to reach the tower. The Cannons, however, told Sprint the road was private and the Scotts could not permit its use.
• Thereafter, the Cannons instructed their lawyer to send a letter to the Scotts terminating permission to use the road, and a lawsuit ensued. The results of these two cases will be discussed below under the applicable legal principles.
I. PRIVATE PRESCRIPTIVE EASEMENTS
A. Prescriptive Easements compared to Adverse Possession
Prescriptive easements and adverse possession are very similar. The main difference is that with regard to adverse possession, the end result can be fee title to property, while with a prescriptive easement, one only ends up with the right to use a piece a property for a particular purpose, i.e. a road. The elements of adverse possession are the same as those for a prescriptive easement. The possession of the property must be open, notorious, continuous, exclusive, and adverse for the required period of time. See e.g. Harlow v. Giles, 132 S.W.3d 641, 646 (Tex. App.—Eastland 2004, review denied). Under Texas statute, there is a three year period, a five year period, a ten year period, and a twenty-five year period for adverse possession. Texas Civil Practice & Remedies Code, §§16.024-16.028. The requisite period of time for acquiring a prescriptive easement is ten years. Mack v. Landry, 22 S.W.3d at 531.
B. Elements of Prescription
The elements of prescription are as follows - the use of the easement must be:
1) open;
2) notorious;
3) continuous;
4) exclusive; and
5) adverse for the requisite period of time of ten years. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979); Mack v. Landry, 22 S.W.3d at 531. With regards to the element of exclusivity, the Supreme Court in Brooks stated that “when a landowner and the claimant of the easement both use the same way, the use by the claimant is not exclusive of the owner’s use and therefore will not be considered adverse.” Brooks, 578 S.W.2d at 673. However, at least one court of appeals has found that joint use does not necessarily preclude a finding of a prescriptive easement. This occurred in the Scott case. The apparent distinction in that case is that the Cannons were made aware of the Scotts’ claim to use the road and had their attorney inform the Scotts that the road was not a “public road.” At this point, the Scotts continued to use the road even though there was no evidence that the Cannons gave their permission to do so. The Scotts also helped maintain the road. All of this evidence created the adversity to begin the prescriptive period, and it continued until the lawsuit was filed more than ten years later; therefore, the court found that easement by prescription was established. Scott, 959 S.W.2d at 722-23. The Scott court admitted that the case was one “of first impression involving both joint use and independent acts to show adversity.” Id. at 722.
In the recent case of Harrington v. Dawson-Conway Ranch, Ltd., Dawson- Conway Ranch, Ltd. attempted to rely upon the Scott case to argue that it had an easement by prescription over Harrington’s ranch. 372 S.W.3d 711 (Tex.App.—Eastland 2012, review denied). However, the Court of Appeals rejected that argument because Dawson-Conway Ranch, Ltd. could produce no evidence of an independent act, such as maintenance of the road, that coupled with its joint use of the road in question would be sufficient to establish adversity. Id. at 717-18. This distinguished it from the Scott case. Id.
In 2006, the Texas Supreme Court in Tran v. Macha again stated that “there must be an intention to claim property as one’s own to the exclusion of all others” in order to support a finding of adverse possession. 213 S.W.3d 913, 915 (Tex. 2006). In Tran, both parties were using the disputed strip of land and had a mistaken belief as to who actually owned the land. Texas law “requires visible appropriation; mistaken beliefs about ownership do not transfer title until someone acts on them.” Id. at 914. Further, “joint use is not enough,” there must be an “unmistakable assert of a claim of exclusive ownership.” Id. Shared usage is not inconsistent with or hostile to ownership. Id. “The law reasonably requires that the parties’ intentions be very clear.” Id. at 915. Although the Tran case did not specifically overrule the Scott case, it is clear that, at the very least, the Scott holding is limited to the specific facts of that case.
With regards to hostility, the Court in Mack v. Landry found that “joint continuous use alone without an independent hostile act attempting to exclude all other persons, including the property owner from using the roadway, is not sufficient to establish an easement by prescription.” Mack, 22 S.W.3d at 532. The Mack Court pointed out that in the Scott case there was “a distinct and positive assertion” which transformed “permissive use of the easement into an adverse use.” Id. No such assertion existed under the facts of Mack.
Another example of a case dealing with the elements of a prescriptive easement is Stallman v. Newman. In the Stallman case, there was some issue as to whether a prescriptive easement had arisen between the 1940s and 1970s; however, the court found that the nonexclusive, permissive use with no assertion of a claim of right extinguished any easement that might have existed earlier. Stallman v. Newman, 9 S.W.3d 243, 249 (Tex. App.—Houston [14th Dist.] 1999, review denied). Finally, the court in Johnson v. Dale, 835 S.W.2d 216 (Tex. App.—Waco 1992), found that evidence of “a longstanding, open, unmolested, and continuous use of the roadway far in excess of . . . ten years . . . raised a rebuttable presumption that the use was non-permissive, under a claim of right, and thus adverse.” Id. at 219. Since Johnson failed to produce any evidence showing that the use was permissive or concurrent with the owners of the servient estate and therefore the presumption was not rebutted, the finding of a prescriptive easement could be upheld. Id.
C. Location, Use and Maintenance of Easement
With regards to the location and use of a prescriptive easement, it follows from the elements of prescription that the location and use of the easement will be set during the prescriptive period, and the person who has obtained the easement by prescription will be limited to the location and use earned. In other words, if a person obtains an easement by prescription over a particular piece of property at a specific location for using to access a home, the easement gained cannot be expanded to a further use, such as for commercial use, and cannot be moved to another location on the property in question. The rules regarding maintenance of easement are generally the same no matter what type of easement is obtained. Easement holders have a duty to use ordinary care regarding the use of the easement and a duty to maintain the easement. Roberts v. Friendswood Development Co., 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ denied). Further, “[a]ny repairs and maintenance of the easements will be the duty and at the expense of the dominant estates.” Jones v. Fuller, 856 S.W.2d 597, 605 (Tex.App.—Waco 1993, writ denied).
D. Termination and Abandonment
“An easement granted for a particular purpose terminates when its purpose ceases to exist or is completed or when the easement is abandoned or rendered impossible of performance.” Jones v. Fuller, 856 S.W.2d at 603. What this means is that an easement by prescription will be lost if it can no longer be used for the purpose which was gained by prescription. Further, abandonment is not established by non-use alone; it requires a specific act showing an intention to abandon and terminate the right of the easement holder. See Toal v. Smith, 54 S.W.3d 431, 437 (Tex. App.—Waco 2001, review denied).
E. Recent Case Law
1. McClung v. Ayers, 352 S.W.3d 723 (Tex. App.—Texarkana 2011).
The facts of McClung are as follows:
• For decades, the McClungs reached their property by crossing land owned by the Ayers family, but in 2000, Irene Ayers refused to allow them to continue to cross her property.
• Although the McClungs have owned their property since 1911, no one had
lived on it since 1929, and the property had only been used a few times a
year for hunting, fishing, and camping.
• The Ayers' property was vacant from 1996 through 2007.
• The McClungs argued there is no other access to their property.
• The McClungs have been unable to get access across other properties adjacent to their property.
The jury failed to find a prescriptive easement existed in favor of the McClungs. In order for the Court of Appeals to reverse this finding on appeal, the McClungs needed to show that “their use of the Ayers land was (1) open and notorious, (2) adverse to the owner's claim of right, (3) exclusive, (4) uninterrupted, and (5) continuous for a period of ten years.” 352 S.W.3d at 727. The McClungs provided evidence to show that they had crossed the Ayers property “openly for an uninterrupted period of more than ten years.” However, they failed to establish the elements of adversity and exclusivity as a matter of law. “Use by express or implied permission, no matter how long continued, cannot ripen into an easement by prescription since adverse use is lacking.” Id. at 728. Also, as discussed above, joint use, “without a legally adverse or hostile act, is not sufficient to establish a prescriptive easement.” Id. In this case, the McClungs never excluded or attempted to exclude others from using the road across the Ayers property and there was evidence to show that the use was by permission. Therefore, the Court of Appeals overruled the McClungs' points of error attacking the jury's finding regarding lack of a prescriptive easement.
2. Tiller v. Lake Alexander Properties, Ltd., 96 S.W.3d 617 (Tex. App.—Texarkana 2003).
The facts of Tiller are as follows:
• Lake Alexander Properties acquired a fifty-acre tract in 1999, which lies north and east of the Tiller-Nevins 123.5 acres which was acquired by Tiller in 1992, and by Nevins in 1994 or 1995.
• Both the Lake Alexander Properties and Tiller-Nevins land were originally part of one tract.
• Alexander testified that he remembered using the roadway in question when he was young but only every couple of years.
• The road in question was also used by foresters and deer hunters.
• Alexander further testified that there was oil field activity at that location, with a lot of people going in and out.
• The road was also used for oil field activity, and adjacent property owners used the road.
The question in this case is whether Lake Alexander Properties acquired a specific twenty-foot-wide easement over the Tiller-Nevins property. The court found that all of the uses listed above were with the knowledge and consent of the true owners of the property. “It has long been the law in Texas that, when a landowner and the claimant of an easement both use the same way, the use by the claimant is not exclusive of the owner’s use and therefore will not be considered adverse.” Tiller, 96 S.W.3d at 624. “The easement claimant must exclude, or attempt to exclude, all other persons, including the true property owner, from using the roadway.” Id. “Joint continuous use, without a legally adverse or hostile act, is not sufficient.” Id. Consequently, because the use was joint and not adverse, Lake Alexander Properties failed to establish an easement by prescription.
3. Toal v. Smith, 54 S.W.3d 431 (Tex. App.—Waco 2001, review denied).
The facts of Toal are as follows:
• Smith built his home in 1901, and he and his descendants used a road across leased land to access their property from 1901 through 1981. At that time, their home was abandoned.
• The leased land was leased for “pasturage” purposes, but it was never used for that purpose.
• The Smith lease was cancelled and Toal took it over and in 1992 purchased the land across which the easement ran.
• Toal told the Smiths that they had no right to use his land to access their property, and a lawsuit ensued.
Although the Smiths had a “pasturage lease” from the railroad who was the predecessor in title to Toal, they still argued that a prescriptive easement was established. This was based upon the theory that the lease had been repudiated. The Court in Toal stated that “by using land in a manner inconsistent with the purpose for which the land was leased, a leasee [sic] may acquire a prescriptive easement, provided all of the elements for establishing the easement are met.” Toal, 54 S.W.3d at 436. As stated, the Smiths had a “pasturage lease” which limited their use to “pasturage purposes,” but the family never used the land as pasturage. Instead, they used the property to access their own to the exclusion of anyone else. Because the railroad never used the easement, the Smiths used it to the exclusion of all others and there was notice to the railroad of the repudiation of their lease by the existence of easement road, a prescriptive easement was established prior to the time that Toal became owner of the property.
II. EXPRESS AND IMPLIED DEDICATIONS
A. Purpose of Dedication
The purpose of a dedication is to give the public the right to use a particular piece of land. Generally, dedications arise in the context of roads, but there also have been cases of land being dedicated to the public for a park. See e.g. Greenway Parks Homeowners Association v. City of Dallas, 312 S.W.2d 235 (Tex. 1958).
B. Statutory References – Counties of 50,000 or Less
In 1981, the Texas Legislature abolished the doctrine of implied dedications in counties with a population of 50,000 or less. Texas Transportation Code, Chapter 281. However, the Texas Supreme Court found that such statute does not apply retroactively and therefore, if the evidence in a case establishes that an implied dedication occurred before August 31, 1981, it will be a valid dedication. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254 (Tex. 1984). Further, as the statute states, it only applies to counties of 50,000 or less. In any county of greater population, implied dedication still can be applied. See e.g. Reed v. Wright, 155 S.W.3d 666 (Tex. App.—Texarkana 2005, review denied) (Implied dedication case in Bowie County, Texas which has a population of over 80,000.)
C. Express Dedication
An express dedication is accomplished by deed or a written document. Gutierrez v. County of Zapata, 951 S.W.2d 831, 837 (Tex. App.—San Antonio 1997). If it has been properly recorded an express dedication should be easily found in the county records. A recent case regarding an express dedication is Lambright v. Trahan, 322 S.W.3d 424 (Tex. App.—Texarkana 2010, review denied). In Lambright, the Court of Appeals stated that “in order to complete the creation of a public easement by an express dedication..., there must be acceptance of the dedication by or on behalf of the public.” Id. at 432. Such acceptance does not need to be formal or express but may be implied, and may be made by a public entity or the public itself. Id. Although an express dedication had been made in writing, there was no evidence of a formal acceptance by San Augustine County, and it never provided any maintenance of the roads at issue. Id. The Court of Appeals also found that the evidence on the issue of whether the public had accepted the dedication was slim so that the trial judge's finding that these were not public roads by express dedication was not improper. Id. at 433. This case points out the clear necessity for presenting both evidence of an express dedication by the landowner in writing and acceptance by the public of such dedication. Without both, an express dedication will fail as noted by the Court of Appeals in this case.
Buffington v. DeLeon, 177 S.W.3d 205 (Tex. App.—Houston [1st Dist.] 2005) is another fairly recent case regarding an express dedication. The issue in Buffington was whether there was an express dedication of the roads in an unrecorded subdivision. The original landowners had “signed the ‘Restrictions for Braceland Manor Subdivision, Section I’ . . . which contained an express dedication to the public of ‘all roads and streets that presently exist or as may be hereafter constructed’ in Braceland Manor.” Buffington, 177 S.W.3d at 207. Under the principles set out by the Texas Supreme Court, a private road may become public by dedication which “is the setting aside of such roadway for the public use of a passageway.” Id. at 210 citing to Viscardi v. Pajestka, 576 S.W.2d 16, 18 (Tex. 1978). “Once dedicated, the owner of the land reserves no right to uses that are incompatible with the full enjoyment of the public.” Id. Furthermore, “dedication of land to a public use need not be shown by deed or by public use of any particular length in time.” Id. In this case, because there was dedication contained in the “Restrictions for Braceland Manor Subdivision, Section I,” the court found that Brace Road is a public road.
D. Implied Dedication
The more difficult issue surrounds implied dedications. In its most recent cases on dedication, the Texas Supreme Court has held that the following elements are necessary to prove a case of implied dedication: (1) “The acts of the landowner induced the belief that the landowner intended to dedicate the road to public use;” (2) “[the landowner] was competent to do so;” (3)” the public relied on these acts and will be served by the dedication;” and (4) “there was an offer and acceptance of the dedication.” Linder v. Hill, 691 S.W.2d 590, 592 (Tex. 1985); Las Vegas Pecan & Cattle Co., supra, 682 S.W.2d at 256.
The case law contains many examples of the type of evidence which will establish an implied dedication. In Las Vegas Pecan & Cattle Co., the court stated that there was testimony from 12 witnesses, all of whom testified that the road had been used by the public for a least 15 years prior to the time the dispute arose and that the county had maintained the road for that same period of time. One witness had used the road since 1911 and one witness had used the road since 1930. No one had ever asked permission or been denied permission to use the road by adjoining landowners. The court stated that for over 30 years there had been continuous use of the road by the public and that it had been used as a mail route and a bus route. The court found that an implied dedication for public road purposes had been found. 682 S.W.2d at 256-57. In County of Real v. Hafley, 873 S.W.2d 725 (Tex. App.—San Antonio 1994, writ denied), testimony of four witnesses presented by the county provided the following evidence. Residents of the local area used the road to reach an FM road since 1976, and employees of the county had maintained the road since 1972. The road was used by the public until the gate was locked in 1991 or 1992. The road was constructed in 1956 using county funds. The public generally had used the road during this time, and no one ever asked permission or was denied permission to use the road. The court found that an issue of fact was raised regarding the dedication issue and that a motion for summary judgment should not have been granted.
In Uvalde County v. Barrier, 710 S.W.2d 740, 746 (Tex. App.—San Antonio 1986), the court stated that the following evidence was presented by six witnesses for the County. The road had been used by the public generally since 1930, and the county had maintained the road since the 1930s. The road was used for access to White’s mines; at one time, it was the road from Uvalde to Cline to Del Rio. Seven landowners used the road to reach their land, six of which had no other access to their property. No one ever had to ask for permission to use the road. The appeals court found that the evidence was sufficient to support a finding of implied dedication.
In County of Real v. Sutton, the San Antonio Court of Appeals upheld the trial court’s judgment not withstanding the verdict which overturned the jury’s finding of implied dedication. 6 S.W.3d 11 (Tex. App.—San Antonio 1999, review denied). In Sutton, a number of witnesses testified regarding their own use or the use of others of the road in question. However, the court found that “such testimony would support permissive use, as readily as dedicated public use. Such evidence of public use, standing alone, is not sufficient to support a finding of donation by the owner.” Id. at 16. There was no direct or circumstantial evidence that the landowners, at any point in time, intended to dedicate the road to public use.
On the other hand, the Tyler Court of Appeals in Steel v. Wheeler, 993 S.W.2d 376 (Tex. App.—Tyler 1999, review denied) upheld the jury’s finding of implied dedication. Again, a number of witnesses testified to public use of the road in question as far back as 1919. The Tyler court applied the corollary to the general rule that donative intent may not be inferred merely by longstanding public use without the landowner’s objection. That corollary states that:
“[E]vidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the land use and the ownership of the land at the time it originated cannot be shown one way or the other, due to the lapse in time.” Id. at 379.
For the corollary to apply “the origin of the public use and the ownership at the time must be ‘shrouded in obscurity, and no proof can be adduced showing the intention of the owner and allowing the use.’” Id. quoting from Dunn v. Duessen, 268 S.W.2d 266, 269 (Tex. Civ. App.—Ft. Worth 1954, writ ref’d n.r.e.). In Steel, none of the witnesses could testify who owned the land when the public use began or as to the intent of such unknown owner. Id. The court in Sutton did not refer to this corollary or attempt to apply it, perhaps because it was not raised by the parties. However, the witnesses in the Sutton case testified to uses by the people who lived on the land, were neighbors who had permission, or were business invitees of the landowners. Sutton, 6 S.W.3d at 15. Therefore, the court could have easily concluded that such evidence did not lead to inference of longstanding use by the public in general and therefore, the corollary would not be applicable. This rebuttable presumption was also applied in the 2005 case of Reed v. Wright, where the Texarkana Court of Appeals stated:
Because the evidence conclusively establishes (A) the origin of Cherry
Lane is shrouded in obscurity, and (B) before 1983 [when the road was
blocked] the public made long and continuous use of Cherry Lane, a
presumption arose that all elements of proof, essential to establish implied
dedication, in fact existed. We find no evidence that tended to rebut that
presumption. Reed v. Wright, supra, 155 S.W.3d at 672.
Two cases that are good examples of what evidence will and will not establish an implied dedication are Supak v. Zboril, 56 S.W.3d 785 (Tex. App.—Houston [14th Dist.] 2001) and Machala v. Weems, 56 S.W.3d 748 (Tex. App.—Texarkana 2001). In Supak, there was evidence that the road in question had been used as far back as 1921, that “tons of people” had used the road for the last fifty years, the road had been separated from the adjoining property by fences on either side, the location had never changed, and county workers had maintained the road since 1960. 56 S.W.3d at 790-91. The court found that this was sufficient evidence of an implied dedication. Id. at 791. On the other hand, in Machala, the only evidence presented was an unrecorded sketch which showed an area referred to as a county road, Machala’s belief that the area in question was a public road, and that he had used it to access his property. 56 S.W.3d at 758. There was no evidence of public use, and two affidavits filed in the county records which contained detailed descriptions of the area in question in the 1920’s made no mention of a county road. Id. The court found that the evidence did not establish a public road by implied dedication. Scott v. Cannon also shows what type of evidence is insufficient to support a finding of dedication as a matter of law. In that case, no public funds were used for maintenance on the road, the Cannons had made clear the road was not a public road, and the road was used only to access the Scotts’ and Cannons’ property and there no other public need for the road. Scott v. Cannon, 959 S.W.2d at 719. Based upon this evidence, the Court held that “because neither donative intent nor public need can be established conclusively,” a finding of implied dedication was not proper. Id.
From the above-discussed cases, the following generalities regarding the type of evidence or testimony necessary to establish an implied dedication can be drawn. First, it is important to have evidence regarding the use of the road by the public generally for an extended period of time. See e.g. Las Vegas Pecan & Cattle Co., supra, 682 S.W.2d 254.
If the evidence shows that only a limited segment of the public used the road, the court may find that an implied dedication has not occurred. See e.g. County of Real v. Sutton, supra, 6 S.W.3d 11. Second, evidence or testimony that the no one ever asked permission or was denied permission to use the disputed road is helpful. See Las Vegas Pecan & Cattle Co, supra, 682 S.W.2d 254. Evidence showing maintenance by the county also can strengthen a case for implied dedication. See id. However, maintenance of the road alone is not enough. Lee v. Uvalde County, 616 S.W.2d 367, 372 (Tex. App. - Tyler 1981). Evidence that shows there was a general reputation in the community that the road was public will also help to prove a case of implied dedication. Malone v. Whitfield, 621 S.W.2d 192, 194 (Tex. App.—Waco 1981, writ ref’d n.r.e.).
E. Comparison to Public Easements by Prescription
The elements used to establish a public easement by prescription are very similar to those used to establish an easement by prescription in general. There must be “uninterrupted use by the public under an adverse claim of right.” County of Real v. Sutton, supra, 6 S.W.3d at 17. The Texas Supreme Court has stated that “permissive use of a roadway running over another’s property that is contemporaneous with the owner’s use is not adverse use.” Id. citing to O’Connor v. Gragg, 339 S.W.2d 878, 881 (Tex. 1960). In other words, the use by the public must be exclusive of the owner’s use, and cannot be by permission. Thus, one can see the big difference between a public prescriptive easement and a dedication, either express or implied. Under a dedication, the property owner has given permission for the public to use the road. Whereas, with a prescriptive easement, the opposite is true, the use of the road by the public must be adverse. With a prescriptive easement, the owner cannot be using the road at the same time as the public. On the other hand, if the public has the right to use the road by dedication, the owner can still use the road at the same time. Consequently, the public can never obtain the same road by both dedication and prescription.
F. Recent Case Law
1. Hayes v. Anderson County, 315 S.W.3d 170 (Tex. App.—Tyler 2010, review denied).
In this case, Anderson County sought a declaratory judgment that CR 3016 was a public road by implied dedication. The facts were as follows:
• Jack Herrington, a landowner who grew up in the area of CR 2016, testified that after World War II, “the road was built at the prompting of R.J. Goodman,” and that “he had measured the road at it was thirty-five feet in width.” He also testified that the county had maintained the road since it had been built. Id. at 175.
• Sammy Overton, a county road employee for twenty-five years, testified that “he used road equipment to maintain the road weekly from 1965 until 1977,” and that “he also maintained the road when he went back to work for the County 1990 to 2003.” Id.
• Carl House, another county employee since 1990, testified the county had “bladed the road, put asphalt on it, and built a bridge.” Id.
• There was also testimony from other witnesses that they did not believe the road was county road and that it was “pig trail.” The landowners whose property the road crosses testified that they did not believe it was public road when they purchased their property but that they considered in a private easement benefiting their property. Id.
The Court of Appeals found that there was "more than a scintilla of evidence to support the trial court's implied finding that CR 3016 was impliedly dedicated to the public prior to 1981." Id. at 176. This finding was based upon the testimony of Herrington, Overton, and House as discussed above.
2. Van Dam v. Lewis, 307 S.W.3d 336 (Tex. App.—San Antonio 2009). In this case, there was a dispute over a piece of property providing access to Lake Corpus Christi. The trial court had found an implied easement by dedication. The facts were as follows:
• The Pernitas Point subdivision was a platted subdivision created in the 1950s.
• A path or overgrown road crosses a portion of the Van Dam's property that was designated as Undivided Q-2.
• The Lewis property is adjacent and contiguous to the portion of the Van Dam's property identified as Q-2, and the only access the Lewises have to Lake Corpus Christi is across that property.
• A brochure was provided that indicated owner access across the Q-2 property but there was no evidence to link the brochure to the original developers of the subdivision.
• Multiple subdivision landowners used the Q-2 property to access the lake.
• There was no evidence that the road had been maintained by the county.
• There was no evidence that the public at large had used the Q-2 property to access the lake.
• Deeds of subdivision tracts did not reference an easement across Q-2.
In reviewing the evidence, the Court of Appeals held that there was “legally insufficient evidence of donative intent by the original owners and developers of Pernitas Point to burden the Q-2 property with an easement.” 307 S.W.3d at 342.
3. Scown v. Neie, 225 S.W.3d 303 (Tex. App.—El Paso 2006, review denied). This is an unusual case in that the owner of the land in question testified as to his intent and beliefs regarding the road’s status as public or private. The facts are as follows:
• The Scowns own a 3 acre tract abutting Moseley Lane and the Neies own a 10 acre tract abutting the other side of the land and access a portion of their tract from the portion of Moseley Lane abutting the Scowns’ tract.
• Prior to 1976, Mr. Arthur Van Neie, Sr. owned both tracts of land.
• At some point, the Scowns began to construct a fence across Moseley Lane which would have blocked access to the portion of Moseley Lane used to access the Neies property.
• By deposition, Mr. Neie, Sr. testified that he always believed that the disputed road was public.
• The road was graded by the county and paved with asphalt at least twice by the county.
• Mr. Neie, Sr. also testified that he asked the county for permission to put a cattle guard on the road. He also testified that he knew that he could not legally make people leave the road because it was a county road.
• A fence separates the three acre tract from the disputed portion of Moseley Lane.
Based upon this summary judgment evidence the trial court was found to have properly granted summary judgment in favor of the Neies that the road had been implied dedicated to public use.
4. Reed v. Wright, 155 S.W.3d 666 (Tex. App.—Texarkana 2005, review denied).
The facts of this case are as follows:
• In 1983, Wright purchased the fifteen-acre tract of land that Cherry Lane runs across, along its north edge.
• According to the Reeds and other neighbors, Cherry Lane had been used by the public since the early 1950s or before, and the county had maintained and repaired it.
• Wright's original deed “specified the property was ‘subject to a 30 ft. road easement, said easement being 30' South of and parallel to the North line, and 30' East of and parallel to the West line of said tract.’ The ‘easement’ along the north line coincides with Cherry Lane, while the ‘easement’ along the west line coincides with Goff Road.” 155 S.W.3d at 669, Ftnt 3.
• On June 4, 1985, a correction deed was executed removing the reference to the northerly easement.
• In 1983, Charles R. Goff, an owner of land to Wright’s south, sued Wright concerning a gate she had erected and locked which blocked public access to Goff Road, which ran south from the west end of Cherry Lane, across the western edge of Wright’s property.
• In 1985, a trial court declared Goff Road public. The judgment in that suit did not address whether Cherry Lane was a public road, however, the only way the public could access Goff Road was by using Cherry Lane.
• In 1999, the Reeds purchased lots which are located on the north side of Cherry Lane at its west end and built a house there. Although the Reeds had other roads which accessed their property, they also used Cherry Lane for that purpose. When Wright decided to block access to Cherry Lane, the Reeds sued.
The Court of Appeals stated that “dedication is presumed when the public engages in long and continuous use of a road whose origin is ‘shrouded in obscurity.’” Reed, 155 S.W.3d at 671-72 quoting from Graff v. Whittle, 947 S.W.2d 629, 637 (Tex. App.— Texarkana 1997, writ denied). This presumption of dedication is stronger than that found by the Texas Supreme Court in O’Connor v. Gragg, supra, 339 S.W.2d 878, where the Court found only a presumption of the element of intention to dedication, and is the position taken by the Texarkana Court as well as the First Court of Appeals in Houston. Reed, 155 S.W.3d at 671, ftnt 7. The facts of this case established that “(A) the origin of Cherry Lane is shrouded in obscurity, and (B) before 1983 the public made long and continuous use of Cherry Lane;” therefore, the presumption arose that an implied dedication had taken place. Id. at 672. The Court found that “the origin of Cherry Lane is ‘shrouded in obscurity,’ since the record provides no evidence of the identity and no direct evidence of the intent of the owner who originally established the road.” Id. With regards to public use, there was testimony from four witnesses that the public had been using the road since the late fifties or early sixties. The court found that “this constituted long and continuous public use.” Id. at 674. Consequently, under the Court’s interpretation of the law on implied dedication, an implied dedication had been established.
The El Paso Court of Appeals followed the same approach as the Texarkana Court of Appeals in McCulloch v. Brewster County, 391 S.W.3d 612 (Tex.App.—El Paso 2012). In McColluch, there was significant evidence of the use of the road in question by the public for decades, including testimony by witnesses that the road was used by the public and maintained by the County for years and various maps indicating the road was a county road. Id. at 616-618. However, there was no evidence as to the “origin of the public use and the ownership of the land at the time it originated.” Id. at 618. Consequently, the origin of the road was “shrouded in obscurity.” Id. The presumption of dedication was established by all of the evidence, and the Appellants failed to present any evidence rebutting the presumption; thus, an implied dedication was established. Id.
at 618-19.
5. Betts v. Reed, 165 S.W.3d 862 (Tex. App.—Texarkana 2005). The facts of this case are as follows:
• Several witnesses testified this narrow gravel road has been used by the public since at least the 1920s. At one time, several families used Tyson Road to access their homes. Permission was never sought from anyone, and there were no restrictions on who could use the road.
• In 1964, Reed purchased 105 acres along Tyson Road, which is most of the property now accessible by that road.
• Initially, Reed paid taxes on only 103 acres because the county estimated that Tyson Road occupied the remainder of the acreage. However, the county's taxing authority started collecting taxes for the entire 105 acres eight to ten years ago.
• Reed uses his property primarily to graze cattle and to lease for deer hunting. Reed testified he has used Tyson Road continuously since 1964. He never asked permission to use the road. At some time, not shown by the record, a gate was erected across the road at some location, again not shown by the record, but apparently before reaching Reed's property.
• Betts acquired her property along Tyson Road in 1990. She testified that she wanted to build a new house on the site of the road and that she had offered Reed an alternative route, which he refused to accept. Betts further testified she was aware before the acquisition of her property that Reed used Tyson Road.
• Approximately one year before trial, Reed began to experience problems using the road. Although he had an alternative route through a neighbor's property to access his property, the alternative route was more difficult and much longer. Despite a temporary restraining order against Betts, the gate across the road was locked and debris was left on the road to inhibit its use.
As in Reed v. Wright, the Texarkana Court found that the origin of Tyson Road was “shrouded in obscurity.” Id. at 869. There was no evidence of the intent of the owner who built the road. However, there was evidence of long and continued use by the public with testimony given by several witness of public use of the road since as early as the 1920s and that no one had to ask permission to use the road. There was no evidence presented to rebut the presumption that the landowner intended to dedicate the road, therefore, implied dedication was established. Id. at 870.
6. Baker v. Peace, 172 S.W.3d 82 (Tex. App.—El Paso 2005, review denied). The issue in this case was whether a road marked as #1008 on a general highway map had become a public road by implied dedication. The facts are as follows:
• Property purchased for ranching in 1999 by Bakers.
• Included within the ranch boundaries is the road which the Bakers locked with a gate to block access by public.
• It is an unimproved dirt road which is described on various maps as running parallel to RR tracks.
• Road includes 800 or 900 feet of a road that has been improved by federal government to provide access to Eagle Peak which is used by FAA.
• Testimony of several witnesses that they have traveled the road since at least the 1920s.
• Regular County maintenance during long history of use.
• No one testified that the road had been kept as a private road or the public had been excluded.
• No one testified as to the origination of the road.
• Two witnesses had the opinion it was a private road.
• FAA witness testified he didn’t know it was public road.
The court found that the evidence was sufficient to support finding of implied dedication by trial court. Id. at 190. When applying the law to the facts the court stated that direct evidence of an overt act or a specific declaration on the part of the landowner to indicate the intent to dedicate is not required. Id. at 88. However, there must be something more than an omission or failure to act or acquiescence on the part the owner. Id. Intent can be inferred from other factors which suggest such an intention under the circumstances surrounding the landowner’s acquiescence in the public’s use of the road. Id. In addition, long and continued use by public raises presumption of dedication where ownership of the land at the time the road originated cannot be shown. Id. Based upon these principles of law, the court found that the evidence discussed above supported “the implied dedication to the public and the use of the road, without objection, for more than seventy years.” Id. at 90.
III. EASEMENTS BY NECESSITY, IMPLICATION AND ESTOPPEL
A. Necessity
“Texas case law establishes that when a grantor conveys part of a tract of land while retaining the remaining acreage for himself there is an implied reservation of a right of way by necessity over the land conveyed, when no other access exists.” Koonce v. J. E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984). There are three elements necessary to establish an easement by necessity. First, there needs to be unity of ownership prior to the separation of the two tracts of land. Second, the access must be necessary and not merely a convenience. Finally, the need for access must exist at the time of the separation of the two pieces of land. Id. In Koonce, the court found that there was no unity of ownership; therefore, an easement by necessity had not been established.
In the 1997 case of Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629 (Tex. App.—San Antonio 1997, pet. denied), the San Antonio Court of Appeals discussed in detail the elements of an easement by necessity. The Sisters and the Ellisons owned adjoining tracts of land. The Ellisons’ tract of land had access to a farm to market road, but was between the road and the Sisters’ tract. As an interesting twist on the issue of unity of ownership, the San Antonio Court of Appeals found that such unity existed because Texaco, the Sisters’ grantor, was one of more than 100 individuals who held an original 6807.8 acre tract of land as tenants in common. Id. at 631. The Sisters’ tract of land and the Ellisons’ land were both carved out of this original 6807.8 tract of land; therefore, there was a unity of ownership. The Court of Appeals was not persuaded by the Ellisons’ argument that, prior to the partition of the 6807.8 acre tract of land, “each landowner treated his land as a separate property,” and thus unity of ownership could not be established. Id. The court also found that the easement was necessary because, although the Sisters had other neighbors besides the Ellisons, only the Ellisons’ tract of land provided access to the public road. Id. at 632. Furthermore, such necessity had existed at the time of the severance of two tracts of land since the farm to market road in question was in existence at such time, and the Ellisons’ tract of land provided the only access to it. Id. In sum, at the time the 6807.8 acre tract of land was partitioned to its various owners, Texaco, as the Sisters’ predecessor in interest, was awarded a landlocked tract of land, and thus, an easement by necessity arose. This is based upon the general principle that the “law recognizes that owners of landlocked property should not be deprived of the use, benefit, and enjoyment of their land.” Id.
In cases where easements by necessity have been argued, but such arguments have failed, the party claiming such easement failed to establish either the unity of ownership or the absolute necessity for the easement. See e.g. Scott v. Cannon, 959 S.W.2d at 721 (No unity of ownership and no absolute necessity.); Mack v. Landry, 22 S.W.2d at 531 (No unity of ownership.). The Scott court found that the existence of an alternative route, even if it is inconvenient or difficult, precludes the finding of necessity. Scott, 959 S.W.2d at 721.
B. Implication
Implied easements are very similar to easements by necessity. In order to establish an easement by implied grant, the following must be shown:
“1) unity of ownership between the dominant and servient estate; 2) apparent use of the easement at the time the dominant estate was granted; 3) use of the easement was continuous so that the parties intended its use to pass by grant with the dominant estate; and 4) the easement must be reasonably necessary to the use and enjoyment of the dominant estate.” Holden v. Weidenfeller, 929 S.W.2d 124, 128-29 (Tex. App.—San Antonio 1996, writ denied).
C. Comparison of Easement by Necessity and Easement by Implication In Daniel v. Fox, 917 S.W.2d 106 (Tex. App.—San Antonio 1996, writ denied), the San Antonio Court of Appeals discussed the overlap between implied easements and easements by necessity. The court stated that if the “dominant estate is retained by the grantor, an implied easement is said to have been reserved, but if the dominant estate is conveyed, an implied easement is said to have been granted.” Id. at 110. In the case of an implied grant, only the elements set out in Holden need to be established. However, if the implied easement is created by reservation, “a more burdensome test applies and strict necessity must be shown.” Id. at 111. The distinction is that in the case of an implied grant, the owner of the easement must merely establish that “the easement in question was reasonably necessary to the convenient and comfortable enjoyment of the property as it existed when the severance was made.” Id. at 110. On the other hand, the holder of an implied reservation must establish the absolute need for the easement. Id. at 111.
Implied easements as well as easements by necessity come into existence at the time the two tracts of land in question are severed from each other. In order for either of these types of easements to exist, there must have been unity of ownership between the two parcels at some point in time. Koonce, 663 S.W.2d at 452; Holden, 929 S.W.2d at 128- 29.
A fairly recent case on these types of easements created by law is Sekula Farms, Inc. v. Giesick, which is a November 23, 2005, unreported memorandum opinion from the San Antonio Court of Appeals. No. 04-04-00869-CV, 2005 WL 3115760 (Tex.App.—San Antonio Nov. 23, 2005). The significance of this case is that it applied the principles of both easement by implication and easement by necessity to the facts to determine that Giesick was not entitled to a summary judgment in her favor establishing an easement across Sekula Farms’ property as a matter of law.
The facts were as follows:
• Unity of ownership last existed between the two properties in 1924.
• The 1924 deed which partitioned a 13,449.50 acre tract into six tracts including the two in question did not provide ingress and egress to the respective tracts.
• The predecessor in title to Sekula Farms had historically allowed Giesick’s predecessor in title to use its property for ingress and egress to their own.
• The contested road had existed since at least the 1930s and been continuously used since that time.
• In 2000, Sekula Farms began restricting access to the road across its property.
• No one had knowledge as to the existence of the contested road or the need for access at the time the two properties were severed from each other.
• There were no other routes connecting to a public road other than the contested road.
As discussed above, “to claim an easement by necessity, a landowner must prove: 1) unity of ownership . . .; 2) use of the roadway was a necessity; and 3) the necessity existed at the time the estates were severed.” Id. at *3. The court found that unity of ownership had been established and focused on the issue of necessity. Id. Because the summary judgment evidence did not conclusively establish that the necessity existed at the time of the severance in 1924, an easement by necessity could not be found as a matter of law. Id.
With regards to an implied easement, the court stated that an implied easement can be proven by showing “1) unity of ownership . . .; 2) the use of the easement was apparent at the time the dominant estate was granted; 3) use of the easement was continuous so that the parties intended its use to pass by grant with the dominant estate; and 4) the easement was reasonably necessary to the use and enjoyment of the dominant estate.” Id. at *4. The element that failed in this case was the second one. Giesick did not have any witnesses that had personal knowledge that road had existed in 1924 when the tracts were severed from each other. In fact, a 1924 partition plat rebuts the existence of the road by not showing it. Id. As one can see, although unity of ownership existed in this case, it alone was not sufficient to establish either an easement by necessity or an implied easement.
Harrington v. Dawson-Conway Ranch, Ltd., supra, also discussed easement by necessity. In that case, Dawson-Conway Ranch, Ltd. failed to establish an easement by necessity due to the fact that it could not show that access was absolutely necessary. 372 S.W.3d at 724-25. Not only was there no evidence that the need for access existed at the time to the two tracts were severed, there was also evidence that Dawson-Conway Ranch, Ltd. had other access to the property in question that was just more difficult to use but not impossible, negating the necessity for access by the disputed road. Id. at 725.
D. Easement by Estoppel
The legal doctrine described as easement by estoppel has never been clearly defined; therefore, its application depends on the facts of each case. Stallman v. Newman, supra, 9 S.W.3d at 246. It generally operates as an exception to the statute of frauds which requires all transactions involving land to be in writing. Scott v. Cannon, 959 S.W.2d at 720. The reasoning for the doctrine was first set forth by the Texas Supreme Court in Harrison & Co. v. Boring, 44 Tex. 255 (1875):
The owner of the land may create an easement by a parol agreement or
representation which has been so acted on by others as to create an
estoppel in pais. As where he has by parol agreement granted a right of
such easement in his land, upon the faith of which the other party has
expended moneys which will be lost and valueless if the right to enjoy
such easement is revoked, equity has enjoined the owner of the first estate
from preventing use of it. Scott, 959 S.W.2d at 720 quoting from
Harrison, 44 Tex. at 267.
In other words, if a property owner makes a representation to someone else that such person can use his property as an easement to reach their property, and the third party believes and relies on such statement then that property owner cannot later argue that no easement exists. “Once created, an easement by estoppel is binding upon successors in title if reliance upon the easement continues.” Cleaver v. Cundiff, 203 S.W.3d 373 (Tex. App.—Eastland 2006); see also Holden v. Weidenfeller, supra, 929 S.W.2d at 131; Shipp v. Stoker, 923 S.W.2d 100, 102 (Tex. App.—Texarkana 1996, writ denied). There are three elements necessary to establish easement by estoppel: (1) a representation has been communicated to the promisee; (2) the promisee believes the representation; and (3) the promisee relies on the representation. Scott, 959 S.W.2d at 720. With regards to the representation made, it may be verbal or nonverbal. Cleaver, 203 S.W.3d at 375 citing to Storms v. Tuck, 579 S.W.2d 447, 452-54 (Tex. 1979). As stated above, the application of this doctrine “depends upon the unique facts of each case,” and the results reached by the courts have varied.1 Id. Examples of circumstances where it has been applied are as follows: (1) the dedication of a street, alley, or square; (2) a conveyance with reference to a map or plat; (3) expenditures for improvements on the servient estate by the owner of the alleged easement; and (4) expenditures on the dominant estate. Id.
There is a dispute among the courts as to whether there must be a vendor/vendee relationship at the time the easement by estoppel is established. See e.g. Scott, 959 S.W.2d at 720 (Vendor/vendee relationship is required); Mack v. Landry, 22 S.W.3d at 530 (Vendor/vendee relationship not required under circumstances of case). The Mack court was reluctant to require the vendor/vendee relationship where the owner of the subservient estate had represented that an easement existed and the owner of the alleged easement had made significant improvements on his property based upon that representation. Although the Austin Court of Appeals held in the Scott case that the law requires a vendor/vendee relationship, the main reason the Austin court found that there was no easement by estoppel is that there was no affirmative representation regarding the existence of an easement but only passive acquiescence to the use of the alleged easement. Scott, 959 S.W.2d at 720-21. Even though the Houston Court of Appeals in Mack found that there was no need for a vendor/vendee relationship in the case of an affirmative representation, they do require such relationship in order for an easement by estoppel to arise through passive acquiescence to the use of the easement, a distinction not made by the Austin court. Stallman, 9 S.W.3d at 248.
Cleaver v. Cundiff, supra, also applied the doctrine of easement by estoppel. The facts of the case were as follows:
• Cundiff’s property is landlocked and the only access to his property is Road 195-P across the Cleaver property from County Road 261 through Section 172 to the southern boundary of Section 171.
• Road 195-P was in existence when the current owners acquired their tracts of land.
• At the time that Cundiff purchased the property in 2000, there were sheds, barns, a windmill, fences and an old house on the property on which he spent time and money working.
• The road was traced back to the Armstrongs. There was testimony by a granddaughter that her grandparents were married in 1902 and built the house on Section 171. The road had been there as along as she remembered and was the only access to the house. Her grandparents maintained the road.
• The road had no purpose besides allowing access north to Section 171. In fact, that was its primary purpose.
• There was no testimony that the road benefitted the servient estate owner and that he was simply allowing others to use it.
The appeals court found that this evidence was legally and factually sufficient to establish an easement by estoppel across road 195-P. Cleaver, 203 S.W.3d at 378. “The jury could infer that Road 195-P was used from the beginning by the Armstrongs as a matter of right.” Id. The jury could also “reasonably infer that the Armstrongs would not have built their house without some reliable means of access and would not have expended time and money maintaining a road over which they had no claim.” Id. Thus, the Cleavers were estopped to deny any easement. This is a somewhat unique application of the doctrine of easement by estoppel in that there was no direct evidence of a representation being made, either verbal or non-verbal, yet the court still let the jury’s finding of easement by estoppel stand.
The Cleavers made a further argument that even if an easement by estoppel had been created, their status as bona fide purchaser precluded it being applied against them. “To be a bona fide purchaser, the purchase must be made for valuable consideration and without notice, either actual or constructive, of the adverse claim.” Id. “Notice is sufficient if it would lead an ordinarily prudent man to inquire into the matter.” Id. Under the facts of the case, the road was obviously visible. Id. at 379. Before purchasing the property, Kenneth Cleaver drove around the property and down the road, and he observed somebody using the road to cross the property. Id. Despite this, the Cleavers did not contact any adjoining landowners to inquire about the road. Id. Based upon this evidence, the Cleavers could not establish that they were bona fide purchasers. Id. This is a good example of a case where further investigation would have led to the finding of the possible easement.
In Mitchell v. Garza, 255 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2007, review denied), the facts led the Court to find that Garza was a bona fide purchaser for value without notice. The Court stated that in order to claim an easement by estoppel, “the Mitchells had the burden of proving that Garza had actual or constructive notice of an existing easement or that the easement was created while Garza was the owner of the adjacent property.” Id. at 123. In that case, the facts were as follows:
• The dispute was over the Mitchell’s use of a driveway, a portion of which was on Garza’s property.
• Garza had lived in the neighborhood since 1988 and had bought the property adjacent to the Mitchells in 2002 and erected a fence along the property line in 2003 blocking the Mitchells’ use of the driveway.
• Garza testified he thought the Mitchell property was abandoned because of high grass and the fact that he hardly saw any people on the property.
• Garza also testified that when he saw people on the Mitchell property they parked on the street and that he had never talked to anyone living on the Mitchell property about the use of the driveway.
• The Mitchells also testified that they never discussed the use of the driveway with anyone.
• No one complained when Garza erected his fence on the property line.
• After Garza bought the property, but before the fence was erected, the Mitchells generally parked on the street or in front of the driveway but not on the driveway. Garza did move his cars once when they were blocking driveway but on another occasion refused to do so.
The court found that the evidence was legally and factually sufficient to support the trial court’s findings that Garza did not have actual or constructive notice of an easement and did not himself create an easement by estoppel by affirmative easement or any acquiescing behavior which would preclude him from denying the existence of an easement. Id. at 124.
In Murphy v. Long, 170 S.W.3d 621 (Tex. App.—El Paso 2005, review denied), easement by estoppel was applied in connection with an agreement to execute a written easement. The facts of this case are as follows:
Michael Murphy and John Long worked together and they and their wives
became close friends. They contemplated buying property together and
included a third couple, Rocky Beavers and Whit Watkins, in their plans.
In 1997, the three couples purchased adjoining properties located along
Highway 118 outside of Fort Davis from The Nature Conservancy of
Texas . . . TNC required them to agree to a "Conservation Easement" to
ensure that the property would be retained predominantly in its natural and
scenic condition. . . . The three couples also entered into a Reciprocal
Easement Agreement for the right to use the road which ran from
Highway 118 across all three tracts of land to a common pen area.
Initially, they operated the properties jointly and had access to some pens
in a common area. . . . After Beavers and Watkins indicated they did not
want to be further involved, the Longs and the Murphys submitted an
updated grazing and management plan to TNC. The two couples also
shared the cost of drilling a water well on the Murphy property.
The Longs discussed with the Murphys their need for a road easement
from the common pens across the Murphy land to the Longs' future
homesite. The Murphys agreed to grant a written easement similar to the
Reciprocal Easement Agreement. Id. at 622-23.
The written easement promised was never executed, and a dispute ensued which led to the lawsuit. Based upon the elements of easement by estoppel as set out above, the Court found that the facts in this case established an easement by estoppel. The Murphys promised to provide the Longs with a written easement agreement. The Longs substantially relied upon that promise to their detriment. Therefore, the Murphys were estopped from arguing that the Longs were entitled to an easement. The Court also declined to find that vendor-vendee relationship between the parties is necessary to establish an easement by estoppel. Id. at 627-28.
In Whaley v. Central Church of Christ of Pearland, 227 S.W.3d 228 (Tex. App.— Houston [1st Dist.] 2007), the Court of Appeals discussed the scope of an easement created by estoppel. The Court had already held that the Whaleys had an easement by estoppel to erect a sign on the church’s property but had remanded the case to determine the legal description of the easement. The trial court’s judgment granted a 40 square foot easement, and the Whaleys appealed arguing that this amount of space was insufficient for maintenance of the sign and that they had conclusively established a need for 100 square feet. Id. at 230. When discussing the scope of the easement, the Court stated: “Every easement carries with it the right to do whatever is reasonably necessary for full enjoyment of the rights granted.” Id. at 231 quoting from Roberts v. Friendswood Dev Co., 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
Furthermore, in determining the scope of an easement the court “may imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Id. quoting from Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex. App.—Austin 1988, writ denied). These are some of the same principles used to evaluate the scope of express easements. When applying these principles, the Court noted that the trial court had given the Whaleys “more than twice the area of square feet that the base of the sign currently occupied.” Id. at 232. Since the “Whaleys’ rights are limited to only those which are necessary to effectuate the purpose of the easement, which is the erection of a sign,” the Court found the evidence was legally and factually sufficient to support the granting of a 40 square foot easement. Id. These same principles can be applied to a road easement that is created by estoppel. In sum, when examining title to a piece of property, if a road exists across that property for which there is no express easement but there is evidence that at some point in time the owners of the land made a representation to a neighboring land owner regarding the existence of an easement and such adjoining landowner improved their property in reliance upon such representation and such reliance is continuing, it is likely that an easement exists. This is especially the case if the adjoining landowner would be landlocked without the use of the easement. See e.g. Mack, 22 S.W.3d at 530; Holden, 929 S.W.2d at 132.
E. Recent Case Law
Two 2011 cases discuss easement by estoppel, easement by necessity and implied easements. The first of these is McClung v. Ayers, the facts of which are set out above under prescriptive easements. With regards to easement by estoppel, the Court of Appeals stated that equitable estoppel should be strictly applied as it is an exception to the statute of frauds. 352 S.W.3d at 729. In this case, the McClungs relied solely on the “legal fiction of representation by silence.” Id. This principle arises “where a person is under a duty to another to speak, but refrains from doing so and thereby leads the other to act in reliance on a mistaken understanding of the facts. The duty to speak does not arise until the silent party is himself aware of the facts.” Id. quoting from Storms v. Tucks, 579 S.W.2d 447, 452 (Tex. 1979). This principle may have been at work in the Cleaver v. Cundiff case discussed above. In the McClung case, the Court of Appeals found that there was evidence that the McClungs would stop the Ayers and ask for permission to use the road indicating that they did not believe they had a legal right to use. They also did not provide much evidence of reliance, as little improvements had made to their property. The Court of Appeals found that the McClungs failed to prove they were entitled to an easement by estoppel as a matter of law. Id. at 731.
The jury in this case also did not find the existence of easement by necessity. In order to find common ownership of the two tracts of land in question, one had to go back to when each tract was severed from the sovereign by the State of Texas, in 1860 and 1896. There was no evidence that a road was necessary at that time, so the jury's finding of no easement by necessity was not in error. Id. at 732. The Court of Appeals also overruled the McClungs' point of error as to whether there was an easement by implication on similar grounds. The Court found that “there is no evidence that the McClungs' use of the Ayers property was continuous or apparent at the time the estates were severed, nor is there evidence that the use was reasonably necessary at that time in order to enjoy the McClung land.” Id. at 732.
The second 2011 case is Ingham v. O'Block, 351 S.W.3d 96 (Tex. App.—San Antonio 2011, review denied). The facts of this case are as follows:
• Since at least the mid 1990s, Ben Ingham used Hunt Road, which crosses the Hunt Ranch, to access Espy Ranch from his northern property.
• Mayfield Road also connects Ingham's two tracts of land, but is a dirt track that is difficult to use.
• In 2007, O'Block blocked Ingham's access to Hunt Road and sued seeking a declaration that Ingham had no access to his southern property by using Hunt Road.
Ingham's claim to an easement by estoppel was based “on an oral agreement between the prior owners of Espy Ranch and Hunt Ranch permitting the reciprocal use of each other's land for cattle operations.” 351 S.W.3d at 100. Ben Ingham testified he made improvements to the road based upon this agreement. Id. Although there was evidence of this agreement, the testimony of witnesses indicates that “no one ever represented to the Inghams or the prior owners of Espy Ranch that the Espy Ranch owners had a legal right of access across Hunt Road.” Id. at 101. There was also testimony that Ben Ingham had asked for permission to use the road indicating that he did not believe he the right to use Hunt Road to access Espy Ranch. Id. Consequently, the Court of Appeals found that Ingham's challenges regarding the sufficiency of evidence as the finding of no easement by estoppel should be overruled.
With regards to easement by necessity and implied easement, there was no dispute between the parties regarding the required element of unity of ownership. However, the trial court had concluded that the Inghams had failed to prove that Hunt Road existed at the time of the severance of the two tracts in 1922 or that the road opened up to public road or to another easement that opened up to a public road. Id. at 102. The Court of Appeals upheld these findings with regards to the easement by necessity. There was also not an easement by implication as the Inghams failed to prove that "Hunt Road was in existence, in use, and that the use was apparent" in 1922 when the two tracts were severed. Id.
IV. CONCLUSION
It is important to make certain that third parties do not have rights across a particular piece of land or, if they do, the extent of such rights. It is also important to make certain that a tract of land has access to a public road. Therefore, when dealing with real property, one should always be on the lookout in the public records for express easements or dedications, and also should determine if an implied easement, easement by estoppel, easement by necessity, easement by prescription, or implied dedication exists with regards to the particular tract of land.