Legal Blog ("Blawg") on Causes of Action and Affirmative Defenses in Texas -- with Caselaw Snippets from Appellate Opinions, and Occasional Commentary on Decisions
Wednesday, August 17, 2011
The nature of easements
TEXAS EASEMENT LAW
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. 1962).
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.
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.
There are two forms of implied easement in Texas. The first is an easement by necessity, commonly called a “way of necessity.” See, e.g., Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984); Duff v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958). An easement by necessity is implied when the conveyed or retained parcel cannot be accessed except by traveling over the remaining tract of land. See Koonce, 663 S.W.2d at 452 (citing Bains v. Parker, 182 S.W.2d 397 (Tex. 1944)). An easement by necessity has three requirements: (1) unity of ownership of both parcels prior to separation; (2) access must be a necessity and not a mere convenience; and (3) the necessity must exist at the time of severance. Id. (citing Duff, 311 S.W.2d at 641).
A second type of implied easement is based on prior use of the land and is called an easement implied from a “quasi-easement.” See, e.g., Drye, 364 S.W.2d at 207–08; Ulbricht v. Friedsam, 325 S.W.2d 669, 676–77 (Tex. 1959). The Texas Supreme Court has identified the circumstances under which such an easement may be implied:
If an owner used one part of his land for the benefit of another portion of his own land, the portion served had a ‘quasi-dominant tenement’ [and] [t]he portion which was used was subject to a ‘quasi-servient tenement.’ . . . [W]hen the owner, under those circumstances, sold the portion of his land which had [made] use of the other portion — as for drainage, support, way, or water [— and that use was] apparent, continuous, and necessary to the use of the ‘dominant’ land sold, the courts presumed that the necessary use of the ‘servient’ tract passed by implication to the purchaser.
Drye, 364 S.W.2d at 207. A party claiming an easement by prior use must prove that at the time of the severance: (1) both parcels were under unified ownership; (2) the use was apparent; (3) the use was continuous; and (4) the use was necessary to the use of the dominant estate. Drye, 364 S.W.2d at 207–08; see also Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex. 1966).
Texas courts routinely refer to implied easements based on prior use characteristics simply as “implied easements.” See Mack v. Landry, 22 S.W.3d 524, 530 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (distinguishing between “easement by necessity” related to inaccessible tract of land and “implied easement” based on prior use characteristics); see also State v. Beeson, 232 S.W.3d 265, 273 n.7 (Tex. App.—Eastland 2007, pet. dism’d) (noting that the plaintiffs’ assertion of an implied easement was raised under theory of easement by necessity and was not governed by standards for “implied easement” based on prior use characteristics). The general term “implied easement” is potentially confusing because, by definition, both an easement by necessity and an easement by prior use are implied. See Othen v. Rosier, 226 S.W.2d 622, 626 (Tex. 1950); see also Beeson, 232 S.W.3d at 273 n.7; Mack, 22 S.W.3d at 530.
The “strict necessity” requirement applies to an implied reservation of an easement, and the “reasonable necessity” requirement applies to an implied grant of an easement. See Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 921 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Mitchell, 246 S.W.2d at 168, and Howell v. Estes, 12 S.W. 62, 63 (Tex. 1888)). This rule applies to the element of necessity that is relevant to easements by necessity and to easements by prior use. See Mitchell, 246 S.W.2d at 168 (applying strict necessity rule from “way of necessity” precedent to claim involving reserved easement by prior use); see also Howell, 12 S.W. at 62–63 (“We think the weight of authority sustains the proposition that if an improvement [meets the requirements of an easement by prior use], the use of such improvement will pass as an easement, although it may not be absolutely necessary to the enjoyment of the [benefitted] estate conveyed.”). The Sebers correctly assert that if the right to use the crossing was conveyed as an impliedly granted easement, then they need show only reasonable necessity. See Mitchell, 246 S.W.2d at 168; Howell, 12 S.W. at 62–63.
An easement by necessity is temporary; it continues only so long as the necessity exists and terminates upon the cessation of the necessity. Bains, 182 S.W.2d at 399. Under this rule, a grantee must establish that its use of the easement continues to be “reasonably necessary” to its use of its property. See id. However, the Sebers expressly deny that they claim an easement by necessity; therefore, they need not establish that their use of the crossing continues to be reasonably necessary to their use of their larger tract of land. The dispute here centers on an easement by prior use. We have not identified and the parties do not cite any Texas authority applying this “continued necessity” rule to an otherwise valid implied easement by prior use. Cf. Zapata Cnty. v. Llanos, 239 S.W.2d 699, 702 (Tex. Civ. App.—San Antonio 1951, writ ref’d n.r.e.) (“‘A presumption frequently invoked [as justification for easements by prior use is] that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction, and after sale neither party without the consent of the other has a right to change, to the detriment to the other, that condition which openly and visibly existed. . . . The rule itself, since it presupposes the existence of quasi easements, must be distinguished from the principle which underlies the creation of ways of necessity.’”) (quoting Miles v. Bodenheim, 193 S.W. 693, 696 (Tex. Civ. App.—Texarkana 1917, writ ref’d)).
Applying the “continued necessity” rule to easements by prior use would contradict the principle that the existence of such an easement depends only on the situation of the parties at the time of severance. See Westbrook v. Wright, 477 S.W.2d 663, 665–66 (Tex. Civ. App.—Houston [14th Dist.] 1972, no writ) (“Whether these requirements are met is to be determined at the time the grantor, the one imposing the quasi easement on one portion of his property for the benefit of another portion, conveys away the dominant tenement, that portion benefitted, and retains the servient tenement.”); see also Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San Antonio 1996, writ denied) (“The situation of the parties at the time of the [partition] constitutes the operative facts to support the claim [of an impliedly granted easement based on prior use characteristics].”); Hoak v. Ferguson, 255 S.W.2d 258, 260 (Tex. Civ. App.—Fort Worth 1953, writ ref’d n.r.e.) (same).
Property ownership or a right to physical possession of real property is a necessary element of a trespass claim. See Tex. Women’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“To recover damages for trespass to real property, a plaintiff must prove that . . . the plaintiff owns or has a lawful right to possess real property . . . .”). An easement is a non-possessory interest in land. See Marcus Cable Assocs., L.P., 90 S.W.3d at 700; Lakeside Launches, Inc., 750 S.W.2d at 871.
SOURCE: Houston Court of Appeals - 14-10-00195-CV - 8/16/11
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