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.

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.

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.[4]

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

Easement and Trespass on Property

  
EASEMENT DEFINED
 
“An easement is a non-possessory interest that authorizes its holder to use property for a particular purpose.” Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)).

  
INTERPRETATION OF EASEMENT LANGUAGE

 
We interpret easements according to basic principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700; DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999); Koelsch, 132 S.W.3d at 497. Courts construe contracts as a matter of law, and we review their rulings de novo. See J.M Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (applying rule in arbitration-agreement context) (citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). The intent of the parties, as expressed in the grant, determines the scope of the interest conveyed. Marcus Cable, 90 S.W.3d at 700–01; Koelsch, 132 S.W.3d at 497–98. To interpret the parties’ intentions adequately and to discern the scope of the rights conveyed to the easement holder, we focus on the terms of the granting language. See Marcus Cable, 90 S.W.3d at 701.

We rely solely on the written terms of the easement unless the language is ambiguous. Koelsch, 132 S.W.3d at 498. When terms are not defined, we give them their “plain, ordinary, and generally accepted meaning.” Marcus Cable, 90 S.W.3d at 701. Courts must consider the entire writing, assume that the parties intended to give effect to every clause they chose to include, and strive to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., 165 S.W.3d 310, 312 (Tex. 1999); Koelsch, 132 S.W.3d at 498; see also Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). “When interpreting the granting language of an easement, we resolve doubts about the parties’ intent against the grantor, or servient, estate and adopt the interpretation that is the least onerous to the grantee, or dominant, estate in order to confer on the grantee the greatest estate permissible under the instrument.” CenterPoint Energy Houston Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 388–89 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). No rights pass to the easement holder by implication except those that are “reasonably necessary” to enjoy the rights that the easement grants expressly. Marcus Cable, 90 S.W.3d at 701. Accordingly, if the grant expressed in the easement cannot be construed to apply to a particular purpose, a use for that purpose is not allowed. See id.

SOURCE: Houston Court of Appeals - 01-10-00186-CV - 8/4/11

WHEN DOES TRESPASS OCCUR?
WHO IS A TRESPASSER?

A trespasser has neither express nor implied permission to enter the property of another, but enters it nonetheless. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 671 (Tex. 1999); Koelsch, 132 S.W.3d at 497. An easement holder who exceeds the rights granted by the owner of the servient estate thus commits a trespass. Compare Marcus Cable, 90 S.W.3d at 703 (reversing trial court’s grant of summary judgment on trespass claim in favor of easement holder, who had installed cable-television lines on easement, because easement document only granted right to use land for purpose of constructing and maintaining facilities to transmit electricity, not cable) with Koelsch, 132 S.W.3d at 499 (holding that no trespass occurred where easement holder constructed above-ground block valve assembly because easement document granted right to “lay, operate, renew, alter, inspect, and maintain two pipe lines . . . upon, over, under and through” property); CenterPoint Energy Houston Elec. LLC, 264 S.W.3d 381, 388–89 (holding that no trespass occurred where easement holder allowed assignee to install and use cellular telecommunication equipment within easement because easement document granted right of way for “all necessary and desirable appurtenances” including “telephone and telegraph wires”). A party claiming trespass must establish that the defendant committed an act that exceeded the bounds of any legal rights the defendant may have possessed. See Koelsch, 132 S.W.3d at 497.

To prevail on a breach of contract claim, a party must establish that: (1) a valid contract existed between the plaintiff and the defendant; (2) the plaintiff tendered performance or was excused from doing so; (3) the defendant breached the terms of the contract; and (4) the plaintiff sustained damages as a result of the defendant’s breach. See Valero Mktg. & Supply Co. v. Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.). “A breach occurs when a party fails or refuses to do something he has promised to do.” Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see DeWitt, 1 S.W.3d at 98 (holding that trial court properly granted directed verdict in favor of electrical cooperative on breach of contract claim, where cooperative had cut down two trees and trimmed another in easement, because easement document gave cooperative right to “cut and trim trees within the right-of-way.”).

SOURCE: Houston Court of Appeals - 01-10-00186-CV - 8/4/11