Landlocked Property? An Implied Easement May Exist By Operation of Law

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

As a San Antonio lawyer with an active real estate law practice, I routinely field inquiries about landlocked property, and disputes concerning the existence (or non-existence) of easements for access.  Many times, an easement will exist by operation of law -- even if no written grant of easement is contained in a deed or other conveyance document.

WHAT IS AN EASEMENT? 

An easement is a liberty, privilege, or advantage without profit granted to a person, either personally or by virtue of his ownership of a specified parcel of land, to use another parcel of land for some limited purposes. Daniel v. Fox, 917 S.W.2d 106, 111 (Tex.App.-San Antonio 1996, writ denied). Most often, the limited purpose is for access to the easement owner's parcel of land over another owner's contiguous parcel.

When discussing easements, Texas  courts use certain terms whose legal meanings are significant. Two of the most important terms used in connection with easements are "servient estate" and "dominant estate."   The parcel owned by the grantor of the easement is called the servient estate and the parcel benefitted by the easement is called the dominant estate. Miller v. Babb,263 S.W. 253, 254 (Tex.Comm'n App.1924, judgm't adopted).  A simple example would arise when a piece of property (Tract A) abuts a county road , and is contiguous to a separate tract (Tract B) that does not touch the county road. When an easement is established over Tract A for the purpose of providing access to/from  Tract B from the county road, Tract B is the dominant estate, and Tract A the servient estate.  

HOW DO EASEMENTS ARISE?

In a perfect world, easements are obvious, identifiable and are the subject of an express grant in a written conveyance document. For example, the deed conveying ownership to Tract B (from the example above) would (in Utopian legal society) contain a clearly articulated grant of a right to cross Tract A (at a designated location) for the purpose of accessing the county road from Tract B.  

However, it is frequently that case that there contains no such express grant of an easement -- even when the owner of Tract B either sold to or bought from the owner of Tract A.  In these cases (and upon strict proof of certain elements), easements may arise by necessity and implication (operation of law), based upon the general principle that Texas law disfavors landlocked property.

EXAMPLES OF IMPLIED EASEMENT TYPES

Two types of easements arising by implication (and necessity) are an EASEMENT BY IMPLIED GRANT and an EASEMENT BY IMPLIED RESERVATION. Under Texas law, if a grantor seeks an easement by necessity over a part of the land she once owned, but has conveyed, she seeks a way of necessity by implied reservation. If, on the other hand, a grantee seeks an easement by necessity over lands once owned by a common grantor but conveyed to third parties, he seeks a way of necessity by implied grant. For a detailed discussion on the distinction between easements by reservation versus grant, see, e.g., Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 205-09 (Tex.1962).

WHAT MUST BE SHOWN TO ESTABLISH AN IMPLIED EASEMENT?

A party seeking to establish the existence of an implied easement must show that:

(1) there was unity of ownership of the dominant and servient estates and that the use was 
(2) apparent, 
(3) in existence at the time of the grant, 
(4) permanent, 
(5) continuous, and 
(6) reasonably necessary to the enjoyment of the premises granted.** 

Bickler v. Bickler,403 S.W.2d 354, 357 (Tex. 1966); Drye, 364 S.W.2d at 207; Hoak v. Ferguson, 255 S.W.2d 258, 260 (Tex.Civ. App.—Ft. Worth 1953, writ ref'd n.r.e.); Miles v. Bodenheim, 193 S.W. 693, 696 (Tex. Civ.App.—Texarkana 1917, writ ref'd).

The elements of proof for each of the foregoing easement types (implied reservation vs. implied grant) differ. Most significantly,  an easement by implied reservation requires a showing of "strict necessity," while an easement by implied grant  requires only that the easement in question was reasonably necessary to the convenient and comfortable enjoyment of the property (dominant estate) as it existed at the time the severance was made.

HOW CAN I HAVE EASEMENT RIGHTS RECOGNIZED?

The most common way to establish the existence of disputed access easement rights is by filing a suit under the Texas Declaratory Judgment Act. Such a suit would seek to have the Court make a judicial declaration -- in the form of a Judgment -- that an easement exists. That Judgment would define the purpose, scope, location  and limitations of the easement, and would become part of the title chain of both the dominant and servient estates.

Cases concerning the existence of easements by necessity can be high-stakes, and difficult to prove. If you find yourself facing litigation concerning an easement, you should contact an experienced real estate litigation attorney.