It has long been the public policy of American and Texas jurisprudence to “abhor” landlocked property. Nevertheless, easement cases are among the most hotly contested in both real estate litigation and real estate negotiations.
Perhaps no other area of my practice as a San Antonio real estate lawyer is as contentious as the placement (whether voluntary or not) of an easement on an adjoining tract of land owned by another. Undoubtedly, this is because most easements are substantial encumbrances (roadways, pipelines, or other improvements) on the property upon which they are determined to exist.
As a real estate attorney in San Antonio, I routinely draft and negotiate various types of easements (roadway access, pipeline, sanitary control, water well, etc.). I also have extensive experience in litigating the existence, nature and scope of roadway and access easements, including implied easements by grant, implied easements by reservation, and easements by estoppel.
You are invited to review the following basics of easements, as articulated by Texas Courts:
Express Easements
An express easement is one that is expressly set-out in a written instrument, typically a deed. In addition to drafting and negotiating express easements, my law practice involves litigating the scope and validity of express easements created by others.
Implied Easements
In August 2014, the Texas Supreme Court expressly recognized what most Texas real estate lawyers have long-known: that implied easements are “an area of property law that has lacked clarity for some time.” As the Court stated, “the unqualified use of the general term ‘implied easement’ has sown considerable confusion.” Despite this confusion, I have successfully prosecuted and defended implied easement cases, and maintain a command of this esoteric field of real estate law.
Easement By Estoppel
Easements may also be determined to exist by “estoppel.” Under Texas law. three elements are necessary to the creation of an easement by estoppel: 1) a representation communicated, either by word or action, to the promisee; 2) the communication was believed; and 3) the promisee relied on the communication. Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979); Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.-San Antonio 1996, writ denied).
Under this doctrine, a landowner may be estopped from denying the existence of an easement created by “representations” upon which another has detrimentally relied. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1963). An easement by estoppel may not be predicated upon silence and passive acquiescence alone. See Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App.-Austin 1998, pet. denied) (mere silence cannot create an easement by estoppel except where there is a vendor-vendee relationship between the parties).
Prescriptive EasementS
A “prescriptive easement” is an easement created from an open, notorious, continuous, exclusive, and adverse use over a statutory period. See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979).”To obtain a prescriptive easement one must use someone else’s land in a manner that is open, notorious, continuous, exclusive, and adverse for the requisite period of time.”
Implied Dedications
The essential elements of implied dedication are: (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. Las Vegas Pecan & Cattle Co., 682 S.W.2d at 256. Implied dedication “requires showing unmistakable acts on the part of the landowner that clearly establish his intent to donate the land to public use.” Long Island Owner’s Ass’n, Inc. v. Davidson, 965 S.W.2d 674, 679 (Tex. App.-Corpus Christi 1998, pet. denied)
