In Texas, a prescriptive easement is one of the most common ways property owners end up in court over driveways, roads, and access routes. It is a claim that someone has earned a legal right to keep using part of your land, even though there is no written easement. Prescriptive easements are hard to prove, but when the claimant is able to present proof of ALL of the required elements, Texas Courts will find in favor of prescriptive easements.
In this post, I address some of the most frequently ask questions about Easements by Prescription in Texas, including:
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How many years does it take to get a prescriptive easement in Texas? 10.
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Can you get a prescriptive easement if the owner also uses the road? No.
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Does permission destroy a prescriptive easement claim? Yes.
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Is a prescriptive easement the same as adverse possession? Essentially, yes.
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Can a prescriptive easement transfer to a new owner? Yes, so long as the necessity for the easement continues.
WHAT IS A PRESCRIPTIVE EASEMENT?
An easement confers upon one person the right to use the land of another for a specific purpose, but it does not convey the property itself. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 870-71 (Tex. App.—Austin 1988, writ denied). Easements generally allow entry onto or use of another’s property.
Common easements include those that permit use of a roadway, installation of pipes or poles, and those permitting drainage of water. The land burdened by the easement is referred to as the “servient estate.”
A prescriptive easement is a particular species of implied easement, meaning that there is not a writing that reflects the grant of any alleged right of use or access.A prescriptive easement is “a non-possessory interest that authorizes its holder to use property for a particular purpose.” See 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)).
Prescriptive easements are essentially easements acquired by adverse possession. Prescriptive easements are not well-regarded in the law. McClung v. Ayers, 352 S.W.3d 723, 728 (Tex. App.—Texarkana 2011, no pet. For this reason, Courts are reluctant to find the existence of prescriptive easements, except in cases where the party claiming the easement has brought credible proof of each essential element.
REQUIRED PROOF TO ESTABLISH PRESCRIPTIVE EASEMENT
To acquire a prescriptive easement, the claimant must prove that the property’s use has been open and notorious, continuous, exclusive, hostile, and adverse for the requisite time period of ten years. See Mack v. Landry, 22 S.W.3d 524, 531 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979)); see also State v. Beeson, 232 S.W.3d 265, 274-75 (Tex. App.—Eastland 2007, pet. dism’d).
The claimant has the burden of proof to establish each element by a preponderance of the evidence; the absence of any of the elements is “fatal” to the prescriptive claim. See Brooks, 578 S.W.2d at 673; Allen v. Allen, 280 S.W.3d 366, 377 (Tex. App.—Amarillo 2008, pet. denied).
What evidence wins a prescriptive easement case in Texas?
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aerials / Google Earth history
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gate placement and control
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maintenance records and receipts (gravel, grading, culverts)
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witness testimony or affidavits from neighbors, employees or lessees
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photographs over time
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surveys + metes-and-bounds tie-in
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whether the owner gave written or verbal permission
WHAT IS “HOSTILE” and “ADVERSE”?
The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that necessary to establish title by adverse possession.6 Mack, 22 S.W.3d at 531 (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)).
As such, the claimant must demonstrate that the property’s use was of such a nature that it reasonably notified the true owner that a hostile claim to the land was being asserted. See Masonic Bldg. Ass’n v. McWhorter, 177 S.W.3d 465, 472 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “[T]here must be a distinct and positive assertion of a right which is brought to the servient owner’s attention and which is hostile to the owner’s rights.” Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App.—Austin 1998, pet. denied). Such an assertion may come in the form of a direct verbal assertion of a claim or be established by the character of the use of the property and surrounding circumstances. Davis v. Johnston, No. 03-10-00712-CV, 2012 Tex. App. LEXIS 5249, 2012 WL 2499472, at *21-22 (Tex. App.—Austin June 28, 2012, no pet.) (mem. op.) (citing Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (Tex. 1954)).
Note: Subtlety will not carry the day!
CAN MERE USE OPERATE AS THE “DIRECT AND POSITIVE ASSERTION”?
For the use of property in itself to constitute the requisite “distinct and positive assertion” of a right in the property hostile to the owner’s rights, the claimant’s use of the property must be “exclusive” of the owner’s use—i.e., the claimant excluded or attempted to exclude the property owner from using the same property for the same purpose. See Brooks, 578 S.W.2d at 674 (“While other jurisdictions do not require the prescriptive use to be exclusive [of] use by the owner of the land, this rule of property has long been the established rule in Texas.”).
WHAT IS “OPEN AND NOTORIOUS”?
The adverse use must be “open,” i.e., not made in secret or stealthily, and “notorious,” either known to the property owner or so widely known in the area that the property owner would reasonably be expected to know of it. See Cambridge Holdings, Ltd. v. Cambridge Condos. Council of Owners, No. 03-08-00353-CV, 2010 Tex. App. LEXIS 4415, 2010 WL 2330356, at *10 (Tex. App.—Austin June 11, 2010, no pet.) (mem. op.).
WHAT IF THERE IS AN AGREEMENT OR PERMISSION FOR ROADWAY USE THAT IS LATER REVOKED?
Use by express or implied permission, no matter how long continued, cannot ripen into an easement by prescription since adverse use is lacking. Machala v. Weems, 56 S.W.3d 748, 760 (Tex. App.—Texarkana 2001, no pet.).
WHAT IF USE OF THE ROADWAY IS SHARED?
In Texas, “exclusive” does not mean the claimant used the road more often than the owner. It means the claimant used it in a way that excluded the owner’s use for the same purpose. Shared use is usually fatal.
Exclusivity is not met when a landowner and claimant both use the road. Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987). “The party claiming an easement by prescription must give notice that its use of property is under a claim of right. Otherwise, the use (especially if joint) is presumed to be permissive, and a permissive use can never ripen into an easement by prescription.” Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 718 (Tex. App.—Eastland 2012, pet. denied).
Proof merely of a joint use of the property with the owner cannot establish a prescriptive easement because it does not signal an adverse claim of right but is consistent with permissive use. See Scott, 959 S.W.2d at 721-22.
WHAT IS THE DURATION OF A PRESCRIPTIVE EASEMENT, ONCE ESTABLISHED?
Easements acquired by prescription are appurtenant to the land, meaning that they run with the land until terminated and that a successor in interest to the dominant estate may rightfully continue using the prescriptive easement after it has been established. See Albert v. Fort Worth & W. R.R. Co., 690 S.W.3d 92, 98-99 (Tex. 2024) (noting that “way easements” are easements appurtenant and that, “once established, the way easement allows the successors in interest to the dominant estate to continue crossing the servient estate along the established way”); Davis, 2012 Tex. App. LEXIS 5249, 2012 WL 2499472, at *21 (“[O]nce a prescriptive easement is established, it can be passed on to successors.”); see also Martin v. Burr, 111 Tex. 57, 228 S.W. 543, 546-47 (Tex. 1921) (“It is not denied that the deeds would have passed matured prescriptive rights appurtenant to the lands[.]”).
ADVERSE POSSESSION IS RARELY DETERMINED ON SUMMARY JUDGMENT
“[T]he question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law.” Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990).
Trey Wilson practices real estate and water law across Texas. A practicing attorney for more than 25 years, Trey is a frequent writer and speaker on legal issues surrounding land, water and the real estate industry in Texas.
