Texas law recognizes multiple types of easements. One of the most nebulous of these is an easement by estoppel.
Easements by estoppel are unique because they are implied (not affirmatively granted in writing or even verbally) by actions (“acquiescing behavior”) — and sometimes the lack of actions and words.
ELEMENTS OF EASEMENT BY ESTOPPEL
Three elements are necessary to create an easement by estoppel. In the case of Ingham v. O’Block, 351 S.W.3d 96, 100 (Tex. App.—San Antonio 2011, pet. denied), the Court articulated the following elements of 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.
UNIQUE NATURE OF ESTOPPEL EASEMENT
In the often cited case of Storms v. Tuck, 579 S.W.2d 447, 455 (Tex. 1979), the Texas Supreme Court observed the uncanny nature of estoppel easements::
First, in the traditional case [asserting an easement by estoppel], there generally is no written grant of an easement; instead, there is a parol grant or a representation that an easement already exists. Id.
CASES EVALUATING “BEHAVIOR” EVIDENCING EASEMENT BY ESTOPPEL
Generally speaking, “mere acquiescence” is not enough to create an easement by estoppel. However, this is not universally true, and when there is a buyer -seller (Vendor/vendee relationship) since can be enough. See Hazzani, LLC v. Richardson Bus. Ctr., Ltd., No. 05-18-00346-CV, 2019 WL 3244175, at *6 (Tex. App.—Dallas Jul 19, 2019, no pet.) (mem. op.) (holding that it need not address whether a vendor/vendee relationship is required to establish an easement by estoppel because the alleged servient estate owner did not merely passively acquiesce to the claimant of an alleged easement by estoppel’s use of the common access drive, but also actively participated in making repairs to the common access driveway almost immediately after purchasing the property).
In Smith v. Reid, No. 04-13-00550-CV, 2015 WL 3895465, at *7 (Tex. App.—San Antonio June 24, 2015, pet. denied) (mem. op.), the Fourth Court of Appeals held that “[a]n easement by estoppel may not be predicated upon silence and passive acquiescence alone” in the absence of a vendor/vendee relationship. See id.; see also LaTaste Enters. v. City of Addison, 115 S.W.3d 730, 736 (Tex. App.—Dallas 2003, pet. denied) (holding that “[m]ere passive acquiescence to use does not create an easement by estoppel where there is no vendor-vendee relationship between the owners of the alleged servient and dominant estates”)
The trend in Texas court decisions has been toward characterizing various acts and omissions as “acquiescing behavior” that supports the existence of an estoppel easement.
“Numerous courts have recognized that in cases of easement by estoppel, permissive and acquiescing behavior by the owner of a servient estate can constitute actual representations.”
A great example of the type of facts at play when a party claims that it enjoys an easement by estoppel were presented in Wallace v. McKinzie, 869 S.W.2d 592, 594 (Tex. App.—Amarillo 1993, writ denied). In that case the jury found that the McKinzies had established an easement by estoppel for a road to their landlocked property over the Wallaces’ property. The court assessed the evidence as showing:
[F]or a period of over seventy years the McKinzies have used the road in question, for ingress and egress to their landlocked property. The Wallaces have never objected to the McKinzies’ use of the road. Neither have the Wallaces ever told the McKinzies they could not use the road. Thus, through their permissive and acquiescing behavior, the Wallaces have engaged in representations by their conduct. This evidence alone constitutes legally sufficient evidence (i.e., some evidence) to support the jury’s finding that the Wallaces made a representation to the McKinzies that certain rights exist to use the Wallaces’ property. Id. at 596.
In Robinson (cited above) the Fourth Court of Appeals recognized that Storms, 579 S.W.2d at 452–53, “recognizes [that] the doctrine of equitable estoppel is a fact specific doctrine to be decided on a case-by-case basis.” See Robinson, 2016 WL 1238166, at *4. (citing Ross v. Womack,No. 13–08–002–CV, 2008 WL 4822208, at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 6, 2008) (mem. op.); Wallace, 869 S.W.2d at 596)).
EASEMENT BY ESTOPPEL CAN BE AN AFFIRMATIVE DEFENSE TO A TRESPASS ACTION
A party may also assert easement by estoppel as an affirmative defense. In this way, a party cannot be liable for trespass when it has a right (including an easement right) to enter upon the Plaintiff’s property.
