Proving the Existence of an Easement By Necessity

                            Trey Wilson Real Estate Lawyer                         


“A property owner’s right to exclude others from his or her property is recognized as ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’” Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (quoting Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309 (1994)). 

Yet, in some circumstances a property owner maintains the legal right over the lands of another – usually a neighboring landowner.  The legal right of a landowner to cross the property of another for  a specific purpose — generally access —  is frequently referred to as an easement.

An easement confers upon one person the valuable right to use the land of another for a specific purpose. Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.-Tyler 2005, no pet.).

An easement is a “liberty, privilege or advantage in land without profit, existing distinct from the ownership of the soil.” Miller v. Babb, 263 S.W. 253, 254 (Tex. Comm’n App. 1924, judgm’t adopted). It is a burden on one estate, the servient estate, for the benefit of another, the dominant estate. Id.

Since an easement is an interest in land, the grant of an easement should be drawn and executed with the same formalities as a deed to real estate. Hubert, 170 S.W.3d at 710. 

Sometimes easements are not written, or even the subject of any consent or agreement. Instead, under very specific circumstances, easements can be imposed by Courts. One type of imposed easement is referred to as an Easement by Necessity.


In Texas, a party claiming a necessity easement must show ALL of the following:

(1) unity of ownership of the alleged dominant and servient estates before severance;

(2) the claimed easement is a present necessity and not a mere convenience; and

(3) the necessity for the easement existed when the two estates were severed.”

Staley Family P’ship, Ltd. v. Stiles, 483 S.W.3d 545, 548 (Tex. 2016).

The party claiming a necessity easement has the burden to prove all facts necessary to establish it. Id. see also, Holden v. Weidenfeller, 929 S.W.2d 124, 129 (Tex. App.—San Antonio 1996, writ denied) (burden of establishing elements of implied easement by necessity is on the party claiming the easement). 


To establish unity of ownership the claimant must prove his grantor owned the dominant and servient estate as a unit or single tract prior to severance. See Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984).

The parcel owned by the grantor of the easement is the “servient estate,” and the parcel benefitted by the easement is the “dominant estate.” Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.—Tyler 2005, no pet.). “To establish unity of ownership the claimant must prove prior to severance, his grantor owned the dominant and servient estate as a unit or single tract.” Id. 

The Texas Supreme Court held in Koonce that a single common owner in two or more separate tracts with different co-owners fails to satisfy the unity of title element. See Koonce, 663 S.W.2d at 452. Thus, the unity element cannot be established if two separate tracts, with different owners, share a single common owner. 


“A way of necessity . . . must be more than one of convenience, for if the owner of the land can use another way, he cannot claim by implication to pass over that of another to get [to] his own.” Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944). In other words, “[t]he claimant is not entitled to a way of necessity if he has a right of way over the land of another.” Id. See Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied) (easement by necessity requires no other legal access to property).  “Nearly every road can be impassable at one time or another, which does not render an alternative route a necessary one other than for a limited time. The high ground road was a mere convenience for most of the time, and cannot be said to amount to a necessary one in the sense of an easement by necessity.” Wilson v. McGuffin, 749 S.W.2d 606, 609 (Tex. App.—Corpus Christi 1988, writ denied) (emphasis in original). 


In addition, the necessity must have existed at the time the dominant and servient estates were severed, and must also be “a continuing, present necessity.” Hamrick v. Ward, 446 S.W.3d 377, 382 (Tex. 2014). Once the necessity terminates, so, too does the necessity easement. Id.; see Bains, 182 S.W.2d at 399. 


Whether a property owner is entitled to an easement by necessity over the lands of another is a question of law, which will usually be decided by a Judge. However, underlying factual issues may need to be resolved in order to reach the legal question.  These factual issues may be developed through deposition testimony and other written discovery.