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 a specific purpose. Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App.—San Antonio 1996, writ denied).
In Texas, easements may be created in five ways:
- an express grant,
- necessity,
- estoppel,
- prescription, and
- prior use.
Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 722 (Tex. App.—Eastland 2012, pet. denied) (citing Machala v. Weems, 56 S.W.3d 748, 754-55 (Tex. App.—Texarkana 2001, no pet.)); see also Hamrick v. Ward, 446 S.W.3d 377, 381-85 (Tex. 2014).
I have written about estoppel easements and prescriptive easements in other posts. This post focuses on necessity easements, and particularly the meaning of “strict necessity” in Texas court opinions evaluating claims for easement by necessity.
WHAT IS AN EASEMENT BY NECESSITY?
Texas case law establishes that when a grantor conveys part of a tract of land while retaining the remaining acreage for himself there is an implied reservation of a right of way by necessity over the land conveyed, when no other access exists. Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397 (1944).
“Anyone who grants a thing to someone is understood to grant that without which the thing cannot exist.” James W. Simonton, Ways by Necessity, 25 Colum. L. Rev. 571, 572 (1925). With similar emphasis on this ancient maxim, we recognized in 1867 that a necessity easement results when a grantor, in conveying or retaining a parcel of land, fails to expressly provide for a means of accessing the land. Alley v. Carleton, 29 Tex. 74, 78 (1867). When confronted with such a scenario, courts will imply a roadway easement to facilitate continued productive use of the landlocked parcel, rather than rigidly restrict access. Id.
ESSENTIAL ELEMENTS OF NECESSITY EASEMENT
An easement by necessity is established with proof of:
(1) unity of ownership of the dominant and servient estates prior to severance (“unity of title”),
(2) the necessity (and not mere convenience) of a roadway, and
(3) that the necessity existed at the time the estates were severed.
Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1964).
WHAT IS “STRICT NECESSITY”?
“Under Texas law, a party may not have a way of necessity when he has another legal means of access to his property.” Accordingly, for an easement to be necessary, the claimant must show that he lacks any alternative route to legally access the public roadway from his property. Duff v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958); see Staley Family P’shp v. Stiles, 483 S.W.3d 545, 549 (Tex. 2016).
The standard of proof to establish an implied easement by necessity is “strict necessity.” Harrington, 372 S.W.3d at 722-24; see Hamrick, 446 S.W.3d at 383.
Under the strict necessity standard, “[n]ecessity means that the use of the easement must be economically or physically necessary for the use of the land and not merely desirable.” Payne v. Edmonson, 712 S.W.2d 793, 796 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (citing Drye, 364 S.W.2d at 208).
Though other existing options for access may be burdensome, expensive, or even impractical, courts have consistently required those who claim an easement by necessity to show that such an easement is a “strict necessity,” even when alternative means are expensive, difficult, or impractical. See Duff, 311 S.W.2d at 642-43; Trujillo Enterprises, Ltd. v. Davies, 573 S.W.3d 297, 306-07 (Tex. 2019); Harrington, 372 S.W.3d at 725; Reyes v. Saenz, 269 S.W.3d 675, 677-78 (Tex. App.—San Antonio 2008, no pet.); Adams v. Norsworthy Ranch, Ltd., 975 S.W.2d at 429.
WHAT IF THE PROPERTY HAS ACCESS OVER ANOTHER ROUTE THROUGH AN EXPRESS EASEMENT?
As a matter of law, an easement by necessity cannot arise when an express easement already exists and provides access to the property. Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (Tex. 1958); see Stiles, 483 S.W.3d at 549; see also Machala, 56 S.W.3d at 755 (“A way of necessity must be more than a convenience; if the owner of the land can use another way, he cannot claim by implication a right to pass over that of another to get to his own.” (citing Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (Tex. 1944))).
WHAT PART OF THE SERVIENT ESTATE MAY BE ACCESSED?
The right of way of necessity, however, is the right to a convenient way over the surrounding land, but not to every part of it. State v. Black Bros., 116 Tex. 615, 297 S.W. 213, 219 (Tex. 1927).
ONCE ESTABLISHED, WHEN DOES THE NECESSITY EASEMENT TERMINATE?
Easements by necessity are temporary and terminate upon the cessation of the necessity that created them. Harrington, 372 S.W.3d at 723-24 (holding that a claimant proved unity of ownership for a severance that occurred in 1901). This includes when the dominant estate is conveyed to others, but the necessity persists. See Crone v. Brumley, 219 S.W.3d 65, 70 (Tex. App.—San Antonio 2006, pet. denied) (holding that the necessity easement was impliedly transferred to the successors-in-interest upon their acquisition of the property); Rushin v. Humphrey, 778 S.W.2d 95, 97 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (“As successors in interest to the admitted common source of title, the appellees are entitled to assert whatever easement rights were acquired.”).
The temporary nature of a necessity easement is thus consistent with the underlying rationale; that is, providing a means of roadway access to land only so long as no other roadway access exists.
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.
