What is an Easement By Estoppel?

                            Attorney for Easement Dispute                         


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.

The most common example of an easement is the right of a landowner to access his property by crossing over an adjoining landowner’s property.  This arrangement often exists to prevent lands from being inaccessible from public roadways, or “landlocked.”  The land over which the access roadway exists is burdened by the road’s presence, so it is referred to as the “servant” estate. Conversely, the land benefitting from the road (the tract that is accessible by virtue of the road’s existence on a neighboring tract) is referred to as the “dominant” estate.


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.  A formal, written easement is referred to as an “express easement.”  Express easements are sometimes contained in deeds, but may also be stand-alone instruments recorded in the real property records of the county in which the affected land is located.

Many times, however, there is no writing evidencing an easement.  When this occurs, the owner of the dominant estate may petition a court (by filing a lawsuit) to declare that an easement exists by implication (I.e an “implied easement”). These suits are often filed under the Texas Declaratory Judgements Act.

One time of implied easement is an Easement by Necessity. I discussed Necessity Easements in a separate post.  Another category of implied easement is an Easement by Estoppel.


The doctrine of equitable estoppel, or easement by estoppel, provides an exception to the rule requiring easements to be written and signed so as to  prevent injustice and protect innocent parties from fraud. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1962); Allen v. Allen, 280 S.W.3d 366, 381 (Tex. App.-Amarillo 2008, pet. denied). “The doctrine of easement by estoppel holds that the owner of the alleged servient estate may be estopped to deny the existence of an easement by making representations that have been acted upon by the owner of the alleged dominant estate.” Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex.App.-San Antonio 1996, writ denied).


“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.”

Holden 929S.W.2d at 131  (citing Storms v. Tuck, 579 S.W.2d 447, 452 (Tex.1979)).

“These elements apply at the time the communication creating the alleged easement is made.” Id. “An easement by estoppel, once created, is binding upon successors in title if reliance upon the existence of the easement continues.” Id.; Shipp v. Stoker, 923 S.W.2d 100, 102 (Tex.App.—Texarkana 1996, n.w.h.). Once created, it is binding upon the owner of the servient estate and his successors in interest if they had notice—actual or constructive—of the easement claimed. Robinson v. Riddick, No. 04-15-00272-CV, 2016 WL 1238166, at *3 (Tex. App.-San Antonio Mar. 30, 2016, no pet.) (mem. op.). It is also binding if the owner of the dominant estate and her successors in interest continue to rely upon the existence of the easement. Id.

A “gentlemen’s agreement” or “friendly neighbourly permission” to use land does not support easement by estoppel). See Martin v. Cockrell, 335 S.W.3d 229, 238-41 (Tex.App.-Amarillo 2010, no pet.)


The party claiming the easement  has the burden at trial to prove entitlement to the easement sought.  Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944) (“burden is on the party claiming an easement in another person’s land to prove all of the facts necessary to establish the easement”)


Being an equitable doctrine, Easement by Estoppel has not been clearly defined and its application must depend on the unique facts of each case. Wilson v. McGuffin, 749 S.W.2d 606, 610 (Tex.App.— Corpus Christi 1988, writ denied). The doctrine of easement by estoppel is not applied as strictly as the doctrine of implied easement. Payne v. Edmonson, 712 S.W.2d 793, 796-97 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.).

The gravity of a judicial means of acquiring an interest in land of another solely by parol evidence requires that equitable estoppel be strictly applied. Horner, 397 S.W.3d at 325. The estoppel should be certain, precise, and clear. Id.


Some of the factors Courts consider in determining whether an easement by estoppel exists are as follows.  This is not an exhaustive list, and the facts of each case may influence the type of evidence a Court is willing to consider:

  • Whether the claimed easement in this case has a direct and substantial relationship to the value of the use and enjoyment of the alleged dominant  estate. See North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678, 683 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.)(finding easement by estoppel where evidence showed expenditures of money and effort in making improvements that could be enjoyed by owners of dominant estate only through the use of the claimed easement).
  • Whether the owner of the alleged dominant estate reasonably relied on the existence of an easement to make substantial improvements to their property.
  • Whether there exists a vendor-vendee relationship whereby the owner of the alleged dominant estate purchased lands from the owner of the tract upon which the easement is to be imposed.
  • Whether the conduct of the owner of the servant estate  led the owners of the dominant estate to believe that they had a right to use the road in question and that such right was relied upon. See Wallace v. McKinzie, 869 S.W.2d 592, 596 (Tex.App.—Amarillo 1993, writ denied)(holding that permissive and acquiescing behavior of owner of servient estate created easement by estoppel where road had been used for over seventy years to access landlocked property).

As state above, Easement by Estoppel claims are complex and fact specific. Courts will not lightly impose easements across the property of landowners. If you are in need of legal assistance in connection with asserting or defending against a claim of easement by estoppel, you should contact an experienced real estate lawyer.