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This is a work in progress so I will not apologize for any confusion or errors or mispellings, or split infinitives.

(Underlines indicate a hyperlink)

NOTE:  This analysis was written by a member of the California Bar, retired.  He is not licensed to practice law in Texas, nor does he wish to do so.  He cannot give legal advice, nor does he wish to.  He is a property owner and has put together this information for his own use, which he is entitled to do.  This information is a matter of public record and available to anyone who wishes to dig it out.  The problem for most people is that they do not know how to research case law.

It is important to understand commonly accepted language when discussing easements.  I have put together a small outline for a General discussion of Easements.

 

Case Law re Easements.

When Terlingua Ranch Development plots were sold none of the deeds for the plots contained a grant of easement across bordering plots.  These plots were, apparently, landlocked except for a recitation by POATRI that they held and assigned the rights for ingress and egress for property owners.  It is commonly held belief that every property owner has unlimited access to the roads that crisscross Terlingua Ranch.

This does not appear to be a legal fact.  The original assignment of rights ( 1976 Terramar Assignment ) from Terramar to POATRI does assign such rights and easements to POATRI for purposes of maintenance and utility.  POATRI created a document ( SECTION II General Association Policies ) that claims to grant all property owners access across all other property owners' property on the maze of roads.

There are a couple of things wrong here.  A reading of the law presented here shows that POATRI would have gotten an Easement in Gross.  Easements in Gross are not assignable or transferable.  POATRI could not turn and assign an easement to one property owner to pass over land which it does not own.

There is an argument that Terramar made another assignment to POATRI in 2006 ( 2006 Assignment of Easements and Rights ).  It matters little what this document says because Terramar had nothing to assign, they having previously assigned away all rights it still had.  ( North Affidavit ) (Blackley - BCOC) ( 2006 Assignment Voided )

The problem is some property owners are attempting to gate the roads crossing those property owners' land.  The owners of Echo E Ranch felt it would be wise to discover what legal basis they have to force their rights of ingress and egress across any gated properties encountered.

Recent litigation ( POATRI v Suber ) holds that POATRI received no rights of easements which they could assign.   The court also held that Suber has a right to erect a gate but is unclear what that means.  The order does seem to rule on the rights of parties not named in the lawsuit.  All in all, it is an untidy piece of litigation.  The bright spot is that the court has restrained enforcement of its order pending a reconsideration.

 Unfortunately, for some, the court on reconsideration affirmed its order and held that POATRI holds, at most, an Easement in Gross and, therefore, cannot grant an easement to property owners over land to which it does not hold title ( Suber Amended Final Judgment).

It seems a bit odd that Suber would gate his property when he must cross other people's property to get to his own.  It is hard to think of him as a rational person!

 

During my research two cases present themselves immediately; Drye et al v. Eagle Rock Ranch, and Harrington v. Dawson-Conway.  Drye is of interest because of the similarity of that case with the conditions at Terlingua Ranch.  Harrington is of special interest because it is a current case with detailed discussions of easements in all their forms.  Harrington is good law and can be relied upon.

Easements may be created by express grant, by implication, by necessity, by estoppel, and by prescription. Machala v. Weems, 56 S.W.3d 748 (Tex.App.-Texarkana 2001).

Easements by necessity arise by implication. See Othen v. Rosier, 226 S.W.2d 622, 626, 148 Tex. 485, 491 (Tex. 1950) (stating that easement by necessity "necessarily can arise only from an implied grant or implied reservation"); Ward v. Bledsoe, 105 S.W.2d 1116, 1117 (Tex. Civ. App.-Waco 1937, no writ) ("A way of necessity does not arise merely because of inconvenience. It is dependent upon an implied grant or reservation . . . ."); Jordan v. Rash, 745 S.W.2d 549, 553 (Tex. App.-Waco 1988, no writ) ("An easement of necessity can only arise between a grantor and grantee through an implied grant or reservation."). If a grantor conveys property surrounded by land owned by others, Texas law presumes that the grantor intended to grant a roadway to enable full enjoyment of the conveyed property, and "the failure to grant a passageway was an oversight and will be implied in the grant." Grobe v. Ottmers, 224 S.W.2d 487, 489 (Tex. Civ. App.-San Antonio 1949, writ ref'd n.r.e.)

To establish an easement by necessity, a landowner must show: (1) unity of ownership before severance; (2) that access is a necessity and not a mere convenience; and (3) the necessity existed at the time of severance of the two estates. Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.-San Antonio 2006, pet. denied). To establish an implied easement, a party must show (1) unity of ownership between the dominant and servient estates at the time of severance; (2) apparent use of the easement at the time of the grant; (3) continuous use of the easement before the severance of the dominant and servient estates; and (4) that the easement is reasonably necessary to the use and enjoyment of the dominant estate.[2] Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Some overlap thus exists in the requisite elements for an easement by necessity and an easement implied from the severance of title. Common to both, a party must show unity of ownership between the dominant and servient estates at the time of severance, and that the easement is reasonably necessary to the use and enjoyment of the dominant estate. Id.

 Echo E Ranch's position is that the roads across which this owner must pass to reach his property were in place before the Terlingua Ranch was subdivided and thus there existed at the time of the subdivision quasi-dominant  and quasi-servient estates, and there was an easement intended by the developers who owned the easement rights.  If an owner used one part of his land for the benefit of another portion of his own land, the portion served had a "quasi-dominant tenement." The portion which was used was subject to a "quasi-servient tenement." The doctrine of implied easement appurtenant developed when the owner, under those circumstances, sold the portion of his land which had had the use of the other portion - as for drainage, support, way, or water. If use of the "servient" tract was apparent, continuous, and necessary to the use of the "dominant" land sold, the courts presumed that the necessary use of the "servient" tract passed by implication to the purchaser. Robert W. Drye et al. v. Eagle Rock Ranch 364 S.W.2d 196, 6 Tex. Sup. J. 102 (11/21/62)

 It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created — not only in favor of the parcel granted ("implied grant") but also in favor of the one remaining in the ownership of the grantor ("implied reservation"). The law read into the instrument that which both grantor and grantee must have intended had they both given the obvious facts of the transaction proper consideration. Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, (1952). 

When a grantee seeks an easement by necessity over land once owned by a common grantor but conveyed to third parties, he seeks a way of necessity by implied grant. Crone v. Brumley, 219 S.W.3d 65, 67 (Tex. App.-San Antonio 2006, pet. denied).  Echo E Ranch contends that these easements are of necessity because Echo E Ranch is otherwise land locked.

 

 

Herein is a partial list of some case law collected to support Echo E Ranch's position and cited in these discussions.

Mark Harrington v. Dawson-Conway, Ltd. (May 31, 2012).

Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.-San Antonio 2006, pet. denied

Machala v. Weems, 56 S.W.3d 748 (Tex.App.-Texarkana 2001)

Jordan v. Rash 745 S.W.2d 549 (1988)

Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.-Houston [1st Dist.] 1998, no pet.)

Strackbein  v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984)

 Benedictine Sisters of the Good Shephard v. Ellison, 956 S.W.2d 629, 632 (Tex. App.-San Antonio 1997, pet. denied); Heard, 885 S.W.2d 595--96. (October 15, 1997)

Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied)

Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984)

Parshall v. Crabtree, 516 S.W.2d 216, 218-19 (Tex.Civ.App.-San Antonio 1974, writ ref'd n.r.e.).

Robert W. Drye et al. v. Eagle Rock Ranch 364 S.W.2d 196, 6 Tex. Sup. J. 102 (11/21/62).

Mitchel v. Castellaw 246 S.W2d 163 (1952)

Grobe v. Ottmers, 224 S.W.2d 487, 489 (Tex.Civ.App.-San Antonio 1949, writ ref'd n.r.e.)

Ward v. Bledsoe, 105 S.W.2d 1116, 1117 (Tex. Civ. App.-Waco 1937, no writ)

OTHER USEFUL CASES: