Othen v. Rosier

Supreme Court of Texas · 1950 · Property

Propertyeasementsimplied easementnecessityprescriptioneasement by necessityimplied reservationunity of ownership

Facts

Both parties' tracts came from a larger survey formerly owned by Hill. Othen's land did not touch any public road, and he had long traveled through a gate on the east line of the Rosiers' 16.31-acre tract, then across that tract and along a fenced lane on the south side of the Rosiers' 100-acre tract to the Belt Line Road. The Rosiers and their tenants also used the lane for farm operations, livestock access, and hauling wood, and the Rosiers maintained the lane and its gate. After the Rosiers built a levee that made the lane muddy and often impassable, Othen claimed a roadway easement by necessity and by prescription.

Issue

Did Othen prove an easement by necessity over the Rosiers' land based on Hill's prior ownership and severance of title? Did he alternatively prove a prescriptive easement through long use of the roadway?

Rule

An easement by necessity can arise only through implied grant or implied reservation and requires proof of (1) former unity of ownership of the dominant and servient estates, (2) necessity rather than mere convenience, and (3) existence of that necessity at the time of severance. A prescriptive easement requires adverse use; where the claimant's use is consistent with the owner's use or permission, it is merely a license and cannot ripen into a prescriptive right.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In 2001, Nolan Mercer owned 900 acres outside Lubbock, including a roadside parcel on County Road 18 and a back parcel later sold to Tessa Velez. When Nolan sold the roadside parcel to Arlo Dunn in March 2001, Nolan still owned another strip of land connecting the back parcel to a different public road. In 2015, that other strip was condemned for a reservoir project, leaving Tessa's parcel landlocked.

If Tessa sues Arlo for an easement by necessity across the roadside parcel, which is the strongest answer?

Explanation. An easement by necessity must arise, if at all, from an implied grant or implied reservation at the time the common owner severed title. The claimant must prove former unity of ownership and true necessity existing at severance. Later events that make access difficult or impossible do not create the easement if necessity did not exist when the parcels were split.