Why would anyone buy property without access to a public road? Because it seemed like a good idea at the time, I guess. And often it is, until things change, “things” often being new and unfriendly ownership of the surrounding property. The Texas Supreme Court has addressed this situation.  Hamrick v. Ward clarified the law for two different kinds of implied easements: the easement by way of necessity and the easement by prior use. Texas courts are now to use the standard for easements by necessity when deciding whether there should be a road easement over property surrounding a landlocked parcel. That was not always the case.

To establish an easement by necessity the plaintiff must prove:

1. Unity of ownership of the dominant and servient estates prior to severance;

2. Access is a necessity, not a convenience;

3. The necessity existed at the time the two estates were severed.

To prove a prior use easement:

1. Same unity of ownership as above;

2. Use of the claimed easement was open and apparent at the time of the severance;

3. Use was continuous, so the parties must have intended that its use pass by grant;

4. Use must be necessary to the use of a dominant estate.

What’s the difference?

• Prior use easements are easier to prove because of the requirement of necessity at all times.

• For a prior use easement the plaintiff will not have to demonstrate a “strict necessity” for the easement.

• The burden of proof for a necessity easement is the “less forgiving” requirement for strict and continuing necessity.

• Prior use easements will now be reserved for burdens such as cattle grazing, pipelines, sewer lines, drainage, and the like. The rationale is that these items are not as much of an encumbrance on the land as a road.

There is a better way

Get it in writing, even if it is from Grandma and Grandad, or Momma, and especially if its from the in-laws.

Having myself just completed a title case involving easements, here’s one I learned about that the court in Hamrick did not address:

Easement by reference to a map or plat

You don’t see this one often. Conveyance of land by reference to a map or plat showing abutting roads or streets can result in the purchaser (or one holding under him – very important) acquiring a private easement in the roads or streets showing on the plat. Reliance is required, although some cases hold that reliance can be inferred from the language in the deed itself.

Will the loser at the next trip to the trial court  feel bad, perhaps enough to regret their previous actions?