Attorney Trey Wilson - RL Wilson Law

28 December 2008

Landlocked Property in Texas? An "Easement by Necessity" May Exist

Have you bought or inherited real property in Texas, only to find that the property is landlocked, with no legal access to a roadway? Obviously such a finding can be devastating, as even the greatest parcel is virtually useless if it cannot be accessed by vehicle. This devastation quickly translates to financial havoc, as landlocked property is often worth a tiny fraction of the property's value with access. But, before you abandon all hope, you should consult with an experienced real estate lawyer to determine whether an "easement by necessity" or other right of access may be established through operation of various legal doctrines. You may be pleasantly surprised to find that Texas Courts frown upon landlocked property.

An easement is defined as “a right of use over the property of another.” Black's Law Dictionary 527 (7th ed.1999). Easements are common tools for both public and private parties, and touch each of our daily lives in less-than-exciting, but important ways. Utility service is brought to your home and workplace through use of easements, and many times government employees (including first responders such as Police, Fire and EMS) utilize easements in their public service. In fact, many cities and utility companies have an entire staff of employees dedicated to obtaining and managing easements. Thus, easements are an invisible but essential element of daily life in Texas.

Easements may be generally thought of as a grant of a "right to use" (or "license to use") certain property of another for a certain reason. Easements may be created in many ways, both consentual and involuntary, as well as express and implied. Further, easements are not absolute. “Every easement carries with it the right to do whatever is reasonably necessary for full enjoyment of the rights granted.” Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In determining the scope of an easement, Courts "may imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974)).

Where landlocked property is concerned, Texas law governing "easements by necessity" are most often implicated (though there are other types of easements and dedications that should also be explored). This is because the landowner seeking an easement by necessity over a servient estate must show the necessity of that easement in accessing his property. Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, writ denied); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984).
For an easement to be necessary, the property must be landlocked.

A party claiming an easement by necessity bears the burden of proving all the elements necessary to establish the easement. Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2007, pet. denied) (citing Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958) and Bains, 182 S.W.2d at 399)). The elements are:

(1) unity of ownership prior to separation;

(2) access as a necessity and not a mere convenience; and,

(3) necessity existing at the time of the severance.

Koonce, 663 S.W.2d at 452 (citing Duff, 311 S.W.2d at 641).

Additionally, it should be noted that easements by necessity are temporary because their existence is dependent on the necessity that created them. Therefore, they terminate upon the cessation of the necessity.

Once the location of a way of necessity is established, its location may be changed only with the expressed or implied consent of both parties. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-El Paso 1993, no writ); Meredith v. Eddy, 616 S.W.2d 235, 240 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).

Many times individuals facing landlocked situations by trespassing on another's land to gain entry, or by obtaining a temporary access agreement from another landowner. Such practices are not fatal to proving an "easement by necessity" as “an easement by necessity is not defeated by proof that the party seeking the easement has ‘a mere license to use a way across the land’ of another.” Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2006, pet. denied). However, the party seeking to establish an easement by necessity must prove he has no other legal access to his property. Id.

The party seeking to establish an easement by necessity also must prove that the necessity existed at the time the estates were severed. See Koonce, 663 S.W.2d at 452(an element necessary to establish an implied easement by necessity is that the necessity must exist at the time of severance of the two estates); Perkins v. Krauter Family P'ship, Ltd., No. 04-03-00166-CV, 2004 WL 2097516, at *1 (Tex.App.-San Antonio Sept.22, 2004, no pet.) (mem. op., not designated for publication) (holding same as to an implied easement appurtenant); Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied) (holding same as to an easement by implication).

The means and evidence necssary to prove each of the elements of easement by necessity are often complex, and hyper-technical. Texas landowners facing landlocked property situations are urged to immediately seek the counsel of an experienced real estate attorney. Such an attorney can advise upon the facts of your particular circumstance, assist you in exploring claims against the Seller of the landlocked property, as well as any title companies or other professionals associated with your acquisition of the landlocked property.

Trey wilson is an attorney and real estate agent in San Antonio, Texas. In September 2008 Scene in SA Magazine named him one of San Antonio's Best Real Estate Litigation Attorneys. He may be reached at 210-223-4100 or

Trey Wilson --Named By Scene in SA Magazine As One of San Antonio's Best Real Estate Litigation Attorneys -- September 2008 -- As voted on by peers