The Texas Supreme Court recently ruled in Albert v. Fort Worth & Western Railroad Company, a case addressing legal access to a landlocked tract of land in Johnson County. This case is a great reminder of the law regarding access to property and the various types of implied easements in Texas law.
Background
At issue in this case is access to a 10-acre property located in Johnson County, Texas (“the Property”). It is separated from State Highway 171 by a strip of land owned by the Ft. Worth & Western Railroad Company (“the Railroad Tract”).
Originally, both the Property and the Railroad Tract were part of a 702-acre tract, but that land was severed into three different tracts in 1887. At that time the land was divided into a larger southwestern tract, a smaller northeastern tract (the Property), and the 12.7-acre strip that was conveyed to Western’s predecessor in interest, Gulf, Colorado, & Santa Fe Railway (the Railroad Tract).
There is a single, gravel road crossing the Railroad Tract that connects the Property to the highway.
In 1959, Mr. Meek owned the Property, and he obtained a license from Gulf allowing him to build a gravel road across the Railroad Tract to the highway. The license was limited to Meek’s personal and agricultural use, and it could not be assigned without Gulf’s permission. Even prior to Meek’s license, an aerial survey from 1941 shows an unimproved road already existed where the gravel road is now.
Meek sold the property in 1969. Meek did not attempt to assign his license to any of the new owners and none of them sought a new license to cross the property. Despite the lack of a license, for the following 50 years, subsequent owners continued to use the crossing for various purposes including agricultural, commercial, and personal use. During this time, none of the Railroad Tract’s owners objected or attempted to physically block the crossing to prevent use.
In 2005, Western acquired the Railroad Tract and began sending notices to the Property owners informing them they were trespassing by crossing the Railroad Tract. These letters were sent in 2006, 2007, and 2009. Western never attempted to physically interrupt the gravel crossing’s path across the Railroad Tract.
Mr. Albert began looking at purchasing the property in 2016 to build a concrete plant. Prior to purchasing the Property, Albert applied for permits with the City and the TCEQ as required to build a concrete plant. Western objected to both permits on the basis it was not safe for commercial vehicles to cross the Railroad Tract given the short distance between the railroad tracks and the highway.
Prior to Albert purchasing the land, Western had a meeting with Albert’s business partners where Western provided them with a sample crossing agreement. Ultimately, the parties did not sign the agreement.
Albert purchased the property in 2016, and the concrete plan began operating. The concrete trucks used the crossing over the Railroad Tract to access the Property.
Western sent Albert a cease-and-desist letter demanding he stop using the crossing. Albert filed suit against Western seeking a declaratory judgment that he held an easement by estoppel, easement by necessity, and a prescriptive easement for the gravel crossing. Western counterclaimed for trespass and injunctive relief.
Trial
A jury trial was held, and the jury found for Albert on all claims, agreeing he had an easement by estoppel, easement by necessity, and prescriptive easement and finding that he did not trespass. Western appealed arguing the evidence was legally insufficient to prove the existence of these easements.
Court of Appeals Opinion
The Waco Court of Appeals reversed. [Read prior blog post covering opinion here.]
Easement by estoppel
In order to prove an easement by estoppel, the party seeking the easement must prove: (1) the owner of the servient estate (here, Western) communicated a representation either by words or conduct to the promisee (here, Albert); (2) the promisee believed the communication; and (3) the promisee relied on the communication.
Albert claimed that Western made two specific representations upon which he believed and relied. First, Western offered a sample crossing agreement prior to Albert purchasing the property. Western’s employees testified that this agreement would not have been provided unless Albert’s use of the crossing was to be permitted and that Western never expressly told Albert or his partners crossing was not permitted. Second, when Western objected to Albert’s permit applications with the City and the TCEQ, it did so based on safety concerns with the use of the crossing for large trucks, not based upon there being no legal access. This, Albert argued, was a representation that Albert had the right to cross.
The court disagreed, holding that there was no evidence Western made any representation of any kind to Albert. Western provided a sample crossing agreement, which Albert did not sign. The license agreement with Meek was expressly not assignable and also did not offer any basis upon which Albert could have believed he had the legal right to cross. Thus, the evidence was legally and factually insufficient for a jury to find an easement by estoppel.
Easement by necessity
To prove an easement by necessity, the claimant must show: (1) unity of ownership of the alleged dominant and servient estates before severance; (2) the claimed easement is a present necessity and not a mere convenience; and (3) the necessity for the easement existed when the two estates were severed. Here, as is often the case in easement by necessity cases, the first two elements were satisfied. It was the third element that the court found not to exist.
Albert offered a traveler’s map from 1867 showing a military road running along the Railroad Tract. A second map from 1938 was admitted and showed a dotted line across the Railroad Tract connecting to the Property, indicating a private road or trail.
The court found this insufficient because there was no party to testify how any part of the Property was used in 1887, if at all, by the original owner. Likewise, there was no testimony that there was a necessity of access across the Railroad Tract at that time. Without that evidence, a jury could not find the existence of an easement by necessity.
Note, this portion of the court’s opinion was overruled by the Supreme Court opinion discussed below.
A prescriptive easement is shown by the open, notorious, hostile, adverse, uninterrupted, exclusive, and continuous use of the servient estate for a period of more than 10 years. A party may rely on the conduct of his predecessors to establish the requirements of a prescriptive easement. This is the case for Albert, as he has not yet even owned the Property for ten years.
Albert argued that the crossing has existed since the 1940s and that since then, the Property has been used for a variety of personal and commercial purposes, all of which used the Railroad Tract for access.
The court disagreed, finding that there was some testimony that Meek and another neighboring landowner, Johnson, used the crossing for the business of raising livestock for rodeo for more than 10 years. The court said Johnson’s use of the easement rendered Meek’s use non-exclusive.
Additionally, the court noted this all began when Meek used the easement with permission. Any use of an easement by permission cannot ripen into a prescriptive right. However, a use that was originally permissive may become adverse at a later date if that can be proven. In order to transform a permissive use into an adverse use, there must be “a distinct and positive assertion of right which is hostile to the owner’s rights brought to the servient owner’s attention.” The court said that Meek using the property for commercial purposes, which was beyond the scope of his license, did not transform his permissive use to an adverse use.
The court held that no implied easement existed and reversed and remanded on the additional issues related to injunctive relief and the boundaries of the easement.
Albert sought review from the Texas Supreme Court, which was granted.
Supreme Court Opinion
The Supreme Court affirmed in part and reversed in part. [Read Opinion here.] In reviewing a jury verdict for legal sufficiency, a court examines the record in the light most favorable to the verdict and asks only whether a reasonable juror could have reached the verdict based on the evidence presented.
Overview of Easement Law
The Court began with an overview of easement law. Generally, easements granting the right to cross an adjoining piece of property are an easement appurtenant, meaning it attaches to the land itself and conveys with the land. Because easements appurtenant are real-property interests, they generally must be a signed writing in order for an easement to be valid. There are, however, several exceptions to this rule that easements must be in writing. In these situations, a court may imply an easement if the party claiming it can prove certain facts. Implied easements are narrowly construed.
Albert offered three implied easement theories: easement by estoppel, easement by necessity, and prescriptive easement.
Easement by Estoppel and Easement by Necessity
With regard to the first two types of easements claimed, the Court said it agreed with the court of appeals that the evidence was not sufficient to prove an easement by estoppel or an easement by necessity. The Court said that “further discussion of these issues would not add to the jurisprudence of the state.” In light o this, they were not discussed.
The Court disagreed with the court of appeals’ ruling on the prescriptive easement and reversed on this finding.
A person claiming a prescriptive easement must prove that he or she used someone else’s land in a manner that is “adverse, open and notorious, continuous, and exclusive for the requisite ten-year period.” To be “adverse,” the use must be of “such a nature and character that it notifies the servient estate holder that the claimant is asserting a hostile claim.” A use is “open and notorious” when the servient owner has actual or implied notice of the use. Finally, the use is “exclusive” when it is made only by the claimant and not by the landowner. If both the landowner and claimant make the same use of the easement, the use is not exclusive and a prescriptive easement will not be granted. Prescriptive easements are easements appurtenant, meaning they run with the land.
The Court noted three “key pieces of evidence” that a juror could rely upon to conclude Albert is entitled to a prescriptive easement over the gravel crossing.
First, although only Meek had a license to use the crossing, evidence showed that Meek’s successors in interest continued to use the crossing for 50 years before Western objected to the use. Two witnesses offered testimony that they have lived in the area for over 40 years and both were familiar with the crossing since childhood. They testified that the Property’s owners always used the gravel crossing to access the Property as long as they could remember. The record is clear that none of these successors in interest had permission to use the road. They did not have a license or an easement to do so. The crossing itself was readily observable, as was the use made continuously by the Property’s owners for decades. Western’s own employees admitted that the crossing is open and obvious to anyone who walks up or drives by the area.
In contrast to the court of appeals’ opinion, the Texas Supreme Court made clear it was not the use by Meek or his licensee, Johnson, that gave rise to the prescriptive easement. Instead, it was the conduct of Meek’s predecessors in interest for which there was clearly no permission or license, that satisfied the hostile use element. Western argued that Albert failed to show continuous use on a year-by-year, owner-by-owner basis, but the Court did not agree that the absence of that evidence rendered the verdict legally insufficient.
Second, only the Property’s owners and their licensees and invitees used the gravel crossing during that 50 year time period. There was no evidence that any of the Railroad Tract owners made similar uses of the crossing. Western argued that because it made use of the railroad tracks on the Railroad Tract for well over a century, the Property owners’ use was not exclusive. The Court disagreed, noticing that the exclusivity analysis focuses on whether the landowner and claimant use the easement in the same way. Here, the property owners use a gravel road to cross the tracks. Western uses the land for trains to run on the railroad tracks. Western admits it has never used the gravel road to cross the tracts. Thus, the Property owners’ use of the gravel road was exclusive.
Third, based on the aerial survey, it appears the gravel crossing pre-dates Meek’s license by nearly 20 years and was readily observable even in 1941.
In light of this, Albert is entitled to a prescriptive easement for use of the gravel road crossing.
Key Takeaways
First, anytime an access easement involving landlocked property arises, it is a good time to remind Texas landowners that there is no law granting automatic access to landlocked property. Anyone who says that is misinformed. Here, for example, Albert was able to gain legal access to his landlocked property, but only because he was able to satisfy the conditions to prove a prescriptive easement. Had he not been successful in doing so, access would have been denied. To learn more about the law surrounding landlocked property click here for our Owning Your Piece of Texas handbook (Chapter 7) or here for a podcast episode on landlocked property.
Second, this case illustrates the issues that can arise, even decades down the road, when access easements are not reduced to writing and filed in the deed records. Having written and recorded access easements is the safest way to ensure legal access to property and to avoid long, expensive, and uncertain litigation.
Third, with regard to prescriptive easements, this case is a reminder to landowners who may not want another crossing their property to take action to stop such crossing if a person does so without permission. Here, had the railroad filed suit or blocked access when the owner after Meek first began using the crossing without a license, it likely could have prevented the use at that point. Additionally, this case does a good job explaining the “exclusive use” requirement to prove a prescriptive easement. That is not an element I have seen spelled out in detail in other cases.
