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Cozby v. Armstrong - 205 S.W.2d 403 (Tex. Civ. App. 1947)

Rule:

If an easement in land is granted in general terms, without giving definite location and description to it, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. The right to locate belongs to the owner of the servient tenement, but he must exercise it in a reasonable manner, having due regard to the rights and interests of the owner of the dominant estate. When an easement granted in indefinite terms has been once selected and located, its location cannot be changed by either the owner of the land or the owner of the easement without the consent of the other party, for it would be an incitement to litigation to treat such an easement as a shifting one, and would greatly depreciate the land on which it is charged and discourage its improvement. An easement is a liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil. The use of an easement is limited to those which are reasonably necessary and convenient and as little burdensome to the servient estate as possible for the use contemplated.

Facts:

E. C. D. Willburn and his wife owned in fee a 250.19 acre tract of land which was bound on the north by the Benbrook public road and bisected by a railroad track running east and west across it. In Sept. 1938, the couple subdivided this land between their children and other individuals. 150.19 acres of the land were acquired by appellees Mary Armstrong and several others. Eventually, appellees acquired all of the title to the said 150.19 acres and used the same as a homestead beginning 1940. Armstrong also bought 50 hectares worth of land from Willburn's children and reserved a right-of-way easement for the property. All the children of the Willburn's executed a right of way in favor of Armstrong. The last of the children of Willburn who did not sell to Armstrong eventually sold his property to appellant Grace Cozby, and in their agreement they sought to move the right of way without the consent of Armstrong. Armstrong filed a lawsuit in Texas states court seeking to enjoin the new right of way. The trial court found that the use of the old road by the dominant owners (Armstrong and others) deprived the servient owners (Cozby and others) of the reasonable and practical use of a residence and land and that the new road was just as suitable, convenient, and economical for the dominant owners to travel and use as the old one. Cozby appealed.

Issue:

Did the change in the easement impair the easement of Armstrong and the other dominant owners?

Answer:

No.

Conclusion:

On review, the appellate court reversed the judgment, finding that the change in the easement was not so drastic as to impair Armstrong's easement. The court found that the change increased the length of travel from 195 feet to 320 feet and that there were three gates to open over the old route and only one over the new one. The change was made for the benefit of Cozby and the other servient owners, enabling one owner to eliminate dust and automobile lights from entering her home and in a small way allowing her a greater privilege in the use of her land cut off by the old road, but such change did not inconvenience Armstrong and the other dominant owners in any way.

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