Othen v. Rosier

148 Tex. 485, 226 S.W.2d 622 (1950)



Before an easement can be held to be created by implied reservation, it must be shown: (1) that there was a unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a mere convenience; and (3) that the necessity existed at the time of severance of the two estates. 


The landowner lived on property that required him to cross another's property in order to gain access to a public road. For several years, the landowner used a roadway on the burdened landowners' property. The burdened landowners subsequently erected a levee, which affected the quality of the roadway. The landowner filed an action, arguing that he had an easement of both necessity and by prescription. The burdened landowners maintained that no easement existed as to the roadway


Can an easement by necessity exist?    




The court ruled that: (1) the landowner did not show an implied easement because the evidence did not show that the roadway was a necessity as of the date of the deed; (2) the landowner's use of the roadway was merely permissive, and thus it could not ripen into a prescriptive right; and (3) the landowner failed to meet his burden of showing that his predecessor's adverse possession was in the same place and within the definite lines claimed by him and fixed by the trial court. The fact that a claimant's land is surrounded by another’s does not, itself, give the former primacy over the land of the latter, where there is no notion of ownership. It relies on an implied grant or reservation, and cannot exist independently unless it is affirmatively shown that there was formerly unity of ownership of the alleged dominant and servient estates, for no one can have a way of necessity over the land of a stranger. Necessity on itself, without showing of any relation between the owners of the land, is not sufficient to create such right.

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