226 S.W.2d 622
Albert Othen owns two tracts totaling 113 acres that form part of the Tone Survey originally owned by Hill.1
Othen acquired the 60-acre tract in December 1904 after Hill conveyed it in February 1897.2 He acquired the 53-acre tract in November 1913 after Hill sold it in January 1899.3 Estella Rosier and others own adjacent tracts consisting of 100 acres conveyed by Hill in August 1896 and 16.31 acres conveyed by Hill in January 1899.4 The Rosiers acquired both tracts through mesne conveyances in 1924.5
Othen's 113 acres has no direct access to any public road bordering the Tone Survey.6 Before the events giving rise to suit, Othen reached the Belt Line Road by passing through a gate in the west line of his 60-acre tract and the east line of the Rosiers' 16.31 acres.7 He then traveled west-northwesterly across the 16.31 acres into a fenced lane along the south side of the Rosiers' 100 acres.8 Finally, he went through a gate at the southwest corner of the 100 acres into the Belt Line Road.9 The south fence of the lane was built about 1895 and its north fence and the outside gate were constructed about 1906.10
Othen had lived on the 60-acre tract as a tenant for two years before buying it in 1904.11 He used the described path continuously thereafter.12 The Rosiers and their tenants likewise used the lane for farm operations and to reach their pasture on the 16.31 acres.13
Surface water flowing into the lane created a ditch that threatened to make the roadway impassable.14 To address the erosion, the Rosiers built a 300-foot levee as close as possible to the south fence of the lane, with roughly half its length inside the lane and the remainder curving into the 16.31 acres.15 The levee impounded water and rendered the lane muddy and impassable for weeks at a time except by horseback.16
Othen filed suit seeking a temporary injunction against further maintenance of the levee, a mandatory injunction protecting his use of the roadway, and damages.17 The trial court found that Othen held an easement of necessity and ordered the Rosiers to restore the roadway to its prior usable condition.18 The Court of Civil Appeals initially affirmed the easement determination but, on rehearing, concluded that Othen possessed neither an easement of necessity nor one by prescription and rendered judgment for the Rosiers.19
Othen had used the path since at least 1904.20 Witness testimony indicated the general route had existed since the 1890s, though the precise alignment before 1906 was described only in general terms as passing through prairie and around hog wallows.21
Whether Albert Othen holds a roadway easement of necessity over lands owned by Estella Rosier and others?22
Before an easement can be held to be created by implied reservation it must be shown that there was a unity of ownership of the alleged dominant and servient estates.23 The roadway must be a necessity, not a mere convenience.24 The necessity must have existed at the time of severance of the two estates.25
No. Although unity of ownership existed when Hill held the entire Tone Survey, the record fails to establish that any roadway over the 100 acres conveyed on August 26, 1896, was a necessity rather than a mere convenience at the moment of that severance.26 Hill retained title to the 16.31 acres until January 26, 1899, so no implied reservation could arise over that tract when the 100 acres passed out of his ownership two years earlier.27
Othen does not hold a roadway easement of necessity over the Rosier lands.28
Related opinions on this issue
Justice Taylor dissented without opinion from the majority's determination that Othen held neither an easement of necessity nor an easement by prescription over the Rosier lands.29
Whether Albert Othen acquired a roadway easement by prescription over lands owned by Estella Rosier and others?30
An important essential in the acquisition of a prescriptive right is an adverse use of the easement, and the rule is well settled that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription since user as of right, as distinguished from permissive user, is lacking.31
No. The Rosiers and their tenants used the lane for farm operations and to reach the 16.31-acre pasture.32 Under those facts Othen's use remained permissive and constituted only a license.33
In addition, Hill retained title to both the 60-acre tract until 1897 and the 16.31-acre tract until 1899.34 Therefore, the prescriptive period could not begin to run while dominant and servient tracts remained under common ownership.35
Othen did not acquire a roadway easement by prescription over the Rosier lands.36
Related opinions on this issue
Justice Taylor dissented without opinion from the majority's determination that Othen held neither an easement of necessity nor an easement by prescription over the Rosier lands.