It is not uncommon in Texas for a landowner, for example, someone who has inherited property, to find that the property is landlocked and without access to a public road. Sometimes access to the landlocked property is offered by a friendly neighbor. However, in the absence of an adjoining property owner who will allow or sell an easement from the landlocked property to a public road, the owner of the landlocked property is forced to go to court to obtain what is called an “easement of necessity”. The Texas Fifth Circuit Court of Appeals recently discussed the criteria for an easement of necessity in the case of The Staley Family Partnership, Ltd. v. David Stiles, et al.
The Staley Family Partnership owns a 10 acre tract of land (“the Staley Tract”) bordered by Honey Creek or its tributaries on the west, south and east located in Collin County, Texas. The Staley Tract was initially part of larger tract (the “Helms Tract”) conveyed to Thompson Helms by the State of Texas in 1853. In 1855, a portion of the Helms Tract was transferred to Robert Skaggs and the remaining 404 acres of the Helms Tract was divided by the probate court in 1866. The probate court awarded Axia Helms a 152 acre tract, James Helms a 142 acre tract and Frances Helms a 110 acre tract (the “Frances Tract”).
In 1873, Frances transferred 60 acres of the eastern portion of the Frances Tract to James and in 1876 Frances transferred an additional 40 acres to James, and in a series of conveyances the Staley Partnership became the owner of the remaining 10 acres.
David Stiles owns the “Stiles Tract”, which is a portion of the Axia Helms and James Helms tracts that are bordered by Honey Creek and the Staley Tract. The Stiles Tract is north of the Staley Tract and County Road 134 is located currently at the northern boundary of the Stiles Tract. Honey Creek and its tributaries extend north of County Road 134.
Staley sought a declaratory judgment that, by necessity, it is entitled to an access easement across the Stiles Tract for access to and from County Road 134. The trial court ruled that Staley did not have an easement of necessity, an implied easement or an easement by estoppel across the Stiles Tract. Staley appealed.
The Fifth Circuit noted that the determination of whether a party is entitled to an easement by necessity is a question of law, and questions of law are reviewed de novo. To establish an easement by necessity, the party seeking the easement bears the burden of proving three elements:
1. Unity of ownership of the dominant and servient estates prior to severance,
2. Necessity of a roadway, and
3. Existence of the necessity at the time of the severance of the two estates.
In Texas, the degree of necessity required is strict necessity. Access across the subservient tract must not be merely a convenience. The Fifth Circuit said that “the inquiry that governs resolution of this case is whether at the time of the severance, the dominant estate — the Staley Tract — had the right to pass over the servient estate — the Stiles Tract — due to necessity of access to CR 134.”
Staley alleged that the Staley Tract has been landlocked since 1866 and an easement of necessity across the Stiles Tract to the public road was created at the 1866 severance because Honey Creek and its tributaries bordering the Staley Tract on three sides was impassable. However, Staley provided no evidence that a public road existed abutting either estate at the time of severance. There was no evidence of any road on or abutting either tract in maps from 1936 or 1944.
The Court noted that proof of unity of ownership and current necessity of a roadway are not enough to establish an easement by necessity, and that the party seeking the easement must prove the necessity existed at the time the dominant and servient estates were severed. In this case, the Court held that Staley had failed to show that, at the time of severance, a necessity across the Stiles Tract to a public road existed.
Obviously, there is a challenging burden of proof to establish an easement of necessity. When a landlocked owner cannot establish an easement of necessity, the landlocked property is probably close to worthless. On the other hand, the bar should be high to establish an easement of necessity, because it imposes a roadway on an innocent adjoining landowner.