easements and rights-of-way: how do they disappear?€¦ · but, without either actual or...

4851-0444-8941.1

29th Annual Robert C. Sneed

TEXAS LAND TITLE INSTITUTE

Easements and Rights-of-Way: How do they disappear?

December 5-6, 2019 Hyatt Regency Hill Country Resort & Spa

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Daryl W. Bailey Gray Reed & McGraw LLP

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2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 2

TABLE OF CONTENTS

I. INTRODUCTION A. Creation of Rights-of-way

1. Express Grant or Reservation 2. Recording

B. Termination of an Easement

1. By Abandonment 2. By Abandonment: Case Illustration 3. Use for Which Easement Becomes Impossible 4. Easement Appurtenant vs. Easement in Gross 5. Easement by Necessity 6. Easement by Agreement: Determinable Easement 7. Misuse of Easement 8. Failure to Repair an Easement

C. Establishment of an Easement’s Location

1. Quasi-Blanket Easement 2. True Blanket Easement

D. Pipeline Easements

E. Dedication to the Public 1. Platted Easements 2. Easement vs. License

II. CONCLUSION


I. Introduction

Easements can be created through express grant or reservation, among several

other means, but this paper provides an analysis of issues on the narrow topic of how

easements and rights-of-way disappear. I use the term “disappear” because that

seemed to be the most logical characterization in light of certain scenarios where

they cease to exist as opposed to being eliminated or terminated. My

characterization is certainly debatable but made sense to me nonetheless.

The examination will be on: (1) how easements can be terminated by

abandonment; (2) when the use for which the easement was created becomes

impossible; (3) how terminations differs for easements in gross versus easements

appurtenant; (4) how easements by necessity terminate; (5) how determinable

easements terminate; and (6) whether misuse of an easement can terminate an

easement. For more niche topics relating to easements, we will also analyze (8) the

consequences of failing to repair an easement; (9) distinguishing between quasi-

blanket easements and true blanket easements; (10) pipeline easements; (11)

abandoning dedications to the public; (12) platted easements; and (13) terminating

licenses.


A. Creation of Rights-of-Way

1. Express Grant or Reservation An easement is an interest in land. Watson v. Wiseheart, 258 S.W.2d 350 (Tex.

Civ. App.—Galveston 1953, writ ref’d n.r.e.). As such, an express easement must

meet the same legal requirements as any real property conveyance. Parsons v. Hunt,

98 Tex. 420, 84 S.W. 644, 646 (Tex. 1905). As an express grant, an easement

conveyance must: (1) be reduced to writing; (2) express an intent to convey an

easement; (3) provide an adequate property description of the servient estate; (4) be

executed by the grantor or an agent of the grantor; and (5) be delivered. Bear v.

Houston & T.C. Ry. Co., 265 S.W.246 (Tex. Civ. App.—Galveston 1924, no writ).

As long as the instrument conveys an intention to grant an easement, no magic

words are required. In fact, even an instrument which has fee simple title conveyance

language, but which further contains more specific language expressing an intent of

easement use only, will be interpreted in accordance with the grantor’s intent so as

to convey an easement interest only. City of Port Isabel v. Missouri Pacific Railroad

Co., 729 S.W.2d 939 (Tex. Civ. App.—Corpus Christi 1987, writ ref’d n.r.e.).

An easement by reservation arises when a grantor conveys title to land but

reserves the right to continue to use the tract for a special purpose. Like a grant, a

reservation of an easement must be in writing and signed by the grantor. Drye v.

Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex. 1962). In order to be effective,


a reservation must be in favor of the grantor and may not be on behalf of a stranger

to the transaction. See MGJ Corp. v. City of Houston, 544 S.W.2d 171, 174 (Tex.

App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.). Provided the easement claimant

was a party to the transaction, the reservation at issue need not use the word

“easement” or any other particular words or forms, but its language must be

sufficient to show the intent to reserve an easement through recognition of the right

to use the servient estate. See Seber v. Union Pac. R. R. Co., 350 S.W.3d 640, 646-

47 (Tex. Civ. App.—Houston [14th Dist.] 2011, no pet.).

2. Recording

An easement does not have to be acknowledged or recorded in order to be

binding between the grantor and the grantee. Tex. Prop. Code Ann. Sec 13.001(b).

But, without either actual or constructive notice, a BFP (bona fide purchaser) for

value of the servient estate will take title without being bound by the easement. Stark

v. Morgan, 602 S.W.2d 298 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e). So, of

course, the best practice for the grantee of an easement is to take the benefit of the

Recording of Instruments statute by filing the same in the real property records of

the county in which the easement is located in order eliminate the potential of losing

to a BFP. Tex. Prop. Code Ann § 12.001.


B. Termination of an Easement

1. By Abandonment

Easement owners may abandon an easement by non-use only if they have an

actual intention to abandon it. Dallas County v. Miller, 166 S.W.2d 922, 924 (Tex.

1942); Briones v. Solomon, 769 S.W.2d 312, 316 (Tex. App.—San Antonio 1989,

writ denied). Mere non-use, without an intention to abandon, will not terminate an

easement. Briones, 769 S.W.2d at 316; San Jacinto Sand Co., Inc. v. Southwestern

Bell Tel. Co., 426 S.W.2d 338 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref’d

n.r.e.). Abandonment may be established by circumstantial evidence. However,

those circumstances must disclose some definite act showing an intention to abandon

and to terminate the right possessed by the easement owner. The material question

is the intention to abandon; that intention must be established by clear and

satisfactory evidence. Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922

(Comm'n App. 1942); Milligan v. Niebuhr, 990 S.W.2d 823 (Tex. App.—Austin

1999, no pet.). And while non-use is insufficient by itself to show abandonment, if

the non-use is long, continued, and unexplained, it leads to an inference of an intent

to abandon. Hicks v. City of Houston, 524 S.W.2d 539 (Tex. Civ. App.—Houston

[1st Dist.] 1975), writ refused n.r.e., (Oct. 15, 1975), citing City of Anson v. Arnett,

250 S.W.2d 450 (Tex. Civ. App. Eastland 1952), writ refused n.r.e.).


2. By Abandonment: Case Illustration

One of the best case illustrations of the requisite intent to abandon an easement

comes from a divorce dispute. In Milligan v. Niebuhr, two neighbors – a formerly

married couple – litigated over an easement providing access to a river for

recreational purposes. Milligan v. Niebuhr, 990 S.W.2d 823, 826 (Tex. App.—

Austin 1999, no pet.). Dr. Gene Milligan purchased an 8.98 acre tract known as

Peach Orchard in 1983, which included an easement across an adjoining strip of

land, known as Lot 13, for access to a river for recreational purposes. Dr. Milligan

also owned Lot 14, a riverfront tract adjoining Lot 13 and of similar size and shape.

In November 1991, Marilisa Niebuhr purchased Lot 13, subject to the easement

benefiting Peach Orchard. Dr. Milligan and Ms. Niebuhr married in 1992, but

divorced in 1995. The couple’s agreed decree of divorce awarded Lot 13 to Ms.

Niebuhr and awarded Peach Orchard and Lot 14 to Dr. Milligan. After the divorce,

Dr. Milligan continued to use his easement across Lot 13 – he believed that the

divorce left his easement in place. Ms. Niebuhr, however, believed that Lot 13 was

no longer encumbered by the easement, so she put a combination lock on the gate to

keep her former husband off the property. Dr. Milligan filed suit seeking injunctive

relief, plus actual and exemplary damages for his loss of the property’s use.

Ultimately, Ms. Niebuhr asked the court to declare that the final decree of divorce

divested Dr. Milligan of any rights in Lot 13. The appellate court held that the


divorce decree, which represented the parties’ intentions, determined that Ms.

Niebuhr held Lot 13 unencumbered by any easement in favor of Dr. Milligan after

the divorce. The parties manifested the requisite intent to abandon the easement. Put

simply, the court held that an unambiguous contract divesting another party of all

rights, title, interest, and claim in such property presented the requisite intent to

abandon an easement.

3. Use for Which Easement Becomes Impossible

In addition, an abandonment of an easement in Texas can occur when the use

for which the property is dedicated becomes impossible. Adams v. Rowles, 149 Tex.

52, 228 S.W.2d 849, 852 (1950). For example, an easement to use a switch track to

gain access to railroad cars using a particular rail line terminates when it becomes

physically impossible for railroad cars to come to the switch track. See Kearney &

Son v. Fancher, 401 S.W.2d 897 (Tex. Civ. App.—Fort Worth 1966, writ ref’d

n.r.e.).

4. Easement Appurtenant vs. Easement in Gross

The distinction between an easement appurtenant and an easement in gross

has significant consequences. Where the court can fairly construe an easement to be

appurtenant to some other estate, the court will never presume an easement in gross.

Indeed, easements in gross are disfavored.


An easement is appurtenant when it benefits the holder in his physical use or

enjoyment of another tract of land. Thus, for an easement to be appurtenant, there

must be two tracts: the dominant tenement (the estate benefited by the easement),

and the servient tenement (the estate subject to the easement right). An easement

appurtenant passes with the transfer of the benefited land, regardless of whether it is

mentioned in the conveyance. See McDaniel v. Calvert, 875 S.W.2d 482, 484 (Tex.

App.—Fort Worth 1994, no writ). The burden of the easement also passes

automatically with the servient estate unless the new owner is a bona fide purchaser

with no actual or constructive notice of the easement. See Lefevere v. Sears, 629

S.W.2d 768, 773 (Tex. App.—El Paso 1981, no writ).

For an easement in gross, the holder of an easement acquires a right to use the

servient tenement independent of his or her possession of another tract of land. In

other words, the easement benefits the holder rather than another parcel. Although

easements in gross are personal to the grantee only, and are generally not assignable

or transferable, the parties may create an assignable easement in gross through an

express assignment provision. Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d

538 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Accordingly, an easement

in gross should terminate on the death of the individual owner or the closing of the

business that receives the benefits of the easement in gross – unless the parties create

an assignable easement in gross.


5. Easement by Necessity

An (implied) easement by necessity typically arises when a landowner sells a

portion of its tract and by this division, deprives one lot of access to a public road or

utility line. The owner of the servient parcel has the right to locate the easement. The

party claiming an easement by necessity has the burden to prove all facts necessary

to establish it. Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014). Establishing necessity

requires, in part, proof that at the time the dominant and servient estates were

severed, necessity arose for an easement across the servient estate so that the

dominant state could in some manner gain access to a public road. Id.

Easements by necessity are temporary because their existence is dependent on

the necessity that created them. As such, easements by necessity terminate upon

cessation of the necessity. Mere inconvenience does not constitute necessity. It only

exists when there is no other way of access. Duff v. Matthews, 311 S.W.2d 637 (Tex.

1958).

6. Easement by Agreement: Determinable Easement

Perhaps the easiest way to terminate an easement is by agreement. The most

common way an easement terminates by agreement is when the grantor and grantee

agree that the easement will terminate on the happening of a particular event of

contingency, or on the occurrence of a condition. An easement that terminates upon


the happening of a particular event or contingency is also known as a determinable

easement. It ends without notice. See Hamrick v. Ward, 359 S.W.3d 770, 779-80

(Tex. App.—Houston [14th Dist.], 2011, rev’d on other grounds) (held that

landowner created determinable easement by agreeing with purchasers of servient

estate that they could close off dirt road if they provided her with another means of

access, but landowner was never provided with alternative access, and therefore

easement did not terminate).

7. Misuse of Easement

Misuse alone does not provide a basis for terminating an easement, unless the

misuse makes it impossible to effectuate the purpose for which the easement was

created. Perry v. City of Gainesville, 267 S.W.2d 270, 273 (Tex. Civ. App.—Fort

Worth 1954, writ ref’d n.r.e.). A misuse is not grounds for a forfeiture (or

termination) of the easement, but the servient estate owner can obtain an injunction

against the improper or unauthorized use of the easement area. Hoak v. Ferguson,

225 S.W.2d 258 (Tex. Civ. App.—Fort Worth 1953, writ ref’d n.r.e.). The servient

estate owner may sue for damages stemming from the easement holder’s misuse of

an easement if the owner can establish either negligence or willfulness in the manner

in which the easement was used. Holloway v. Matagorda County, 667 S.W.2d 324

(Tex. App.—Corpus Christi 1984).


8. Failure to Repair an Easement

The servient owner generally may use its land in any way it wishes so long as

its conduct does not interfere with performance of the easement. Reyna v. Ayco Dev.

Corp., 788 S.W.2d 722, 724 (Tex. App.—Austin 1990, writ denied). Indeed, the

only duty an easement imposes on the owner of the servient estate is a duty not to

interfere with the enjoyment of the easement. See Id. Thus, any repairs and

maintenance of easements is the duty of the dominant estate, unless by virtue of

some agreement, the parties say otherwise. And, if both parties are using the

easement, the court will apportion the repair costs. See Id.

C. Establishment of an Easement’s Location

It is important to distinguish between “true blanket easements” and “quasi-

blanket easements.”

1. Quasi-Blanket Easement

The statute of frauds and statute of conveyances require that an agreement to

convey land or an interest in land must be in writing. Tex. Prop. Code Ann § 5.021.

An express easement is an interest in land to which the statute of frauds applies. Pick

v. Bartel, 659 S.W.2d 636 (Tex. 1983). However, if an easement does not

sufficiently describe the interest conveyed, then the conveyance is void. So, that is

a way a quasi-blanket easement can disappear.


A quasi-blanket easement does not specify within the instrument the

easement’s location. To provide clarity to the land records, the servient owner of a

piece of land which is subject to a quasi-blanket easement with an unspecified

location can force the owner to establish the location of the easement through writing

and, as such, to release excess lands not necessary to fulfill its purpose. Cozby v.

Armstrong, 205 S.W.2d 403 (Tex. Civ. App.—Fort Worth 1947, writ ref’d n.r.e.). .

In a quasi-blanket easement, as long as the tract of land that will be burdened by an

express easement is sufficiently identified, an exact designation of location of the

easement is not necessary. See Vinson v. Brown, 80 S.W.3d 221, 227 (Tex. App.—

Austin 2002, no pet.). Indeed, a quasi-blanket easement is one that identifies the

parent tract across which the easement will run, but does not provide a metes and

bounds description of the easement route. This was a common practice in the 1930s

and 1940s, and is still common in oil and gas leases.

2. True Blanket Easement

A true blanket easement is one in which the wording of the easement purpose

is to lay multiple lines at varying locations from time to time over any portion of the

servient estate. The intent of the parties, expressed in the instrument, will control.

This is different from the easement which simply does not specify a specific location

– a quasi-blanket easement.


D. Pipeline Easements

Since 1994, the Texas Natural Resources Code has included a section

providing some statutory relief for servient estate owners whose lands have been

burdened with blanket easements for pipelines. For certain pipelines laid before

January 1, 1994, there is a presumption that the easement created extends only a

width of 50 feet as to each pipeline laid. Tex. Nat. Res. Code Ann. § 111.0194. The

statute, however, has a few exceptions. It excludes: (1) easements in which the

written grant or the condemnation judgment expressly provide for another width; (2)

easement rights otherwise prescriptively acquired through actual use of a greater

width; (3) easements created for the benefit of a party other than a single common

carrier pipeline; (4) easements held by common carrier pipelines which do not have

the power of eminent domain; (5) easements of a common carrier granted under the

terms of an oil and gas lease or oil, gas, and mineral lease, or to any easement which

authorizes the construction of gathering lines. The presumption created by the statute

may be rebutted by evidence on behalf of the common carrier pipeline that a greater

width is reasonably needed for purposes of operation, construction of additional lines

under the grant or judgment, maintenance, repair, replacement, safety, surveillance,

or as a buffer zone for protection of the safe operation of the common carrier

pipeline.


As a practical application of the statute, a colleague of mine was working on

acquiring a several hundred acres parcel of land for a large company, but ran into a

blanket pipeline easement that she had to work to eliminate as an exception from the

owner’s title policy. She traced the successors to the pipeline company and then

located the actual pipeline that was installed after the easement was granted, which

was miles away from the parcel her client was trying to purchase. Because of this

finding, she was able to convince the title insurance company to remove the pipeline

easement as an exception from its policy. So, my colleague’s client closed its deal

on a several hundred acres parcel and had its parcel insured without an exception to

the pipeline easement in the title insurance policy.

E. Dedication to the Public

A dedication to the public must meet four elements: (1) the person who makes

the dedication must have the ability to do so, i.e., have fee simple title; (2) there must

be a public purpose served by the dedication; (3) the person must make either an

express or implied offer; (4) there must be an acceptance of that offer. Spinuzzi v.

Town of Corinth, 665 S.W.2d 530, 532 (Tex. App.—Fort Worth 1983, no writ). The

public’s acceptance need not be express; an implied acceptance is sufficient. Once

dedicated, the owner reserves no rights that are incompatible with the full enjoyment

of the public.


The determination of whether a public right-of-way has been established by

implied dedication is a question of fact. Malone v. Whitfield, 621 S.W.2d 192, 195

(Tex. Civ. App.—Waco 1981, writ ref’d n.r.e.). In addition, the landowner’s intent

to dedicate the land for a public purpose may be established by verbal statements of

the owner or may be implied by the owner’s conduct. Viscardi v. Pajestka, 576

S.W.2d 16 (Tex. 1978). The certainty of the proof of the owner’s intent is subject to

conflicting interpretations. Indeed, there are two schools of thought. There is one

line of cases which requires that the owner clearly manifest his or her “donative

intent.” It should be “something more than an omission or failure to act or

acquiescence on the part of the owner.” Greenway Parks Home Owners Ass’n v. City

of Dallas, 312 S.W.2d 235, 241 (Tex. 1958). Under the second school of thought,

courts recognize a presumption of dedication. In the rare circumstance in which the

origin of the public use and the ownership of the land at that time is “shrouded in

obscurity, and no proof can be adduced showing the intention of the owner in

allowing the use,” then evidence of a long and continued use by the public raises a

presumption of dedication by the owner. O’Connor v. Gragg, 339 S.W.2d 878 (Tex.

1960).

Viscardi v. Pajestka

Viscardi v. Pajestka is illustrative of what does not suffice as abandoning a

dedication to the public. In this case, Viscardi filed suit in the district court of Travis


County seeking a declaratory judgment affirming her right to use an alleyway

located between her property and that of Pajestka. She also sought a permanent

injunction prohibiting Pajestka from interfering with her use of the driveway.

The State National Bank of Austin originally “deeded” the alley in dispute in

1921. First, in dispute was whether this “deed” was a public dedication. The court

held that it was. The Bank used the word “dedication” in the conveyance. The

paragraphs in the conveying document indicated the Bank was aware of the existing

difference between what constituted an easement and what constituted a dedication,

and that they were expressly calling this a dedication—the Bank called its

conveyance a “dedication” instead of calling it a grant of an “easement” as it had

done in the past. Pajestka maintained, however, that even if the Bank had intended

a dedication to the public, there had been no public acceptance; and if there had been

public acceptance, then the city had abandoned the property. The court held that

acceptance does not need to be express, it can be implied. In addition, the court

opined that abandonment occurs when the use for which the property was dedicated

becomes impossible of execution, or the object of the use totally fails.

Here, the driveway in question had been used continuously by the owners of

the respective properties, their guests, and tenants for over fifty years. It had been

used as the only entrance to an apartment complex, and it had also been used by the

City of Austin trash collectors, but at the time of the litigation, was not used for that


purpose. The court held that the mere fact that the city no longer used the driveway

as a route for trash collection did not constitute an abandonment. Indeed, the use of

the driveway had been continuous since 1921. Prior to the driveway being chained

(which led to this litigation), the public was using it for the same purpose for which

it was dedicated fifty years prior.

Viscardi v. Pajetska: Diagram

1. Platted Easements

Vacating a dedicated plat can terminate public easements. The procedure

required for the termination depends on whether the original plat was filed pursuant

to Chapter 212 or Chapter 232 of the Texas Local Government Code.


(a) Chapter 212

If the original plat was filed pursuant to Chapter 212, the requirements for

terminating vary depending on whether or not any lots have been sold. If there has

been no sale of lot, then the subdivision developer must obtain approval from

whichever governmental body governs the municipality for the proposed

cancellation. If the body approves, there must be a written instrument declaring the

cancellation of the plat. The written instrument must be executed, acknowledged,

and recorded in the same office as the original plat. If sales had already occurred,

the procedure remains the same, except the application to cancel all or part of the

plat must be filed by the owners of the lots in the subdivision, rather than the

developer. See Tex. Loc. Gov’t Code § 212.013(c).

(b) Chapter 232

If the original plat was filed pursuant to Chapter 232, the entity owning the

land must file an application to cancel all or any part of the subdivision with the

commissioners court of the county where the land is located (rather than with the

governmental body governing the municipality, as required by Chapter 212). The

commissioner’s court must then publish notice of the proposed cancellation in a

county newspaper for three weeks preceding any action. The notice must demand

that any interest party protesting the cancellation must appear at a specified time. At


the hearing, if there is no protest, and it is determined that the cancellation of the plat

(and public easements) will not interfere with the established rights of any purchaser

in the subdivision, then the commissioners shall give permission to file the proposed

cancellation in the land records. Even if the proposed cancelation interferes with the

established rights of a purchaser, the cancellation can still occur if the persons

adversely affected agree. See Tex. Loc. Gov’t Code § 232.0085.

2. Easement vs. License

An easement creates an interest in real property, which can pass to subsequent

owners of that property. An alternative, however, is a license. A license is personal

to the licensee. It does not create an interest in real property, and of course you will

not issue title insurance on a license. The intent of the parties determines whether an

interest in land is a license or an easement. Ultimately, it depends on a proper

construction of the language of the instrument, in case of uncertainty or ambiguity,

in the light of surrounding circumstances. If the instrument or agreement grants the

right of use or interest over another’s property, according to the purpose and terms

of the agreement, the grant will constitute an easement – even if it is called a license

in the instrument or agreement. However, if the instrument or agreement merely

confers permission on the grantee to do an act or series of acts on the grantor’s

property, it is a license and not an easement, and therefore is not regarded as an

interest in land; it is personal.


Unlike an easement, which may be perpetual or for a specific period of time

and may run with the land, a grantor can revoke a license at any time. Accordingly,

if a grantor wanted to maximize its freedom to use its land, it may consider providing

or offering a license rather than an easement. A downside of the easy revocability of

a license, though, is that it is unlikely a grantee will provide the same value of

consideration as it would in exchange for an easement. Certainly, because the license

is so easily revoked, a knowledgeable grantee will hesitate to provide significant

consideration.

Easements should usually be described by means of a legal description and

sometimes also a drawing given the potential lengths of their terms. Grantors of

licenses, on the other hand, should not be as concerned with the specificity of the

description of the property subject to a license because they may revoke the license.

Thus, the conferred permission disappears.

II. Conclusion

Clearly there are a number of ways that an easement or right-of-way can

disappear. Customers may object to an exception in a title commitment to an

easement or right-of-way that disappeared. Obviously, the default may always be to

make an exception in the title commitment, however, there may be enough evidence


sufficient to establish that the exception can be deleted if the easement or right-of-

way has disappeared. Like any underwriting decision that is a risk analysis.

easements and rights-of-way: how do they disappear?€¦ · but, without either actual or...

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