Recently, a client came to me requesting assistance in a land dispute. Shortly before coming to my office, she noticed people using an old, winding dirt path across her property to access a tract directly south of hers.
When she questioned the person driving across her property, the person stated that she was required to allow them access because of an express reservation in the deed she received when she purchased her property.
I read the deed, and there was indeed a reservation of an easement. This reservation stated in the applicable portion “Grantor reserves for itself and its assigns a free and uninterrupted easement along all visible roads on the Property at all time for vehicular and pedestrian ingress and egress.” Case closed, right? Not by a long shot…
First, as overlooked by both the person claiming the right to the access easement, the neighbor’s predecessor in title took their interest several months prior to the creation of this easement. There was, therefore, no privity of contract between the person now claiming an interest and the reservation on my client’s property… thus, there is no express easement by definition.
However, I believe that there was a further limitation created by longstanding case law in Texas. Texas courts looks first to the language itself to determine the intent of a reserved easement. Storms v. Tuck, 579 S.W. 25 447, 487 (Tex. 1979). In Storms, the Texas Supreme Court held that, without specific language to the contrary, the reservation of an easement could not be used for the benefit of property “for the benefit of other premises owned by himself or another.” (Id.). Thus, because the severance of these two tracts occurred prior to the creation of my client’s interest (and thus, the creation of that easement), then the neighbor could not now claim that the grantor intended the easement for the benefit of the neighboring tract.
In practice, this makes sense… The language of the reservation stated that it was created for the purposes of “ingress and egress.” Ingress, as defined by Black’s Law Dictionary, is “the ability to enter; access.” (p. 853, 9th ed. 2009). Egress means, “the act of going out or leaving…. the ability to leave; a way of exit.” (Id. at 593). Thus, the express terms of the deed drafted by the grantor allowed that person the right to enter or leave only that property.
Further research supported this claim. The original grantor filed plats for the subdivision with the local records office. Upon viewing those plats, it became evident that no such road was contemplated on any map or plat of that subdivision.
Failing in their argument, the neighbor resorted to a claim of an easement by prescription. This too failed, however. According to Texas law, an easement by prescription is created in a way very familiar to students of adverse possession. The use must be 1) continual; 2) actual; 3)open and 4) hostile. Davis v. Johnston, 2012 Tex. App. LEXIS 5249 (Tex. App. Austin 2012). In addition, it must maintain these attributes for the span of a decade. (Id.).
Here, it was impossible to claim the requisite period… My client had purchased the land five years before, and the neighbor had purchased their land only months prior. Before that, the title was held in only one person – the original grantor. “The principle is elementary that, to constitute an easement, the dominant and servient estates must be held by different owners…” Howell v. Estes, 71 Tex. 690, 693 (Tex 1888). In short, one cannot have an easement across property that one already owns. The easement merges with the title to the property and disappears.
Thus, they failed the initial requirement… continuous use for the requisite period.
Thus, in this case, the express easement did not confer the rights the neighbor thought it did, and they could not claim a prescriptive easement as they believed they could. Remember, when reading the words of an express easement, look first to the dates of the grant. Look next to the definitions of the words. Finally, look to any extraneous evidence that may provide evidence as to the actual intent of the parties. You may find that the grant does not mean what a party thinks it means.