Citation. 148 Tex. 485, 226 S.W.2d 622, 1950 Tex.
Brief Fact Summary. The Plaintiff, Othen (Plaintiff), claims a roadway easement across two tracts of land owned by the Defendant, Rosier (Defendant). The Defendant had constructed a levee which made the lane so muddy that it was impassable and deprived Plaintiff of access to and from his farm.
Synopsis of Rule of Law. In order to find an implied easement, you must look back to the time of the common owner and determine whether the easement was a necessity and not a mere convenience at the time of the severance of the dominant and servient estate.
Held. There is no easement by necessity. An implied easement may be shown if (1) originally there existed common ownership of the dominant and servient estate; (2) the easement is a necessity not a mere convenience and (3) the necessity existed at the time of the severance of the two estates. Here, there was a common owner, Hill. However, there was no necessity because the common owner retained the ownership for 3 years of the 16 acres over which he could have accessed the road or could have been able to cross his land to the north to access the road. In addition, it was not shown that necessity existed at the time the dominant and servient estates were severed.
There is no easement by prescription. An easement by prescription must be hostile or adverse in character. Here, Plaintiff and others enjoyed the easement with consent or license of the Defendant. Express or implied permission could not ripen into an easement by prescription.
Discussion. The court in Othen required strict necessity, i.e. there was no other way to access the public road, in order to enforce the easement. Mere convenience would not be enough.