Hill owned some land. He sold two parcels to Rosier and
two parcels to Othen. Othen's land was landlocked. The only way off his
property was through someone else's.
Rosier and Othen both used a road that crossed Rosier's
Rosier was the one who maintained the land.
Eventually, erosion damaged the road and threatened to
damage Rosier's orchard. So Rosier built a levee, protecting the orchard,
but flooding the road and cutting off Othen. Othen sued to force Rosier
to reopen the road.
The Trial Court found for Othen. Rosier appealed.
The Trial Court found that Othen had an easement of
The Court ordered Rosier to maintain the road.
The Appellate Court reversed the decision. Othen
The Appellate Court found that an easement of
necessity only occurs when it is absolutely necessary at the time the
land is broken up.
At the time Hill sold Rosier his land, Hill owned other
parcels and did not need to cross Rosier's property to get to the main
road. It was only subsequent splits and sales by Hill that disconnected
the property now owned by Othen from the main road.
In order to establish an easement by necessity,
you have to prove that splitting up the land caused the need for
an easement. Since, when the land Othen came to own was split
from Hill's land, there was no need for an easement over Rosier's
property, the need for an easement came when some other guy's
property was split off from the property now owned by Othen.
The Court found that Othen had no easementby prescription either.
Easements by prescription are similar to
obtaining land via adverse possession.
Three elements are required to get an easement by
Use is open and notorious.
Use is without the permission of the owner of the land
you are crossing.
In this case Rozier had given permission for Othen to
use the road.
Use is continued and uninterrupted for a period of years.
In Texas, it's 10 years.
The Texas Supreme Court affirmed the Appellate Court's
Just because Othen isn't entitled to an easement
through Rosier's land, it doesn't mean that he's out of luck. Since his
property is landlocked, he is absolutely entitled to an easement
somewhere, but the courts will have to decide exactly whose property Othen