Summary of Othen v. Rosier, Supreme Ct. of TX (1950)
Parties: Othen and Rosier are adjoining landowners. Othen is the easement claimant.
Cause of action/remedy sought: The following is an equitable action for injunction.
Procedural History: Trial court ruled for PL. Court of Civil Appeals reversed. On appeal, this court affirms.
Facts: Othens and Rosiers own adjoining lands. Rosier built a dam along the southern end of a fence (road) which was in between both properties before both parties purchased their tracts. The dam created an accumulation of water and prevented the Othens from going to a road to the western Beltline Road.
Issue(s): Under TX property law, does the creation of a dam to inhibit water flow, which sits on the southern end of a shared road and well before the parties moved there, also inhibit ingress and egress on what the PL/appellant says is an easement of necessity and of prescription?
Holding: No. The intent of the original owner was not for a joined use of the easement, and the easement itself was permissive, not prescriptive in nature, as there was no adverse possession.
Court’s Rationale/Reasoning: The court decides to ignore all the newer roads established around the lands in question, and go all the way back to the original grantor’s intent upon the first conveyance, which led all the way to the Othens and Rosiers. Was there an implied reservation of the easement from the 60 acres, which he retained over and across the 16.31 acres which he did not convey until 2 years later along the south side of the 100 acre tract? The court did not think so, as the original grantor did not part title of the southernmost tract until 2 years and 5 months after he sold the 100 acres and about 2 years after he sold the 60 acres which Othen now owns; one cannot be said to have an easement in lands, the fee simple title to which is in himself. The record also shows no evidence of an implied easement; instead it shows the southern road below the 100 acres was a convenience, not a necessity as Othen argues.
The easement by prescription argument. For this, there needs to be an adverse use of the easement (same characteristics as adverse possession). So unless there was an adverse claim, if the original land owner held the right to limit its use, then the other party was indeed enjoined from using the easement (case law summary). Since both parties used the land, there was no adverse claim, and thus without an adverse claim there can be no easement by prescription. The use was permissive, and Othen had a license to use it, which could not and did not ripen into a prescriptive right. The previous owners of the land also do not testify directly to this prescription claim.
Rule: Implied easement elements: (1) unity of ownership of the alleged dominant and servient estates;
(2) the roadway is a necessity, not a mere convenience
(3) that the necessity existed at the time of severance of the two estates
Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking.
Did court avoid issues?: No.