Othen v. Rosier

BREWSTER, Justice.

Petitioner, Albert Othen, brought this suit to enforce a roadway easement on lands of respondents, Estella Rosier et al., claiming the easement both of necessity and by prescription.

The land of both parties is a part of the Tone Survey of 2493 acres, all of which was formerly owned by one Hill. Othen owns tracts of 60 and 53 acres, respectively. The 60 acres was deeded by Hill to one O'Harlan on Feb. 20, 1897, and by mesne conveyances Othen acquired it on Dec. 12, 1904. Hill sold the 53 acres on Jan. 26, 1899, and Othen acquired it on Nov. 15, 1913. The Rosiers own tracts of 100 and 16.31 acres, respectively. The 100 acres was conveyed by Hill to one Woolsey on Aug. 26, 1896, and the 16.31 acres was sold by Hill on Jan. 26, 1899; thereafter by mesne conveyances both tracts were acquired by one Penn, who on Jan. 29, 1924, conveyed them to the Rosiers. Along its west side the 100 acres abuts on the Belt Line Road, a public highway running north and south. The 16.31 acres joins the 100 acres on the south, the northeast corner of the smaller tract being in the south line of the 100 acres at a point west of its southeast corner. Othen's 53 acres lies immediately east of Rosiers' 100 acres. His 60 acres lies south of and adjoining his 53 acres and immediately east of Rosiers' 16.31 acres but extends beyond the south line of that tract.

The Tone Survey touches three roads: the Belt Line Road, which runs along its west side; the Duncanville Road, which borders it on the south; and the Fish Creek Road, which is its north boundary. But Othen's 113 acres is not contiguous to any of them; so he must cross somebody else's land to get out to a highway. That he had accomplished before the happenings which precipitated this litigation by going through a gate in the west line of his 60 acres and in the east line of Rosiers' 16.31 acres, a short but unproved distance south of the south line of Rosiers' 100 acres; thence west-northwesterly across the 16.31 acres into a fenced lane which runs along the south side of Rosiers' 100 acres; thence through this lane to a gate, which opens into the Belt Line Road. Near this gate and in the southwest corner of the 100 acres was the Rosiers' dwelling house, orchard, stock lots and barns. The Rosiers travel and use the lane above described for such purposes as go with the operation of a farm, as well as for their stock to travel to and from the 16.31 acres, which they use as a pasture and from which they get firewood. On the 16.31 acres is a tenant house, which has been occupied some of the 18 or 20 years previous to the trial by tenants of the Rosiers; and they have made the same use of the lane as Othen has made. The south fence of this lane was built about 1895. Its north fence and the outside gate were constructed about 1906. Before Othen bought his 60 acres in 1904 he had lived on it for two years as a tenant and had moved away for about a year; and he has continuously used the disputed roadway to get to and from the highway from and to his home.

It seems undisputed that the Rosiers made whatever repairs were necessary to keep the lane usable. And, so far as the record shows, nobody else recognized any obligation or claimed any right so to keep it. The surface waters flowing into the lane had cut out a large ditch which threatened to encroach across the roadway and render it impassable unless a bridge should be built across it, and these waters threatened erosion damage to Rosiers' cultiated land. To remedy that situation the Rosiers caused a levee 300 feet long to be constructed as close as possible to the south fence of the lane, with something like half of it in the lane and the other half curving southeasterly into the 16.31 acres. This levee impounded the waters draining southward off Rosiers' 100 acres and made the lane so muddy that for weeks at a time it was impassable except by horseback, thereby, Othen alleged, depriving him of ingress and egress to and from his farm. So he filed this suit praying a temporary writ of injunction enjoining the Rosiers from further maintaining this levee and a 'mandatory writ of injunction commanding and enjoining and restraining the said defendants from further interfering with' his 'use of such easement and roadway' and for damages.

The trial court found that Othen had an easement of necessity and adjudged it to him 'upon, over and across' land of the Rosiers beginning at the northeast corner of the 16.31 acres and extending westward 'along the said 16.31 acre tract and having a width of approximately 40 feet' to a point in its north boundary immediately east of the northwest corner of the 16.31 acres, thence across that boundary line and westward along the south boundary line of Rosiers' 100 acres to its southwest corner and into the Belt Line Road. The judgment further ordered the Rosiers 'to take such action as is necessary to put said easement and roadway, so described, in as usable a condition as same was prior to the erection of said levee.'

The Court of Civil Appeals first affirmed the judgment in so far as it decreed Othen a roadway easement of necessity but reversed the injunction phase of it because that order is too vague and uncertain to be enforceable. However, on rehearing the majority concluded that Othen has no easement either of necessity or by prescription and rendered judgment for the Rosiers, Chief Justice Bond dissenting. 221 S.W.2d 594. That conclusion is attacked here in two points of error.

In support of his claim to an easement of necessity, Othen quotes from 15 Tex.Jur., Sec. 16, p. 785, as follows: 'Furthermore, the grantor impliedly reserves for himself a right of way where he sells land surrounded by other land of which he is owner, and to which he can have access or egress only through the granted premises, and the servient estate is charged with the burden in the hands of any vendee holding under the conveyance. In 28 C.J.S., Easements, it is made clear that before an easement can be held to be created by implied reservation it must be shown: (1) that there was a unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a mere convenience; and (3) that the necessity existed at the time of severance of the two estates.

Under the foregoing authorities, Othen's claim to an implied reservation of an easement in a roadway means that when Hill, the original owner, sold the 116.31 acres to the Rosiers it was then necessary, not merely convenient, for him to travel over it from the 113 acres now owned by Othen in order to get to and from the Belt Line Road. In determining that question we shall ignore the Duncanville Road to the south, which was established in 1910, as well as the Fish Creek Road to the north, although the record is silent as to when the latter came into existence.

As already stated, the entire Tone Survey of 2493 acres was owned by one Hill, in whom was unity of ownership of the lands now owned by the parties to this suit. On August 26, 1896, he sold the 100 acres in question to Rosiers' predecessors in title, retaining the south 60 acres now owned by Othen, which he conveyed on February 20, 1897. In the deed of date August 26, 1896, did he impliedly reserve the roadway easement from the 60 acres, which he retained, over and across the 16.31 acres which he did not convey until January 26, 1899, thence on and along the south side of the 100 acres to the Belt Line Road? Obviously, no such easement arose as to the 16.31 acres over which the trial court decreed Othen a roadway, because Hill did not part with his title to it until two years and five months after he sold the 100 acres and about two 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. Under the record before us we cannot hold that petitioner has shown any implied easement as to the 100 acres by reason of the deed of August 26, 1896, because the record nowhere shows that the roadway along the south line of the 100 acres was a necessity on the date of that deed, rather than a mere convenience.

What we have said determines Othen's claim to a way of necessity; such an easement necessarily can arise only from an implied grant or implied reservation. This results from the rule that the mere fact that the claimant's land is completely surrounded by the land of another does not, of itself, give the former a way of necessity over the land of the latter, where there is no privity of ownership. 'It is dependent upon an implied grant or reservation, and cannot exist unless it is affirmatively shown that there was formerly unity of ownership of the alleged dominant and servient estates, for no one can have a way of necessity over the land of a stranger. Necessity alone, without reference to any relations between the respective owners of the land, is not sufficient to create such a right.'

Petitioner's other opint complains of the holding of the Court of Civil Appeals that, as a matter of law, he has no easement by prescription.

An important essential in the acquisition of a prescriptive right is an adverse use of the easement. 'Generally, the hostile and adverse character of the user necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession. If the enjoyment is consistent with the right of the owner of the tenement, it confers no right in opposition to such ownership.' 'The rule is well settled that 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'.

It is undisputed that the road along the Rosiers' 100 acres has been fenced on both sides since about 1906; that the gate opening from the lane into the Belt Line Road was erected at the same time and has been kept closed by the Rosiers and Othen as well as by all parties using the lane as an outlet to the road; that the Rosiers and their tenants have used the lane for general farm purposes as well as to haul wood from the 16.31 acres and to permit their livestock to get to and from the pasture. Under those facts, we conclude that Othen's use of the roadway was merely permissive, hence constituted only a license, which could not and did not ripen into a prescriptive right.

Since Hill did not part with his title to Othen's alleged dominant estate until 1897 (as to the 60 acres) and until 1899 (as to the 53 acres) and did not part with his title to 16.31 acres of the Rosiers' alleged servient estate until 1899, Othen could not under any circumstances have perfected prescriptive title to a roadway easement on the 16.31 acres prior to 1906. 'Since a person cannot claim adversely to himself, the courts uniformly maintain that the prescriptive period does not begin to run while the dominant and servient tracts are under the same ownership.' It follows that the judgment of the Court of Civil Appeals is affirmed.