Easements are not sexy. But they are a necessity when
there is no direct access to a publicly-dedicated street or road.
Dawson-Conway
Ranch, Ltd. owns 26,000 + acres north of Abilene in Shackelford County, Texas. The
DC Ranch has its own facebook page: http://www.facebook.com/pages/Dawson-Conway-Ranch-Deer-Lease/198022160276484.
Access is through Texas County Road 167, which ends at the NW quadrant of the
ranch. Access through the remainder of the ranch is across the Clear Fork of
the Brazos River. The Clear Fork also separates the Mark Harrington ranch from
the DC Ranch.
Deposition
testimony was that the river crossing (no bridge) is frequently impassable and
always undependable, although the water is generally only one or two feet deep.
There
was additional evidence that there were rough roads in the SW quadrant of the DC
Ranch which were used to drill and access oil and gas wells.
Mark Harrington’s
predecessors began leasing land on the Harrington ranch for mineral production
in 1918. Guests and invitees of both ranches used whichever roads they could
access, without interference, for many years. Since the properties were
adjacent, it seems no one paid much attention to the owner of the property they
were crossing.
The
access to Mark Harrington’s property stopped in December 2007, when Harrington
had enough of DC’s hunters throwing trash on his land, shooting his deer, and driving
too fast on his roads. Or perhaps it was when a hunter shot a dog belonging to
one of his managers. Either way, enough was enough.
So
Harrington locked the gates. And DC sued Mark Harrington for access.
The
trial court granted DC’s motion for summary judgment, holding that DC had
established a ‘prescriptive’ easement
across Harrington’s property. Harrington appealed.
In
Texas, to obtain a prescriptive easement the use must be open, notorious,
continuous, exclusive and adverse for at least 10 years. There is no exclusivity
when a landowner and land-claimant both use the same road. A shared use is not
adverse.
Perhaps
sensing that DC would lose that argument, DC also claimed that it had an ‘implied easement by necessity by grant.’
Texas cases involving this type of easement require a “strict necessity” test,
which means there is no other means of access. Although inconvenient and
perhaps requiring a rowboat or at least sturdy waders and high-water pants,
access to the DC Ranch could be maintained through Texas CR 167 and also across
the pond.
Therefore, the judgment of the trial court was
reversed and rendered for Mark Harrington that Dawson-Conway has no easement by
prescription or necessity across the Harrington Ranch. Mere inconvenience and
huge expense (such as bridge construction) do not, by themselves, grant legal
access across a neighbor’s property in Texas.
See Harrington v. Dawson-County Ranch, Ltd.;
No. 11-10-00124-CV; Texas 11th Court of Appeals; June 4, 2012.
Lessons learned:
1. Easements
are critically important. Not only in ranchland, but also office, warehouse,
shopping center, retail, and multi-family properties. Yes it is possible to
sell / buy or lease land-locked property in our state. Unusual, but not
impossible.
2. Don’t
assume that a property has access to roads. Check a title commitment and
survey, then read each easement document.
3. When
easements are vital, get easement insurance from the title company. Usually
there is no additional charge if the easement description is merely added to Schedule
A of the title commitment and owner policy. And remember – title insurance is
available not only in purchase and finance transactions, but leases too.
Reprinted with the permission of North Texas Commercial Association of REALTORS®, Inc.
