Othen v. Rosier

• Decision Date: 11 January 1950
• Docket Number: No. A-2317,A-2317
• Citation: 148 Tex. 485,226 S.W.2d 622
• Parties: OTHEN v. ROSIER et al.
• Court: Texas Supreme Court

Page 622

226 S.W.2d 622

148 Tex. 485

OTHEN v. ROSIER et al.

No. A-2317.

Supreme Court of Texas.

Jan. 11, 1950.

Rehearing Denied Feb. 22, 1950.

Tresp & Tresp, Dallas, Joe L. Tresp, Dallas, for petitioner.

Burt Barr, Dallas, J. Lee Zumwalt, Dallas, for respondents.

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.' That statement is in line with the recent holding by this court in Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399: 'Where a vendor retains a tract of land which is surrounded partly by the tract conveyed and partly by the lands of a stranger there is an implied reservation of a right of way by necessity over the land conveyed, where grantor has no other way out.' In 28 C.J.S., Easements, §§ 34 and 35, pages 694 et seq., 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. And see 17 Am.Jur., Easements, Secs. 43 and 49, pp. 953 and 963.

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. Alley v. Carleton, 29 Tex 74, 94 Am.Dec. 260. 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. The burden to prove that was on Othen. Bains v. Parker, supra. There was testimony that it was the only outlet to a public road since about 1900 and for the 'last 40 years'; but there was none as to the situation on August 26, 1896. One Posey did testify that the owner of the 'Othen land' (necessarily the 60 acres) in 1897 'came out up across the south side of the place to the road there', but he did not testify that it was then the only roadway out. On that...