Access To Landlocked Parcel Obtained By Necessity Not Prior Use.

In 1936 a landowner conveyed two acres of his property to his grandson.  The portion conveyed did not have access to a public road, and no easement agreement providing for access was recorded.  While the son owned the two acres, a dirt road was constructed so that the grandson could gain access from the public road to his tract.  The tract was subsequently conveyed, with the subsequent owners using the dirt road for access.  Ultimately, an owner of an adjacent tract sued to bar the current owners of the two-acre tract from using the dirt road for access to the two-acre parcel.  The trial court and the court of appeals ruled for the defendant based on the prior use doctrine (essentially allowing the use to continue based on original intent of grantor/grantee) which carries with it a lower standard of proof.  On further review, the Texas Supreme Court reversed and remanded on the basis that the proper legal analysis to apply in this situation was to determine whether an implied easement by way of necessity existed.  Such easements, the court noted have different elements from a public use easement that must be established:  (1) unity of ownership; (2) access remains necessary and is not merely convenient; and (3) necessity existed at time of severance. Hamrick v. Ward, No. 12-0348, 2014 Tex. LEXIS 771 (Tex. Sup. Ct. Aug. 29, 2014).   

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