Implied Easements – Prior Use or Necessity: This Texas Supreme Court Case Shouldn’t be Overlooked.

Settling an extremely old distinction in property law:

We have come full circle. A case decided unanimously by the Texas Supreme Court in August of 2014 has fixed the confusion in a doctrine that began (in Texas) around 1867, only two years after the civil war. [1]

The doctrine is the implied easement. The case is Hamrick v. Ward, No. 12-0348, slip op (Tex. Aug. 29, 2014), available at http://docs.texasappellate.com/scotx/op/12-0348/2014-08-29.guzman.pdf. [2]

This case is interesting for appellate attorneys because the Court has reinforced its extremely broad discretionary remand power, but we will get to that in a moment. See more below.

First let’s examine the underlying doctrine.

What makes an easement an implied one?

This is a very old concept in U.S., and Texas law.

It is not simply the fact that a piece of property has been severed from another that gives the rightful holder of the new severed property an implied easement. [3] A need must exist on the new parcel of land (we aren’t talking about personal property) that generally requires the landholder to cross over the property that her’s has been severed from; or that she used an appurtenance or other feature of the adjoining parcel prior to severance (e.g., letting cows graze in a jointly used yard).

These types of easements are implied or absolutely necessary in the grant of the land, otherwise:

• (1) The land would be practically worthless. In other words it is absolutely necessary to be able to access the parcel, which was landlocked when it was severed. (The Court notes that Texas law, and the common law in general have disfavored unproductive parcels of land.) Or;

• (2) The obvious intent of the grantor of the land would be       defeated.

What is the difference between (1) and (2)?

A prospective easement holder does not have to prove that she specifically needs a road to get to her property. [4] If this is the case, it would usually mean that her property is landlocked, and that she needs a right of way to enter the property. [5] This is situation (1) above. (An absolute necessity.)

However, other reasons exist as to why an easement would be implied in the granting of the deed.

What other reasons could the landholder have to imply an easement on her property if she is not landlocked, but still needs to cross, use, or enter, the adjoining property?

The oldest example the Court mentions in Ward is also a very good scenario to explain the implication without the need for a road. [6] [Howell v. Estes]

A son and daughter inherited adjoining two-story buildings in Estes. The buildings shared a stairwell to reach the second floor. However, only one building had access to the stairwell from the ground floor. Not unexpectedly, the two got into a “familial dispute” after their father passed away, and one sibling stopped letting the other use the stairwell.

At this point, the brother’s building was not strictly landlocked. He just couldn’t use the stairwell from his sister’s building to get to his own second floor.

When the two laid out their arguments in court, the sister argued that the brother could simply build another stairwell from his own ground floor. The brother countered by saying that, while his access to the stairwell was not absolutely necessary, he would have to spend an exorbitant amount of money to build a new one. (Here, in Ward, the Court delivers a cheeky footnote about the “considerable” $50 sum to build the stairwell. It was the late 1880’s after all.)

The brother also argued that it was obviously the intention of their father for the two of them to keep using the stairwell for the adjoining buildings, since it was not mentioned in the grant but they had used it for some time before he passed away.

Needless to say, the brother won the day, and the Court recognized an ancillary rule to the doctrine of the implied easement by necessity. The oldest Texas Supreme Court example of (2) above.

Why is the distinction important?

From the examples above, and descriptions of the applicable legal doctrines surrounding the two scenarios, it seems like the two concepts are interchangeable. After all, both prospective easement holders need to access something on the property that he or she could not access otherwise without an easement.

The distinction is one of proof, and the burden placed on the party seeking the easement.

The “Necessity” Burden of Proof

The Court labels the first part of the implied easement doctrine (scenario 1 above ) an “implied easement by way of necessity.”

It described the burden on the prospective easement holder as: needing roadway access to a previously unified, landlocked parcel. However, the Court notes that “[r]oadways by nature are typically substantial encumbrances on property, and we accordingly require strict, continuing necessity to maintain necessity easements.”

This is a very stringent burden for a plaintiff to meet. The policy reasoning behind this is that the prospective easement seeker is attempting to create or access a roadway across another parcel, which can be a very large burden for the owner of the servient estate.

“[A] party seeking a necessity easement must prove both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question… Once an easement by necessity arises, it continues until ‘the necessity terminates.’ Ward, at 7. (Internal citations omitted)(emphasis added.)

Generally: No roadway access due to implication alone. But an easier burden for prior use implication for appurtenances and other issues.

“A way of necessity, however, must be more than one of convenience, for the if the owner of the land can use another way, he cannot claim by implication to pass over that of another to get to his own.” Ward, at 8.

The Court labels the second situation above , as “prior use easements.” The burden of proof could be said to be slightly less stringent due to the simple fact that the prospective easement holder has a presumption to rely on.

“Unlike necessity easements, which are implied out of the desire to avoid the proliferation of landlocked–and therefore, unproductive–parcels of land, the rationale underlying the implication of an easement based on prior use is not sheer necessity… ‘[T]he basis of the doctrine of prior use easements is that the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration.” Ward, at 9 (internal citations and brackets omitted)(emphasis added).

The presumption, helping prospective easement holders, is a simple one: It is presumed that “parties contracting for property do so ‘with a view to the condition of the property as it actually was at the time of the transaction,’ and therefore, absent evidence to the contrary, such conditions which openly and visibly existed at the time are presumed to be included in the sale.” Ward, at 9 (internal citations omitted)(emphasis added).[7] (For the reader’s convenience, I’ve listed the enumerated elements of each claim below.)

Thus, if the transaction looks on its face as if the grantor intended the two parcels to share something, it is not required that the prospective easement holder present evidence that the use of the appurtenance or other non-road activity is strictly necessary. Not only that, but the burden shifts to the party opposing the easement to present contrary evidence to rebut the presumption.

The wrong cause of action, is not always a safeguard that appellate practitioners can rely on.

Now for the appellate applications: In this case, not only did the plaintiffs plead the wrong causes of action, but the Texas Supreme Court overruled the decisions of both the trial court and the court of appeals.

This should be a conclusive victory for the appellate attorneys handling the defense, rejecting the easement, right?

Think again. In this case, notwithstanding the general rule that “[o]rdinarily, ‘parties are restricted in the appellate court to the theory on which the case was tried in the lower court.'” The Court remanded and gave the Wards a second opportunity to bring their claim, with a new Texas Supreme Court ruling on the merits to back them up.[8]

The “Interests of Justice” exception.

It appears that, when the Texas Supreme Court clarifies a convoluted issue of law, it will consider remanding the cause to protect the claimants. “We have broad discretion to remand for a new trial in the interest of justice where it appears that a party may have proceeded under the wrong legal theory.” The Court expounded by saying that ‘[r]mand is particularly appropriate where the losing party may have presented his or her case in reliance on controlling precedent that was subsequently overruled.'” Ward, at 13 (internal citations omitted).

One takeaway for appellate practitioners that comes out of this case is that attorneys and parties cannot prepare and defend solely on the basis that the other party has pleaded the wrong cause of action (especially in an area in which the law requires clarification on a judicial level).

Timothy Neal Tesch Jr.
Texas Attorney & Member of the Appellate Section of the Texas Bar
Taxation LLM Candidate at SMU Dedman School of Law

[1] Alley v. Carleton, 29 Tex. 74 (1867).
[2] Hamrick v. Ward, No. 12-0348, slip op (Tex. Aug. 29, 2014), available at http://docs.texasappellate.com/scotx/op/12-0348/2014-08-29.guzman.pdf. (Ward.)
[3] See generally Seber v. Union Pac. R. Co., 350 S.W.3d 640 (Tex. App.–Houston [14th Dist.] 2011, no pet.).
[4] See Ward, at 6 (citing to Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex. 1966)).
[5] For a general description of the classic landlocked parcel and the implied easement because right of way access (a road) is needed see Restatement (Third) of Prop., Servitudes § 2.12 (2000).
[6] Howell v. Estes, 12 S.W. 62 (Tex. 1888). (Estes.)
[7] Necessity: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; (3) the necessity existed at the time the two estates were severed. Prior Use: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the use of the claimed easement was open and apparent at the time of severance; (3) the use was continuous, so the parties must have intended that its use pass by grant; and (4) the use must be necessary to the use of the dominant estate.
[8] Even with the Court stating that it “refrain[s] from opining as to whether the Wards will ultimately prevail on a necessity easement claim…” the case will be a substantial windfall and implies that the Wards are correct.

Texas Juror Questionnaire Omissions: Appealing a New Trial Before it Starts.

No attorney speculation is allowed under the merits-based mandamus review by the appellate courts.

In many circumstances, the way to appeal the trial court’s decision granting a new trial will be an original writ of mandamus with the appropriate court of appeals. Sometimes this will even be in an original action in the Texas Supreme Court.

Whoever is bringing the writ to the court of appeals or the Texas Supreme Court will usually be labeled the relator, which simply means (for mandamus purposes) the person on whose behalf the mandamus is filed. This type of writ could be called an expanded mandamus because it is a “merits-based mandamus review of a trial court’s articulated reasons for granting a new trial.” [1] This article focuses on the expanded mandamus review based on what a prospective juror does not include on a written questionnaire.

Due to the nature of the Texas Supreme Court’s decision from In Re Whataburger Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (per curiam), this article is written from the defense perspective, however plaintiff’s attorneys should take this scenario into account when trying to provide non-speculative evidence of how the plaintiff was prejudiced. The key goal is to be able to say more than, “We would have asked about that had we known.” This can be a difficult task for plaintiff’s attorneys when dealing with omissions on a standard jury questionnaire.

Questionnaire Omissions, per se or not per se:

If a juror omits something that was directly asked in the questionnaire, will that be enough for a new trial on its own? Now, under In Re Whataburger Restaurants, it’s a tough standard to meet. Parties need evidence that the omission “probably caused injury,” or that the omission would have resulted in a per se disqualification. [2] The list of what the general per se disqualifications are can be found in the standard juror questionnaire (being at least 18 years old and having the ability to read and write are just a few basic examples). [3]

But what happens if the juror omission is much more subtle? [4] Keep in mind that jury selection questionnaires can vary from venue to venue…

Here is an example to illustrate something similar to the In re Whataburger Restaurants juror omission scenario:

Let’s say that the appellate attorney is reviewing the record for a wrongful death case: A truck flipped over from driver negligence and ten different people died gruesomely. The attorney who worked on the trial informs the appellate attorney that he is upset because he won the case for his client, but he thinks the trial court granted a new trial because something went wrong in voir dire questioning.

After the opposing party did some digging, it turned out that one juror didn’t say anything about being a defendant in two different credit collection actions.

In the original trial, the written questionnaire asked if anyone had been a party in any civil cases in the past two years, the first juror checked the box but was not stricken and was not questioned on the subject. However, the second juror, our juror, did not check the box because she really just wasn’t paying attention.

During the hearing on the motion for a new trial, the judge said that she granted the motion because the juror was one of the twelve selected and the juror didn’t answer questions correctly. The trial judge wouldn’t say anything else beyond that, only that the new trial should be granted “in the interests of justice.”

Now, our trial attorney is having a panic attack because the opposing counsel is complaining that he could never have asked about the credit actions because they weren’t disclosed.

The opposing counsel said that, if he’d known about the non-disclosures he would most certainly have asked about them, and probably used a strike on that juror!

“What can I do to avoid the new trial?!” Our trial attorney asks.

“Don’t worry. Take a deep breath. I know what we can do.” The appellate attorney replies.

Both the trial attorney and the appellate attorney want to save their clients the time and expense of a new trial:

The appellate attorney can petition the appellate court with appropriate jurisdiction for a writ of mandamus. [1] She might even be able to avoid the new trial altogether.

First she needs to look at the trial court’s reasoning for granting the new trial, if it is even on the record at all. If the trial judge did not articulate her reasoning for granting the new trial, the court of appeals can sometimes even force her to do so; or it might stop and say that the trial court didn’t give a “reasonably specific explanation,” for granting the new trial. (Don’t forget that this is all reviewed under an abuse of discretion standard, albeit one with less discretion for the trial court as can bee seen by the requirements imposed on remand.) [5]

The requirement from In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex.2012) (United Scaffolding 2) is that the “stated reason for granting a new trial is legally appropriate and specific enough to indicate that the trial court derived the reasons from the particular facts and circumstances of the case at hand.” [6] In other words, the reasoning articulated by the trial court is very fact-sensitive. Reasons like, “in the interest of justice,” or just basic parroting of the rules will not satisfy the courts of appeals. [7]

What will satisfy the courts of appeals? The main reasoning that is the focus of this article, and probably the most important aspect of the trial court’s reasoning will be “a defect that probably resulted in an improper verdict,” and a specific explanation of what exactly caused the improper verdict. [8] This inevitably means that, at some point, the opposing party was harmed or prejudiced by the defect.

How was the other party injured at trial?

The merits-based mandamus review by the appeals court will focus on the probability of injury, which doesn’t sound like the standard language in abuse of discretion review; it sounds like a preponderance of the evidence standard: But then again, attorneys can see why this type of appellate review defies basic standards in appeal, it is essentially appealing a trial before the trial has been finalized and jurisdiction passes to the court of appeals. [9]

This brings us to the crossroads of injury, probability, and speculation under In re Whataburger Restaurants. 

In our scenario above, the juror omitted things from her local questionnaire. Specifically, she did not write down that she had been a defendant in two previous credit collection actions. It sounds like juror misconduct, but maybe the juror just forgot. After all, people forget things all the time. It is not outside the realm of possibility; it could be that the juror wasn’t even paying attention. [10] Not only does the movant for a new trial need to show that the misconduct actually occurred, but the misconduct itself must also be material and have probably caused injury to the movant. [11]

Also remember that, in our scenario, the case was about a driver who was negligent. It didn’t really have anything in it that was directly related to consumer debt or credit collections, and that is what our juror did not write down. The decision in our hypothetical might come down to just how related the current litigation is to our juror’s omissions. Any nexus between the type of case our juror omitted that she was a defendant in, and the current case will likely go towards whether the misconduct was material. However, even if the two types of cases are more related than the example, the party asking for the new trial must still show that it was harmed somehow.

The point of the In re Whataburger Restaurants case is that the side asking for the new trial based on the juror omission, the side that was harmed, must show something more than speculation.

The Takeaway & Speculation: “I would have asked about that had I known!”

The opposing trial counsel is still jumping up and down, complaining that he would have asked and used a strike on that juror if he had known. He also explained in his motion that the omission was most certainly material. In the opposing counsel’s view, the fact that the juror had been a defendant in credit collection actions before was something he absolutely had to know, because this truck incident — the current case — is related to large sums of money sought against a defendant! This is probably not an absurd argument, after all reasonable people could differ as to how material, and how related, the omission was to the truck accident.

Our appellate attorney needs to ask herself, while researching the record, what the opposing trial counsel actually used his strikes for and how he treated the other prospective jurors with similar issues.

• Did he strike any other potential jurors for being defendants in lawsuits?
• Did he challenge any other potential jurors for previously being a defendant in a lawsuit?
• Did he question any other potential jurors for that same reason?
• Were any of the potential jurors rehabilitated?

Since it’s highly unlikely that every single other juror omitted the same answer on his or her questionnaire: If the opposing counsel didn’t strike any jurors who answered yes to the question about being a defendant in a lawsuit, it is probably going to be an uphill battle for opposing counsel when our appellate attorney files her writ of mandamus.

Why? Opposing counsel doesn’t have any concrete evidence to support the speculation. “Generally, such testimony about what a person ‘would have’ done or what ‘would have’ happened under different circumstances is speculative and conclusory in the absence of some evidentiary support.” [12]

Timothy Neal Tesch Jr.
Texas Attorney

Thanks to Patrice Pujol and Sharon M. Garner for the discussion of In Re Whataburger Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (per curiam) in the Texas Appellate Advocate, 26 The App. Advoc. 745 (Tex. 2014).

*The preceding article and following end-notes are for educational purposes only. This article is simply meant to be a discussion and update in Texas appellate and mandamus practice. Nothing contained inside this article is designed to be a substitute for legal advice. The author has no affiliation with Whataburger™ Restaurants, or any other company mentioned in this academic discussion.*

[1] See, In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex.2012) (United Scaffolding 2) (United Scaffolding returned after the Court had previously, conditionally, granted its writ of mandamus in the companion case from 2010. 301 S.W.3d 661, 663 (Tex. 2010)); see also e.g., In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 756-57 (Tex.2013).
[2] The crux of this article centers on the recent decision, on an original mandamus, to the Texas Supreme Court. In Re Whataburger Restaurants LP, 429 S.W.3d 597, 57 Tex. Sup. J. 468 (Tex. 2014) (per curiam).
[3] The standard juror questionnaire is mandated, again, by the Texas Government Code. The list of per se disqualifying factors can be found in Tex. Gov’t Code §62.102, the most notable being that the individual “not have been convicted of, or be under indictment or other legal accusation for, misdemeanor theft or felony.” (Note that these restrictions are separate from the exemptions from jury service. E.g., The prospective juror is over 70 years of age, or is a student at a public or private high school. Tex. Gov’t Code §62.106).
[4] Another example of a slightly more subtle disqualification would be a “disqualifying interest.” It is possible that the prospective juror and the plaintiff are not close friends, but the plaintiff had represented the juror, as his attorney, in a legal dispute previously. Texas Cent. R.R. v. Blanton, 81 S.W. 537, 538 (Tex. App.—Fort Worth 1904, no writ).
[5] In re Cook, 356 S.W.3d 493, 495 (Tex. 2011); see also, United Scaffolding 2, at 689 (“This two-part test adequately ensures that jury verdicts are not overturned without specific and proper reasons, while still maintaining trial courts’ discretion in granting new trials.”).
[6] United Scaffolding 2, at 688-89.
[7] In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009); see also, United Scaffolding 1, 315 S.W.3d at 247 (“The trial court amended its order to add three alternative rationals: …. the court of appeals found the order reasonably specific and denied the petition, with one justice dissenting”).
[8] See, United Scaffolding 2, at 689 (emphasis added).
[9] See generally, Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (even when the motion is denied, the trial court’s plenary power is extended by 30 days).
[10] E.g., In Re Whataburger Restaurants, at ¶ 3.
[11] E.g., Golden Eagle Archery v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000).
[12] In Re Whataburger Restaurants, at ¶ 7 (citing to In re Ethyl Corp., 975 S.W.2d 606, 618-19 (Tex. 1998)).