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4851-0444-8941.1
29th Annual Robert C. Sneed
TEXAS LAND TITLE INSTITUTE
Easements and Rights-of-Way: How do they disappear?
December 5-6, 2019 Hyatt Regency Hill Country Resort & Spa
San Antonio
Daryl W. Bailey Gray Reed & McGraw LLP
1300 Post Oak Blvd. Suite 2000 Houston, Texas 77056 (713) 986-7125
©2019 Gray Reed & McGraw LLP All rights reserved worldwide.
Daryl W. Bailey Partner
Industries Construction Steel & Pipe Real Estate
Practices Commercial Litigation Real Estate Litigation Construction Appellate Law
Education J.D., South Texas College of Law Houston (1986)
B.A., Michigan State University (1979)
Bar Admissions Texas
Court Admissions U.S. Court of Appeals, Fifth Circuit U.S. District Court, Southern District of Texas U.S. District Court, Western District of Texas U.S. District Court, Eastern District of Texas U.S. District Court, Northern District of Texas
Honors Named Best Mentor by Texas Lawyer’s Professional Excellence Awards (2018)
Selected by his peers for inclusion in Woodward/White, Inc.’s The Best Lawyers in America in the field of Commercial Litigation (2012 – 2020)
Named a “Super Lawyer" by Texas Super Lawyers (a Thomson Reuters business) as published in Texas Monthly (2006, 2009 – 2019)
AV Preeminent rated
Leader of the Real Estate Litigation Practice Group, Daryl Bailey has extensive experience in resolving complex commercial disputes with incredibly challenging issues, multiple parties and substantial dollars at stake. His clients range from Fortune 500 companies to mid-size business owners, entrepreneurs and family-owned businesses primarily in the real estate, construction and steel industries, including developers, general contractors, subcontractors, landlords, tenants, steel mills, steel distributors, title insurance companies and their insureds.
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Complex disputes often continue after a trial court ruling, verdict or judgment, and Daryl is highly experienced in arguing issues on appeal to fully protect his clients’ interests. He has handled numerous state and federal appeals resulting in seven published opinions to date, including a case before the Supreme Court of Texas that was ranked by Texas Lawyer in its annual top 50 list of significant Texas cases.
While his practice is largely focused on U.S. domestic matters, Daryl is committed to serving clients’ legal needs as part of a network of more than 2600 lawyers globally, where he helps clients gain the best position for realizing their domestic and international business opportunities. As a leader of that organization, Daryl served as Chair of the Governing Board of Directors of Lexwork Americas, a strategic alliance of more than 20 mid-sized law firms throughout the U.S., Canada, Mexico and Central and South America. Lexwork Americas is affiliated with Lexwork International, with member law firms in more than 36 countries worldwide. Daryl currently serves on the International Coordinating Committee of Lexwork International.
https://www.grayreed.com/Our-Firm/Global-Resources
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 2
TABLE OF CONTENTS
I. INTRODUCTION A. Creation of Rights-of-way
1. Express Grant or Reservation 2. Recording
B. Termination of an Easement
1. By Abandonment 2. By Abandonment: Case Illustration 3. Use for Which Easement Becomes Impossible 4. Easement Appurtenant vs. Easement in Gross 5. Easement by Necessity 6. Easement by Agreement: Determinable Easement 7. Misuse of Easement 8. Failure to Repair an Easement
C. Establishment of an Easement’s Location
1. Quasi-Blanket Easement 2. True Blanket Easement
D. Pipeline Easements
E. Dedication to the Public 1. Platted Easements 2. Easement vs. License
II. CONCLUSION
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 3
I. Introduction
Easements can be created through express grant or reservation, among several
other means, but this paper provides an analysis of issues on the narrow topic of how
easements and rights-of-way disappear. I use the term “disappear” because that
seemed to be the most logical characterization in light of certain scenarios where
they cease to exist as opposed to being eliminated or terminated. My
characterization is certainly debatable but made sense to me nonetheless.
The examination will be on: (1) how easements can be terminated by
abandonment; (2) when the use for which the easement was created becomes
impossible; (3) how terminations differs for easements in gross versus easements
appurtenant; (4) how easements by necessity terminate; (5) how determinable
easements terminate; and (6) whether misuse of an easement can terminate an
easement. For more niche topics relating to easements, we will also analyze (8) the
consequences of failing to repair an easement; (9) distinguishing between quasi-
blanket easements and true blanket easements; (10) pipeline easements; (11)
abandoning dedications to the public; (12) platted easements; and (13) terminating
licenses.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 4
A. Creation of Rights-of-Way
1. Express Grant or Reservation An easement is an interest in land. Watson v. Wiseheart, 258 S.W.2d 350 (Tex.
Civ. App.—Galveston 1953, writ ref’d n.r.e.). As such, an express easement must
meet the same legal requirements as any real property conveyance. Parsons v. Hunt,
98 Tex. 420, 84 S.W. 644, 646 (Tex. 1905). As an express grant, an easement
conveyance must: (1) be reduced to writing; (2) express an intent to convey an
easement; (3) provide an adequate property description of the servient estate; (4) be
executed by the grantor or an agent of the grantor; and (5) be delivered. Bear v.
Houston & T.C. Ry. Co., 265 S.W.246 (Tex. Civ. App.—Galveston 1924, no writ).
As long as the instrument conveys an intention to grant an easement, no magic
words are required. In fact, even an instrument which has fee simple title conveyance
language, but which further contains more specific language expressing an intent of
easement use only, will be interpreted in accordance with the grantor’s intent so as
to convey an easement interest only. City of Port Isabel v. Missouri Pacific Railroad
Co., 729 S.W.2d 939 (Tex. Civ. App.—Corpus Christi 1987, writ ref’d n.r.e.).
An easement by reservation arises when a grantor conveys title to land but
reserves the right to continue to use the tract for a special purpose. Like a grant, a
reservation of an easement must be in writing and signed by the grantor. Drye v.
Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex. 1962). In order to be effective,
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 5
a reservation must be in favor of the grantor and may not be on behalf of a stranger
to the transaction. See MGJ Corp. v. City of Houston, 544 S.W.2d 171, 174 (Tex.
App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.). Provided the easement claimant
was a party to the transaction, the reservation at issue need not use the word
“easement” or any other particular words or forms, but its language must be
sufficient to show the intent to reserve an easement through recognition of the right
to use the servient estate. See Seber v. Union Pac. R. R. Co., 350 S.W.3d 640, 646-
47 (Tex. Civ. App.—Houston [14th Dist.] 2011, no pet.).
2. Recording
An easement does not have to be acknowledged or recorded in order to be
binding between the grantor and the grantee. Tex. Prop. Code Ann. Sec 13.001(b).
But, without either actual or constructive notice, a BFP (bona fide purchaser) for
value of the servient estate will take title without being bound by the easement. Stark
v. Morgan, 602 S.W.2d 298 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e). So, of
course, the best practice for the grantee of an easement is to take the benefit of the
Recording of Instruments statute by filing the same in the real property records of
the county in which the easement is located in order eliminate the potential of losing
to a BFP. Tex. Prop. Code Ann § 12.001.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 6
B. Termination of an Easement
1. By Abandonment
Easement owners may abandon an easement by non-use only if they have an
actual intention to abandon it. Dallas County v. Miller, 166 S.W.2d 922, 924 (Tex.
1942); Briones v. Solomon, 769 S.W.2d 312, 316 (Tex. App.—San Antonio 1989,
writ denied). Mere non-use, without an intention to abandon, will not terminate an
easement. Briones, 769 S.W.2d at 316; San Jacinto Sand Co., Inc. v. Southwestern
Bell Tel. Co., 426 S.W.2d 338 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref’d
n.r.e.). Abandonment may be established by circumstantial evidence. However,
those circumstances must disclose some definite act showing an intention to abandon
and to terminate the right possessed by the easement owner. The material question
is the intention to abandon; that intention must be established by clear and
satisfactory evidence. Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922
(Comm'n App. 1942); Milligan v. Niebuhr, 990 S.W.2d 823 (Tex. App.—Austin
1999, no pet.). And while non-use is insufficient by itself to show abandonment, if
the non-use is long, continued, and unexplained, it leads to an inference of an intent
to abandon. Hicks v. City of Houston, 524 S.W.2d 539 (Tex. Civ. App.—Houston
[1st Dist.] 1975), writ refused n.r.e., (Oct. 15, 1975), citing City of Anson v. Arnett,
250 S.W.2d 450 (Tex. Civ. App. Eastland 1952), writ refused n.r.e.).
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 7
2. By Abandonment: Case Illustration
One of the best case illustrations of the requisite intent to abandon an easement
comes from a divorce dispute. In Milligan v. Niebuhr, two neighbors – a formerly
married couple – litigated over an easement providing access to a river for
recreational purposes. Milligan v. Niebuhr, 990 S.W.2d 823, 826 (Tex. App.—
Austin 1999, no pet.). Dr. Gene Milligan purchased an 8.98 acre tract known as
Peach Orchard in 1983, which included an easement across an adjoining strip of
land, known as Lot 13, for access to a river for recreational purposes. Dr. Milligan
also owned Lot 14, a riverfront tract adjoining Lot 13 and of similar size and shape.
In November 1991, Marilisa Niebuhr purchased Lot 13, subject to the easement
benefiting Peach Orchard. Dr. Milligan and Ms. Niebuhr married in 1992, but
divorced in 1995. The couple’s agreed decree of divorce awarded Lot 13 to Ms.
Niebuhr and awarded Peach Orchard and Lot 14 to Dr. Milligan. After the divorce,
Dr. Milligan continued to use his easement across Lot 13 – he believed that the
divorce left his easement in place. Ms. Niebuhr, however, believed that Lot 13 was
no longer encumbered by the easement, so she put a combination lock on the gate to
keep her former husband off the property. Dr. Milligan filed suit seeking injunctive
relief, plus actual and exemplary damages for his loss of the property’s use.
Ultimately, Ms. Niebuhr asked the court to declare that the final decree of divorce
divested Dr. Milligan of any rights in Lot 13. The appellate court held that the
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 8
divorce decree, which represented the parties’ intentions, determined that Ms.
Niebuhr held Lot 13 unencumbered by any easement in favor of Dr. Milligan after
the divorce. The parties manifested the requisite intent to abandon the easement. Put
simply, the court held that an unambiguous contract divesting another party of all
rights, title, interest, and claim in such property presented the requisite intent to
abandon an easement.
3. Use for Which Easement Becomes Impossible
In addition, an abandonment of an easement in Texas can occur when the use
for which the property is dedicated becomes impossible. Adams v. Rowles, 149 Tex.
52, 228 S.W.2d 849, 852 (1950). For example, an easement to use a switch track to
gain access to railroad cars using a particular rail line terminates when it becomes
physically impossible for railroad cars to come to the switch track. See Kearney &
Son v. Fancher, 401 S.W.2d 897 (Tex. Civ. App.—Fort Worth 1966, writ ref’d
n.r.e.).
4. Easement Appurtenant vs. Easement in Gross
The distinction between an easement appurtenant and an easement in gross
has significant consequences. Where the court can fairly construe an easement to be
appurtenant to some other estate, the court will never presume an easement in gross.
Indeed, easements in gross are disfavored.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 9
An easement is appurtenant when it benefits the holder in his physical use or
enjoyment of another tract of land. Thus, for an easement to be appurtenant, there
must be two tracts: the dominant tenement (the estate benefited by the easement),
and the servient tenement (the estate subject to the easement right). An easement
appurtenant passes with the transfer of the benefited land, regardless of whether it is
mentioned in the conveyance. See McDaniel v. Calvert, 875 S.W.2d 482, 484 (Tex.
App.—Fort Worth 1994, no writ). The burden of the easement also passes
automatically with the servient estate unless the new owner is a bona fide purchaser
with no actual or constructive notice of the easement. See Lefevere v. Sears, 629
S.W.2d 768, 773 (Tex. App.—El Paso 1981, no writ).
For an easement in gross, the holder of an easement acquires a right to use the
servient tenement independent of his or her possession of another tract of land. In
other words, the easement benefits the holder rather than another parcel. Although
easements in gross are personal to the grantee only, and are generally not assignable
or transferable, the parties may create an assignable easement in gross through an
express assignment provision. Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d
538 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Accordingly, an easement
in gross should terminate on the death of the individual owner or the closing of the
business that receives the benefits of the easement in gross – unless the parties create
an assignable easement in gross.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 10
5. Easement by Necessity
An (implied) easement by necessity typically arises when a landowner sells a
portion of its tract and by this division, deprives one lot of access to a public road or
utility line. The owner of the servient parcel has the right to locate the easement. The
party claiming an easement by necessity has the burden to prove all facts necessary
to establish it. Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014). Establishing necessity
requires, in part, proof that at the time the dominant and servient estates were
severed, necessity arose for an easement across the servient estate so that the
dominant state could in some manner gain access to a public road. Id.
Easements by necessity are temporary because their existence is dependent on
the necessity that created them. As such, easements by necessity terminate upon
cessation of the necessity. Mere inconvenience does not constitute necessity. It only
exists when there is no other way of access. Duff v. Matthews, 311 S.W.2d 637 (Tex.
1958).
6. Easement by Agreement: Determinable Easement
Perhaps the easiest way to terminate an easement is by agreement. The most
common way an easement terminates by agreement is when the grantor and grantee
agree that the easement will terminate on the happening of a particular event of
contingency, or on the occurrence of a condition. An easement that terminates upon
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 11
the happening of a particular event or contingency is also known as a determinable
easement. It ends without notice. See Hamrick v. Ward, 359 S.W.3d 770, 779-80
(Tex. App.—Houston [14th Dist.], 2011, rev’d on other grounds) (held that
landowner created determinable easement by agreeing with purchasers of servient
estate that they could close off dirt road if they provided her with another means of
access, but landowner was never provided with alternative access, and therefore
easement did not terminate).
7. Misuse of Easement
Misuse alone does not provide a basis for terminating an easement, unless the
misuse makes it impossible to effectuate the purpose for which the easement was
created. Perry v. City of Gainesville, 267 S.W.2d 270, 273 (Tex. Civ. App.—Fort
Worth 1954, writ ref’d n.r.e.). A misuse is not grounds for a forfeiture (or
termination) of the easement, but the servient estate owner can obtain an injunction
against the improper or unauthorized use of the easement area. Hoak v. Ferguson,
225 S.W.2d 258 (Tex. Civ. App.—Fort Worth 1953, writ ref’d n.r.e.). The servient
estate owner may sue for damages stemming from the easement holder’s misuse of
an easement if the owner can establish either negligence or willfulness in the manner
in which the easement was used. Holloway v. Matagorda County, 667 S.W.2d 324
(Tex. App.—Corpus Christi 1984).
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 12
8. Failure to Repair an Easement
The servient owner generally may use its land in any way it wishes so long as
its conduct does not interfere with performance of the easement. Reyna v. Ayco Dev.
Corp., 788 S.W.2d 722, 724 (Tex. App.—Austin 1990, writ denied). Indeed, the
only duty an easement imposes on the owner of the servient estate is a duty not to
interfere with the enjoyment of the easement. See Id. Thus, any repairs and
maintenance of easements is the duty of the dominant estate, unless by virtue of
some agreement, the parties say otherwise. And, if both parties are using the
easement, the court will apportion the repair costs. See Id.
C. Establishment of an Easement’s Location
It is important to distinguish between “true blanket easements” and “quasi-
blanket easements.”
1. Quasi-Blanket Easement
The statute of frauds and statute of conveyances require that an agreement to
convey land or an interest in land must be in writing. Tex. Prop. Code Ann § 5.021.
An express easement is an interest in land to which the statute of frauds applies. Pick
v. Bartel, 659 S.W.2d 636 (Tex. 1983). However, if an easement does not
sufficiently describe the interest conveyed, then the conveyance is void. So, that is
a way a quasi-blanket easement can disappear.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 13
A quasi-blanket easement does not specify within the instrument the
easement’s location. To provide clarity to the land records, the servient owner of a
piece of land which is subject to a quasi-blanket easement with an unspecified
location can force the owner to establish the location of the easement through writing
and, as such, to release excess lands not necessary to fulfill its purpose. Cozby v.
Armstrong, 205 S.W.2d 403 (Tex. Civ. App.—Fort Worth 1947, writ ref’d n.r.e.). .
In a quasi-blanket easement, as long as the tract of land that will be burdened by an
express easement is sufficiently identified, an exact designation of location of the
easement is not necessary. See Vinson v. Brown, 80 S.W.3d 221, 227 (Tex. App.—
Austin 2002, no pet.). Indeed, a quasi-blanket easement is one that identifies the
parent tract across which the easement will run, but does not provide a metes and
bounds description of the easement route. This was a common practice in the 1930s
and 1940s, and is still common in oil and gas leases.
2. True Blanket Easement
A true blanket easement is one in which the wording of the easement purpose
is to lay multiple lines at varying locations from time to time over any portion of the
servient estate. The intent of the parties, expressed in the instrument, will control.
This is different from the easement which simply does not specify a specific location
– a quasi-blanket easement.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 14
D. Pipeline Easements
Since 1994, the Texas Natural Resources Code has included a section
providing some statutory relief for servient estate owners whose lands have been
burdened with blanket easements for pipelines. For certain pipelines laid before
January 1, 1994, there is a presumption that the easement created extends only a
width of 50 feet as to each pipeline laid. Tex. Nat. Res. Code Ann. § 111.0194. The
statute, however, has a few exceptions. It excludes: (1) easements in which the
written grant or the condemnation judgment expressly provide for another width; (2)
easement rights otherwise prescriptively acquired through actual use of a greater
width; (3) easements created for the benefit of a party other than a single common
carrier pipeline; (4) easements held by common carrier pipelines which do not have
the power of eminent domain; (5) easements of a common carrier granted under the
terms of an oil and gas lease or oil, gas, and mineral lease, or to any easement which
authorizes the construction of gathering lines. The presumption created by the statute
may be rebutted by evidence on behalf of the common carrier pipeline that a greater
width is reasonably needed for purposes of operation, construction of additional lines
under the grant or judgment, maintenance, repair, replacement, safety, surveillance,
or as a buffer zone for protection of the safe operation of the common carrier
pipeline.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 15
As a practical application of the statute, a colleague of mine was working on
acquiring a several hundred acres parcel of land for a large company, but ran into a
blanket pipeline easement that she had to work to eliminate as an exception from the
owner’s title policy. She traced the successors to the pipeline company and then
located the actual pipeline that was installed after the easement was granted, which
was miles away from the parcel her client was trying to purchase. Because of this
finding, she was able to convince the title insurance company to remove the pipeline
easement as an exception from its policy. So, my colleague’s client closed its deal
on a several hundred acres parcel and had its parcel insured without an exception to
the pipeline easement in the title insurance policy.
E. Dedication to the Public
A dedication to the public must meet four elements: (1) the person who makes
the dedication must have the ability to do so, i.e., have fee simple title; (2) there must
be a public purpose served by the dedication; (3) the person must make either an
express or implied offer; (4) there must be an acceptance of that offer. Spinuzzi v.
Town of Corinth, 665 S.W.2d 530, 532 (Tex. App.—Fort Worth 1983, no writ). The
public’s acceptance need not be express; an implied acceptance is sufficient. Once
dedicated, the owner reserves no rights that are incompatible with the full enjoyment
of the public.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 16
The determination of whether a public right-of-way has been established by
implied dedication is a question of fact. Malone v. Whitfield, 621 S.W.2d 192, 195
(Tex. Civ. App.—Waco 1981, writ ref’d n.r.e.). In addition, the landowner’s intent
to dedicate the land for a public purpose may be established by verbal statements of
the owner or may be implied by the owner’s conduct. Viscardi v. Pajestka, 576
S.W.2d 16 (Tex. 1978). The certainty of the proof of the owner’s intent is subject to
conflicting interpretations. Indeed, there are two schools of thought. There is one
line of cases which requires that the owner clearly manifest his or her “donative
intent.” It should be “something more than an omission or failure to act or
acquiescence on the part of the owner.” Greenway Parks Home Owners Ass’n v. City
of Dallas, 312 S.W.2d 235, 241 (Tex. 1958). Under the second school of thought,
courts recognize a presumption of dedication. In the rare circumstance in which the
origin of the public use and the ownership of the land at that time is “shrouded in
obscurity, and no proof can be adduced showing the intention of the owner in
allowing the use,” then evidence of a long and continued use by the public raises a
presumption of dedication by the owner. O’Connor v. Gragg, 339 S.W.2d 878 (Tex.
1960).
Viscardi v. Pajestka
Viscardi v. Pajestka is illustrative of what does not suffice as abandoning a
dedication to the public. In this case, Viscardi filed suit in the district court of Travis
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 17
County seeking a declaratory judgment affirming her right to use an alleyway
located between her property and that of Pajestka. She also sought a permanent
injunction prohibiting Pajestka from interfering with her use of the driveway.
The State National Bank of Austin originally “deeded” the alley in dispute in
1921. First, in dispute was whether this “deed” was a public dedication. The court
held that it was. The Bank used the word “dedication” in the conveyance. The
paragraphs in the conveying document indicated the Bank was aware of the existing
difference between what constituted an easement and what constituted a dedication,
and that they were expressly calling this a dedication—the Bank called its
conveyance a “dedication” instead of calling it a grant of an “easement” as it had
done in the past. Pajestka maintained, however, that even if the Bank had intended
a dedication to the public, there had been no public acceptance; and if there had been
public acceptance, then the city had abandoned the property. The court held that
acceptance does not need to be express, it can be implied. In addition, the court
opined that abandonment occurs when the use for which the property was dedicated
becomes impossible of execution, or the object of the use totally fails.
Here, the driveway in question had been used continuously by the owners of
the respective properties, their guests, and tenants for over fifty years. It had been
used as the only entrance to an apartment complex, and it had also been used by the
City of Austin trash collectors, but at the time of the litigation, was not used for that
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 18
purpose. The court held that the mere fact that the city no longer used the driveway
as a route for trash collection did not constitute an abandonment. Indeed, the use of
the driveway had been continuous since 1921. Prior to the driveway being chained
(which led to this litigation), the public was using it for the same purpose for which
it was dedicated fifty years prior.
Viscardi v. Pajetska: Diagram
1. Platted Easements
Vacating a dedicated plat can terminate public easements. The procedure
required for the termination depends on whether the original plat was filed pursuant
to Chapter 212 or Chapter 232 of the Texas Local Government Code.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 19
(a) Chapter 212
If the original plat was filed pursuant to Chapter 212, the requirements for
terminating vary depending on whether or not any lots have been sold. If there has
been no sale of lot, then the subdivision developer must obtain approval from
whichever governmental body governs the municipality for the proposed
cancellation. If the body approves, there must be a written instrument declaring the
cancellation of the plat. The written instrument must be executed, acknowledged,
and recorded in the same office as the original plat. If sales had already occurred,
the procedure remains the same, except the application to cancel all or part of the
plat must be filed by the owners of the lots in the subdivision, rather than the
developer. See Tex. Loc. Gov’t Code § 212.013(c).
(b) Chapter 232
If the original plat was filed pursuant to Chapter 232, the entity owning the
land must file an application to cancel all or any part of the subdivision with the
commissioners court of the county where the land is located (rather than with the
governmental body governing the municipality, as required by Chapter 212). The
commissioner’s court must then publish notice of the proposed cancellation in a
county newspaper for three weeks preceding any action. The notice must demand
that any interest party protesting the cancellation must appear at a specified time. At
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 20
the hearing, if there is no protest, and it is determined that the cancellation of the plat
(and public easements) will not interfere with the established rights of any purchaser
in the subdivision, then the commissioners shall give permission to file the proposed
cancellation in the land records. Even if the proposed cancelation interferes with the
established rights of a purchaser, the cancellation can still occur if the persons
adversely affected agree. See Tex. Loc. Gov’t Code § 232.0085.
2. Easement vs. License
An easement creates an interest in real property, which can pass to subsequent
owners of that property. An alternative, however, is a license. A license is personal
to the licensee. It does not create an interest in real property, and of course you will
not issue title insurance on a license. The intent of the parties determines whether an
interest in land is a license or an easement. Ultimately, it depends on a proper
construction of the language of the instrument, in case of uncertainty or ambiguity,
in the light of surrounding circumstances. If the instrument or agreement grants the
right of use or interest over another’s property, according to the purpose and terms
of the agreement, the grant will constitute an easement – even if it is called a license
in the instrument or agreement. However, if the instrument or agreement merely
confers permission on the grantee to do an act or series of acts on the grantor’s
property, it is a license and not an easement, and therefore is not regarded as an
interest in land; it is personal.
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 21
Unlike an easement, which may be perpetual or for a specific period of time
and may run with the land, a grantor can revoke a license at any time. Accordingly,
if a grantor wanted to maximize its freedom to use its land, it may consider providing
or offering a license rather than an easement. A downside of the easy revocability of
a license, though, is that it is unlikely a grantee will provide the same value of
consideration as it would in exchange for an easement. Certainly, because the license
is so easily revoked, a knowledgeable grantee will hesitate to provide significant
consideration.
Easements should usually be described by means of a legal description and
sometimes also a drawing given the potential lengths of their terms. Grantors of
licenses, on the other hand, should not be as concerned with the specificity of the
description of the property subject to a license because they may revoke the license.
Thus, the conferred permission disappears.
II. Conclusion
Clearly there are a number of ways that an easement or right-of-way can
disappear. Customers may object to an exception in a title commitment to an
easement or right-of-way that disappeared. Obviously, the default may always be to
make an exception in the title commitment, however, there may be enough evidence
2019 Texas Land Title Institute – Easements and Rights-of-Way: How do they disappear? 22
sufficient to establish that the exception can be deleted if the easement or right-of-
way has disappeared. Like any underwriting decision that is a risk analysis.