Othen v. Rosier

148 Tex. 485, 226 S.W.2d 622 (1950)

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Nature of the Case

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Facts

The land under dispute was part of 2,493 acres that was all owned by Hill. Hill conveyed 100 acres by mesne conveyances in 1896, and this tract came into the hands of Rosier (D) in 1924. Hill also conveyed a 60-acre tract in 1897 by mesne conveyances and Othen (P) acquired it in 1904. These two conveyances left Hill with a 53-acre and a 16.31-acre tract. In January 1899, Hill conveyed the 53-acre tract and the 16.31-acre tract to separate purchasers who conveyed the 53 acres to P in 1913 and the 16.31 acres to D in 1924. P could only reach the main road by going through a gate on the west line of his 60-acre tract and the eastern part of D’s 16.31-acre tract. There was a lane that ran through D’s property went to a gate, which opened onto the main road. Near the gate and in the southwest corner of the 100 acres were D’s dwelling house, orchard, stock lots and barns. D uses the lane for the operation of his farm and their tenants who occupy the tenant house on the 16.31 acres. Except for a short period of time, P continuously used the disputed roadway to get to and from the main road and his home. P could not access a public road from his property without crossing over someone else's property, so he used a road on D's property. It is undisputed that D made repairs to the road when necessary and there was no one else who recognized the obligation to keep the road in repair. Surface waters did create problems with and eventually made the road impassable and also threatened to erode D’s farmland. Due to water conditions, D built a levee on his property that ran 300 feet along the southern fence of the road. This levee made the road so muddy as to render it impassable. P sued for damages and injunctive relief. P wanted a temporary injunction to keep D from maintaining the levee and a permanent injunction from interfering with his use of the road. The trial court found that P had an easement by necessity and issued a mandatory writ of injunction commanding and enjoining and restraining said defendant from further interfering with his P's use of such easement and roadway. The appellate court reversed, eventually finding neither an easement by necessity nor an easement by prescription. P appealed.