Daily Development for Tuesday, February 12, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; PRESCRIPTION: A roadway easement may be established by prescriptive use despite the user's concurrent lease of the servient easement estate for pasture purposes.

Toal v. Smith, 54 S.W.3d 431 (Tex. App. 2001)

Appellee was the heir to owners of a home accessed by means of a country road through adjacent property. Appellee's predecessor-in-interest relatives lived in the home and used the roadway access for nearly eighty years. The roadway was on land the relatives leased from a railroad for pasture purposes since 1901. When the home was vacated in the 1980's, a third party approached the railroad and coerced it into canceling Appellee's 100-year lease and selling the pasture property to him.

The third party (Appellant) then excluded Appellee from the roadway, and this case ensued. The Court affirmed a lower court's holding that Appellee's relatives had long ago obtained a prescriptive easement by use of the roadway. It applied the rule that ruled that "by using land in a manner inconsistent with the purpose for which the land is leased, a lessee may acquire a prescriptive easement, provided all of the elements for establishing the easement are met."

Utilizing the land leased for pasture purposes as a roadway for residential access was found to be in repudiation of the lease, thus satisfying the "adverse" element necessary to establish such a prescriptive easement.

The Court went on to find further that the non-use of the easement over the course of the last twenty years was insufficient for Appellant's claim that any such easement was now abandoned.

Reporter's Comment: The determination that roadway use was inconsistent with pasture use appears to be a "stretch" of Texas precedent. The only meaningful case discussed by the court involved a tenant who leased for pasture purposes but built a pond, plowed roots, planted grass and built fences. The simple use of pasture property for access to the home of the paries conducting the pasture use appears more consistent with the pasture purpose than the uses in the precedent case.

Editor's Comment: The editor would venture to say that this ruling would stretch precedent almost anywhere. The notion that one could not use property leased "for pasture purposes" to cross back and forth to reach one's home would surprise many farmers around the country, at least where the lease, as here, conveys exclusive rights. Of course, uses of property for pasture in Texas' wide open spaces may involve different considerations. Nevertheless, this case seems to plant a "gotcha" in a lot of Texas pasture leases. Landlords will have to watch carefully. This case is not a good precedent, regardless of the perceived desirability of the outcome here.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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