Othen v. Rosier

226 S.W.2d 622 (1950)

Quick Summary

Quick Summary Icon

Albert Othen (plaintiff) brought a case against Estella Rosier et al. (defendants) over an easement on Rosier’s land that Othen used for farm access. A levee constructed by Rosier blocked Othen’s access route.

The trial court ruled in favor of Othen’s easement claim, but the Court of Civil Appeals reversed this decision. Upon review, the Supreme Court of Texas agreed with the reversal, concluding that Othen did not have an easement by necessity or prescription.

Facts of the Case

Facts of the case Icon

Albert Othen (plaintiff) and Estella Rosier et al. (defendants) both owned separate tracts of land that were once part of a larger estate owned by Hill. Othen’s property did not have direct access to a public road, so he used a path that ran through Rosier’s property to reach Belt Line Road.

However, Rosier constructed a levee that obstructed the path, making it muddy and unusable, prompting Othen to file a lawsuit claiming his right to the easement had been blocked.

Othen acquired 60 acres from Hill in February 1897 and another 53 acres in November 1913, while Rosier obtained 100 acres in August 1896 and an additional 16.31 acres in January 1924.

Othen utilized a fenced-in path through Rosier’s land for access, which Rosier later disrupted with the construction of a levee due to concerns about water damage to their property.

Procedural Posture and History

History Icon
  1. Othen sued Rosier, alleging obstruction of his easement of ingress and egress.
  2. The trial court found in favor of Othen, ruling he had an easement of necessity and issued an injunction against Rosier.
  3. The Court of Civil Appeals reversed the trial court’s decision.
  4. Othen appealed to the Supreme Court of Texas.

I.R.A.C. Format


Issue Icon
  • Whether Othen had an easement of necessity across Rosier’s land
  • Whether he could establish a prescriptive right to the roadway used for ingress and egress to his farm.

Rule of Law

Rule Icon

For an easement by implied reservation to be established, there must be unity of ownership, the roadway must be a necessity rather than a mere convenience, and the necessity must exist at the time of severance of the two estates. Additionally, for a prescriptive right to be established, there must be adverse use of the easement that is not merely permissive.

Reasoning and Analysis

Reasoning Icon

The court examined whether Hill, when selling parts of his land that would become Othen’s and Rosier’s properties, had created an implied reservation for a roadway easement due to necessity. They found no evidence that such a necessity existed at the time of the original land sales.

Furthermore, the court determined that Othen’s use of the path was permissive rather than adverse because both parties used the lane without objection from Rosier.

Thus, there was no basis for a presumption of grant or establishment of a prescriptive right. The court also noted that since Hill retained ownership of some tracts until 1899, Othen could not have established a prescriptive right prior to 1906.

The absence of evidence showing exclusive and adverse use by Othen’s predecessors further weakened his claim to a prescriptive right.


Conclusion Icon

The Supreme Court of Texas affirmed the judgment of the Court of Civil Appeals, ruling against Othen’s claims for an easement of necessity and by prescription.

Key Takeaways

Takeaway Icon
  1. An easement by implied reservation requires proof that such an easement was necessary at the time of severance and not merely convenient.
  2. Permissive use of property, even over a long period, does not establish a prescriptive right to an easement.
  3. The burden of proof for establishing an easement by necessity or prescription rests on the claimant.

Relevant FAQs of this case

What components must be present for an easement by necessity to be established?

An easement by necessity arises when land is divided in such a way that a portion of it is left without access to a public road or utility. The essential components for such an easement include previous unity of ownership, wherein the dominant and servient estates were once part of a single larger property; a clear necessity of the easement for the beneficial use or enjoyment of the dominant estate at the time of severance; and the lack of an alternative reasonable access route.

  • For example: If a farmer sells a piece of landlocked agricultural land that has no other path to a public road except through another part of their original property, this could constitute an easement by necessity.

Under what conditions can adverse possession establish a prescriptive right to an easement?

Adverse possession of an easement, known as prescriptive easement, can be established when the claimant’s use of another’s property is open, notorious, continuous, exclusive, and adverse for the statutory period. The use must not be secretive or clandestine. It needs to be uninterrupted and for the time prescribed by law. Furthermore, the use should be without the permission of the landowner, signifying adversity.

  • For example: If a homeowner continuously uses a pathway across their neighbor’s yard without permission for the period defined by local law — often 10-20 years — and treats it as their own, this might lead to a prescriptive easement.

How does permissive usage factor into claims for prescriptive rights?

Permissive use negates the adverse requirement essential for claiming a prescriptive easement. When a landowner grants someone permission to use part of their land, any use under that grant cannot contribute to a claim of prescriptive right since it lacks hostility. Without adversity, there is no basis for asserting that the user is entitled to an easement over the land against the owner’s rights.

  • For example: If a neighbor allows another neighbor to use their driveway to reach a garage situated on their own property, this arrangement indicates permissive use, which does not lead to gaining a prescriptive easement.


Last updated

Was this case brief helpful?

More Case Briefs in Property Law