Othen v. Rosier
Texas Supreme Court
226 S.W.2d 622 (1950)
After a common owner, Hill, conveyed separate tracts over the years that eventually became owned by Othen (plaintiff, 1904 and 1913 acquisitions) and Rosier (defendant, 1924 acquisitions), Othen's landlocked land required crossing a fenced path through Rosier's property to reach the public Belt Line Road; when Rosier later built a levee to control water damage on his own property, it blocked half the path and rendered it muddy and unusable, prompting Othen to sue for an injunction requiring the levee's removal, alleging Rosier blocked his right of ingress and egress. The trial court found Othen had an easement of necessity and granted the injunction, but an intermediate appellate court reversed, and Othen appealed.
Whether an easement by necessity requires proof that the easement was necessary for access at the time of the original conveyance severing the properties, and whether decades of tolerated, non-adverse use of a path can ripen into an easement by prescription.