Tuesday, December 31, 2013

Othen v. Rosier case brief

Othen v. Rosier case brief summary
226 S.W.2d 622 (1950)

Petitioner landowner brought an action to enforce a roadway easement on the lands of respondent burdened landowners.
The petitioner also brought an action to enjoin the burdened landowners from maintaining a levee that had interfered with his use of the roadway.
The trial court ruled that the landowner had an easement of necessity. The Court of Civil Appeals for the Fifth District (Texas) reversed the order, holding that the landowner did not have an easement. The landowner appealed.

The landowner lived on property that required him to cross another owner's property in order to gain access to a public road.
For many years, the landowner used a roadway that was on the burdened landowner's property.
The burdened landowners later erected a levee, which affected the roadway's quality.
The landowner argued that he had both a prescriptive easement and an easement by necessity. The burdened landowners argued that no easement existed as to the roadway.


  • On appeal, the court stated: 
  • (1) the landowner did not show an implied easement by reason of the deed that he received because the record didn't show that the roadway was a necessity as of the date of the deed; 
  • (2) the landowner's use of the roadway was merely permissive, and as such it could not ripen into a prescriptive right; and 
  • (3) the landowner failed to meet his burden of showing that his predecessor's adverse possession was in the same place and within the definite lines that were claimed by him and  that were fixed by the trial court.

The court affirmed the appeals court's judgment holding that the landowner did not have an easement across the  burdened landowner's property.

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