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

  • Hill owned some land. He sold two parcels to Rosier and two parcels to Othen. Othen’s land was landlocked. The only way off his property was through someone else’s.
  • Rosier and Othen both used a road that crossed Rosier’s property.
    • Rosier was the one who maintained the land.
  • Eventually, erosion damaged the road and threatened to damage Rosier’s orchard. So Rosier built a levee, protecting the orchard, but flooding the road and cutting off Othen. Othen sued to force Rosier to reopen the road.
  • The Trial Court found for Othen. Rosier appealed.
    • The Trial Court found that Othen had an easement of necessity.
    • The Court ordered Rosier to maintain the road.
  • The Appellate Court reversed the decision. Othen appealed.
    • The Appellate Court found that an easement of necessity only occurs when it is absolutely necessary at the time the land is broken up.
      • At the time Hill sold Rosier his land, Hill owned other parcels and did not need to cross Rosier’s property to get to the main road. It was only subsequent splits and sales by Hill that disconnected the property now owned by Othen from the main road.
      • In order to establish an easement by necessity, you have to prove that splitting up the land caused the need for an easement. Since, when the land Othen came to own was split from Hill’s land, there was no need for an easement over Rosier’s property, the need for an easement came when some other guy’s property was split off from the property now owned by Othen.
    • The Court found that Othen had no easement by prescription either.
      • Easements by prescription are similar to obtaining land via adverse possession.
      • Three elements are required to get an easement by prescription:
        • Use is open and notorious.
        • Use is without the permission of the owner of the land you are crossing.
          • In this case Rozier had given permission for Othen to use the road.
        • Use is continued and uninterrupted for a period of years.
          • In Texas, it’s 10 years.
  • The Texas Supreme Court affirmed the Appellate Court’s decision.
  • Just because Othen isn’t entitled to an easement through Rosier’s land, it doesn’t mean that he’s out of luck. Since his property is landlocked, he is absolutely entitled to an easement somewhere, but the courts will have to decide exactly whose property Othen can cross.