## Facts

- A 2,493-acre tract was formerly under common ownership and later divided into separate parcels now owned by Albert Othen and Estella Rosier and others.
- Othen owned two landlocked tracts totaling 113 acres; the Rosiers owned adjoining tracts, including a 100-acre parcel and a 16.31-acre parcel.
- Othen accessed a public road by traveling through a gate from his 60-acre tract onto the Rosiers’ 16.31-acre tract, then across it into a fenced lane along the south side of the Rosiers’ 100-acre tract, and out to a gate on a public road.
- The Rosiers also used the lane for ordinary farm operations, including access to their residence and farm improvements and movement of livestock.
- The Rosiers built a levee on their land that caused water to stand in the lane, making it muddy and impassable for substantial periods and interfering with Othen’s route to a public road.
- Othen sued seeking a roadway easement across the Rosiers’ property, alleging an implied easement by necessity and, alternatively, a prescriptive easement.
- The trial court ruled for Othen and granted injunctive relief and damages; the intermediate appellate court reversed; the Texas Supreme Court affirmed the reversal.

## Issues

1. Whether Othen proved an implied easement by necessity across the Rosiers’ land based on prior common ownership and severance.
2. Whether Othen proved a prescriptive easement where the roadway was long used by both parties.

## Decision

- The Texas Supreme Court affirmed the judgment denying Othen relief.
- The court held no easement by necessity arose because Othen failed to prove strict necessity existed at the time of severance of the relevant parcels.
- The court held no prescriptive easement was established because Othen’s use was permissive rather than adverse or hostile.
- The court rejected treating long continued, shared use of a farm lane as sufficient proof of adversity.

## Legal Principles

- An implied easement by necessity requires: (1) original common ownership of the dominant and servient estates; (2) necessity, not mere convenience; and (3) the necessity existed at the time of severance.
- The necessity element is evaluated as of the severance creating the dominant and servient estates; later landlocked conditions do not supply missing proof of necessity at severance.
- A prescriptive easement requires adverse or hostile use; use arising from express or implied permission cannot ripen into a prescriptive right.
- Shared, neighborly, or cooperative use of a way—especially where the servient owner also uses it for ordinary operations—supports an inference of permission absent clear proof of a hostile claim of right.

## Conclusion

The court refused to impose a roadway servitude on the Rosiers’ land because Othen did not show the claimed route was strictly necessary at the time the parcels were severed from common ownership, and his long use of the lane appeared permissive and shared rather than adverse as required for prescription.


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