Question:  I am able to access my property by a written, recorded easement that states I have “uninterrupted and free use” of the easement.  The owner of the servient estate (the person over whose land the easement crosses) has built a gate across the easement.  Can he do that across an easement that grants “uninterrupted and free use?”

Answer:  Likely not.

Keep in mind that every easement is different and even slight changes in wording could change the way a court might interpret the document.  So, it is imperative that landowners read the language in their own easements and seek legal advice to help interpret that language.

That said, there have been several Texas court cases looking at the meaning of “uninterrupted and free use.”  For example, in Emmons v. Badanfirouz, No. 09-12-00590-CV, 2013 WL 6705979 (Tex. Ct. App. – Beaumont Dec. 19, 2013) (mem. op.), the easement at issue allowed the Badanfirouzs (dominant estate owners) to cross the Emmons’ property to access the Badanfirouzs 65 acre property.  The easement was limited to 67.5 feet in width and the language included that it was to allow “nonexclusive free and uninterrupted use, liberty and privilege of passage at all time for ingress and egress.”  When the Emmonses built a gate across the easement to help contain livestock and protect against trespassing and vandalism to their property, the Badanfirouzes filed a declaratory judgment action claiming that the gate violated the language of the easement.  The Badanfirouzes sought a temporary and permanent injunction ordering the removal of the gate and prohibiting the Emmonses from erecting any other form of obstruction of interference with future use. In looking at the easement language, the court held that the grantors clearly “intended an unobstructed access” for the dominant estate owners, and held that the Emmons family’s gate violated the easement.  Thus, the court entered a declaratory judgment in favor of the Badanfirouz family, ordered the removal of the gates on the easement, entered an order prohibiting the future constructions or gates or other obstructions across the easement, and awarded attorney’s fees and costs to the Badanfirouz family.

Similarly, in Gerstner v. Wilhelm, 584 S.W.2d 955, 958 (Tex. Ct. App. – Austin 1979), the court held that language providing the dominant owner “free and uninterrupted use, liberty and easement of passing” was clear language such that the servient estate owner may not erect gates or fences on the easement that hinder ingress and egress of the dominant estate owner.   The court awarded damages to the dominant estate owner for loss of use of the road as they were locked out of the easement, issued an injunction ordering removal of gates and fences, and an order prohibiting future interference with the roadway.

The cases are more complicated when easements do not contain the “free and uninterrupted use” language.  In those cases, courts have sought to ascertain the intent of the parties, while being true to the language of the easement document.

For example, in Barrow v. Pickett, No. 01-06-00664-CV, 2007 WL 3293712 (Tex. Ct. App. – Houston [1st Dist.] Nov. 8, 2007) (mem op.), an easement granted “a thirty foot access easement on, over, and across the Easement Tract…” and provided it was to be “a perpetual, non-exclusive easement for pedestrian and vehicular ingress, egress, and access on, over, and across the easement tract.”  The servient estate owner erected a gate across the easement, which required the dominant estate owner to stop, open the gate, drive through, and close the gate.  The dominant estate owner filed suit, seeking to enjoin the placement of the gate across the easement.  The appellate court held that the easement only provided for ingress and egress.  Because it did not specifically grant the right to a “free and uninterrupted” easement, the court refused to read those terms into the document.  Thus, the gate was allowed under this easement language.

Conversely, however, in McDaniel v. Calvert, 875 S.W.2d 482 (Tex. Ct. App. – Ft. Worth 1994), the court analyzed a roadway easement that did not include “free and uninterrupted” language.  There, the court focused on the intent of the parties to reach its conclusion that gates were not allowed.  “Whether the party has the right to erect gates depends upon the intent of the parties. The parties’ intent can be determined by considering the terms of the grant, its purpose, the nature and situation of the property, and the manner in which it is used.”  The court determined the purpose of the easement was to provide abutting landowners access to the roadway, and its access was to be unobstructed since no gates existed at the time the easement was created, nor in the twenty years since the creation.  Thus, the court affirmed the injunction prohibiting the gate across the easement.

Key Takeaways:  Just a couple of final thoughts.

First and foremost, landowners need to ensure that all easements are in writing and recorded in the deed records.  This was not an issue in our discussion today, but it is always the starting point for a conversation about easements.  Not doing so oftentimes leads to significant issues down the road, particularly once property has changed hands.  To ensure that all parties understand and are bound by the purpose, scope, and limitations on an easement, putting it in writing and having it recorded is critical.

Second, when drafting an easement, the parties should consider the issue of gates and decide whether or not they will be allowed across the easement.  Then, that decision should be adequately spelled out in the easement agreement.  Without addressing this issue, the risk of misunderstanding, disagreement, and litigation increases.

Finally, if you would like more information about easements generally, check out this prior podcast with James Decker, and Chapter 7 of my Owning Your Piece of Texas handbook.

***UPDATE***

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