To start, we should define what an easement and a cotenant are in the Lone Star State. Under Texas Law, an easement is a non-possessory interest in land that authorizes its holder to use property for a particular purpose, which is expressed within a grant. A common example being the grant of a ten-foot-wide strip of land across the front of your property near the street for the laying of an electric line. If you are interested in further discussion of the grant of an easement, see my Blog “How Do I Determine an Easement from a Fee Conveyance.”
A cotenant, also known as a tenant in common, is defined as someone having co-ownership of separate, undivided interests in land. This is often seen when members of a family each own a fraction of an interest in a tract of land. For example, Joan’s parents own 640 acres, hereinafter “Charlie’s Ranch”. Upon Joan’s parents’ passing Joan is devised a 1/6th interest in Charlie’s Ranch through their Wills. The remaining 5/6ths interest is devised to Joan’s 5 siblings. Thus, Joan and her siblings are cotenants in Charlie’s Ranch. As a cotenant Joan has all of the same rights of access, use and sale as her siblings.
To continue with this example, Joan is later approached by Sparqs Electric Co. (“Sparqs”) who would like to build an electric transmission line across the southern boundary of Charlie’s Ranch. Joan and four of her siblings agree to the easement for constructing the electric line and execute a conveyance of an easement to Sparqs. However, Joan’s youngest sibling has moved to Oregon and joined a commune where all worldly possessions are denied, and he refuses to have anything to do with Sparqs or his non-commune siblings. Are the easements from Joan and her siblings valid without the youngest sibling? Can Sparqs still build their electric transmission line?
As cotenants, Joan and her siblings have the authority to execute an easement but only as it pertains to their interest in the tract. It is well settled in Texas that a cotenant cannot, without the agreement or subsequent ratification of his/her cotenants, impose an easement or dedication upon the common property in favor of a third party. “Implicit in this is the principle that a tenant in common cannot effectively grant to a third party an easement conferring a greater liberty, privilege, or advantage than that granted by his cotenants.”1 All cotenants must consent to the easement either by executing a conveyance themselves or ratifying a prior conveyance by other co-tenants. Thus, Joan and her siblings’ easements to Sparqs are valid, but Sparqs needs all of the siblings to agree in order to remove risk from their construction.
After months of trying to obtain an easement from Joan’s youngest sibling, Sparqs makes the business decision to construct the electric transmission line with only 5/6th of the interest granting an easement. Years later, Joan’s youngest sibling, having become disillusioned with the commune life and returning to Charlie’s Ranch, discovers the existence of the Sparqs powerline and is angered by the destruction of the natural beauty. What recourse does he have?
Entering the land of another without permission is an unauthorized entry upon the land of another and constitutes a trespass.2 This is true even in the case of permission being granted by one cotenant. The Amarillo Court of Appeals indicated that irrespective of the extent and nature of their estates or titles to the common property, cotenants may maintain an action for trespass to try title when such an action is appropriate to their rights.3 Thus, Joan’s sibling that did not agree to the easement could bring a suit against Sparqs for trespass upon Charlies Ranch.
In Tex. Elec. Serv. Co. v. Linebery, the El Paso Court of Appeals noted that the non-consenting cotenant landowner had two possible courses of action against the electric company for the unauthorized construction of an electrical transmission line.4 First, he may sue for the trespass and seek damages for the continued occupation of his lands leaving the power line in place. Alternatively, he may bring a trespass to try title action to recover title and possession of the land, resulting in ejectment, as well as recover damages.
The recovery of damages is a fact-based question and therefore, it is difficult to determine the kind and amount of damages an injured co-tenant may recover. However, the fact that ejectment and loss of any construction upon the easement is an available remedy should be factored into Sparqs’, or any company’s, decision to exercise the partial interest granted through easements from less than 100% of cotenants on a tract of land.
1 Tex. Mortg. Co. v. Phillips Petroleum Co., 470 F.2d 497, 499 (5th Cir. 1972).
2 See Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts § 49 (2020).
3 Cook v. Spivey, 174 S.W.2d 634 (Tex. Civ. App.—Amarillo 1943, no writ).
4333 S.W.2d 596, 598 (Tex. Civ. App.—El Paso 1960, no writ).