# Zapata County v. Llanos > Court of Appeals of Texas · April 4, 1951 · 239 S.W.2d 699 URL: https://www.frixlaw.com/law-library/cases/9683659 ## Case - **Full name:** ZAPATA COUNTY Et Al. v. LLANOS Et Al. - **Court:** Court of Appeals of Texas - **Decided:** April 4, 1951 - **Citations:** 239 S.W.2d 699; 1951 Tex. App. LEXIS 2038 - **Precedential status:** Published - **Opinion:** On rehearing by Norvell - **Judges:** Murray, Norvell - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683659 ## How later opinions describe it (automated extraction) - noting that necessity required for implied easement arising from partition of land owned by joint owners is that use which is reasonably necessary for convenient and comfortable enjoyment of the property as it existed when the severance was made ## Opinion text NORVELL, Justice (dissenting in part). In my opinion that part of the judgment relating to Share No. 4 (the Luz Hein Share) of the Varal Pasture should be reversed, and that portion of the judgment relating to Share No. 2 (the Isabel Hein Share) should be modified so as to clearly define the effect of the judgment in relation to the findings and conclusions of the trial court upon which it is based. The following map shows the location of the four shares of the Varal Pasture, as well as the road which is here involved. binding upon us. Appellants, of course, may and they do attack the conclusions of law made by the court below on the ground that such conclusions are not supported by the findings of fact. Some few conclusions of law are intermingled within the findings of fact, but this detail of arrangement does not change their essential nature, nor render them immune from the attack leveled against them by appellants’ points. The following statement is made from the findings of fact: The Varal Pasture is a large tract of land containing about 3,029.12 acres. In 1911, this property was owned by Henry Hein and consisted of unfenced prairie No attack is made upon the findings of the trial court and they are consequently land. A roadway extended from about the center of the north line of the pasture and *704 ran in a southeasterly direction through the same-tp a point near the southeast corner thereof. (See map.) The’ road was a permissive way and Henry Hein used the same to go to various parts of his lands and his neighbors were also allowed to make use of the same. In 1911, the Varal Pasture was fenced, but gates were provided so that the road could still be used by those desiring to do so. On September 10, 1929, all title to the Varal Pasture formerly owned by Henry Hein was held “jointly and undivided by Isabel S. de Hein, Conrad Hein, Enrique Hein, Irma Hein, Maria Hein de Llanos, Walter W. Winslow, John A. Pope, Bismark Pope and John A. Pope, Jr. An agreed judgment of partition was rendered between these parties who were all of the joint owners of the property.” Share No. 1 was ■ awarded to Maria Hein de Llanos. Share No. 2 was awarded to Isabel S. Hein, Conrad Hein, Enrique Hein and Irma Hein. Share No. 3 was awarded to W. W. Winslow, and Share No. 4, to John A. Pope, Bismark Pope and John A, Pope, Jr- No right-of-way or easement was expressly reserved to or' by any of the allot-tees of any share as against any of the allottees of any other share, but the partition decree provided that it should have the effect of an exchange, of warranty deeds between the parties. After this partition, the road was used in the same way it had been used before the partition. In 1933, Luz A. Hein acquired Share No. 4 from John A. Pope, Bismark Pope and John A. Pope, Jr., and some time later Maria Hein de Llanos acquired Share No. 3 from Walter, W. Winslow. In 1944, Luz A. Hein fenced Share No.- 4, -separating it completely from Shares Nos. 1 and 3, owned by Maria Hein de Llanos. In 1949, Maria Hein de Llanos closed the road involved at the point of its entry on the north line of her Share No. 1 of the Varal Pasture. The court found that the road in question was permissive only. This finding effectively disposes o-f the asserted claim of a way by prescription. As to a way of strict necessity, the court’s fact findings were unfavorable to appellants and binding upon them. The court, found that from 1929, when Share No. 4 was set -aside to Messrs. Pope, until they sold the same in 1933, no use was made of said tract requiring ingress or egress over any of the other tracts in the pasture. By way of summary, it may be said that from the findings of fact it appears that for at least thirty-eight years (from 1911 to 1949) there was in existence and use an apparent and visible roadway extending from the southeast corner of Share No. 4 to the north line of Share No. 1. This was not a public road nor one established’ by prescription. As to the owner or owners of th-e Varal Pasture prior to 1929 the roadway was necessarily permissive for as long as one owner held the property, or it was held by tenants in common, all of such parties had a legal right of ingress and egress in and to any part of the pasture by virtue of their ownership thereof. The use of a road over one portion of a tract in connection with another portion thereof by such owner or owners did not give rise to an easement so long as both portions of the tract were owned b-y the same person or persons. However, when the pasture was partitioned between the joint owners thereof an easement arose by implication. This is in accordance with a well-reco-g-nize-d doctrine relating to quasi-easement which is applicable to the fact situation presented here. In Thompson’s Commentaries -on the Modern Law of Real Property, Permanent Edition, (hereinafter cited as Thompson) it is stated that: “A partition of real est-ate carries with it by implication any continuous easement reasonably necessary for the enjoyment of. each part, which had been plainly and obviously enjoyed before partition. A partition is a simultaneous conveyance. The fa-ct that the owner assented to the partition does not estop a successor in title from asserting a claim to the easement. Upon a severance by partition proceedings, easements are created corresponding to the benefits and burdens mutually existing at the time of the partition. The fact that title to land as a separate tract" was obtained through par *705 tition affords a stronger presumption of an implied grant than would otherwise arise.” Thompson, § 401. Relating to the effect of a continuous and apparent way used in connection with a part of a tract sold, it is said in Thompson, that: “Upon the grant by the owner of part of his property, as it is then being used and enjoyed, there will pass to the grantee all those continuous and apparent quasi-easements which are necessary to the reasonable use and enjoyment of the property granted, and which have been, and are at the time of the grant being, used by the owner of the entirety for the benefit of the part granted.” Thompson, § 390. The case of Miles v. Bodenheim, Tex.Civ.App., 193 S.W. 693 , is cited as supporting this particular statement from the text. The fact that the Popes as tenants in common of the Varal Pasture prior to partition, and the owners of Share No. 4 thereafter, did not make use of their property or the roads running to, through and from the same, wo'uld not prevent the easement from arising at the time of the partition, as “it is not essential that the apparent incidents be in actual use by the vendor at the time of the sale, in connection with the portion conveyed; knowledge on his part of their existence is sufficient, and this may be shown otherwise than by actual use. When the incidents are open and visible, knowledge of their existence is inferred.” Thompson, § 390. While there is some conflict among the American decisions on the point, the majority rule is that a showing of absolute necessity for the way is not essential. Where the way is obvious and apparent at the time of the conveyance or the partition, “the prevailing rule of the modern cases seems to be that the necessity required in order to .pass an easement by implication by a grant by a person of a part of his estate is a reasonable necessity, not an absolute necessity. It is sufficient if full enjoyment of the property can not be had without the easement, or that it materially adds to the value of the land.” Thompson, § 410. The majority view prevails in Texas. Miles v. Bodenheim, Tex.Civ.App., 193 S.W. 693 ; Barrick v. Gillette, Tex.Civ.App., 187 S.W.2d 683 ; Pokorny v. Yudin, Tex.Civ.App., 188 S.W.2d 185 . See also, 17 Am.Jur. 954, § 44; Annotations, 34 A. L.R. 233, 100 A.L.R. 1321 , 164 A.L.R. 1001 . The road herein involved was open and visible prior to 1911. It continued in such condition despite fencing until 1949. When fences were built, gates were provided for the road. In 1929, when the partition was made, this road became an easement ap-' purtenant to Share No. 4 of the partition. Maria Hein de Llanos, the owner of Partition Share No. 1, exceeded her legal rights when she attempted to close the road in 1949, and thus deprive the owners of Share No. 4 of a valuable and convenient way to Laredo, which they had used for many years prior to thát time. The trial court’s findings having particular reference to Share No. 2 (Isabel Hein) are as follows: “That said permissive roadway across Varal Pasture did not enter or touch that part of said pasture - now designated as Share No. 2, taken in said partition decree by Isabel S. de Hein, Conrad Hein, Enrique Hein and Irma Hein. “That said Tract No. 2 is not shown to be used by the owners, or to have ever been used, for any purpose, and is not shown to be separately fenced, and no necessity is shown to exist or to have ever existed for a road to serve that share for any purpose to which it has ever been put, if any.” As the roadway crossed no part of Share No. 2, did not border thereon and was not in any way connected therewith, the doctrine of implied grant of visible and apparent roadways is not applicable to said share. 17 Am.Jur. 1014, Easements, § 126. It appears, however, that the basis for refusing a way of necessity to Share 2, is that “no necessity is shown to exist or to have ever existed for a road.” If in the future the owners of the share desired to make use of the same which would necessitate a way of ingress and egress, the present judgment would not operate as a bar to the obtaining of such relief, providing a proper showing therefor were made. I would reform the wording of the decree to expressly so provide and make the matter entirely clear. *706 I am in accord with the majority holding as to Share No. 4, but, for the reasons stated, I would affirm the judgment of the trial court as to Share No. 2 with the modification above suggested. I respectfully dissent from that part of the order of this Court which renders judgment for the appellant, insofar as Share No. 2 is concerned --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683659. Public record. Not legal advice.