## THE ATJXBRNEY GENERAL OF TEXAS

90AN L. ItllL”

. AUBTIN.TEXAR 78711 ATTORNYISY"-TtAlr August20.1976

The HonorableTruett Latimer OpinionNO. H-866 ExecutiveDirector Texas Historical COUIIIIiSSiOn Box 12276, Capitol StationAustin, Texas 78711 Re: Validity of facade easements.

Dear Mr. Latimer: ,:Youhave qequeated our opinion regarding~whetherfacade eastients are valid finTexas and whether theymay be granted to the.TexasHistorical Commission. You state that a facade easementmay be defined as

an easement of the facade of a historic structure, investinga public.or h private

.organiiation~witha property interest in the building's exteriorwithout disturbing privhte'ownershipand control of 'the interior. Easementsmay be classifiedas either "appurtenant"or "in gross." An easement appurtenant,known as the "servient estate." attadke's to. and oasses with. a piece of land, known as the "dominant estate." &, Drye&,~~gl;~oRa&h, 364 S.W.2d 196,..203,(Tex. Sup. Supreme Court indicated that:

..,, ..r TheI~servient

estate is subject to the use of the dominant estate to the extent of the easement aranted or reserved.

- Id. at 207. -

p.3650The Honorable Truett Latimer - page 2 (H1a66)

By contrast, an easement in gross is a right.which attaches to the grantee, but is not dependent upon the existence of a dominant estate in land. a; Stuart 5 Larrabee, 14 S.W.Zd 316, 319 (Tex.Civ. App. --Beaumont 1929,writ ref'd). As the Texas Supreme Court haa observed,

ordinarily, easements in gross are not transferableor assignable. Dr e v. Eagle **Rock** Ranch, supra at 20 +- . We believe that a facade easement as you have described itmay properly be classified as an easement in gross. It does not require the existence of a dominant estate to which it is appurtenant. Rather, vested in a grantee. it appears simply to be a right Since easements in gross are clearly recognized in Texas, it is our opinion that no special legislation, such as other states have enacted in behalf of "preservationeasements,"would necessarilybe required in order for a Texas court to uphold the validity of a facade easement. .Seegenerally Restatementof Property, 8 489, at 3041; 8 m, at 631, 633 (N.J.Super. Ragsdale, 143 S.E.Zd Transportation Ct. App. 1972)
. As to the authority of the Texas Historical Commission to accept the grant of a facade easement, section 22 of article 6145,V.T,.C.S., provides: .TheCommission is authorized and empowered to accept gifts, grants, devises, and bequests of money, securities,or **out the**  purposes of this Act. added). Texas courts have recognized that a pipeline easement is "property"in the constitutional sense; McLennan County 5 Tex Clv. ADD. -- Sinclair-- Line Co., 323 S.W.Zd 471, 4m Wa,co1959, wri7TZSref'dn.r.e.); Sinclair * Line Co. v.-- State, 322 S.W.Zd 58, 60 (Tex.Civ. App. -- FortWorthm no writ). See also Settegast Co., 270 S.W? 1014,1~(Tex. -

p.3651I

The HonorableTruett Latimer - page 3 (H-866)

adopted);Union Properties Co. v. Klein, 333 S.W.Zd 864, 867 (Tex.Civ.x -- EastlandT6r writ ref'd n.r.e.);Watson v. Wiseheart, 250 S.W.Zd 350, 352 (Tex.Civ. App. -- Galveston m53, writ ref'd n.r.e.1. We believe it is clear that an easement in gross may be deemed "property"within the meaning of article 6145. We conclude, therefore, that the Texas Historical Commission is authorized to accept the grant of a facade easement. SUMMARY

Facade easements are valid in Texas and ,maybe granted to the Texas Historical Commission. Very truly yours,

APPROVED:

KENDALL, First Assistant

Opinion Committee jwb

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