THE ATJXBRNEY GENERAL 

OF TEXAS 

90AN L. ItllL”. 

AUBTIN.TEXAR 78711 

ATTORNYISY "-TtAlr 

August 20. 1976 

The Honorable Truett Latimer Opinion NO. H-866 

Executive Director 

Texas Historical COUIIIIiSSiOn 

Box 12276, Capitol StationAustin, Texas 78711 

Re: Validity of facade 

easements. 

Dear Mr. Latimer: 

,:You have qequeated our opinion regarding~whether facade 

eastients are valid fin Texas and whether they may be granted 

to the.Texas Historical Commission. You state that a facade 

easement may be defined as 

an easement of the facade of a historic 

structure, investing a public.or h private 

. organiiation~with a property interest in 

the building's exterior without disturbing 

privhte'ownership and control of 'the 

interior. 

Easements may be classified as 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.3650 
The 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 

transferable or assignable. Dr e v. 

Eagle Rock Ranch, supra at 20 +- . 

We believe that a facade easement as you have described 

it may 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 "preservation easements," would necessarily be required 

in order for a Texas court to uphold the validity of a 

facade easement. .See generally Restatement of 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: 

.The Commission 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 

Sinclair-- Line Co., 323 S.W.Zd 471, 4m Tex Clv. ADD. -- 

Wa,co 1959, 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.3651 
I 

The Honorable Truett 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 

,may be granted to the Texas Historical 

Commission. 

Very truly yours, 

APPROVED: 

KENDALL, First Assistant 

Opinion Committee 

jwb 

p-3652