## IN THE SUPREME COURT O F TEX AS

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. 12-0348

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### D A V ID 

### H A M R IC K 

### , M A G G IE 

### H A M R IC K 

### , S U E 

### B E R T R A M A N D 

### S T E V E 

### B E R T R A M 

### ,

P E T IT IO N E R S A N D 

### C R O S S


### - R E S P O N D E N T S ,

v . 

### T O M 

### W A R D A N D 

### B E T S E Y 

### W A R D 

### , R E S P O N D E N T S A N D 

### C R O S S


### - P E T IT IO N E R S

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O N P E T I T I O N S F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

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Argued Septem ber 11, 2013

J U S T I C E G U Z M A N delivere d the opinion of the Court.

This case prese nts the Court with an opportunity to provide clar ity in an are a of proper ty law that has lacke d clar ity for some time: implied ease ments. For over 125 y ear s, we have distinguished betwee n implied e aseme nts by way of nec essity

(which w e ref

er to he re as “nec essity ease ments”) and implied ease ments by prior use (which we ref er to here as “prior use ease ments”). We cre ated and have utiliz ed the nece ssity ease ment for case s involving roadw ay acc ess to pr eviously unified, landlocked parc els. Roadway s by nature are ty pically substantial encumbr ance s on proper ty , and we

acc ording ly require strict, continuing nece ssity to maintain nece ssity ease ments. By co ntrast, we

cre ated a nd have pr imarily

utiliz ed the pr ior use ea sement doctrine for lesse r improvements to the landlocked parc el, such as utilit y lines that trave rse the adjoining trac t. We have require d, to somedeg ree , a lesser burden of proof for prior use ease ments (re asonable nece ssity at sever ance rathe r

than strict and continued nece ssity ) beca use they g ener ally impose a lesser encumbr ance on the adjoining trac t ( e.g. , a power l i n e compar ed to a roadw ay ). Today , we clar ify that the nece ssity

ease ment is the l eg al doctrine applicable to claims of l andowne rs assert i n g implied ease ments for roadw ay acc ess to their landlocke d, previously unified par cel.
Her e, a party claims a road that was nece ssary for acc ess to its landlocked, previously unified
parc el is a prior use ease ment. The trial court and court of appeals ag ree d. We hold the nece ssity

ease ment doctrine g overns this claim. Be cause we clar ify the law of ease ments, we reve rse the court of appea ls’ judgme nt and rema nd to the trial court for t h e p ar t y t o elec t whether to pursue such a claim. I. Background
I n 1936, O. J

. Bour g eois deede d 41.1 acr es of his proper ty in Har ris County , Texas to his
g randson, Paul Bour g eois. During Paul’s owner ship, a dirt road was constructe d on the easte rn edg e of the 4 1

. 1 acre trac t, providing acc ess from the rema inder of the land to a public thoroug hfar e, Richardson Road. I n 1953, Paul deede d two landlocked acr es of the trac t to Alvin and Cora
Bour g eois, sever ing the 41.1 acr es into two separ ate parc els. Alvin and Cora used the dirt road to

acc ess t heir two acr es. The two acre t ract was subsequently transfe rre d to Henr y and Bettie Bush in 1956, who sold the land to Henr y Gomez in 1957. I n 1 9 6 7 , He n ry Go m ez and his wife, Anna
Be ll, built a house on the two acr e trac t w ith a listed addre ss of 6630 Richardson Road. Anna Be ll beca me the sole owne r of the two a cre trac t when He nry died in 1990.

2I n the late 1990s, develope r Wil liam Cook beg an construction of the Ba rring ton Wood s subdivision on the rema ining acr eag e of Paul Bour g eois’ prope rty . Cook planned to close the dir t road Anna Bell used t o acc ess h er t wo ac re s and to construct a paved drivewa y for her t o direc tly

acc ess her proper

ty from a newly added paved street. But Anna Be ll’s land was not platted, and
Har ris County require d a one foot rese rve an d b arr icade betwee n her proper ty and the new street, which rende red the dirt road her only means of acc ess. I n Fe bruar y 2000, Cook unilatera lly filed a
spec i al restriction amendment to the subdivision’s deed restric tions. The specia l restric tion purported to cr e a

te a “Presc riptive (Rear Acc ess) Easeme nt” along the southeast proper ty line of L ots 3 and 4. I t further stated, “[t] his Prescr iptive Easeme nt will also be used by Annabe lle [si c] Gomez,” and allowed Anna Be ll a fiftee n foot wide ease ment along the dirt road for herse lf, her family , social
g uests, and service vehicles under 6,200 pounds. Anna Be ll was not a party to the specia l restric tion,

never discussed its contents with Cook, and did not lear n of th e ex i s t ence of the document until September 2005. David and Mag g ie Hamric k, as well as Sue and Steve Be rtram, (collec tively “the Hamric ks”) purcha sed homes on L ots 3 and 4 in Ba rring ton Woods—t he proper ty Anna Be ll’s acc ess ease ment
trave rsed to re ach Richa

rdson Road. The de veloper told the Hamricks initially and at c losing that when Anna Bel l s o l d h er h ome, t he property would be platted, her acc ess t o the m ain road would open, and the Hamric ks would rec over f ull use of the dirt roa d.
I n Fe bruar

y 2004, befor e the Hamric ks closed on their home, Anna Be ll sold her proper ty to Tom and Be tsey Ward (collec tive l y “t h e Wards”), subject to a life tenanc y . After purcha sing the
proper ty , the Wards continued to use the dirt road. The Wards then reinfor ced the dirt road with

3g rave l and made use of the road to construct a new home on the land. The Hamric ks sued to enjoin

the Wards from using the dirt road. The trial court g rante d the Hamric ks a temporar y injunction in April 2006, which preve nted the Wards from using the ease ment for construction of their home. As

a result, the Wards platted the proper ty , the barr ier and rese rve wer e remove d, and a drivewa y was b u i l t t o provide the Wards acc ess to the paved road and allow them to complete construction. Nonethele ss, the Wards pursued a counter claim, arg uing they had an implied, prior use ease ment to

use the dirt road and reque sting the trial court enter a judgme nt decla ring an unrestric ted twenty -five foot ea sement conne cting their prope rty to Richardson Road. The trial court g rante d the Wards’ motion for summary judgme nt, finding they conclusively proved the exis tence of a prior use ease ment running from the Wards’ proper ty acr oss the rea

r of the Hamric ks’ prope rty

to Richardson Road. The trial court did not specific ally desig nate a

width for the eas em en t

. The trial court denied the Hamric ks’ motion for summary judgme nt, which raised aff irmative def

enses of bona fide purcha ser, estoppel, and waiver

. Finally , the trial cour t awar ded attorney ’s fe es of $215,000 to the Wards a nd $200,000 to the Hamric ks. Th e Ha mricks appea led, arg uing the Wards failed to prove both benef icial use of the

ease ment prior to sever ance and continuing nece ssity of the ease ment. The Hamric ks further arg ued that the trial court err ed in deny ing summar y judgme nt on their bona fide purcha ser, e stoppel, and waiver defe nses. The Wards c ross-appe aled, c ontending the trial court failed to de signa te a width for the e aseme nt and er

roneously awa rded a ttorney ’s fe es to the Ha mricks. The co u rt of appea ls found the summary judgme nt evidenc e conclusively established benef icial use of the road prior to se vera nce a s well as the ne cessity of the road, aff

irming the trial

4court. 359 S.W .3d 770, 776–79. The court unanimously held that the Wards wer e require d to prove

nece ssity at the time of sever ance , not a continuing nece ssity as the Hamric ks proposed. Id. at 777. The court simil arly overr uled the Hamric ks’ ar gu m ents conce rning the aff irmative defe nses of estoppel and waiver

. Id. at 786–87. But the court of appea ls deter mined a fac t issue rema ined with
respe ct to the bona fide purcha ser de fense , such that the trial court err ed in de ny ing the Hamric ks’ motion for summary judgme nt and g ranting the Wards’ motion. Id. at 785. The dissent noted that

rea s o n ab le jurors would not have differ ed conce rning the fruits of an investiga tion, so the trial
court’s summar

y judgme nt should stand. Id. at 789–90 (F rost, J ., concur ring and dissenting ). Wit h respe ct to the Wards’ issues on cross appea l, the court of appea ls declined to consider whether the trial cour

t erre d by failing to specify

an ea sement width, and inst ead left this iss ue for the trial court to re- examine on rema nd. Id. at 787. I t also reve rsed and rema nded the attorney ’s fee s

awa rd. Id. Both pa

rties petitioned this Court for revie w.

II. Discussion The parties raise three distinct issues: (1) whether the Wards have an implied ease ment over the Hamric ks’ land despite a lack of continued nece ssity ; (2) whether the Hamric ks qualify as bona fide purcha sers so as to take the land fre e of any ease ment the Wards may have; and (3) the propriety of the trial court’s awa

rd of attorney ’s fee s. Our dispositi on of the fi rs t i s s u e p rec ludes us from

rea ching the re maining two.
A. Im plied E asem ent The Hamric ks arg ue the court of appea ls err ed by concluding the Wards wer e only require d to demonstrate the ne cessity of the e aseme nt at the time of sever ance . The Wards c ounter that we

5have never befor e require d continued nece ssity for prior use ease ments. As ex p l ained below, we

deter mine the applicable doctrine for roadw ay acc ess to previously unified, landlocked parc els is the

nece ssity ease ment. Under Texas la

w, implied ease ments fall within two broad cate g ories: nece ssity ease ments and prior use ease m en t s . See Koonce v. J.E. Brite Estate , 663 S.W .2d 451, 452 (Tex. 1984) (nec essity ease ment); Bickle r v. Bickle r , 403 S.W .2d 354, 357 (Tex. 1966) (prior use ease ment). But the unqualified use of the g ener al term “implied ease ment” has sown con s id e r a ble confusion beca

use both a necessity ease ment and a prior use ease ment are implied and both ar ise from the sever ance of a previously unified parc el of land. Seber v. Union Pac. R

. C o
. , 3 50 S.W .3d 640, 648 (Tex. 1 App.—Houston [14t h Dist.] 2011, no pet.). Fur ther contributing to this confusion, courts have used

a varie ty of terms to descr ibe both nece ssity ease ments and prior use ease ments. Despite imprecise 2 3 semantics, we have maintained separ ate and distinct doctrines for these two implied ease ments for

T h e R e s t a t e m e n t o f P r o p e r t y m a y a l s o h a v e a d d e d t o c o n f u s i o n i n t h e s e c a s e s . O r i g i n a l l y , t h e R e s t a t e m e n t 1 d i d n o t d i f

f e r e n t i a t e b e t w e e n n e c e s s i t y e a s e m e n t s a n d p r i o r u s e e a s e m e n t s , a n d i n s t e a d m e r e l y l i s t e d a s e r i e s o f f a c t o r s t o b e c o n s i d e r e d b y c o u r t s t o d e t e r m i n e w h e t h e r a n e a s e m e n t o u g h t t o b e i m p l i e d

. R E S T A T E M E N T O F P R O P
. § 4 7 6 ( 1 9 4 4 )

. B u t t h e R e s t a t e m e n t T h i r d c o n t a i n s s e p a r a t e s e c t i o n s w i t h s e p a r a t e d e f i n i t i o n s , o n e f

o r “ S e r v i t u d e s C r e a t e d b y N e c e s s i t y ” a n d o n e f

o r “ S e r v i t u d e s I m p l i e d f r o m P r i o r U s e . ” R E S T A T E M E N T ( T H IR D ) O F P R O P
. : S E R V IT U D E S § § 2

. 1 2 , 2

. 1 5 ( 2 0 0 0 )

. A s o n e c o u r t o f

a p p e a l s h a s r i g h t l y o b s e r v e d : “ I t i s a p p a r e n t t h a t w h e t h e r a n e a s e m e n t i s d e n o m i n a t e d a ‘ w a y 2
o f n e c e s s i t y , ’ a n ‘ e a s e m e n t b y n e c e s s i t y , ’ a n ‘ e a s e m e n t o f n e c e s s i t y , ’ ‘ a n i m p l i e d e a s e m e n t b y n e c e s s i t y , ’ a n ‘ i m p l i e d r e s e r v a t i o n o f a n e a s e m e n t b y n e c e s s i t y , ’ o r a n ‘ i m p l i e d g r a n t o f a w a y o f n e c e s s i t y ’ t h e e l e m e n t s o f e a c h a r e i d e n t i c a l

. ” D a n i e l v
. F o x , 9 1 7 S

. W

. 2 d 1 0 6 , 1 1 1 ( T e x . A p p . — S a n A n t o n i o 1 9 9 6 , w r i t d e n i e d )

. T h i s C o u r t a l o n e h a s u s e d a w i d e v a r i e t y o f t e r m s i n r e f

e r e n c e t o i m p l i e d e a s e m e n t s b y w a y o f n e c e s s i t y . S e e , e
. g
. , K o o n c e , 6 6 3 S

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. 2 d a t 4 5 2 ( “ i m p l i e d e a s e m e n t b y n e c e s s i t y ” ) ; O t h e n v
. R o s i e r , 2 2 6 S

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. 2 d 6 2 2 , 6 2 5

— 2 6 ( T e x . 1 9 5 0 ) ( “ e a s e m e n t o f n e c e s s i t y , ” “ w a y o f n e c e s s i t y , ” a n d “ i m p l i e d r e s e r v a t i o n o f a r i g h t o f w a y b y n e c e s s i t y ” ) ; B a i n s v
. P a r k e r , 1 8 2 S

. W

. 2 d 3 9 7 , 3 9 8 ( T e x . 1 9 4 4 ) ( “ r i g h t o f w a y b y n e c e s s i t y ” ) ; A l l e y v
. C a r l e t o n , 2 9 T e x . 7 4 , 7 8 ( 1 8 6 7 ) ( “ w a y o f n e c e s s i t y ” )

. T h i s C o u r t a l o n e h a s e m p l o y e d t h r e e t e r m s t o r e f e r t o a p r i o r u s e e a s e m e n t : “ i m p l i e d e a s e m e n t a p p u r t e n a n t , ” 3 D r y e v
. E a g l e R o c k

R a n c h , I

n c
. , 3 6 4 S

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- e a s e m e n t , ” U l b r i c h t v
. F r i e d s a m , 3 2 5 S

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. 2 d 6 6 9 , 6 7 7 ( T e x . 1 9 5 9 )

. 6well over a century

. Today , we clarify that a p ar t y claiming a roadway ease ment to a landlocked,

previously

unified par cel must pursue a nece ssity ease ment theory

. 1. Nec essity Easem ent “Any one who g rants a thing to someone is understood to g rant that without which the thing
cannot .

. . exis t.” J ames W

. Simont on, W ays by Nece

ssity , 25 C O L U M
. L

. R E V
. 571, 572 (1925). Wit h simil ar emp h as is on this ancie nt maxi m, we rec og nized in 1867 that a nece ssity ease ment results when a grantor, in convey ing or reta ining a parc el of land, fails to expressly provide for a

means of acc essing the land. Alley v. Carleton , 29 Tex. 74, 78 (1867). When confr onted with such

a scen ar i o , courts will imply a roadw ay ease ment to fac ilitate continued productive use of the landlocked pa

rce l, rather

than rig idly

restric t acc ess. Id

. To succe ssfully asser

t a nece ssity ease ment, the party claiming the ea s em ent must demonstrate: (1) unity of owner ship of the alleg ed dominant and servient estates prior to sever ance ; (2) the claimed acc ess is a nece ssity and not a mere convenie nce; and (3) the nece ssity exis ted at the time the two estates wer e sever ed. Koonce , 663 S.W .2d at 452. As this analy sis makes clea r, a party seeking a nece ssity ease ment must prove both a historical nece ssity (that the way was nece ssary at the time of sever ance ) and a continuing, prese nt nece ssity for the way in question. Id. On ce an

ease ment by nece ssity arises, it continues until “the nece ssity terminates.” Bains , 182 S.W .2d at 399 (“[A] way of nece ssity is a temporar y rig ht, which arises from the exigenc ies of the case and cea ses when the nece ssity terminates.” ); see also Alley , 29 Tex. at 76 (providing “if the nece ssity for its use

cea ses, the rig ht also cea ses”)

. The temporar y nature of a nece ssity ease ment is thus consistent with the underly i n g ra t i o n al e; that is, providing a means of roadw ay acc ess to land only so long as no
7other roadw ay acc ess exis ts. Alley , 29 Tex. at 78 (“A way of nece ssity , howeve r, must be more than

one of convenie nce, for if the owner of the land can use another way , he cannot claim by implication to pass over tha t of another to ge t to his own.”).
Acc ording ly , it is no surprise that the balance of our jurisprudenc e on nec essity ease ments focuse s on roadw ay acc ess t o landlocked, previously unified parcels. See Koonce , 663 S.W .2d at 452 (asse ssing a roadw ay ease ment by the standard of an ease ment by nece ssity ); Duff v. Matthews , 311 S.W .2d 637, 641 (Tex. 1958) (same) ; Othen v. Rosier , 226 S.W .2d 622, 626 (Tex. 1950) (same) ; Bains , 182 S.W .2d at 399 (same ); Alley , 29 Tex. at 78 (same).
2. P rior Use Easem ents
Two deca des afte r we established the nece ssity ease ment doctrine for roadw ay s in Alley , we found that framework to be ill suited for other improvements that nonetheless are proper ly construed

as implied ease ments. I n Howell v. Estes , we addre ssed use of a stairwell to acc ess two buildings.
12 S.W

. 62, 62 (Tex. 1888). I n Howell , a fathe r had constructe d adjoining two-story buildings that jointly used a st airwell in one buil ding. Id

. When he died, he left one buil ding to his son and the other to his daug hter. Id

. I n the wake of a familial dispute, the sibling who owned the building with the stairwe ll denied use of it to the other sibling. Id

. Ou r pree x isting doctrine for nece ssity ease ments could not adequately addre ss s u ch a situation. The party seeking the ease ment likely could not claim strict nece ssity , as he was still able
to ac ce s s h is land and the bottom floor of his building. Id

. But rec og nizi ng that the law should 4

W e r e c o g n i z e d t h a t h e c o u l d a c c e s s h i s s e c o n d f l o o r b y b u i l d i n g a s t a i r w e l l f o r t h e t h e n c o n s i d e r a b l e s u m o f 4 $ 5 0

. H o w e l l , 1 2 S

. W

. 2 d a t 6 2

. 8aff

ord a reme dy , we established an alterna te doctrine for as s es s i n g wh ether to rec og nize implied

ease ments for improveme nts across pr eviously unified adjoining proper

ty as follows: [ I ] f an improvement constructe d over, under, or upon one parc el of land for t h e convenie nt use and enjoy

ment of another contig uous parc el by the owner of both be open and usable and perma nent in its char acte r . . . the use of such improvement will pass as an easement, although it may not be abso l u t el y n ecessary to the enjoy ment of the e state conve y ed. Id. at 63. Unlike nece ssity ease ments, which are implied out of the desire to avoid the prolifer ation of landlocked—a

nd there fore , unproductive—pa rce ls of land, the rationale underly ing the implication of an ease ment based on prior use is not sheer nece ssity

. Rather, as t h i s Court has expressly rec og nized, “[t] he basis of the doctrine [of prior use ease ments] is that the law rea ds into the instrument that which the circ umstances show both g rantor and g rante e must have intended, had they g iven the obvious fac ts of the t ransa ction proper consideration.” Mitchell v. Castellaw , 246
S.W .2d 163, 167 (Tex. 1952). There is a presumption that partie s co n trac ting for proper ty do so “with a view to the conditi on of t he property as i t actua lly was a t the time of the transa ction,” and there fore , absent evidenc e to the contr ary , such conditions which openly and visibly

exis ted at the time are presumed to be included in the sale. Miles v. Bodenhe im , 193 S.W

. 693, 696–97 (Tex. Civ. App.—Texarkana

1917, writ ref

’d). This Court has explained the require ments for establishing a p ri or use ease ment as “fa irly standardized,” such that the party claiming a prior use ease ment must prove: (1) unity of owner ship of the alleg ed dominant and servient estates prior to sever ance ; (2) the use of the claimed ease ment

was open and appar ent at the time of sever ance ; (3) the use was continuous, so the parties must have intended t h at its use pass by g rant; and (4) the use must be nece ssary to the use of the dominant

9estate. Drye v. Eagle Rock Ranch , 364 S.W .2d 196, 207–08 (Tex. 1962). Be cause the actua l intent

of the parties at the time of sever ance is of ten elusive, these fac tors eff ectively serve as a proxy for the contra cting parties’ intent.
I t is worth noting that we have eleva ted the proof of nece ssity for a subset o f prior use

ease ment case s. A prior use ease ment may arise either by rese rvation (w h er e t h e grantor of the previously

unified par cel reta ins the landlocked parc el) or by g rant (whe re the g rantor convey s the landlocked parc el). We have expres s l y h el d that to establish a prior use ease ment implied by

rese rvation, a party must demonstrate strict nece ssity with respe ct to the ease ment claimed. Mitchell , 246 S

. W

. 2 d at 1 6 8

. But, with respe ct to a prior use ease ment implied by g rant, some ambig uity

rema ins as to whether

a par ty must demonstrate strict nec essity or re asonable nece ssity

for a party
to succe ed. See Drye , 364 S.W .2d at 208–09. Be cause we hold below that the Wards must pursue an implied ease ment by

way of nec essity

theory , we ne ed not re ach this question. The fac tual circ umstances in which we have discussed the prior use ease ment illumi nate its
purpose. We have used the prior use ease ment doctrine to assess situations such as use of a stairwell in a n adjac ent building, g razing cattle, and rec rea tional use of adjoining proper ty

. I n addition to 5 6 7

access, we have also discussed t he application of t he prior use easement doctrine to “a p ar t [ i t i o n ] wall,” “a drain or aqueduc t,” “a water [gas] or sewe r line into the g rante d estate,” “a drain from the land,” “lig ht a

nd air,” “later al support,” and “wa ter.” Drye , 364 S.W .2d at 207–08. I n light of the

H o w e l l , 1 2 S

. W

. a t 6 2

. 5

U l b r i c h t , 3 2 5 S

. W

. 2 d a t 6 7 7

. 6

D r y e , 3 6 4 S

. W

. 2 d a t 2 0 8

. 7
1 0history and the purpose behind these two ty pes of implied ease ments, we clar ify when parties should
pursue e ach ty

pe of e aseme nt. 3. Roadw ay Easem ents to Landlocked, Pre viousl y Unif ied P arce ls Must Be Tried as Im plied E asem ents by Way of Nec essity The Hamric ks claim that we should inject continued nece ssity as a require ment for prior use

ease ments. The Wards claim that, despite the confusion betwee n nece ssity ease ments and prior use

ease ments, we have never require d continued nece ssity for prior use ease ments. We view the pertinent question not as whether continuing nece ssity is require d of prior use ease ments but rathe r

as whether the Wards’ use of the roadw ay is appropr iate to assess under the prior use ease ment doctrine.
We clar if y t hat courts adjudicating implied ease ments for roadw ay acc ess for previously unified, landlocked parc els must assess such case s under the nece ssity ease ment doctrine. 8 Admittedly , the express elements re q u ired for prior use ease ments do not restric t themselves to

cer tain ease ment purposes. Drye , 364 S.W .2d at 207–08. As a result, we have previously
encounte red a party asser ting a prior use ease ment for a roadw ay to acc ess hi s p reviously unified, landlocked parc el. See Bickle r , 403 S.W .2d at 357. But we develope d the two ty pes of implied 9

ease ments for discrete circ umstances. The less forg iv in g p r oof require ments for nece ssity ease ments

T h e r e e x i s t o t h e r t y p e s o f e a s e m e n t s , s u c h a s p r e s c r i p t i v e e a s e m e n t s , e a s e m e n t s b y e s t o p p e l , a n d e x p r e s s 8
e a s e m e n t s . D r

y e , 3 6 4 S

. W

. 2 d a t 2 0 4

. T h e W a r d s a l s o p l e a d e d a p r e s c r i p t i v e e a s e m e n t c l a i m , w h i c h w i l l b e w i t h i n t h e s c o p e o f o u r r e m a n d t o t h e t r i a l c o u r t

.

B e f o r e B i c k l e r , t w o p a r t i e s i n t h i s C o u r t s o u g h t t o a s s e s s e a s e m e n t s f o r i m p r o v e m e n t s a n d r o a d w a y a c c e s s 9 t o g e t h e r u n d e r t h e p r i o r u s e e a s e m e n t d o c t r i n e . S e e U l b r i c h t , 3 2 5 S

. W

. 2 d a t 6 7 7 ( g r a n t i n g p r i o r u s e e a s e m e n t f o r g r a z i n g c a t t l e a n d i n g r e s s a n d e g r e s s t o a l a k e ) ; M i t c h e l l , 2 4 6 S

. W

. 2 d a t 1 6 4 ( a s s e s s i n g a d r i v e w a y a n d s h e d a s p r i o r u s e e a s e m e n t s )

. 1 1(strict and continuing nece ssity ) simply serve as acknow ledg ment that roadw ay s ty pically are more signific ant intrusions on servient estates. By contra st, improvements at issue in prior use ease ments ( e.g. , water lines, sewe r line s , p o we r l i nes) tend to involve more modest imposit ions on servient
estates. Acc ording ly , for such improvements, we have not mandated continued strict nece ssity but instead car efully examine the circ umstances exis ting at the time of the sever ance to assess whether the parties intended fo r co n t inued use of the improvement. Our clar ification today in no way 1 0 should impact the continued a bility of such improve ments to qualify as prior use ease ments. Apply ing this distinction to the Wards’ claimed ease ment does not entail prolong ed analy sis. Their claimed ease ment conce rns a roadw ay to acc ess a previously unified, landlocked parc el. This i s prec isely the fac tual scena rio for which we cre ated the nece ssity ease ment doctrine well o v er a
centur y ag o, and here , the Wards must pursue a nece ssity ease ment rathe r than a prior use ease ment. 4. Rem and The Wards only pleade d theories of a prior use ease ment and ease ment by presc ription in the trial court. The trial court and court of appea ls held that the Wards conclusively established a prior

use ease ment. Ordinar ily , “par ties are restric ted in the appellate court to the theory on which the case

was tried in the lower court.” Safety Cas. Co. v. W right , 160 S.W .2d 238, 2 4 5 (T ex . 1942).
Acc ording ly , we proce durally cannot hold that the Wards preva iled on a theory they have not advanc ed in the trial court. Howeve r, we wi l l not fore close the Wards from bring ing a nece ssity

ease ment claim in light of our clar ification of the la

w. “We have broad discretion to remand f or a

W e h a v e , h o w e v e r , r e q u i r e d s t r i c t n e c e s s i t y w h e n a g r a n t o r r e s e r v e s f o r h i m s e l f a p r i o r u s e e a s e m e n t

. 10 M i t c h e l l , 2 4 6 S

. W

. 2 d a t 1 6 8

. 1 2new trial in the interest of justice wher e it appea rs that a party may have proce eded under the wrong leg al theory .” Boyles v. Kerr , 855 S.W .2d 593, 603 (Tex. 1993). Moreov er, “[r]emand is particula rly appropr iate wher e t h e l o s i n g party may have prese nted his or her case in relianc e on controlling prec edent that wa s s u b s equently overr uled.” Id

. As we have indicated, we have
encounte red at least one situation in which a party pursued a prior u s e ease ment (ra ther than a

nece ssity ease ment) for roadw ay acc ess to a previously unified, landlocked parc el. Bick ler , 403
S.W .2d at 357. Although we ref rain from opining a s to whether the Wards will ulti mately preva il

on a nece ssity ease ment claim, our clar ification of the law entitles them to the opportunity to plead and prove such a c laim.
I n addition to the issue of what ty pe of ease ment the Wards must claim, the parties raise the issues of the Hamric ks’ bona fide purcha ser defe nse and the trial court’s awa rd of attorney ’s fee s. Our re mand for the Wards to pur sue a nece ssity ease ment claim prec ludes us from re aching either issue. We n o t e t h at t he court of appea ls held the bona fide purcha ser defe nse is an appropr iate defe nse to pri o r use ease ments. 359 S.W .3d at 782. I t did not addre ss whether the bona fide purcha ser defe nse applies to a claim the Wards had not y et raised. Acc ording ly , that issue rema ins unresolved and is befor e the trial court on rema nd. L ikewise, we need not assess the propriety of the trial court’s awa

rd of attorney ’s fee s b ec au s e that question will also be within the scope of the

rema nd to the trial court.
III. Conclusi on I n sum, we have long rec og nized a distinction betwee n nece ssity ease ments (which have eleva ted proof require ments due to the more signific ant encumbr ance ty pified by roadw ay
1 3ease ments) and prior use ease ments (which have rela x ed proof require ments due to the ty pical ly lesser encumbr ance of other improvements such as utilit y lines). Today , we clar ify that one claiming

an implied ease ment for roadw ay acc ess to a landlocked, previously unifi ed p arcel must pursue a

nece ssity ease ment rathe r than a prior use ease ment. Be cause the Wards seek an implied ease ment fo r ro ad way acc ess to their landlocked, previously unified parc el, we rema nd for them to elec t whether to pursue a nece ssity ease ment claim. T E X
. R. A P P
. P. 60.3. We reve rse the portion of the court of a ppeals’ judg ment aff

irming summar

y judgme nt on the Wards’ prior use ease ment claim, and rema nd to the trial court for dismiss al of that claim and for further proce eding s consistent with this opini on.

____________________________________ Eva M. Guzman J ustice
OP INION DELIVERED: Aug ust 29, 2014

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