There is an interesting article at https://agrilife.org/texasaglaw/2022/06/13/case-offers-reminder-property-can-be-landlocked-in-texas/ about a Court of Appeals decision regarding a land-locked property in or near Cleburne.

It involved the question of an easement to use a railroad crossing to access the land. The railroad was apparently okay with it being used for personal and agricultural use only. The buyer of the land built a cement plant on the property and the railroad did not agree to the use of the easement for commercial use. The buyer of the land claimed an "easement by estoppel".

In the jury trial, the jury found for the buyer of the land, but the Court of Appeals overruled them on that. In their decision (link in the story linked above), the Court of Appeals also looked at the questions of whether there was an Easement by Necessity and an Easement by Prescription, and found neither.

So even though there is a railroad crossing onto the property, the buyers are not allowed to use it for commercial purposes.

I think its terrible any land owner in Texas canbe land locked. Surely something can be done

Interesting that they weren't able to get the prescriptive easement argument to hold up.

This was my understanding of why the Triple C shooting range outside Cresson, TX also got shut down. They had an access easement through a neighboring property. Neighbor (possibly family member) decided they didn't want to allow commercial traffic access through their land anymore. One of the best ranges in Texas was gone just like that.

an easement by prescription can absolutely be enforced in favor of a landlocked tract. However, it may not be the perfect easement you want to run your cement plant. and it doesnt have to be over an existing rail crossing.

if the landlocked tract owner is the one who actually LANDLOCKED the tract, however, there may be some sort of estoppel against such an easement. But in any event, at some point a grantee of a landlocked tract is going to be able to force some access somewhere.

I don't even know how this made it as far as it did with our laws regarding railroad crossings. I was under the impression that any private railroad crossing is 100% permit by the railroad and renewed/rejected at their discrediting. Only protected railroad crossings are public roadways.

The fact the railroad had previously granted a license to the previous landowner for access is most likely what killed claims of prescription.

Estoppel is hard to prove and usually turns into how to interpret he said/she said claims.

Necessity seems to be best argument but I guess the rail road had better lawyers.

Watching this one.

I had thought it was against the law to landlocked someone from their land. Maybe that is only for residential purposes.

After reading this, my recollection is accurate. The crossing was a licensed crossing. That is not a property right of the title to the property. Railroads have almost unlimited powers and have had since the beginning of time. This was a poor choice for the Alberts. Someone should have advised them better than to ever think they would win a case like this.

Furthermore, they had/have a limited access/easement…just not commercial. Albert attempted to expand it, by force (lawsuit-trial), but they failed to remember the railroad is the 800 pound gorilla. Live n learn.

Do you agree Albert would have been well-advised to invest what they spent on the lawsuit (and appeals) in an offer to purchase the expanded easement from the RR?

I have never seen a railroad grant an easement. It is always a license. I think they would have been well advised to talk through those issues with the railroad prior to purchasing the 10 acres. If they couldn't get an agreement they should've taken the money they spent on lawsuit along with what they paid for 10 acres and purchased a higher priced property with better access.

Legal issue aside, seems a bunch of concrete trucks and heavy loads going back and forth over a crossing could/would cost the RR a bunch of maintenance dollars over time, no?

country said:

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I don't even know how this made it as far as it did with our laws regarding railroad crossings. I was under the impression that any private railroad crossing is 100% permit by the railroad and renewed/rejected at their discrediting. Only protected railroad crossings are public roadways.

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My younger brother told me about a landowner he knows in Oklahoma. After the landowner's daughter was killed in an accident with a train, he filed a suit against the railroad to require them to put railroad crossing lights and barrier arms at every railroad crossing. The railroad responded to him that they are required to have only one crossing per town and so they would reduce their railroad crossings in Oklahoma to one per town. That would have made him terribly unpopular so he dropped the lawsuit.

As for having the entrance to a cement plant crossing the railroad tracks, imagine what could happen if a cement truck got hit by a train. Or if a cement truck lost a load of cement on the railroad tracks. It isn't difficult to see why they would want to limit the crossing to personal use and agricultural use.

BoerneGator said:

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Watching this one.

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I imagine that it will get appealed to the Texas Supreme court. I wonder how long that will take.

That is also correct - railroad crossings are another animal. That is why i mentioned that an easement by prescription will happen at some point, but not likely where this landowner wanted it at the rr crossing.

Really enjoyed this range. Couldn't believe it when I heard it shutdown.

cbr said:

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That is also correct - railroad crossings are another animal. That is why i mentioned that an easement by prescription will happen at some point, but not likely where this landowner wanted it at the rr crossing.

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The Court of Appeals looked at the question of an easement by prescription and said no:

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EASEMENT BY PRESCRIPTION

In its third issue, FWWR complains that the evidence was legally and factually insufficient for the jury to have found that an easement by prescription should be imposed on FWWR's property. A prescriptive easement is shown by "the open, notorious, hostile, adverse, uninterrupted, exclusive and continuous use of the servient estate for a period of more than ten years, and the absence of any of these elements is fatal to the prescriptive claim." Allen v. Allen, 280 S.W.3d 366, 377 (Tex. App.Amarillo 2008, pet. denied); see also Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979) ("To obtain a prescriptive easement one must use someone else's land in a manner that is open, notorious, continuous, exclusive, and adverse for the requisite period of time."). Additionally, "the owner of the subservient estate must have actual or constructive notice that there was an adverse and hostile claim against the property." Allen, 280 S.W.3d at 378. "Otherwise, the use (especially if joint) is presumed to be permissive, and a permissive use can never ripen into an easement by prescription." Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 718 (Tex. App.Eastland 2012, pet. denied). See also Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987) (finding use of property with owner's express or implied permission or license will never ripen into a prescriptive easement no matter how long the use continues). The party claiming the existence of the prescriptive easement has the burden of proof to establish each element by a preponderance of evidence. Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 764 (Tex. App.El Paso 2010, no pet.) (citing Tiller v. Lake Alexander Properties, Ltd., 96 S.W.3d 617, 624 (Tex. App.Texarkana 2002, no Fort Worth & Western Railroad Co. v. Albert & Chisholm Trail Redi-Mix, LLC Page 12 pet.)). See Brooks, 578 S.W.2d at 673. FWWR argues that the evidence was legally and factually insufficient for the jury to have found that Albert and his predecessors' use of the property was (1) exclusive, (2) adverse, (3) hostile, or (4) was continuous for more than ten years.

It is undisputed that Albert must rely on the conduct of his predecessors to establish the prescriptive easement since he had not owned the property prior to 2016. However, Albert argues that the following evidence and reasonable inferences establish the elements necessary for a prescriptive easement in that there was evidence that the crossing had been in existence since the 1940's and over that time had been used for different purposes including a rodeo, pipe company, and construction companies for over the last ten years prior to the litigation. In June of 2006, FWWR sent a letter to a business that stated that the crossing was impermissibly being used for commercial purposes and to cease and desist the use of the crossing for that purpose. In 2008, FWWR sent a letter to another business regarding the commercial use of the crossing and threatening legal action for trespassing if commercial crossing continued. In 2009, FWWR sent a letter to the Meeks advising them that commercial use of the crossing was forbidden by their agreement. The business that was operating on the property in 2007 and 2008 had gone out of business and was not operating on the property in 2009. There was no evidence that the Railroad had ever taken any other action to impede any use of the crossing by [Albert's] predecessors.

Simpson, a partner in Chisholm, testified that he had known that Meek and Fort Worth & Western Railroad Co. v. Albert & Chisholm Trail Redi-Mix, LLC Page 13 another man named Johnson owned the adjacent property to Meek used the crossing for their businesses of raising livestock for rodeo purposes and that use had continued for more than ten years. Simpson was 49 years old at the time of the trial. Johnson had a license for his own railroad crossing next to Meek's, however, Simpson and Friermood both testified that Johnson used the crossing licensed to Meek. There was no evidence as to when the use of the crossing by Johnson took place other than during the same time as Meek. Albert argues that the use of the crossing by Meek and Johnson for transporting livestock for rodeo purposes constituted a commercial use of the property for well over ten years. Johnson's use of the crossing, whenever that took place, renders Meek's use of the crossing non-exclusive.

Additionally, Meek had a license which gave him permission to use the crossing for "agricultural purposes" which were not further defined. Raising livestock and transporting them is an agricultural purpose for which Meek had permission to use the crossing. Moreover, use of an easement by permission of the servient estate owner, either express or implied, no matter of what period of time, cannot subsequently ripen into a prescriptive right. Wiegand v. Riojas, 547 S.W.2d 287, 290 (Tex. Civ. App.Austin 1977, no writ). However, the use of property which originally was permissive may become adverse at a later date, but the presumption is that there is a continuation of the permissive use. Id. In order to transform the permissive use into an adverse use, there must be a distinct and positive assertion of a right which is hostile to the owner's rights brought to the servient owner's attention. Id. Albert argues that Meek's use of the crossing Fort Worth & Western Railroad Co. v. Albert & Chisholm Trail Redi-Mix, LLC Page 14 for what he contends were commercial purposes was hostile.

We do not find that the evidence was sufficient to show that the use of the crossing was exclusive to Albert and his predecessors, nor did Meek's use of the property rise to the level of non-permissive use until the letters sent by FWWR in 2007 and 2008 when it is undisputed that for a brief period the crossing was being used for commercial purposes from 2007-2009. Friermood testified that a commercial trucking company used the crossing but did not give dates of the use of the crossing. There was no evidence that the crossing was used for any specific commercial purposes from 2009 until 2016. "[C]reation of an easement by prescription is not favored in the law." Wiegand, 547 S.W.2d at 289. Evidence of a prescriptive easement "must be clear and positive, and should be strictly construed." Callan v. Walters, 190 S.W. 829, 832 (Tex. Civ. App.Austin 1916, no writ). Before courts will take the "severe step" of "taking real estate from a record owner without express consent or compensation . . . the law reasonably requires that the parties' intentions be very clear." Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (per curiam). We do not find that the evidence was legally sufficient to establish that the use of the crossing was exclusive, hostile, or adverse for a period of at least ten years. Because Albert did not establish every element necessary to prove the establishment of an easement by prescription, we sustain issue three.

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They can't force it, but they may be able to get it if they fork over enough $$. That's the only way at this point.

Here's the location in Google Maps.

https://www.google.com/maps/@32.3958164,-97.4244558,436m/data=!3m1!1e3

I can see why the railroad is upset, the crossing looks poorly constructed for the volume of heavy trucks that would be using it.

When we permit to cross a railroad with a utility easement, it takes months and they are very specific about construction requirements.

Maybe they should pursue purchasing an easement parallel to the RR to connect with a drive or road that is accessible?

Also, if others have been using that crossing, the entity wanting access for commercial use will never be granted a prescriptive right to the road or crossing. Prescriptive rights can't be give to a joint usage access.
After seeing the location on the above map, it does not appear there is anyone except the commercial company using the crossing.

Calling it "landlocked" is a bit disingenuous. It's use limited. The new owner could have used it for Ag or personal use as it has previously been used, but they tried to switch it up without prior approval by the owners of property who they'd impact.

Our new property will have a similar easement (common with subdivided family ranch situations), and I would gladly enforce its limitations if someone bought out the neighbor and tried to set up a concrete plant next door.

The 4 neighboring properties, in addition to the railroad, are owned by the City of Cleburne, Cleburne Economic Development Foundation (a detention pond serving a FWWR served industrial development), and two different tracts owned by Davoil, Inc.

Davoil, Inc., is the holding company that owns FWWR. This guy did zero due diligence.

You should do more than zero due diligence on industrial development projects.

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Calling it "landlocked" is a bit disingenuous. It's use limited.

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This!

The buyer (Albert) was aware of its limited access at the time of purchase. It had never changed since it was originally severed from the parent tract. Albert tried to skirt the law by getting a sympathetic jury to side with him, circumventing established law. Props to the jurists who upheld the law upon review.

The Texas Supreme Court has reversed the part of the Appeals Court decision regarding the prescriptive easement.

From https://agrilife.org/texasaglaw/2024/02/27/texas-supreme-court-rules-in-case-involving-implied-easement/

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The record is clear that none of these successors in interest had permission to use the road. They did not have a license or an easement to do so. The crossing itself was readily observable, as was the use made continuously by the Property's owners for decades. Western's own employees admitted that the crossing is open and obvious to anyone who walks up or drives by the area.

... it was the conduct of Meek's predecessors in interest for which there was clearly no permission or license, that satisfied the hostile use element. Western argued that Albert failed to show continuous use on a year-by-year, owner-by-owner basis, but the Court did not agree that the absence of that evidence rendered the verdict legally insufficient.

... The Court disagreed, noticing that the exclusivity analysis focuses on whether the landowner and claimant use the easement in the same way. Here, the property owners use a gravel road to cross the tracks. Western uses the land for trains to run on the railroad tracks. Western admits it has never used the gravel road to cross the tracts. Thus, the Property owners' use of the gravel road was exclusive.

Third, based on the aerial survey, it appears the gravel crossing pre-dates Meek's license by nearly 20 years and was readily observable even in 1941.

In light of this, Albert is entitled to a prescriptive easement for use of the gravel road crossing.

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Interesting. I'll have to go back through this case.

One of those elements, exclusivity, will come up again on the OB in a bunch of future discussions.

The last two sentences of the article....

tiffany.dowell said:

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Additionally, this case does a good job explaining the "exclusive use" requirement to prove a prescriptive easement. That is not an element I have seen spelled out in detail in other cases.

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I read the article, not the case, yet. What I saw quoted of the case in the article is not on point to the usual debate around prescription related to public access rights.

normaleagle05 said:

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The last two sentences of the article....

tiffany.dowell said:

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Additionally, this case does a good job explaining the "exclusive use" requirement to prove a prescriptive easement. That is not an element I have seen spelled out in detail in other cases.

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I read the article, not the case, yet. What I saw quoted of the case in the article is not on point to the usual debate around prescription related to public access rights.

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When they talk about exclusive use, I tend to think of it in terms of adverse posession.

As I understand it, for adverse possession, exclusive use means that the person claiming it has had exclusive use of the property or portion of property in question.

In this case, though, that is clearly not the case. The railroad is for the exclusive use of the railway company -- the landowner in question doesn't use the railroad.

At the same time, the landowner has exclusive use of the railroad crossing itself.

So even though they both use a bit of the same property, their use of it is different. I would never have thought of looking at it that way.

It looks like the railroad company was thinking about it like I did. From the decision:

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Western also argues that the prescriptive-easement finding must fail because the evidence adduced at trial conclusively establishes that the adverse use was not exclusive. In particular, Western argues that both it and its predecessors have continuously used the railroad tracks that the gravel road crosses for well over a century. ... This argument misunderstands the law.

The exclusivity analysis focuses on whether the landowner and the easement claimant "both use the same way.

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Reaching this conclusion does not, as Western contends, confuse using the "same way" with using property "in the same way." Again, exclusivity is destroyed when the landowner and easement claimant use the same "path or passage" that constitutes the easement. Western does not use, and by all accounts has never used, the "way" at issuethe gravel road that crosses the tracks. Rather, Western uses the tracks perpendicular to the gravel crossing, which does not preclude exclusivity.

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Did I get that correct?

I see this as being mostly about the concept of way. This was the best singular Texas Supreme Court Opinion I've seen as to addressing that concept directly. Way is an appurtenant right. The concept of a right-of-way follows and flows from that real property right.

From the Supreme Court Opinion:
"An easement entitling an adjacent landowner to cross over an adjoining tract of land, also called a "way easement", is an easement appurtenant to the land; "

Can't tell you how much energy I've expended trying to convey that message as the truth based on other decisions I'd cobbled together myself. This is direct from the Court, concise, and entirely modern. A "right-of-way" is an easement that conveys the real property right known as way.

eric76 said:

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When they talk about exclusive use, I tend to think of it in terms of adverse possession.

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You weren't wrong....

"The adverse use necessary to establish a prescriptive easement is
the same adversity of use necessary to establish title by adverse
possession."

Also, apparently, we CAN take from the railroads by adverse possession! Easement rights, at least.