Face Challenges Confidently

300 Thompson v. Clayton

Tuesday, September 8th, 2015

Richard F. Brown

The following is not a legal opinion.  You should consult your attorney if the case may be of significance to you.
Thompson v. Clayton, 346 S.W.3d 650 (Tex. App.—El Paso, 2009, no pet.), distinguishes easements from licenses.  In January 1975, James Cleo Thompson, Jr. offered Joe Clayton $3,000 on behalf of several Thompson family members and a drilling company (“Thompson”) for the right to cross Joe Clayton’s land to reach an adjacent property for drilling operations.  Joe Clayton accepted the offer on the condition that Thompson would repair the road when it was damaged by use for drilling operations.  From 1975 until the death of Joe Clayton, no one objected to Thompson’s use of the roadway.  Cheryl Clayton, as successor to Joe Clayton, brought a declaratory judgment suit to determine whether Thompson could continue to use a road across her property, and if so, under what terms.
The El Paso Court of Appeals reviewed the differences between an easement and a license.  An easement generally constitutes an interest in the land itself while a license merely confers a privilege to do some act(s) upon the land without conveying any interest in the land itself, and a gratuitous license is generally revocable at will.  The agreement between Thompson and Clayton initially states that Mr. Clayton is granting permission to Thompson to pass over his land; however, the agreement also states that Thompson has the “‘right to pass on to the lands of Mrs. Ann Cole Lauffer for the purpose of drilling, exploring, developing and producing the lands presently held by Thompson, et al on the Ann Cole Lauffer mineral estate.’”  The agreement also gave Thompson, et al. the right and privilege of passing to and from the road at their sole discretion.  The right and privilege of passing to and from the road at their sole discretion shows an intent to create an easement.  The court held that the agreement granted an express determinable easement that ends when Thompson or Thompson’s successors and assigns plug and abandon and release the Lauffer lands.
Clayton argued that the agreement did not form a valid easement because the signatures on the document were not acknowledged, which meant the document could not be recorded, and that the agreement did not comply with the Statute of Frauds.  The court rejected both of these arguments because the agreement was in writing and signed by Mr. Clayton, thus satisfying the Statute of Frauds, and an unrecorded easement is binding on a successor in interest who has notice of the agreement.
Any language that clearly shows an intent to grant an easement will be sufficient to create an easement.  The intent to create an interest in land broadly distinguishes an easement from a license.  No particular words have to be used by the parties to create the easement.