The jurisprudence regarding access to landlocked parcels spans many decades. In 1944, the Texas Supreme Court observed, "It is well settled that where there is conveyed a tract of land which is surrounded by the grantor's land, or by his and that of third persons, and to which the grantee can only have access to or egress from through lands other than that conveyed, the grantee has a right of way by necessity over the remaining lands of the grantor." Bains v. Parker, 143 Tex. 57, 61, 182 S.W.2d 397, 399 (1944). The Court similarly noted that earlier case law had established that "where a vendor retains a tract of land which is surrounded partly by the tract conveyed and partly by the lands of a stranger there is an implied reservation of a right of way by necessity over the land conveyed, where grantor has no other way out." Bains, 182 S.W.2d at 399, citing Alley v. Carleton, 29 Tex. 74, 78 (1867).
In Hamrick v. Ward, No. 12-0348, 2014 WL 4745575, at *3 (Tex. Aug. 29, 2014, pet. filed), the Texas Supreme Court reiterated its 1867 determination in Alley v. Carleton, 29 Tex. 74, 78 (1867), that a necessity easement results when a grantor, in conveying or retaining a parcel of land, fails to expressly provide for a means of accessing the land. Hamrick, 2014 WL 4745575, at *4. There the Court clarified that a party claiming a roadway easement to a landlocked, previously unified parcel must pursue a necessity easement theory. Id.
Hamrick relies in part on the court's opinion in Koonce v. Brite Estate, which echoed the holdings inBains and Alley, and again recognized, "Texas case law establishes that when a grantor conveys part of a tract of land while retaining the remaining acreage for himself there is an implied reservation of a right of way by necessity over the land conveyed, when no other access exists." Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984), citing Bains, 182 S.W.2d at 399, citing Alley, 29 Tex. at 78.Hamrick reiterated that a party claiming a necessity easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed. Hamrick, 2014 WL 4745575, at *4 (a party seeking a necessity easement must prove both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question), citing Koonce, 663 S.W.2d at 452. An easement by necessity endures until the necessity terminates. Hamrick, 2014 WL 4745575, at *4 (citation omitted).