Because the Court affirms the judgment of the trial court, I respectfully dissent.Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950) ; see also Jordan v. Rash, 745 S.W.2d 549, 553 (Tex.App.—Waco 1988, no writ). And among the elements required to create such an easement is the necessity for access must exist at the time the dominant and servient estates were severed, which, in this case, would be 1915.

When the holder of a dominant estate also owns a separate estate, which is not appurtenant to the easement, the holder of the dominant estate generally cannot use the easement to reach that separate estate, absent some right granted by the easement. See Jordan v. Rash , 745 S.W.2d 549, 553 (Tex. App. 1988) ("Unless the wording of an easement creates a more extended right of use, the grantee cannot use it to benefit other premises owned by him or others."); Lichteig v. Churinetz , 9 Conn.App. 406, 519 A.2d 99, 102 (1986) ("An easement cannot be used for the benefit of land other than the dominant estate.");

It is well established that an easement cannot be used to pass onto another parcel of land; it can only be used to serve the land to which it is appurtenant. See Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex. 1966); Jordan v. Rash, 745 S.W.2d 549, 553 (Tex.App.-Waco 1988, no writ) (quoting Bickler); 25 Am. Jur. 2d Ways § 86, at 658 (1996); Cunningham § 8.9, at 460; Thompson § 387, at 550 ("Under a grant of way between two points in, through and along a particular strip of land, the grantee is not justified in making a transverse road across the same. . . . Where one has a right of way over another's land to a particular close, he cannot extend that right to other closes."); Restatement (Third) of Property § 4.11 cmt. b, illus. 2 (Tentative Draft No. 4, 1994) (A assembled lot from Whiteacre, which included access easement over Blackacre, and Brownacre, two adjoining lots bought from different owners, and built house straddling Whiteacre and Brownacre; if Blackacre's owner did not know A's plans, A cannot use easement over Blackacre to access part of house on Brownacre).

As a matter of law, unambiguous easements like these can only be used to access the land specified in the conveyance; they do not entitle the Chambers to directly access other parts of their tract. Storms v. Tuck , 579 S.W.2d 447, 451 (Tex. 1979) ; Holmstrom v. Lee , 26 S.W.3d 526, 534 (Tex. App.—Austin 2000, no pet.) ; Jordan v. Rash , 745 S.W.2d 549, 553 (Tex. App.—Waco 1988, no writ). The Chambers respond that the express easements are ambiguous and thus the jury properly decided their scope.

Easements by necessity arise by implication and are therefore classified as implied, rather than express. See Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950) (stating that easement by necessity "necessarily can arise only from an implied grant or implied reservation"); Jordan v. Rash, 745 S.W.2d 549, 553 (Tex. App.—Waco 1988, no writ) ("An easement of necessity can only arise between a grantor and grantee through an implied grant or reservation."); Ward v. Bledsoe, 105 S.W.2d 1116, 1117 (Tex. Civ. App.—Waco 1937, no writ) ("A way of necessity does not arise merely because of inconvenience. It is dependent upon an implied grant or reservation . . . .").

See Othen v. Rosier, 226 S.W.2d 622, 626 (Tex. 1950) (stating that easement by necessity "necessarily can arise only from an implied grant or implied reservation"); Ward v. Bledsoe, 105 S.W.2d 1116, 1117 (Tex.Civ.App. — Waco 1937, no writ) ("A way of necessity does not arise merely because of inconvenience. It is dependent upon an implied grant or reservation. . . ."); Jordan v. Rash, 745 S.W.2d 549, 553 (Tex.App.-Waco 1988, no writ) ("An easement of necessity can only arise between a grantor and grantee through an implied grant or reservation."). To prevail on their claim to an easement by necessity, Bidinger and Ballestas had the burden to establish all elements of that claim.

See Othen v. Rosier, 226 S.W.2d 622, 626, 148 Tex. 485, 491 (Tex. 1950) (stating that easement by necessity "necessarily can arise only from an implied grant or implied reservation"); Ward v. Bledsoe, 105 S.W.2d 1116, 1117 (Tex.Civ.App.-Waco 1937, no writ) ("A way of necessity does not arise merely because of inconvenience. It is dependent upon an implied grant or reservation. . . ."); Jordan v. Rash, 745 S.W.2d 549, 553 (Tex.App.-Waco 1988, no writ) ("An easement of necessity can only arise between a grantor and grantee through an implied grant or reservation."). If a grantor conveys property surrounded by land owned by others, Texas law presumes that the grantor intended to grant a roadway to enable full enjoyment of the conveyed property, and "the failure to grant a passageway was an oversight and will be implied in the grant."

The function of a temporary injunction is to maintain the status quo, which is "the last, actual, peaceable, noncontested status which preceded the pending controversy." Transport Co. of Texas v. Robertson Transports, 261 S.W. 2d 549, 553-54 (Tex. 1953); Jordan v. Rash, 745 S.W.2d 549, 555 (Tex.App.-Waco 1988, no writ). The scope of appellate review of a temporary injunction is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion.

" Title Guaranty Co. v. Harmer, 163 Colo. 278, 430 P.2d 78 (1967). See also Jordan v. Rash, 745 S.W.2d 549 (Tex.App. 1988); Mancini v. Bard, 42 N.Y.2d 28, 364 N.E.2d 1313, 396 N.Y.S.2d 621 (1977); 7 D. Thomas, Thompson on Real Property, supra, § 60.04(a)(1)(ii); but see Abbott v. Nampa School District No. 131, 119 Idaho 544, 808 P.2d 1289 (1991) (easement holder may grant a license to a third party so long as the licensed use is consistent with the easement and does not unreasonably burden the servient estate). Here, the instrument granting the easement does not give the holder of the easement any right to license its use by other property owners.

Williams v. Kuykendall, 151 S.W. 629, 630 (Tex.Civ.App. — Austin 1912, no writ). It is apparent that whether an easement is denominated a "way of necessity" [ Grobe, 224 S.W.2d at 487]; an "easement by necessity" [ Latimer v. Hess, 183 S.W.2d 996 (Tex.Civ.App. — Texarkana 1944, writ ref'd) ]; an "easement of necessity" [ Jordan v. Rash, 745 S.W.2d 549 (Tex.App. — Waco 1988, no writ) ]; an "implied easement by necessity" [ Koonce, 663 S.W.2d at 451]; an "implied reservation of an easement by necessity" [ Bains v. Parker, 182 S.W.2d at 399]; or an "implied grant of a way of necessity"; [ Persons v. Russell, 625 S.W.2d 387 (Tex.App. — Tyler 1981, no writ); Richter v. Hickman, 243 S.W.2d 466 (Tex.Civ.App. — Galveston 1951, no writ) ]; the elements of each are identical. In each case, what is being alluded to is an easement by necessity regardless of whether it also arises impliedly by way of reservation or grant.