How to Create An Easement by Estoppel ?
In North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678, 684 (Tex.Civ.App.--Houston (14th Dist.) 1970, writ ref'd n.r.e.), this court, in finding an easement by estoppel, also considered the fact that improvements which had been made were permanent and substantial, that such improvements were open and obvious to the owner of the servient estate, that the servient estate had constructive notice of the activities of the dominant estate holders, and that such use and improvements had the tacit consent of the servient estate owners because there was no complaint made when the improvements were constructed.
There was a vendor/vendee relationship between the owners of the various tracts in North Clear Lake Development Corp. Id.
In general, one who attempts to create an easement by estoppel must show that:
(1) a representation must have been communicated to the promise;
(2) that it must have been believed;
(3) that there must have been reliance upon such communication. Doss v. Blackstock, 466 S.W.2d 59, 61 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.).
But the doctrine of easement by estoppel (sometimes referred to estoppel in pais) has not been applied with the same strictness and conclusiveness as easements by implication.
The supreme court stated:
"The exact nature and extent of the doctrine of estoppel in pais have not been clearly defined." Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex.1962).
In certain situations, the supreme court suggested that the cases should more properly be based upon a construction of the grant in the light of the surrounding circumstances. Id. at 210.