BOERSCHIG v. RIO GRANDE ELECTRIC COOPERATIVE INC (2026)

In this trespass suit, the purchaser of a ranch challenges (1) whether an electric cooperative holds an easement by estoppel for its distribution line that crosses the ranch and, if so, (2) whether the cooperative's upgrade of the line—which tripled the number of poles and nearly doubled the number of wires—exceeded the scope of that easement. We hold that legally sufficient evidence supports the jury's finding of an easement by estoppel: an unrecorded writing by a prior owner represented that an easement was being conveyed, the cooperative detrimentally relied on the representation in constructing the original line, and the purchaser knew about the line when he bought the ranch.

We also hold, however, that the upgraded line exceeds the scope of this easement as a matter of law. The record shows that the purchaser had no notice of the unrecorded writing when he bought the property and that the investment the cooperative made in reliance on the writing was the line as it existed at that time. The cooperative explained that the upgrade would serve a new customer and a new substation; it offered no evidence that the upgrade was reasonably necessary to continue its existing use of the line. We therefore reverse the court of appeals' contrary judgment, render judgment for the purchaser on his trespass claim, and remand to the trial court for further proceedings.

Background

In 1945, ranchers from Kinney, Val Verde, Edwards, Maverick, and Uvalde counties formed the non-profit Rio Grande Electric Cooperative to provide electricity to members in rural areas. Rio Grande has condemnation authority and has expanded significantly over the decades, currently serving eighteen counties in Texas and two in New Mexico.

In 1947, Rio Grande acquired a document entitled “Right of Way Easement” signed by Ogden Dooley, the executor of the estate of Mary Clamp. The document gave an unspecified corporation the right “to place, construct, operate, repair, maintain, relocate and replace” “an electric transmission or distribution line or system” on 5,684 acres of the Clamp estate as described by road boundaries. The document provides that “at pole locations, only single pole and appurtenances will be such as to form the least possible interference to farm operations, so long as it does not materially increase the cost of construction.” Rio Grande never recorded the Dooley Document in the real property records.

Shortly thereafter, Rio Grande constructed an electric distribution line crossing about 1.6 miles of the property described in the Dooley Document. The line consisted of between seventeen and twenty wooden poles, each rising thirty feet and carrying four wires on a single crossarm. Rio Grande described the line as a “backbone feeder” that brings electricity from a nearby substation to “roughly 1,000 consumers.”

In 2002, petitioner John Boerschig bought the 6,397-acre U-Bar Ranch in Kinney County, which included the property crossed by Rio Grande's electric line. He observed this line along with another, and the lines were marked on a survey prepared in connection with the transaction. Boerschig began monitoring Rio Grande's activities after a dispute in 2006 regarding Rio Grande's removal of trees along another line.

In 2012, Rio Grande notified Boerschig that it planned to “bulldoz[e] ․ portion[s] of the easement” and “upgrade the existing feeder situated on a portion of [Boerschig's] property.” Rio Grande explained that the project would involve “replacing and adding to the line” and moving it “approximately 15 feet southwest.” The purpose of the upgrade was to provide electric service to a new customer—a Lone Star Gas pipeline compressor station—and to connect a new electric substation Rio Grande planned to build to provide redundancy and accommodate future demand growth. Lone Star Gas paid for the upgrades to the line.

Boerschig contended that he did not receive the letter and only learned of the project when a bulldozer started clearing his property several months later. Boerschig asked Rio Grande for a copy of the applicable easement. Rio Grande produced other express easements but not one that covered the route at issue. Boerschig sued Rio Grande for trespass. After Boerschig obtained a temporary restraining order, the parties agreed that construction would cease while the dispute was resolved.

Rio Grande later filed a counterclaim seeking a declaratory judgment that Rio Grande had a valid express easement or, in the alternative, had obtained a prescriptive easement or an easement by estoppel. Rio Grande attached the Dooley Document to its counterclaim, which Boerschig alleges was the first time he became aware of that document. A Rio Grande witness explained that the Dooley Document was discovered in its files long after the dispute began.

Rio Grande also alleged that Boerschig had interfered with its easement and with potential contracts to reroute the line through the town of Brackettville. Boerschig offered Rio Grande the opportunity to build a line alongside an existing transmission line elsewhere on his property owned by another company, but Rio Grande refused.

Boerschig eventually agreed not to oppose continued construction but reserved his pending trespass claim that the upgrade was not authorized by a valid and enforceable easement. In light of the ongoing dispute, Rio Grande decided to keep the line on the existing footprint of the original line instead of moving it to the southwest.

In 2014, Rio Grande finished construction of its new line. Where the old line had been carried by no more than twenty poles rising about thirty feet above the ground and carrying four wires on one crossarm, the new line uses sixty poles rising thirty-seven feet and carrying seven wires on two crossarms. The new poles are constructed of a fiberglass composite made to look like the old wooden poles.

The case went to a jury trial. Boerschig testified that the new line interfered with his farming, ranching, and hunting. His tractors pull 30-foot-wide seed drills, sometimes at night, and the added poles were much closer together and thus more difficult to navigate. He stopped haying in one field where a single pole was replaced with six poles. And Boerschig's foreman testified that he saw cows colliding with the poles and fewer deer congregating around them.

Boerschig asserted that the new line also decreased the value of his property. He called the new poles “an eyesore” and claimed that “the folks that are buying [ranches], like from Houston, they don't want to come out and see a bunch of power lines, a bunch of gas lines, a bunch of telephone lines․ They want to see just ․ wide-open ranch space.”

The jury viewed videos of the power line route taken before and after the upgrades. The videos showed that Boerschig planted his fields on either side of the line. In non-cultivated areas, the land traversed by the line is brush and heavy vegetation frequented by deer. The Rio Grande employee who took the post-upgrade video testified he saw nothing in the new line that would interfere with hunting, farming, or ranching.

In a 10-2 verdict, the jury answered “no” to questions regarding whether Rio Grande had an enforceable written easement or a prescriptive easement by adverse possession. But the jury found in response to Question 3 that Rio Grande held an easement by estoppel:

Does RGEC have an easement by estoppel across The Power Line Route [defined as the location of the power line on Boerschig's property]?

To establish an easement by estoppel, a landowner or his predecessor must have made a representation, either by words or conduct, that was believed by RGEC and upon which RGEC relied.

․

Answer: Yes

Then, in answer to Question 4, the jury failed to find that Rio Grande's upgrade exceeded the scope of that easement:

Did the construction of The Power Line Upgrade across John Boerschig's property exceed the scope of the prescriptive easement or easement by estoppel that you found in response to Question 2 or 3?

The scope of an easement created by prescription or estoppel is fixed by the use through which it was created.

․

Answer: No

The jury was instructed not to answer subsequent questions regarding Boerschig's trespass claim if it answered Question 4 “no.”

After a multi-year delay, the trial court rendered judgment for Rio Grande on the jury's verdict. The judgment declared that Rio Grande “had an easement by estoppel across the Power Line Route” and “that the construction of the Power Line Upgrade across [Boerschig's] Property did not exceed the scope of its easement by estoppel.”

Boerschig appealed, arguing that the evidence supporting an easement by estoppel is legally insufficient. The court of appeals affirmed, holding that the jury could consider the Dooley Document in determining whether a representation was made. 719 S.W.3d 327, 337, 347 (Tex. App.—San Antonio 2024). The court concluded that Rio Grande's testimony that it had relied on documents like the Dooley Document, as well as “the circumstances surrounding the construction of the upgraded electric line,” supported the jury's finding of reliance on the representation that an easement existed along the route. Id. at 340. The court also held sufficient evidence supported the judgment regarding the jury's failure to find that Rio Grande's upgrade exceeded the scope of the easement. Id. at 342. In this Court, Boerschig again challenges the jury's findings.

Analysis

I. Sufficient evidence supports the jury's finding of an easement by estoppel.

We begin with Boerschig's challenge to the jury's finding of an easement by estoppel, which he contends is not supported by legally sufficient evidence.¹ Easements are nonpossessory interests in land that authorize the holder to use another's property—the burdened or servient estate—only for a particular purpose. Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962). “[I]f a particular purpose is not provided for in the [easement], a use pursuing that purpose is not allowed.” Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002).

Because easements are real property interests, the statutes of frauds and conveyances generally require a signed and recorded writing to evidence the creation of an easement. Copano Energy, LLC v. Bujnoch, 593 S.W.3d 721, 727 (Tex. 2020); see ConocoPhillips Co. v. Hahn, 704 S.W.3d 515, 530 (Tex. 2024). By ensuring that contracts concerning land are not “left to slippery memory,” these requirements remove uncertainty, guard against fraudulent claims, and reduce litigation.²

We have explained, however, that the owner of the burdened estate may be estopped to deny the existence of an easement despite the lack of a conforming writing. See Storms v. Tuck, 579 S.W.2d 447, 454 (Tex. 1979). To prove the existence of an easement by estoppel, the holder must show (1) the owner of the burdened estate represented that an easement would be conveyed, (2) the holder believed the representation, and (3) the holder relied on the representation to its detriment. Id. at 452.³ Representation and belief are fixed at the time of transfer. But if the reliance terminates, so does the estoppel.⁴ We address the scope of such an easement and its effect on subsequent purchasers of the burdened estate in Part II.

The jury had before it evidence that the Dooley Document granted an easement for an electric line, that Rio Grande's practice was to build lines only where it believed it had an easement covering the route, and that Rio Grande in fact built the line in 1947 and maintained it without objection for sixty-five years. As the court of appeals held, the jury could have credited this evidence in answering “yes” to Question 3.

At trial, Boerschig did not introduce evidence to the contrary, such as contesting that representations were made or that Rio Grande did not believe them or rely on them. Boerschig argued instead, as he does on appeal, that the Dooley Document is not competent evidence of such a representation because it is not a valid written easement.

We disagree. A writing that fails as an express easement can be some evidence supporting the representation element of an easement by estoppel.⁵ The function of such easements is to preserve reliance interests for uses of land intended by the parties but not supported by formal written documentation.⁶ Thus, easements by estoppel arise only in cases in which an express easement fails to cover the use at issue. An easement that the parties intended but failed to perfectly memorialize is no less relevant than an easement the parties intended to memorialize by a handshake.⁷ The holder bears the burden to prove such an easement exists, whereas an express easement is recognized as a property interest as a matter of law (though its interpretation or application may be disputed).⁸

As other state high courts have held, a written representation regarding the use of land is one form of evidence to prove estoppel, even if the writing alone is not enforceable as a matter of law.⁹ The holder's burden is to establish the intent of the parties to create an easement. The factfinder may consider conduct, parol evidence, and written representations to determine whether a representation was made. In Drye, our Court assumed that a combination of statements in brochures and advertisements was evidence of a representation, though we ultimately held the statements made were too indefinite to create an easement. 364 S.W.2d at 209-211. And in Vrazel v. Skrabanek, we held an easement by estoppel existed based on the conduct of the parties, which changed the location of an express road easement that had been obstructed. 725 S.W.2d 709, 711-12 (Tex. 1987).

The cases on which Boerschig relies do not support his contention that written representations cannot serve as evidence to support the creation of an easement by estoppel. In Storms, an appeal from a bench trial, Storms granted an express easement permitting ingress and egress to the purchaser of ten acres. 579 S.W.2d at 449-450. The purchaser sold a strip of the ten acres and the easement to Tuck, an adjacent owner of 1,100 acres. Id. at 450. Storms sued to enjoin Tuck from using the easement to access the 1,100 acres. Id. at 451. We declined to recognize an easement by estoppel in that case, noting that the record contained no evidence that Storms had represented that it would grant ingress and egress to the 1,100 acres. Id. at 452. We held Storms's silence while Tuck constructed a road insufficient to establish a representation. Id. at 453-54. Here, in contrast, the jury credited representations made in the Dooley Document—titled “Right of Way Easement”—as granting the holder a power line route.

Similarly, in Drye, the jury found that the developer of a neighborhood with a club on adjacent land had represented that purchasers were entitled to use the club. 364 S.W.2d at 201-02. The club later ceased operations. Id. at 201. This Court rejected the existence of an easement by estoppel to preserve the club, holding that representations that the purchasers would have “the run of the ranch” were too indefinite. Id. at 209, 211. “Some degree of definiteness in the scope or extent of an interest is essential to its recognition as a property interest.” Id. at 211. In addition, the purchasers had agreed that they “acquire[d] no interest whatsoever of any kind or character in or to the club property,” belying a reliance interest on the marketing representations. Id. The Dooley Document, in contrast, provides for a specific and definite use, and Rio Grande's construction and maintenance of the line through the ensuing decades is evidence of reliance.

Our Court decided Storms and Drye based on a failure of proof of a representation or on a failure of reliance—both necessary elements of an easement by estoppel. The proof in this case is different, as it includes specific representations and continuous use for decades in reliance on them.

Finally, Boerschig points to the bona fide purchaser statute to urge us to disregard the jury's finding of an easement. “A conveyance of real property ․ is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law.” Tex. Prop. Code § 13.001(a). Recorded interests become part of the chain of title, and subsequent purchasers take property subject to the recorded interest regardless of actual notice.¹⁰ Easement holders who fail to record their easements risk the easement's failure against subsequent purchasers without notice. But purchasers with actual notice of an encumbrance have no injury, as any devaluation of the property due to the easement's evident use figured into the price the purchaser paid.¹¹

Boerschig admitted at trial that he had actual notice of the 1947 line when he purchased the ranch. As Boerschig testified, the line is “hard to miss.” And the power line route appeared on a survey prepared in connection with the purchase. Although the extent of Boerschig's notice is relevant to the scope of the easement, as we discuss in Part II, he is presumed to have purchased the property subject to this visible encumbrance.¹²

Boerschig did not object to the definition of an easement by estoppel in Question 3 of the jury charge.¹³ The trial court instructed: “To establish an easement by estoppel, a landowner or his predecessor must have made a representation, either by words or conduct, that was believed by [Rio Grande] and upon which [Rio Grande] relied.” The jury heard legally sufficient evidence on each point: the Dooley Document is some evidence of a representation; based on it, Rio Grande believed it had a valid easement; and Rio Grande relied on the representation in constructing the line and using it for over sixty years.

II. Rio Grande's upgrade exceeded the scope of the easement.

Having concluded that Rio Grande obtained an easement by estoppel, we next consider whether Rio Grande's use remained within the scope of that easement. The trial court submitted Question 4 asking whether Rio Grande's upgrade exceeded the scope of the easement, and the jury answered “no.” That answer tells us only that the jury failed to find that the easement's scope had been exceeded; it is not an affirmative finding establishing the opposite: that Rio Grande's upgrade was within the scope of the easement.¹⁴

For its part, Rio Grande requested and received a declaratory judgment from the trial court that its upgrade “did not exceed the scope of its easement by estoppel.” Estoppel is an affirmative defense to a trespass claim,¹⁵ so it was Rio Grande's burden “to prove all of the facts necessary to establish [an] easement” by estoppel that authorized the upgrade at issue. Bains, 182 S.W.2d at 399. Here, those facts include the nature and extent of the landowner's representations regarding the easement holder's uses, the holder's detrimental reliance on those representations, and any subsequent purchaser's actual knowledge of the representations or uses. Storms, 579 S.W.2d at 451; see also Moore Burger, Inc. v. Phillips Petrol. Co., 492 S.W.2d 934, 936, 939 (Tex. 1972) (holding party alleging defensive plea of estoppel to avoid statute of frauds “had the burden of producing evidence that [the purchaser of the property] had actual or constructive notice of the requisite facts which operated as an estoppel”). Rio Grande failed to obtain an affirmative jury finding to support a declaration that the upgrade was within the scope of such representations, reliance, and knowledge.¹⁶

In this Court, however, Boerschig does not challenge the absence of a jury question that properly placed the burden of proof and yielded an affirmative finding that supports the trial court's judgment. Instead, he contends that on this record, the upgrade exceeded the scope of the easement as a matter of law. To determine whether he is correct, we must examine how the scope of an easement by estoppel is determined between the parties to the estoppel as well as the extent to which that estoppel binds a subsequent purchaser.

A. Scope of easements by estoppel

The scope of an express recorded easement is determined by “[t]he contracting parties' intentions, as expressed in the grant.” Marcus Cable, 90 S.W.3d at 700-01. Thus, courts look to “the grant's terms” to determine the extent to which “the manner, frequency, and intensity of an easement's use may change over time.” Id. at 701. For example, in Houston Pipe Line Company v. Dwyer, we held as a matter of law that when a utility installed an 18-inch gas pipeline, “the extent of [its] easement rights under [its] agreement [with the original landowner] became fixed and certain,” and the easement's grant of authority only to “lay, construct, maintain, operate (and) repair” a pipeline did not “authorize[ ] [the utility] to ․ replace it with a line of substantially greater size.” 374 S.W.2d 662, 664, 666 (Tex. 1964). But in Southwestern Electric Power Company v. Lynch, we held that the scope of an electrical transmission easement was not fixed by its initial use because that easement included broad, forward-looking language contemplating enlargement: it allowed the utility to “hang[ ] new wires on” the line or “reconstruct[ ]” the line with “variable numbers of wires” and “towers or poles made of wood[,] metal[,] or other materials.” 595 S.W.3d 678, 688-89 (Tex. 2020) (emphasis omitted).

“The emphasis our law places upon an easement's express terms serves important public policies by promoting certainty in land transactions.” Marcus Cable, 90 S.W.3d at 702. Properly documenting and recording an easement provides holders the greatest certainty of continuing enforcement to the extent of the parties' expressed intentions. “Similarly, those who grant easements should be assured that their conveyances will not be construed to undermine private-property rights—like the rights to ‘exclude others’ or to ‘obtain a profit’—any more than what was [reflected] in the grant.” Id. And “potential purchaser[s] must be able to safely rely upon granting language” to “evaluate the burdens placed upon” the property. Id.

For an easement by estoppel, however, there is no recorded writing to consult in determining the easement's scope. Easements by estoppel are strictly limited because enforcing them undermines the writing and recording requirements of the statutes of frauds and conveyances, and extending them to subsequent grantees of the burdened estate who were not parties to the estoppel is in tension with the bona fide purchaser statute.¹⁷

We have explained that the nature and extent of an easement by estoppel “have not been clearly defined” and “authority for [the doctrine's] application is rare and nebulous” outside a “narrow band of cases” not at issue here—such as public dedications and a seller's representation to a buyer. Drye, 364 S.W.2d at 209-210; see Storms, 579 S.W.2d at 451 & n.3. Our courts of appeals agree that “[t]he gravity of a judicial means of acquiring an interest in land of another solely by parol evidence requires that equitable estoppel be strictly applied” and that it “be certain, precise, and clear.” Horner v. Heather, 397 S.W.3d 321, 325 (Tex. App.—Tyler 2013, no pet.).¹⁸ Thus, an easement by estoppel should be a last resort: a party who uses another's property without properly documenting and recording an easement runs a substantial risk that enforcement will be either unavailable or narrower in scope than a comparable express easement.¹⁹

The elements of an easement by estoppel are helpful in articulating precise limits on the scope of such an easement. As discussed above, those elements include a representation by the owner of the burdened estate permitting a particular use of his land and action in detrimental reliance on that representation by the party claiming to hold the easement. See Storms, 579 S.W.2d at 451-52 (“[T]he owner of land may be estopped to deny the existence of an easement by making representations that have been acted upon by a purchaser to his detriment.”). Because easements by estoppel are a specific application of the doctrine of equitable estoppel (estoppel in pais), they are “a creature of equity” that “seeks to prevent injustice and to protect innocent parties from fraud.” Id. at 451; see PDT Holdings, Inc. v. City of Dallas, 712 S.W.3d 597, 603 & n.7 (Tex. 2025). Equity “enjoin[s] the [land]owner ․ from preventing the use” when “the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked.” F.J. Harrison & Co. v. Boring, 44 Tex. 255, 267-68 (1875); see Coleman v. Forister, 514 S.W.2d 899, 904 (Tex. 1974). Put another way, estoppel applies when “injustice can be avoided only by establishment of a servitude” to protect the user's “substantial[ ] change [of] position in reasonable reliance on [the owner's] representation.” Restatement (Third) of Prop.: Servitudes § 2.10 (2000).

These elements and rationales for easements by estoppel demonstrate that the scope of such an easement is limited to preventing injustice by protecting the holder's reliance interest—that is, the actual investment (or other change of position) that the holder made to use the land in reasonable reliance on the owner's representations. Thus, the jury was correctly instructed that the scope of an easement by estoppel is fixed by the use that created it.²⁰ This limitation is a familiar one in the law: for example, we similarly limit damages for fraudulent inducement to those suffered in actual and justifiable reliance on a misrepresentation when the parties' bargain is unenforceable due to the statute of frauds. Haase v. Glazner, 62 S.W.3d 795, 798-800 (Tex. 2001).

Because equitable estoppel is ordinarily mutual,²¹ courts further limit its scope when the holder seeks to estop a non-party to the representation. Although generally “an estoppel of a grantor runs against his grantee,” by statute “a bona fide purchaser for value and without notice of an estoppel against his grantor is not bound by it.” Moore Burger, 492 S.W.2d at 939.²² Thus, the extent of any “servitude benefits” of an “unrecorded servitude,” such as an easement “created by ․ estoppel,” are limited to those “that would be discovered by reasonable inspection or inquiry.” Restatement (Third) of Prop.: Servitudes § 7.14(3) (2000).

In sum, the scope of an easement by estoppel is limited to the representations made by the landowner, narrowed by the holder's actual uses of the easement in reasonable reliance on the representations, and narrowed further—if the land has been sold—by the purchaser's notice of those representations or uses at the time of purchase. Accordingly, a holder seeking to change its actual existing use must provide evidence of the landowner's specific representations about the nature and extent of the permitted use. See Drye, 364 S.W.2d at 211. In addition, it must prove that the change is necessary to protect its reliance interest and that any purchaser had actual knowledge of the potential for such a change. Evidence that the purchaser had knowledge of a current estopping use does not suffice to establish that the easement's scope would cover a greater degree of future use that is more than de minimis. See Dwyer, 374 S.W.2d at 665-66.²³ Instead, a holder contemplating such a change “ha[s] the burden of producing evidence that [the purchaser] had actual or constructive notice of the requisite facts which operated as an estoppel” regarding the future use. Moore Burger, 492 S.W.2d at 939. Future uses outside the holder's rights—as defined by the representations, reliance, and knowledge—exceed the easement's scope and constitute a trespass.

In determining the holder's rights, neither a jury nor a court may speculate about the unexpressed purpose behind an easement created by operation of law and consider whether an expanded use would serve that purpose. Nor should they assess whether a change in such an easement's use is foreseeable, materially more burdensome to the landowner, or so different in kind and character as to constitute an entirely different use. The right to own property is “fundamental, natural, inherent, [and] inalienable,” and its protection is “one of the most important purposes of government.” Tex. Dep't of Transp. v. Self, 690 S.W.3d 12, 25 (Tex. 2024) (quoting Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977)). Courts and juries are not free to give away more of a landowner's property rights whenever they feel that the societal benefit of an expanded use outweighs its burden on the landowner. That judgment is for the other branches of government and entities on which they have conferred condemning authority, and our Constitution demands that the landowner be compensated when a greater easement is taken. Tex. Const. art. I, § 17(a); see Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004) (“At the heart of the takings clause lies the premise that the government should not forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (alteration in original) (internal quotation marks omitted)).

Once the scope of the authorized use has been defined in this manner, an additional consideration may be relevant in deciding certain disputes: whether activity within the easement is necessary to the continuation of that use. We have recognized that with express easements, “[n]othing passes by implication except what is reasonably necessary to fairly enjoy the rights expressly granted.” Marcus Cable, 90 S.W.3d at 701 (cleaned up). Similarly, an easement by estoppel includes within its scope only activities—such as access, repairs, and maintenance of the area—that are reasonably necessary to fairly enjoy the usage rights defined by the representations, reliance, and knowledge. E.g., Whaley v. Cent. Church of Christ of Pearland, 227 S.W.3d 228, 231-32 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Whether an action is reasonably necessary to use and enjoy an easement can present a jury question. See DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 102-03 (Tex. 1999) (discussing case upholding jury finding that extent of “cutting the trees ․ went beyond what was reasonably necessary for the utility's use and enjoyment of the easement”). If the holder proves that the activities at issue are reasonably necessary, its ability to conduct those activities must be narrowly drawn to burden the landowner as little as possible. See Lynch, 595 S.W.3d at 690; Lakeside Launches, 750 S.W.2d at 871.

B. Application

We apply these legal standards for the scope of an easement by estoppel to determine whether the record here shows that Rio Grande's upgrade exceeded the scope of the easement as a matter of law. As discussed, we first examine the extent of Rio Grande's reliance interest. On that question, undisputed evidence shows that the only actual investment Rio Grande made in reliance on the Dooley Document's 1947 representations of an easement was to construct that year and maintain thereafter a lower-voltage electric distribution line along a specific 1.6-mile route that consisted of between seventeen and twenty poles, each standing thirty feet above the ground and carrying four wires on a single crossarm. Allowing Rio Grande to maintain that use is sufficient to prevent injustice. Rio Grande does not identify, and we have not found, any evidence tending to show that replacing this line with one using sixty poles—each seven feet taller above the ground and carrying seven wires on two crossarms—was necessary to protect an investment Rio Grande had made in reasonable reliance on the Document's representations.

We must also consider whether Boerschig, a subsequent owner, had actual or constructive notice of facts indicating that an easement authorized Rio Grande to triple the number of poles and nearly double the number of wires. Boerschig admitted at trial that he observed the 1947 line before buying the property, which supports the jury's finding of an easement by estoppel as we have explained. But the record also shows these observations were the only notice Boerschig had regarding the scope of that easement. It is undisputed that Boerschig had neither actual nor inquiry notice of the unrecorded Dooley Document, so any expectations of the original parties it might reflect regarding the scope of the easement cannot bind him. Because the evidence is conclusive that Boerschig lacked any notice regarding the scope of the easement other than the 1947 line he could see, no jury question was necessary to establish that point. See City of Keller, 168 S.W.3d at 814-15, 815 n.52.

Nor is there evidence that tripling the number of poles and nearly doubling the number of wires was an activity reasonably necessary to Rio Grande's continued enjoyment of its existing use of the line, as our dissenting colleagues contend. Post at ––––, –––– (Bland, J., dissenting).²⁴ Rio Grande's CEO testified that the purposes of upgrading this “backbone feeder” distribution line were to serve new customers in the future: (1) to provide electric service to a new Lone Star Gas pipeline compressor station; and (2) to connect to a new electric substation Rio Grande planned to build “in anticipation of the growth that's going to occur” in the area and “back up the [existing] substation, so that if we lost [that station], we could pick it up from the [new substation] ․ and we could meet [Lone Star Gas's] load needs.” Lone Star Gas paid for the upgrade.

The CEO also testified that the existing line serves “roughly 1,000 consumers” and that their electricity would be “turned off” if the line were “shut down.” But no one was seeking to shut the line down, and nothing in the record indicates that Rio Grande would be unable to continue using and maintaining its line as it has for decades. In sum, there is no evidence that the upgrade Rio Grande performed was reasonably necessary to continue serving existing customers.²⁵

For these reasons, we hold the record conclusively establishes that the scope of Rio Grande's easement by estoppel was not broad enough to authorize the upgrade. Undisputed evidence also shows that Rio Grande entered Boerschig's ranch and built the new line without his consent and subject to his claim of trespass. Because there are no other disputed facts regarding whether a trespass occurred, Boerschig is entitled to judgment on his trespass claim as a matter of law.

Conclusion

We reverse the court of appeals' judgment, render judgment that Rio Grande trespassed on Boerschig's property by constructing the upgraded line, and remand the case to the trial court for further proceedings regarding appropriate relief.²⁶

I join the Court's opinion. I write separately to explain my understanding of what the Court today holds.

1. To protect an easement holder's reasonable reliance interests, easements by estoppel can include closely related ancillary uses of the land such as maintenance. Such uses must be de minimis and reasonably necessary to continue the existing use of the property—that is the test, and not whether any improvements actually harm the owner of the burdened estate.

2. There is a zone of close calls that can be decided only by a jury. I expect that many disputes over whether the holder of an easement by estoppel has impermissibly exceeded his rights and committed a trespass will require resolution by twelve of his neighbors, not a judge.

3. Nevertheless, two record-specific considerations require this case to be resolved as a matter of law. First, Rio Grande materially expanded its intrusion into the burdened estate beyond the original contemplated use of the land. These improvements were plainly broader than necessary to protect Rio Grande's reliance interests from its original investment in the land in the 1940s. Second, the improvements went beyond any notice attributable to Mr. Boerschig in connection with his 2002 purchase. He had notice of the visible 1947 line—not of a use of the land that would involve tripling the poles and nearly doubling the lines.

This third point is what gives rise to the primary disagreement between the Court and the dissent. I hope readers will not misunderstand that disagreement. All we hold is that these particular facts go so far beyond the proper confines of an easement by estoppel that courts must find a trespass as a matter of law. On that understanding, I join the Court's opinion.

In the face of conflicting evidence, a trial court asked a jury to resolve whether an easement holder had exceeded the scope of its easement. The jury concluded the easement holder did not. Reviewing the same evidence, the Court in error (1) concludes the upgrade departs from the route's historic use and thus is a trespass as a matter of law, countermanding the jury's verdict; and (2) shifts the burden of proof from the landowner urging a trespass claim to the easement holder defending against that claim. The Court remands the trespass claim the jury rejected.

The jury properly concluded, however, that the easement holder did not exceed the scope of its easement, thus denying an essential element of the landowner's trespass claim. The landowner bears the burden to prove that the easement holder trespassed on his estate. The landowner rightly accepted this burden, raising no objection to it in the trial court. Legally sufficient evidence supports the jury's conclusion. We should affirm. Because the Court does not, I respectfully dissent.

I

From 1931 to 1963, the number of American farms with electric service jumped from about ten percent to over ninety-seven percent.¹ Private electric companies perceived no profit in bringing electricity to rural America. To address this gap, associations of farmers and small businesses—with little or no experience operating electric systems—formed nonprofit cooperatives to take advantage of federal loan programs.² The nonprofits relied on members' voluntary contributions, including land donated by farmers and ranchers for electrical easements.³ Across the country, rural electric cooperatives collected more than one million easements between 1935 and 1941.⁴

The Rio Grande Electric Cooperative is one such nonprofit. Founded in 1945 by ranchers in Kinney, Val Verde, Edwards, Maverick, and Uvalde counties, Rio Grande was formed to furnish “electric energy to persons in rural areas who are not receiving central station service.”⁵ Between one-third and one-half of Rio Grande's infrastructure is built on “legacy easements” like the Dooley Document, acquired during Rio Grande's early days. Similar documents purporting to convey easements exist throughout rural Texas.⁶ Every indication is that Rio Grande acquired the Dooley Document as part of its mission to provide electric service to rural Texas.

John Boerschig purchased the thousands of acres at issue in 2002, knowing at the time that a tiny fraction of its vastness was burdened with the power line route in question. In June 2012, Rio Grande notified Boerschig it intended to “upgrade the existing feeder situated on a portion of your property” and it proposed to move the line “approximately 15 feet southwest.” When Boerschig objected, Rio Grande attempted to reroute the line through the town of Brackettville using easements granted to another utility. Though the proposed route did not cross his land, Boerschig wrote letters to the other utility and to the City of Brackettville expressing his objections.

Boerschig eventually granted permission to Rio Grande to continue constructing the line subject to his trespass claim. Rio Grande kept the line on the footprint of the original line, even though doing so was slower, more expensive, and more dangerous.

Rio Grande completed the line in 2014. The new line has sixty poles, each forty-five feet tall, carrying seven wires on two crossarms. Because of differences in the length of the buried part, the new poles rise about seven feet higher above the ground than the old poles. The new poles are constructed of stronger, flame-resistant fiberglass composite resembling the replaced wooden poles.

At trial, Boerschig testified the new line interfered with his ranching, haying, and hunting operations on the property. Boerschig claimed to have stopped haying in one field after the construction. Boerschig described the new poles as “an eyesore” and told the jury someone had ruined a tailgate backing into one. Though he had purchased the property with the existing power line route, he believed the easement decreased the value of his property. The jury reviewed photos and video taken along the power line route both before and after the reconstruction.

Rio Grande contested Boerschig's evidence. Contrary to the Court's recitation that Rio Grande offered “no evidence” that the upgrade was necessary to continue its use of the power line route, Rio Grande's witnesses described the line as a “backbone feeder” for “lots of different consumers,” including Boerschig. The video of the power line route shows fields planted only on either side of the line route and no haying or farming in the area under and around the line even before the upgrade. A Rio Grande employee testified that nothing in the route interferes with haying, ranching, or hunting. The new, safer poles resemble the replaced wooden poles in style and color and have a slightly larger diameter, with some in the identical location as the replaced poles. The number of guy wires securing directional changes in the line did not increase.

The jury answered “No” when asked if Rio Grande had exceeded the scope of its easement, which the court's charge defined as a “Power Line Route”—not a particular line. Because the jury found that Rio Grande's use did not exceed the scope of the easement, the jury did not answer whether Rio Grande negligently or maliciously trespassed on Boerschig's property.

II

A

As a threshold matter, Rio Grande proved it held the disputed easement as a defense to Boerschig's trespass claim.⁷ A claim that the holder of an easement engaged in activity exceeding the easement's scope sounds in trespass.⁸ In a trespass action, it is the plaintiff's burden to show that the entry was unauthorized or without consent.⁹ An easement holder has authorization to use its easement. The plaintiff recovers only to the extent he proves that the easement holder exceeds its rights in the easement.¹⁰

Once the jury found that Rio Grande held an easement, Boerschig bore the burden of demonstrating that Rio Grande exceeded its rights in its easement, interfering with his property beyond the easement's scope. The jury charge reflected this burden, and Boerschig raised no objection to bearing it:

Question 4

Did the construction of The Power Line Upgrade across John Boerschig's property exceed the scope of the prescriptive easement or easement by estoppel that you found in response to Question 2 or 3?

The scope of an easement created by prescription or estoppel is fixed by the use through which it was created.

[…]

Answer: No

Rio Grande had no need to secure a finding that its upgrade project was inside the scope of the easement given that the jury found Rio Grande did not venture outside it.¹¹ The jury's finding is fatal to Boerschig's trespass claim, but the Court ignores it even though “it is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge.”¹²

B

The scope of an express easement is relatively straightforward: the terms of the writing establish the purpose of an easement and define its scope.¹³ An easement by estoppel, in contrast, lacks an enforceable writing. Like all easements, however, easements by estoppel are granted for a specific purpose.¹⁴ The easement's existence implies a grant of use to reasonably achieve that purpose without unreasonably burdening the servient estate.¹⁵ Under the common law, “the manner, frequency, and intensity of an easement's use may change over time to accommodate technological development” so long as the changes “fall within the purposes for which the easement was created.”¹⁶

The Court defines the reliance interest as “the actual investment (or other change of position) that the holder made to use the land.”¹⁷ Easements are definitionally nonpossessory interests that permit the holder to use the land for a particular purpose.¹⁸ The Court's overly narrow definition of reliance reduces Rio Grande's acknowledged right to use the land—to operate a power line route across it—to existing poles and wires. In doing so, it slights the route's existing use as a “backbone feeder.”

The possession of land that accompanies use rights is evidence—perhaps the best evidence—of the use, but occupation is not the only evidence defining the use. The reliance interest includes closely related ancillary activities necessary to maintain and continue the use that do not materially interfere with the burdened landowner's use and enjoyment of his land.¹⁹ Other state high courts recognizing easements by estoppel have recognized ancillary uses, such as the right to access the property and to make necessary repairs.²⁰ In Hager v. City of Devils Lake, the Supreme Court of North Dakota held that the easement holder's right to maintain a sewage system included the right to construct a new culvert and drainage ditches necessary to the function of the system.²¹ To determine whether a use is sufficiently closely related so as to come within the scope of the easement, a jury may consider testimony regarding the activity's necessity to maintain the existing use and the extent to which that use materially increases the ongoing burden of the easement.²²

Rio Grande's use of the land—as an operable power line route—burdens the land through the physical manifestation of the poles and lines. Rio Grande may make “unlimited reasonable use” necessary to reasonably achieve its purpose of operating a power line route, so long as it does not materially increase the burden to the landowner.²³ Both questions—whether the activity is necessary to carry on the use and whether the activity materially increases the burden on the land—may be fact questions.²⁴

In this case, the facts are disputed. As to necessity, the jury heard Rio Grande relies on the power line route to serve thousands of customers. Rio Grande told the jury that Rio Grande has no discretion to refuse to meet its customers' power needs, that the reconstruction of the line was necessary to serve the needs of a utility customer and to improve reliability of the system, and that the upgrade made the line safer. The jury reasonably concluded that Rio Grande relied on the easement to transmit electricity in the footprint of the route and the upgrade was necessary to continue using the easement to serve existing customers.

Boerschig did not present evidence that the upgrade was unnecessary to continue Rio Grande's existing use of the route. Instead, Boerschig argued that the upgrade is more burdensome to his use and enjoyment of his ranch. Rio Grande countered with competing evidence: that, while the poles were seven feet taller above ground and greater in number, the upgrade was no more intrusive to ranch operations than Rio Grande's historic use of the route. The jury also heard that Rio Grande had taken steps to burden the ranch as little as possible, such as designing the poles to have a similar look to the earlier ones and placing the new line in the existing footprint at considerable expense. The jury viewed photographs and videos of the entire power line route before and after the upgrade. Seeing that most of the power line route had been and remained uncultivated and populated by deer, the jury may have credited the testimony that the upgraded line did not interfere with haying, ranching, or hunting. Based on this video evidence, the jury may have discredited Boerschig's testimony that the increased number of poles prevented the continuing and customary use of the ranch or further decreased its value. The jury reasonably concluded that reconstruction of the line imposed no material additional burden on the property.

The Court acknowledges that whether activities like “access, repairs, and maintenance of the area” are reasonably necessary to use and enjoy the easement may present a jury question.²⁵ But the Court's calcified definition of reliance takes that question—both the necessity and the burden aspects—out of a jury's hands. To the Court, any and every improvement that departs from the existing infrastructure is—as a matter of law—a trespass. Under the Court's legal definition of the easement, Rio Grande's investment is poles and wires, not an interconnected, operable, and soon-to-be overtaxed power line route. The Court denies Rio Grande the right to add a single pole or to replace the sixty-year-old wooden poles with safer, fireproof composite poles. If fire destroyed the line, it appears the Court would declare the reliance terminated, forcing Rio Grande to recondemn an easement it holds. The Court pledges that a utility wishing to add to its footprint “may offer evidence that changes or replacements to its line are necessary to protect its investment made in reliance on the landowner's representations.”²⁶ Rio Grande offered such evidence: the reconstruction was necessary to protect its investment in its power line route—and the jury believed it. The Court's rule undoes the work of the civic-minded amateurs who neglected to record their paperwork in an era of urgency and cooperation many decades ago.

Amici warn us that many similarly imperfect easements undergird rural Texas's infrastructure. By classifying every upgrade project as a trespass—in the face of a jury verdict to the contrary—the Court hands a windfall to landowners like Boerschig, who took with notice of the route.²⁷ Prudence counsels that utility rights, once acquired, must be accompanied by the right to make reasonable repairs and improvements to continue operation along the route. As the Court acknowledges but does not implement, a jury is the proper body to determine whether such repairs or improvements are necessary to continue the use of the easement.

C

A known or apparent encumbrance provides notice and informs the purchaser's valuation of the land before the transfer.²⁸ The purchaser takes the property not just with the physical manifestation of the encumbrance but also with notice of the closely related ancillary uses a reasonable buyer would presume accompany the encumbrance.²⁹

As with the reliance element, the Court treats notice as a question of law even though, if disputed, “actual notice is always a question of fact.”³⁰ Boerschig could see the 1947 line, explains the Court, and thus he cannot be charged with notice of what the existence of an operable power line route means. “Actual notice is personal knowledge or ‘those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.’ ”³¹

In holding that Boerschig lacked notice as a matter of law, the Court intrudes upon another factual domain. Boerschig did not ask the jury about notice or attempt to assume bona fide purchaser status. In any event, the record shows that Boerschig had notice, not merely of seventeen wooden poles constituting an existing sixty-year old power line route, but that the route was operable and required maintaining and operating it as a power line route. Boerschig acknowledged that operating a power line route involves more than continued presence of existing poles: the operator has a right to ancillary uses, such as ingress and egress, tree trimming, and maintenance that are necessary to continue to make the same use of the route. The continuing maintenance of an apparent and visible power line route supports the jury's implied finding that Boerschig had notice that a utility claimed a right to operate the line, inclusive of necessary reconstruction of the line, so long as it did not materially increase the burden the easement presented to Boerschig's property.

* * *

Boerschig made his best case to a jury of his neighbors that Rio Grande's “power line upgrade”—to include extra poles to improve the safety and reliability of its electrical service—was outside the scope of Rio Grande's easement. His neighbors simply did not believe him. The Court does. It is not, however, our role to supplant the jury's credibility determinations.³²

Easements by estoppel support necessary activities that do not materially increase the burden they impose. When this evidence is disputed, the scope of an easement by estoppel presents a fact question. Because legally sufficient evidence supports the jury's resolution of the fact questions as to the scope of Rio Grande's easement, we should affirm. As we do not, I respectfully dissent.

FOOTNOTES

1.   In reviewing a legal sufficiency challenge, we examine the evidence in the light most favorable to the verdict, indulge every reasonable supporting inference, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005).

2.   Rankin v. Naftalis, 557 S.W.2d 940, 943 (Tex. 1977) (“The Texas Legislature on successive occasions from the early days of the Republic has expressed its intent that contracts concerning lands must not, as Lord Coke expressed it, ‘be left to slippery memory’ but must be reduced to writing.”); see also Givens v. Dougherty, 671 S.W.2d 877, 878 (Tex. 1984) (“The purpose of the Statute of Frauds is to remove uncertainty, prevent fraudulent claims, and reduce litigation.”).

3.   Some courts refer to this type of easement as an easement by implied dedication when the representation concerns a dedication for public use. E.g., Scott v. Cannon, 959 S.W.2d 712, 718-19 (Tex. App.—Austin 1998, pet. denied).

4.   See Drye, 364 S.W.2d at 211 (observing that, to run with the land, a promise must benefit the promisee in the physical use of the land, and quoting Restatement (First) of Prop. § 537 cmt. f (1944)); see also Goodenberger v. Ellis, 343 S.W.3d 536, 541 (Tex. App.—Dallas 2011, pet. denied) (“Once created, an easement by estoppel is binding upon successors in title if reliance upon the existence of the easement continues.”).

5.   In the view of the Restatement, writings that fail to comply with the statute of frauds are enforceable as written if the beneficiary proves detrimental reliance. Restatement (Third) of Prop.: Servitudes § 2.9 (2000) (“The consequences of failure to comply with the Statute of Frauds ․ do not apply if the beneficiary of the servitude, in justifiable reliance on the existence of the servitude, has so changed position that injustice can be avoided only by giving effect to the parties' intent to create a servitude.”). We do not go so far. Instead, we conclude only that a defective easement may be competent evidence of a representation.

6.   See, e.g., Shepard v. Purvine, 196 Or. 348, 248 P.2d 352, 361-62 (1952) (“An oral license promptly acted upon in the manner plaintiffs acted is just as valid, binding, and irrevocable as a deeded right of way.”).

7.   See, e.g., Hager v. City of Devils Lake, 773 N.W.2d 420, 435-37 (N.D. 2009) (holding landowners estopped to deny city's easement to maintain a storm sewer system despite the lack of a writing because landowners requested system's construction, should have foreseen that it was permanent, and benefited from it for nearly thirty years).

8.   Compare Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944) (“The burden is on the party claiming an easement in another person's land to prove all of the facts necessary to establish the easement.”), with Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 686 (Tex. 2020) (explaining that an unambiguous express easement may be interpreted as a matter of law).

9.   E.g., VTRE Invs., LLC v. MontChilly, Inc., 213 Vt. 175, 249 A.3d 646, 657 (2020) (enforcing unsigned reciprocal covenants in deeds as a matter of estoppel where party had detrimentally relied on covenant to run drainpipe across neighboring land); Riverview Cmty. Grp. v. Spencer & Livingston, 181 Wash.2d 888, 337 P.3d 1076, 1081 (2014) (en banc) (“[T]he statute of frauds is no barrier, at least when there is some writing, such as a plat, that supports the imposition of the burden [of an equitable servitude].”); Lobato v. Taylor, 71 P.3d 938, 947, 955-56 (Colo. 2002) (en banc) (holding that document granting rights of pasture, water, firewood, and timber did not meet the formal requirements for an express grant of rights but, taken with other facts, established an easement by estoppel); see also Whaley v. Cent. Church of Christ of Pearland, No. 01-02-01354-CV, 2004 WL 1405701, at *4-6 (Tex. App.—Houston [1st Dist.] June 24, 2004, no pet.) (holding easement by estoppel established as matter of law based on representations made in earnest money contract but omitted from deed); Union Props. Co. v. Klein, 333 S.W.2d 864, 867-69 (Tex. App.—Eastland 1960, writ ref'd n.r.e.) (upholding jury verdict finding easement by estoppel based in part on representations in unsigned contract).

10.   425 Soledad, Ltd. v. CRVI Riverwalk Hosp., LLC, 709 S.W.3d 551, 560 (Tex. 2024). Actual notice includes personal knowledge and “those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.” Id. (quoting Flack v. First Nat'l Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 632 (1950)).

11.   See Hamrick v. Ward, 446 S.W.3d 377, 383 (Tex. 2014) (“There is a presumption that parties contracting for property do so ‘with a view to the condition of the property as it actually was at the time of the transaction,’ and therefore, absent evidence to the contrary, such conditions which openly and visibly existed at the time are presumed to be included in the sale.” (quoting Miles v. Bodenheim, 193 S.W. 693, 696-97 (Tex. Civ. App.—Texarkana 1917, writ ref'd))); see also Carrollton Tel. Exch. Co. v. Spicer, 177 Ky. 340, 197 S.W. 827, 830 (1917) (“To grant relief to the vendee in such cases in compensation by way of damages, or to give him the benefit of other remedies looking to the abatement of the incumbrance, such as ejectment, trespass to try title, or injunction, would be but rewarding him for that which he did not own, and would allow him to reap where he had not sown; this, because he is presumed to have purchased the property subject to the incumbrance, and to have paid for it the reduced value brought about by its construction.”).

12.   See Hamrick, 446 S.W.3d at 383.

13.   “[I]t is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). As a result, we do not address the following arguments by Boerschig: an easement by estoppel has a distinct equitable element; it is limited to representations made between vendor and vendee; there must be a “misrepresentation”; and these elements must be present at the same time. The jury instruction did not contain any of these features.

14.   See Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 488 (Tex. 2016); Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 903 (Tex. 2005); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966). These cases show that our dissenting colleagues are incorrect to view the jury's “no” answer as an affirmative finding that Rio Grande “did not exceed” or “venture outside” “the scope of its easement.” Post at –––– – ––––, –––– (Bland, J., dissenting).

15.   See Tex. R. Civ. P. 94. A claim that the holder of an easement has engaged in activity exceeding its scope sounds in trespass. See Marcus Cable, 90 S.W.3d at 699 (remanding for trial trespass claim against cable company that used electric easement to string cable lines in excess of express easement's terms). We agree with our dissenting colleagues that the landowner bears the burden to prove the elements of a trespass claim. Here, the trespass question properly placed that burden, but the jury did not reach it.

16.   The dissent contends (post at –––– – ––––, ––––) that Boerschig had the burden to prove that Rio Grande's upgrade exceeded the scope of its easement. We disagree. An easement by estoppel cannot serve as an affirmative defense to a trespass claim based on the upgrade unless the easement authorizes the upgrade. And the cases and rules just cited show that it was Rio Grande's burden to prove all facts necessary to support its affirmative defense of estoppel. The very nature of an affirmative defense (also called a plea in confession and avoidance) is that it does not attack the elements of the claim—here, trespass. Rather, it is a contention that even if the plaintiff proves those elements, the defendant is entitled to judgment in its favor for an independent reason. Thus, the defendant has the burden to prove the reason entitling it to judgment. E.g., Draughon v. Johnson, 631 S.W.3d 81, 87-88 (Tex. 2021); Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 593 S.W.3d 324, 333 (Tex. 2020) (“The hallmark characteristic of an affirmative defense [such as estoppel] is that the burden of proof is on the defendant to present sufficient evidence to establish the defense and obtain the requisite ․ findings.” (internal quotation marks omitted)).

17.   See Tex. Bus. & Com. Code § 26.01; Tex. Prop. Code §§ 5.021, 13.001; Bujnoch, 593 S.W.3d at 727 (applying statute of frauds to easement).

18.   See also Louis A. Tsakiris Fam. P'ship. v. Waller County Rd. Improvement Dist. No. 1, No. 01-22-00821-CV, ––– S.W.3d ––––, ––––, 2025 WL 2445992, at *16 (Tex. App.—Houston [1st Dist.] Aug. 26, 2025, no pet.); Smith v. Ranch Owners Ass'n, No. 11-23-00231-CV, 2025 WL 51817, at *8 (Tex. App.—Eastland Jan. 9, 2025, pet. denied); Cores v. LaBorde, No. 13-17-00011-CV, 2018 WL 3062478, at *3 (Tex. App.—Corpus Christi–Edinburg June 21, 2018, no pet.); Sandoval v. Cmty. Missionary Baptist Church, No. 05-17-00456-CV, 2018 WL 1773208, at *4 (Tex. App.—Dallas Apr. 13, 2018, pet. denied); Ramsey v. Champion, No. 10-12-00394-CV, 2014 WL 1882758, at *2 (Tex. App.—Waco May 8, 2014, pet. denied); McClung v. Ayers, 352 S.W.3d 723, 729 (Tex. App.—Texarkana 2011, no pet.); Martin v. Cockrell, 335 S.W.3d 229, 237 (Tex. App.—Amarillo 2010, no pet.).

19.   See Drye, 364 S.W.2d at 209-211; Restatement (Third) of Prop.: Servitudes § 4.10 cmt. d (2000) (explaining that easement created by use permits “only the use that created the easement and closely related ancillary uses”).

20.   See Dwyer, 374 S.W.2d at 666; see also Henry M. Herman, The Law of Estoppel § 330, at 341 (1871) (“The estoppel is called into life for the purpose of preventing wrong and redressing injury, and [should] never [be] carried further than is necessary to prevent one party from being injured by his reliance on the acts of another.”).

21.   Herman § 332, at 344.

22.   See Tex. Prop. Code § 13.001; see also Vinson v. Brown, 80 S.W.3d 221, 229 (Tex. App.—Austin 2002, no pet.) (“[N]o easement by estoppel may be imposed against a subsequent purchaser for value who has no notice, actual or constructive, of the easement claimed.”).

23.   See id. at 666 (“[W]hen defendant constructed its 18-inch pipeline with the consent and acquiescence of the plaintiff, the extent of defendant's easement rights under the 1926 agreement became fixed and certain.”); Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 873 (Tex. App.—Austin 1988, writ denied) (rejecting easement by estoppel where existing use did not put owner on inquiry notice “about a possible higher use”).

24.   We emphasize that an easement—unlike a lease—is a nonpossessory right to use certain land for a particular purpose, not a possessory right to land allowing unlimited use within a footprint or route. Lance, 543 S.W.3d at 736.

25.   We disagree with the dissent (post at –––– – ––––) that our opinion prohibits an electric utility holding an easement by estoppel from adding any poles, replacing wooden poles with similar composite poles, or replacing a line that has been destroyed with a similar line to continue serving existing consumers. Under the standards we have explained, a utility may offer evidence that changes or replacements to its line are necessary to protect its investment made in reliance on the landowner's representations, or that its activity within the easement is reasonably necessary to its continued enjoyment of the existing use and narrowly drawn to burden the owner as little as possible.

26.   Rio Grande remains free to exercise its eminent domain power to condemn an expanded easement authorizing the upgrade. Indeed, the record shows that Lone Star Gas, the new user being served by Rio Grande's upgraded line, provided funds to acquire an easement across other property.

1.   See Gabriel Pacyniak, Greening the Old New Deal: Strengthening Rural Electric Cooperative Supports and Oversight to Combat Climate Change, 85 Mo. L. Rev. 409, 420, 428 (2020) (“By 1963, over 97% of farms in the United States had electricity service, with approximately half being served by cooperatives and other [federal] borrowers.”); Herman H. Trachsel, Public Utility Regulation 415 (1947) (reciting that in 1931, only 10.2% of farms had electrical service).

2.   Trachsel, supra note 1, at 416, 430; Pacyniak, supra note 1, at 428. For a fictional account of the advent of electricity in the last county in rural Ireland to secure it, see generally Niall Williams, This Is Happiness (2019). “When you are born in one century and find yourself walking around in another there's a certain infirmity to your footing.” Id. at 55.

3.   Pacyniak, supra note 1, at 472; Rural Elec. Admin., Electricity for the Farm through REA 10 (1940) (“Obviously, farmers' electric systems cannot afford to pay for [electric line] easements. To do so would make electric rates unnecessarily high. When landowners fail to give easements, lines must be rerouted, thus increasing costs. Every consumer and the community as a whole benefits when easements are signed promptly in a cooperative spirit.”).

4.   Rural Elec. Admin., U.S. Dep't of Agric., Misc. Pub. No. 811, Rural Lines: The Story of Cooperative Rural Electrification 4, 8–9 (1966).

5.   Rio Grande Elec. Coop., Inc., Articles of Incorporation (July 27, 1945) (on file with Tex. Sec'y of State).

6.   See Letter Br. of Tex. Elec. Coops., Inc. at 5 (“It is likely that numerous utility lines across the State implicate written agreements that may not comply with the statute of frauds.”); Br. of Elec. Utils. at 13, 22 (observing that electric utilities hold hundreds of thousands of historic easements and an unknown number of which may have been lost or never recorded); Letter Br. of Tex. Pipeline Ass'n. at 2, 4 (suggesting that thousands of pipeline easements are similarly informal or defective).

7.   See Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397, 399 (1944) (“The burden is on the party claiming an easement in another person's land to prove all of the facts necessary to establish the easement.”).

8.   See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 708 (Tex. 2002) (remanding for trial trespass claim against cable company that used electric easement to string cable lines in excess of express easement's terms).

9.   Env't Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 425 (Tex. 2015).

10.   Tex. W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S.W. 325, 325 (1892) (“A party in possession of another's land, claiming an easement, is a trespasser if his claim is without foundation. If, in a suit by the owner of the soil, the plaintiff shows title to the land, and the defendant to the easement, the plaintiff recovers, subject to the right of the defendant to enjoy the easement.” (quoting Hays v. Tex. & Pac. Ry. Co., 62 Tex. 397, 399 (1884))).

11.   The trial court awarded declaratory relief to Rio Grande. To the extent that an affirmative finding is necessary to support a declaratory judgment, the Court could modify the judgment to a take-nothing judgment. Boerschig, however, did not seek such relief in the lower courts.

12.   Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

13.   Marcus Cable, 90 S.W.3d at 700–01.

14.   Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 211 (Tex. 1962); see Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012) (discussing easements generally).

15.   Severance, 370 S.W.3d at 721.

16.   Marcus Cable, 90 S.W.3d at 701 (citing Restatement (Third) of Property (Servitudes) § 4.10).

17.   Ante at ––––.

18.   E.g., Marcus Cable, 90 S.W.3d at 700.

19.   Cf. Severance, 370 S.W.3d at 721 (“The existence of an easement ‘in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.’ ” (quoting Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974))); see also Whaley v. Cent. Church of Christ of Pearland, 227 S.W.3d 228, 231–32 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that the scope of an easement by estoppel to erect a sign included the right to access the sign for maintenance or repair, and therefore judgment granting sign owner an easement to an area larger than the existing sign by one foot in each dimension was not arbitrary or capricious); N. Clear Lake Dev. Corp. v. Blackstock, 450 S.W.2d 678, 681, 684 (Tex. App.—Houston [14th Dist.] 1970, writ ref'd n.r.e) (holding that although grantees made different uses of the waterfront property establishing their reliance interest, all the grantees were entitled to the same judgment of easement by estoppel to use the property for installing and maintaining bulkheads, boat slips, boat houses, utilities, and landscaping).

20.   See, e.g., Ricenbaw v. Kraus, 157 Neb. 723, 61 N.W.2d 350, 355 (1953); Stoner v. Zucker, 148 Cal. 516, 83 P. 808, 809 (1906).

21.   773 N.W.2d 420, 425, 437 (N.D. 2009). Even more broadly, the Supreme Court of North Carolina held that a landowner who was estopped from denying the existence of public roads the landowner had platted but not yet conveyed was further estopped from seeking damages related to the installation of public utilities, as the latter is presumed by acquiescence to the former. Smith v. City of Goldsboro, 121 N.C. 350, 28 S.E. 479, 480 (1897).

22.   See, e.g., Holm v. Davis, 41 Utah 200, 125 P. 403, 407 (1912) (instructing that the right to ancillary uses of easement, like maintenance, are informed by whether the work was necessary and performed without unnecessary damage or injury).

23.   Severance, 370 S.W.3d at 721 (quoting Coleman, 514 S.W.2d at 903).

24.   Cf. Viscardi v. Pajestka, 576 S.W.2d 16, 17 (Tex. 1978) (holding that the existence of an easement by public dedication is a question of fact).

25.   Ante at ––––.

26.   Ante at –––– n.25.

27.   See also Boerschig v. Sw. Holdings, Inc., 322 S.W.3d 752, 757 (Tex. App.—El Paso 2010, no pet.) (“Boerschig sued SHI, alleging, among other things, that: (1) SHI trespassed by using a portion of the Morita Road that was on his property; (2) SHI violated the express easement by using it for its invitees to access a resort rather than a ranch, and to access nonappurtenant properties; and (3) SHI trespassed by erecting a fence on the Morita Road.”); Boerschig v. Trans-Pecos Pipeline, L.L.C., 872 F.3d 701, 709 (5th Cir. 2017) (affirming denial of Boerschig's preliminary injunction against condemnation for a pipeline); Wheeldon v. ELK Feed Grounds House, LLC, 488 P.3d 916, 918 (Wyo. 2021) (“Elk Feed's sole member, John Boerschig, knew the Wheeldons claimed they had an implied easement across Tract 2, but he purchased the property believing their claim had no merit.”).

28.   See Hamrick v. Ward, 446 S.W.3d 377, 383 (Tex. 2014) (discussing, in the context of prior use easements, the presumption that parties consider open and visible conditions in contracting for the purchase of land); see also, e.g., Magnuson v. Coburn, 154 Neb. 24, 46 N.W.2d 775, 777–78 (1951) (estopping subsequent purchaser from interfering with unrecorded easement where use of the easement was open and visible). This Court has held that features of an adjoining parcel could also put a buyer on notice of a claimed easement even though the easement remained unimproved. F.J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 264 (1875).

29.   See Case v. Hoffman, 100 Wis. 314, 75 N.W. 945, 947 (1898) (holding that plaintiff's open enjoyment of canal on subsequent purchaser's land was adequate notice of plaintiff's claimed rights in the canal, and that subsequent purchaser may be required to erect bulkhead to preserve plaintiff's use rights); Snowden v. Wilas, 19 Ind. 10, 14–15 (1862) (overturning verdict because presence of mill and dam on adjoining property may put subsequent purchaser on notice of an easement by estoppel to overflow purchaser's land).

30.   Flack v. First Nat'l Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 632 (1950) (quoting Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex. Comm'n App. 1928)).

31.   425 Soledad, Ltd. v. CRVI Riverwalk Hosp., LLC, 709 S.W.3d 551, 560 (Tex. 2024) (emphasis added) (quoting Flack, 226 S.W.2d at 632); see also F.J. Harrison, 44 Tex. at 264 (declaring that a reasonably prudent buyer would understand that features on an adjoining lot indicate a claimed easement).

32.   See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony․ Reviewing courts cannot impose their own opinions to the contrary.”).

Justice Busby delivered the opinion of the Court, in which Justice Devine, Justice Young, Justice Sullivan, and Justice Hawkins joined.

Justice Hawkins filed a concurring opinion. Justice Bland filed a dissenting opinion, in which Chief Justice Blacklock, Justice Lehrmann, and Justice Huddle joined.