John P. Boerschig v. Rio Grande Electric Cooperative, Inc.

Supreme Court of Texas
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No. 24-0213
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John P. Boerschig,
Petitioner,

v.

Rio Grande Electric Cooperative, Inc.,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

Argued November 6, 2025

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.

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.

2
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

3
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

4
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.”

5
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.

6
...

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.

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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

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).
2Rankin 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

8
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

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.”).

9
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

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, 248 P.2d 352, 361-62 (Or. 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.”).

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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.

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, 182 S.W.2d 397, 399 (Tex. 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., 249 A.3d 646, 657 (Vt. 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, 337 P.3d
1076, 1081 (Wash. 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. 2022) (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).

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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

12
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

13
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,

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, 226 S.W.2d 628, 632 (Tex. 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, 197 S.W. 827, 830 (Ky.
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.”).

14
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

12 See Hamrick, 446 S.W.3d at 383.

“[I]t is the court’s charge, not some other unidentified law, that
13

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.

15
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

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 1-2, 7 (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
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

16 The dissent contends (post at 1-2, 6) 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
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

18
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

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, 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

19
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

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
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

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.

21
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

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

22
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

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”).

23
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.

24
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

25
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 8, 10 (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,

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.

26
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

25 We disagree with the dissent (post at 11-12) 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.

27
upgraded line, and remand the case to the trial court for further
proceedings regarding appropriate relief.26

J. Brett Busby
Justice

OPINION DELIVERED: May 22, 2026

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.

28

Supreme Court of Texas
══════════
No. 24-0213
══════════

John P. Boerschig,
Petitioner,

v.

Rio Grande Electric Cooperative, Inc.,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

JUSTICE BLAND, joined by Chief Justice Blacklock, Justice
Lehrmann, and Justice Huddle, dissenting.

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

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.

2
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

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).

3
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

4
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.

5
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:

7 See Bains v. Parker, 182 S.W.2d 397, 399 (Tex. 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, 18 S.W. 325, 325 (Tex. 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))).

6
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

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.

7
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

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 21.

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

8
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

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, 61 N.W.2d 350, 355 (Neb. 1953); Stoner

v. Zucker, 83 P. 808, 809 (Cal. 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, 28 S.E. 479, 480 (N.C. 1897).

9
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.

22 See, e.g., Holm v. Davis, 125 P. 403, 407 (Utah 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).

10
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

25 Ante at 24.

11
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

26 Ante at 27 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

12
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

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, 46 N.W.2d 775, 777–78 (Neb. 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, 75 N.W. 945, 947 (Wis. 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);

13
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

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, 226 S.W.2d 628, 632 (Tex. 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).

14
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.

Jane N. Bland
Justice

OPINION FILED: May 22, 2026

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.”).

15

Supreme Court of Texas
══════════
No. 24-0213
══════════

John P. Boerschig,
Petitioner,

v.

Rio Grande Electric Cooperative, Inc.,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

JUSTICE HAWKINS, concurring.

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.

Kyle D. Hawkins
Justice

OPINION FILED: May 22, 2026

2