1.12 Access, Right Of

1.12.1

In General

Right of access is the right of the owners, tenants, and visitors to ingress and egress the property.

For the right of access to exist, the property must:

  • Abut a public street, road, or highway or

  • Abut a street, which although not having been publicly dedicated for public use, is within a subdivision that has access to any public street or road and the written document permits the right of owners to use the subdivision streets, or

  • Be benefited by an easement.

Any property that lacks legal access is described as landlocked. 

1.12.2

The Right of Access in the Title Insurance Policies

Because the right of free and direct access is so important, all TX policies specifically assure the insured, in the insuring provisions of the policies, against loss or damage, not exceeding the amount of insurance stated in Schedule A, sustained or incurred by the insured by reason of: "Lack of a right of access to and from the land".

The courts have generally interpreted the access insurance as applying to the presence of legal access and not physical access.  The type or condition of the access is not insured in Texas. 

Of course, if access does not exist or is limited, exception to a lack of access is required.

1.12.3

Access Considerations

This section intentionally deleted.

1.12.4

Lack of a Right of Access

If you are unable to establish legal access to the property to be insured, you must make the following exception in Schedule B:

  • To the Owner Policy (Form T-1): "Lack of a right of access to and from the land. Insuring provision number 4 is hereby deleted."

  • To the Mortgagee Policy (Form T-2): "Lack of a right of access to and from the land. Insuring provision number 3 is hereby deleted."

  • To the Residential Owner Policy (Form T-1R): "Lack of a right of access to and from the land. Company deletes the insurance of access under Covered Title Risks."

1.12.5

Access Endorsement

Unless a policy insuring commercial property is amended by the access endorsement, the title insurance policy does not insure the kind, quality, or condition of the physical access, but rather only a legal right of access.  The access endorsement insures actual pedestrian and vehicular access for a named street or road.

Specific access from a designated street can be insured using the T-23 Access Endorsement. 

The premium for this endorsement is $100 for each policy (not street) under R-30.  The T-23 Access Endorsement pursuant to P-54 can be issued to as Owners Policy T-1 and Loan Policy T-2, on non-residential property.  Exceptions to coverage and deletions of insuring provisions are allowed by the rule.

Any matter dealing with access can only be insured using this Endorsement (T-23).

1.12.6

Implied Road Dedications

For a court to find that a landowner intended to dedicate a portion of his land to the public for a right of way, the court must find that the landowner had the intent to do so.  The following matters constitute consent:

(1)     permitting public authorities to grade, repair, or otherwise improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels; (3) construction of facilities for general public use; (4) an express representation by the owner of a road to a land purchaser that the way is reserved for public  use; (5) fencing off the roadway from the remainder of the land; or (6) obtaining a reduction  in the purchase price commensurate with the area of the roadway. Id. Direct evidence of a landowner's intent is not required.

Additionally, the court must also find:

  • That the origin of the road is shrouded in obscurity and there is no contrary showing of the owner's intention so that long and continuous public use raises a presumption of dedication.
  • Long and continuous use must exceed 25 years for insurance purposes
  • For a county road to be abandoned and claimed by an adjoining landowner, its use must have become so infrequent that one or more adjoining property owners have enclosed the road with a fence continuously for at least 20 years.
  • HB 1117. Public Roads.  Effective Sept. 1, 2003.  New Chapter 258, Transportation Code, expires Sept. 1, 2009.

    Since 1981, counties of 50,000 or less have not been able to acquire a road by prescriptive easement.  It also is illegal for a county commissioner to maintain a private road with public funds.  New Chapter 258, Transportation Code, authorizes the commissioners court of a county to adopt a proposed county road map and include in the map all roads in which the county claims a public interest.  A county claiming a road must provide notice to affected landowners by publication in the newspaper, and by two separate mailings in the ad valorem tax notice the year before and the year after the county adopts the map.  New Section 258.004, Transportation Code, allows a person asserting a private right in a road to contest inclusion of the road in the county road map by filing suit not later than the second anniversary of the date on which the county road map was adopted.  New Section 258.003, Transportation Code, provides that the adopted county road map is conclusive evidence of the public’s right of access over a road included in the map, except as provided in Section 258.004.

    You may rely upon a county map showing a public road as the basis for access to insured land if the map had been adopted for at least two years and if the road is in actual use.

    Underwriting Standard:

    You may issue without exception to lack of right of access if you do one of the following:

    • You examine title to an appurtenant easement of record and determine that the insured will have right of access to the land. You must except to any superior liens or encumbrances that affect that easement. For example, you could describe the lien and state "affects access easement only", if true. Do not show the appurtenant easement in Schedule A unless the insured has requested specific coverage.
    • A recorded dedicated public right of way adjoins the land to be insured and there is no record limitation on right of access to that right of way.
    • You secure satisfactory evidence (e.g., county records, map, survey) that the land contains substantial improvements (either a business or a residence) in use, the land adjoins a road maintained by the county for at least 25 years, the road is used in common with other people in the area, the road does not end at the insured land, and the road is not crossed by cattle guards or gates. You should secure an affidavit documenting these facts.
    • If you are not as satisfied as to the access, you should add the following exception:
    • (Owner Policy) "Lack of a right of access to and from the land. Insuring provision number 4 is hereby deleted."

      (Mortgagee Policy) "Lack of a right of access to and from the land. Insuring provision number 3 is hereby deleted."

      If you determine that the land has access by an appurtenant easement, you should except to all superior encumbrances, such as liens, that affect the appurtenant easement, even if you do not specifically describe the easement in Schedule A. You should examine for taxes for those years before the easement is recorded.

      You may not make an additional chain charge to insure access if the land is located within a recorded subdivision located in only one county that provides record access. You may charge an additional chain charge for each additional chain you examine to determine access if the record title to the access is not vested in the applicant at the time of the order.

      (See Bulletin TX000007 )

      Despite the discussion in Baker v. Peace, 172 S.W. 3d 82 (see cases below), the Texas Legislature has addressed in the following the need for certain roads that have been maintained by the county to be public roads:

      Chapter 258, Transportation Code, expires Sept. 1, 2009.

      Since 1981, counties of 50,000 or less have not been able to acquire a road by prescriptive easement. It also is illegal for a county commissioner to maintain a private road with public funds. New Chapter 258, Transportation Code, authorizes the commissioners court of a county to adopt a proposed county road map and include in the map all roads in which the county claims a public interest. A county claiming a road must provide notice to affected landowners by publication in the newspaper, and by two separate mailings in the ad valorem tax notice the year before and the year after the county adopts the map. New Section 258.004, Transportation Code, allows a person asserting a private right in a road to contest inclusion of the road in the county road map by filing suit not later than the second anniversary of the date on which the county road map was adopted. New Section 258.003, Transportation Code, provides that the adopted county road map is conclusive evidence of the public's right of access over a road included in the map, except as provided in Section 258.004.

      (See Bulletin TX000067 )

      Underwriting standard: You may rely upon a county road map showing a public road as the basis for access to insured land if the map had been adopted for at least two years and if the road is in actual use.

      See the following cases for further discussion:

      Betts v. Reed, 165 S.W.3d 862 

      "In order to constitute dedication by estoppel or implication there must exist a clear and unequivocal intention on the part of the landowner to dedicate the same to public use and an acceptance thereby by the public." Greenway Parks Home Owners Ass'n, 312 S.W.2d at 241. There must be some evidence in addition to the owner's acquiescence that implies a donative intent. Long Island Owner's Ass'n v. Davidson, 965 S.W.2d 674, 681 (Tex. App.--Corpus Christi 1998, pet. denied). The additional evidence may include, but is not limited to: (1) permitting public authorities to grade, repair, or otherwise improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels; (3) construction of facilities for general public use; (4) an express representation by the owner of a road to a land purchaser that the way is reserved for public use; (5) fencing off the roadway from the remainder of the land; or (6) obtaining a reduction in the purchase price commensurate with the area of the roadway.  Direct evidence of a landowner's intent is not required.

      The long and continuous use of the road by the public raises a presumption of donative intent. When the origin of the road cannot be determined, evidence of long and continued use by the public raises a presumption that the landowner intended to dedicate the road. O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882, 4 Tex. Sup. Ct. J. 59 (1960); Reed v. Wright, 155 S.W.3d 666, 672 (Tex. App.--Texarkana 2005, pet. filed); Supak, 56 S.W.3d at 790; Graff, 947 S.W.2d at 637; Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex. App.--Houston [1st Dist.] 1992, writ denied). For this presumption to apply, the ownership of the land when the road originated must be "shrouded in obscurity" so that no evidence of the intent of the owner is available. O'Connor, 339 S.W.2d at 882; Reed, 155 S.W.3d at 672; Supak, 56 S.W.3d at 790; Graff, 947 S.W.2d at 637; Fazzino, 836 S.W.2d at 274.

      If the origin of the road is shrouded in obscurity and there is no contrary showing of the owner's intention, long and continuous public use raises a presumption of dedication. Graff, 947 S.W.2d at 637; Reed, 155 S.W.3d 666. Even if the presumption supplies only the landowner's intent to dedicate the road to public use, we believe sufficient evidence exists to support the remaining elements. The obscurity shrouding the origin of Tyson Road also shrouds the identity and intent of the owner or owners who originally established the roadway. Logically, the obscurity also shrouds any assessment of any previous owner's competency. Since there was no claim or evidence of incompetency of any prior owners, we conclude that element was satisfied. The public's long and continued use of Tyson Road, without contrary evidence, also provides sufficient evidence that the public accepted Tyson Road and satisfies the public benefit elements. Acceptance of a dedication can be implied from public use of the land.

      There is no evidence of statutory abandonment pursuant to the Transportation Code. Section 251.057 of the Transportation Code provides:

      a) A county road is abandoned when its use has become so infrequent that one or more adjoining property owners have enclosed the road with a fence continuously for at least 20 years. The abandoned road may be reestablished as a public road only in the manner provided for establishing a new road.

      (b) This section does not apply to: 

      (1) a road to a cemetery; or

      (2) an access road that is reasonably necessary to reach adjoining real property.

      TEX. TRANSP. CODE ANN. § 251.057 (Vernon 1999). There is no evidence Tyson Road has been enclosed with a fence continuously for at least twenty years. n5

      Baker v. Peace, 172 S.W.3d 82

      A public road does not depend upon its length or upon the places to which it leads, nor upon the number of persons who actually travel upon it. In fact, proof that a road is only slightly traveled by the public is not proof that a road is not a public road. If it is free and open to all who have occasion to use it, it is a public road. Further, evidence of long, continued, unquestioned use of a road supports a finding that the public relied on an implied dedication of that road.  The courts of Texas do not require that the acceptance by the public be express for an implied dedication. An implied acceptance by the public is sufficient. If an intention to dedicate is otherwise shown, the public use of the land is sufficient to constitute a completed dedication. 

      In 1981, the Legislature abolished the common law doctrine of implied dedication as a means of establishing that a particular road running through private property was a public road. See Act of May 31, 1981, 67th Leg., R.S., ch. 613, §§ 1, 2 & 4, 1981 TEX. GEN. LAWS 2412 (current version at TEX. TRANSP. CODE ANN. §§ 281.002, 281.003 (Vernon 1999)). As there is no provision in the statute for retroactive application, it can only be applied prospectively. See Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 256, 28 Tex. Sup. Ct. J. 169 (Tex. 1984). If an implied dedication occurred prior to that date by a previous owner, a subsequent purchase of the property does not affect the dedication. See O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 881-82, 4 Tex. Sup. Ct. J. 59 (1960); County of Real v. Sutton, 6 S.W.3d 11, 14 (Tex.App.--San Antonio 1999, pet. denied).

      Reed v. Wright, 155 S.W.3d 666

      "Proof that a road is only slightly traveled by the public does not prove the road is not public." Malone v. Whitfield, 621 S.W.2d 192, 195 (Tex. App.--Waco 1981, writ ref'd n.r.e.). "If it is free and open to all who have occasion to use it, it is a public road."

      Once a dedication is accepted, a landowner cannot revoke the dedication or use the property contrary to the original purpose of the dedication. See Lindner v. Hill, 673 S.W.2d 611, 616 (Tex. App.--San Antonio 1984), aff'd, 691 S.W.2d 590, 28 Tex. Sup. Ct. J. 461 (Tex. 1985); Moody v. White, 593 S.W.2d 372, 378 (Tex. App.--Corpus Christi 1979, no writ); Edmiston v. City of Harlingen, 347 S.W.2d 742, 744-45 (Tex. Civ. App.--San Antonio 1961, writ ref'd n.r.e.). "Once a road is dedicated to public use, that road remains subject to that use unless it is abandoned.

      A commissioners court may want to maintain a road that has not been officially established as a public road. If a commissioners court spends money on a road without knowing whether the road is a public road or a private road, it risks violating the prohibition against county maintenance of private roads. In a thorough opinion, the Texas Attorney General addressed the issue of whether a county may maintain a road that has not been officially established as a public road but which has been accessible to and regularly used by the public. Op. Tex. Att'y Gen. No. JC-0503 (2002). In analyzing the issue, the attorney general explained that a private road may become a public road by prescriptive easement through long and continuous use by the public.