Untitled Texas Attorney General Opinion

THE ATJXBRNEY GENERAL
OF TEXAS
90AN L. ItllL”.
AUBTIN.TEXAR 78711
ATTORNYISY "-TtAlr
August 20. 1976

The Honorable Truett Latimer Opinion NO. H-866
Executive Director
Texas Historical COUIIIIiSSiOn Re: Validity of facade
Box 12276, Capitol Station- easements.
Austin, Texas 78711
Dear Mr. Latimer:
,:You have qequeated our opinion regarding~whether facade
eastients are valid fin Texas and whether they may be granted
to the.Texas Historical Commission. You state that a facade
easement may be defined as
an easement of the facade of a historic
structure, investing a public.or h private
. organiiation~with a property interest in
the building's exterior without disturbing
privhte'ownership and control of 'the
interior.
Easements may be classified as either "appurtenant" or "in
gross." An easement appurtenant, known as the "servient
estate." attadke'sto. and oasses with. a piece of land,
known as the "dominant estate." Drye&,~~gl;~oRa&h,
&, 364 S.W.2d 196,..203,(Tex.Sup.
Supreme Court indicated that:
..,, ..r

TheI~servientestate is subject to the
use of the dominant estate to the extent
of the easement aranted or reserved.
Id.
- at 207. -

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The Honorable Truett Latimer - page 2 (H1a66)

By contrast, an easement in gross is a right.which attaches
to the grantee, but is not dependent upon the existence of
a dominant estate in land. a; Stuart 5 Larrabee, 14
S.W.Zd 316, 319 (Tex. Civ. App. --Beaumont 1929, writ ref'd).
As the Texas Supreme Court haa observed,
ordinarily, easements in gross are not
transferable or assignable. Dr e v.
Eagle Rock Ranch, supra at 20+-.
We believe that a facade easement as you have described
it may properly be classified as an easement in gross. It
does not require the existence of a dominant estate to which
it is appurtenant. Rather, it appears simply to be a right
vested in a grantee. Since easements in gross are clearly
recognized in Texas, it is our opinion that no special
legislation, such as other states have enacted in behalf
of "preservation easements," would necessarily be required
in order for a Texas court to uphold the validity of a
facade easement. .See generally Restatement of Property,
8 489, at 3041; 8 m, at
631, 633 (N.J. Super.
Ragsdale, 143 S.E.Zd
Transportation
Ct. App. 1972).
As to the authority of the Texas Historical Commission
to accept the grant of a facade easement, section 22 of
article 6145, V.T,.C.S.,provides:
.The Commission is authorized and empowered
to accept gifts, grants, devises, and bequests
of money, securities, or
out the purposes of this Act.
added).
Texas courts have recognized that a pipeline easement is
"property" in the constitutional sense; McLennan County 5
Sinclair-- Line Co., 323 S.W.Zd 471, 4m Tex Clv. ADD. --
Wa,co 1959, wri7TZSref'dn.r.e.); Sinclair * Line Co. v.--
State, 322 S.W.Zd 58, 60 (Tex. Civ. App. -- FortWorth-
m no writ). See also Settegast
Co.,
- 270 S.W? 1014,1~(Tex.

p.3651
 I

The Honorable Truett Latimer - page 3 (H-866)

adopted); Union Properties Co. v. Klein, 333 S.W.Zd 864, 867
(Tex. Civ.x -- EastlandT6r writ ref'd n.r.e.); Watson
v. Wiseheart, 250 S.W.Zd 350, 352 (Tex. Civ. App. -- Galveston
m53, writ ref'd n.r.e.1. We believe it is clear that an
easement in gross may be deemed "property" within the meaning
of article 6145. We conclude, therefore, that the Texas
Historical Commission is authorized to accept the grant of a
facade easement.
SUMMARY
Facade easements are valid in Texas and
,may be granted to the Texas Historical
Commission.
Very truly yours,

APPROVED:

KENDALL, First Assistant

Opinion Committee
jwb

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