Date: May 26, 2026

Texas Limits Easements by Estoppel to the Reliance-Built Use and the Purchaser’s Notice; Major Utility Upgrades Require Proof of Necessity or Condemnation

Introduction

John P. Boerschig v. Rio Grande Electric Cooperative, Inc. (Tex. May 22, 2026) arises from a trespass dispute on the U-Bar Ranch in Kinney County. Petitioner John P. Boerschig purchased the ranch in 2002 with an existing Rio Grande Electric Cooperative (“Rio Grande”) distribution line visibly crossing about 1.6 miles of the property. Decades earlier, in 1947, Rio Grande had obtained but never recorded a “Right of Way Easement” (the “Dooley Document”) and built a modest distribution line along the route.

The core issues were:

Whether Rio Grande proved an easement by estoppel despite the unrecorded and legally defective writing; and
If so, whether Rio Grande’s 2014 “upgrade”—tripling poles (to 60), increasing height (to 37 feet), and increasing wires (from 4 to 7)—fell within the easement’s scope or constituted a trespass.

The Supreme Court of Texas held that Rio Grande had an easement by estoppel for the original line, but that the upgrade exceeded that easement’s scope as a matter of law, entitling Boerschig to judgment on trespass and remand for relief.

Summary of the Opinion

Easement by estoppel affirmed (legal sufficiency): The Court held there was legally sufficient evidence supporting the jury’s finding of an easement by estoppel: (i) a representation (the Dooley Document) that an easement was being conveyed, (ii) Rio Grande’s belief and detrimental reliance in constructing and maintaining the 1947 line, and (iii) Boerschig’s actual notice of the visible line when he purchased the ranch.
Upgrade outside the easement’s scope: The Court held the upgrade exceeded the scope of the estoppel-based easement because (i) Boerschig had no notice of the unrecorded Dooley Document at purchase, (ii) Rio Grande’s reliance investment was the pre-upgrade line, and (iii) Rio Grande offered no evidence the expansion was reasonably necessary to continue serving existing customers—rather, it served a new customer and new substation redundancy.
Disposition: The Court reversed the court of appeals, rendered judgment for Boerschig on trespass, and remanded for proceedings on remedy. The Court emphasized Rio Grande remains free to condemn an expanded easement.

Analysis

Precedents Cited

1) Baseline property and easement principles

Lance v. Robinson and Drye v. Eagle Rock Ranch, Inc.: The Court invoked these cases for the foundational definition of an easement as a “nonpossessory” interest and for the principle that easements authorize only particular uses. This framing mattered because Rio Grande’s upgrade attempted to treat the “route” as if it conferred broad discretion to intensify use, which Texas easement doctrine resists.
Marcus Cable Assocs. v. Krohn: Used twice and in two distinct ways: (i) to reiterate that if a purpose is not provided for, it is not allowed; and (ii) to stress the public policy of certainty in land transactions—policy that strongly informs the Court’s insistence on narrow scope for non-recorded, operation-of-law servitudes.

2) Statute of frauds, recording policy, and why estoppel is exceptional

Copano Energy, LLC v. Bujnoch and ConocoPhillips Co. v. Hahn: Cited to reinforce that easements are real-property interests ordinarily requiring signed writings and recording, and to locate that rule within broader Texas land-title reliability doctrine.
Rankin v. Naftalis and Givens v. Dougherty: Used to articulate the legislature’s purposes behind formality requirements—preventing “slippery memory,” fraud, and litigation—purposes that underwrite the Court’s “strictly limited” approach to easement by estoppel.
Storms v. Tuck: The central Texas authority for the three elements of easement by estoppel (representation, belief, detrimental reliance). The Court distinguished Storms (no representation) from this case (a writing titled “Right of Way Easement” plus decades of use).

3) What counts as a “representation” for estoppel, and the evidentiary role of defective writings

Drye v. Eagle Rock Ranch, Inc.: The Court relied on Drye to show marketing materials can be “some evidence” of representation, while also using it to highlight a limiting principle: representations must be sufficiently definite to support a property interest.
Vrazel v. Skrabanek: Demonstrated that conduct can establish estoppel (there, a relocation/adjustment of a road easement through the parties’ behavior). The Court used it to reject the idea that only perfectly valid written grants can supply the representation element.
Out-of-state persuasive authority—VTRE Invs., LLC v. MontChilly, Inc., Riverview Cmty. Grp. v. Spencer & Livingston, Lobato v. Taylor, and Hager v. City of Devils Lake—supported the proposition that defective or incomplete writings can still evidence intent/representation for equitable enforcement, even where the statute of frauds would bar enforcement as an express servitude.
Texas courts of appeals decisions—Whaley v. Cent. Church of Christ of Pearland and Union Props. Co. v. Klein—were cited as examples where representations outside a deed can support estoppel.
The Court acknowledged, but did not adopt, the Restatement view that a statute-of-frauds-defective servitude may become enforceable “as written” upon reliance; it instead held more narrowly that a defective easement writing is competent evidence of representation.

4) Notice, bona fide purchaser protections, and the crucial scope constraint

425 Soledad, Ltd. v. CRVI Riverwalk Hosp., LLC (and Flack v. First Nat'l Bank of Dalhart): These cases supplied the Texas notice framework: actual notice includes both personal knowledge and what diligent inquiry would reveal.
Hamrick v. Ward (quoting Miles v. Bodenheim), and the persuasive Carrollton Tel. Exch. Co. v. Spicer: The Court used these authorities to explain why a purchaser with actual notice of a visible encumbrance is presumed to have priced the property accordingly—supporting the holding that Boerschig could be bound to the existing line.
Moore Burger, Inc. v. Phillips Petrol. Co.: Provided a key bridge between estoppel doctrine and the bona fide purchaser statute: estoppel generally does not bind a bona fide purchaser without notice, and the party asserting estoppel bears the burden to show notice of the “requisite facts.”
Vinson v. Brown: Cited for the principle that easement by estoppel cannot be imposed against a subsequent purchaser for value who lacks notice. This principle becomes decisive in the Court’s scope analysis because Boerschig lacked notice of the unrecorded Dooley Document.

5) Scope over time: express easements compared to estoppel-based easements

Houston Pipe Line Company v. Dwyer: A key analogue: once an easement’s use is established (there, an 18-inch pipeline), the easement does not authorize replacement with a substantially larger line absent grant language. The Court treated Dwyer as a caution against unilateral, material intensification.
Sw. Elec. Power Co. v. Lynch: Contrasted with Dwyer: broad grant language there explicitly contemplated future enlargement (variable wires, materials, reconstruction), which supported increased use. The contrast underscores the Court’s point: without recorded, forward-looking language—and without purchaser notice— a holder’s expansion rights are sharply constrained.
DeWitt County Elec. Coop. v. Parks: Cited for the “reasonably necessary” concept in easement enjoyment (there, tree cutting) and for the proposition that necessity can be a fact question. Here, however, Rio Grande offered no evidence tying this major expansion to reasonable necessity for the existing use.
Lakeside Launches, Inc. v. Austin Yacht Club, Inc.: Used to emphasize that existing use does not necessarily put an owner on notice of “possible higher use,” supporting the Court’s refusal to infer notice of major intensification from the mere presence of the earlier, smaller line.

6) Procedure, burdens, and the meaning of a “no” jury finding

City of Keller v. Wilson: Provided the legal-sufficiency review standard and supported the Court’s conclusion that no jury question was needed on the “no notice of Dooley Document” point because the evidence was conclusive.
Osterberg v. Peca: Supported the Court’s reliance on the unobjected-to jury charge definition of easement by estoppel (limiting appellate reframing of elements).
Phila. Indem. Ins. Co. v. White, Carl J. Battaglia, M.D., P.A. v. Alexander, Sterner v. Marathon Oil Co., and C. & R. Transp., Inc. v. Campbell: These cases were used to explain that a jury’s failure to find a fact (a “no” answer) is not an affirmative finding of the opposite; this mattered because the trial court issued a declaration that the upgrade did not exceed scope, even though Rio Grande did not secure an affirmative finding allocating the proper burden.
TEX. R. CIV. P. 94, Draughon v. Johnson, and Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n: The Court relied on these authorities to reinforce that estoppel is an affirmative defense and the defendant bears the burden to prove facts establishing it—here, including facts showing the easement (by estoppel) authorized the upgrade, not merely the original line.

7) Property-rights and takings backdrop

Tex. Dep't of Transp. v. Self (quoting Eggemeyer v. Eggemeyer) and Tarrant Reg'l Water Dist. v. Gragg: These cases supplied the normative backbone: courts should not effectively “give away” additional private property rights by expanding non-recorded easements based on perceived public benefit; if an expanded right is needed, condemnation with compensation is the constitutionally appropriate path.

Legal Reasoning

1) Easement by estoppel exists—even though the writing was unrecorded and not a valid express easement

The Court’s key move is evidentiary: it rejects the premise that because the Dooley Document failed as an enforceable recorded easement, it is irrelevant. Instead, it holds a defective writing can still be “some evidence” of the representation required by Storms v. Tuck. Combined with Rio Grande’s practice of building only where it believed it had an easement and the undisputed fact it built and used the line for 65 years, the Court found sufficient evidence of belief and detrimental reliance.

2) Scope is not “whatever is useful”; it is the reliance-built use, further limited by purchaser notice

The Court articulates a scope rule tailored to the doctrine’s equitable purpose: an easement by estoppel exists to prevent injustice by protecting the holder’s reliance interest. Therefore, its scope is limited to (i) the landowner’s representations, (ii) the holder’s actual, reliance-based use, and (iii) for later purchasers, what the purchaser had notice of at purchase. This structure prevents the estoppel doctrine from becoming an end-run around the recording system and the bona fide purchaser statute.

3) “Reasonably necessary” may permit maintenance, but not major expansion without proof

The Court allows that certain activities within an easement (access, repairs, maintenance) may be implied if “reasonably necessary” to enjoy the defined use (tracking Marcus Cable Assocs. v. Krohn and the necessity discussion referencing DeWitt County Elec. Coop. v. Parks). But it rejects any inference that this doctrine authorizes a substantial intensification absent evidence of necessity to continue the existing service.

4) Applying the rule: this upgrade was for new load and redundancy, not to preserve the existing reliance use

Rio Grande’s own evidence tied the upgrade to serving a new customer (Lone Star Gas compressor station) and integrating a new substation for anticipated growth and redundancy; Lone Star Gas paid for the upgrade. The record contained no evidence that the pre-upgrade line could not continue serving existing customers as it had for decades. With Boerschig lacking any notice of the Dooley Document, Rio Grande’s reliance interest and Boerschig’s notice converged on one permissible scope: the pre-upgrade line. Tripling poles and nearly doubling wires exceeded that scope as a matter of law, making the upgrade a trespass.

Impact

Clarifies “defective writing” evidence: Texas litigants can use an unrecorded or defective “easement-like” document as evidence of the representation element of easement by estoppel, even though it cannot be enforced as an express easement.
Estoppel easements become “reliance-locked” in practical effect: For utilities and other infrastructure owners who relied on informal or unrecorded permissions, the safe scope is the existing, reliance-built configuration—unless they can prove (a) purchaser notice of broader rights, or (b) that changes are reasonably necessary to continue the established use.
Major upgrades should be documented or condemned: The decision signals that serving new customers, adding redundancy, or planning for growth is not a justification to enlarge an estoppel easement absent proof of necessity to maintain existing service. The Court expressly points to eminent domain as the lawful path to expanded rights.
Litigation posture and jury findings matter: The Court’s discussion of negative jury answers and affirmative-defense burdens (with Phila. Indem. Ins. Co. v. White and related cases) will influence charge practice in easement/trespass suits, particularly when defendants seek declaratory relief based on estoppel.

Complex Concepts Simplified

Easement (nonpossessory interest): A limited right to use someone else’s land for a specific purpose (like running a power line), not ownership or control of the land.
Easement by estoppel: An equitable doctrine preventing a landowner from denying an easement when the landowner represented an easement would exist, the user believed it, and the user spent money or otherwise changed position in reliance.
Statute of frauds / recording statutes: Legal rules requiring land interests to be in signed writings and recorded so future buyers can rely on public records rather than oral claims.
Bona fide purchaser without notice: A buyer who pays value and lacks notice of an unrecorded claim generally takes the property free of that claim. Visible, existing uses can provide notice of that use—but not necessarily of a materially larger future use.
Scope of an easement: The boundaries of what the easement holder is allowed to do. For an estoppel easement here, the “scope” was limited to the reliance-built, visible line configuration at purchase, plus what is reasonably necessary to keep that same use going.
Affirmative defense and burden of proof: If a defendant claims “even if I entered your land, I had a legal right (an easement),” the defendant must prove the facts establishing that defense—especially when the alleged right must cover the specific activity complained of (here, the upgrade).
Eminent domain: The government (or an entity given that power, like certain utilities) can take property rights needed for public service, but must pay compensation. The Court underscored this as the proper route for expanded infrastructure rights.

Conclusion

Boerschig draws a sharp, practical line: Texas will recognize an easement by estoppel to protect a utility’s reliance-built, long-standing use—even where the writing is unrecorded and defective—but it will not allow that equitable doctrine to become a vehicle for substantial, growth-driven infrastructure expansion against a later purchaser who lacked notice of broader rights. When an upgrade materially intensifies the burden and is not shown to be reasonably necessary to continue the existing, reliance-based service, it is outside the estoppel easement’s scope and constitutes trespass. The opinion channels utilities toward recording practices or condemnation proceedings when they need more than the historic use.