Robert W. DRYE et al., Petitioners, v. EAGLE ROCK RANCH, INC., et al., Respondents, 364 S.W.2d 196

GREENHILL, Justice. Robert Drye and others purchased lots in the subdivisions of the Eagle Rock Ranch area in Wimberley, Hays County, Texas. Several testified that they purchased the lots in the belief that they would have recreation privileges over the entire 1000-acre Eagle Rock Ranch. The deeds to the lots described them by lot and block number with reference to recorded plats of the subdivisions. The major portion of the ranch outside the subdivisions is not shown on the recorded plats.

The deeds contain no reference to easements or rights for pleasure and recreation in the 1000 acres of which the subdivisions are a part. There is no contention that there was fraud or mistake in the execution of the deeds, and there was no prayer for reformation of the deeds. The broad questions are whether the lot purchasers got and have such rights for pleasure and recreation in the 1000-acre ranch by private dedication, by implied easements appurtenant, or by estoppel. After a jury trial, the trial court held that the lot owners did acquire such rights.

The Austin Court of Civil Appeals reversed, holding that they did not. Tex.Civ.App., 347 S.W.2d 730. This Court granted writ of error to review those holdings. This is the third round in this litigation. The first appeal is found in James v. Eagle Rock Ranch, Tex.Civ.App., 304 S.W.2d 471. The second involved the question as to where the case should be tried. In that venue action, the Court of Civil Appeals held that it should be tried in the county where the land was located, Hays County. James v. Drye, Tex.Civ.App., 314 S.W.2d 417. That action was affirmed by this Court. 159 Tex. 321, 320 S.W.2d 319 (1959).

The facts are many and highly complex. They may be gathered more fully from the previous opinions. Because of their great length, only those facts pertinent to our holdings will be set out here. Maps of the areas and subdivisions here in question are set out in the opinion of the Court of Civil Appeals on pages 735-737 of 347 S.W.2d. Reference to them may be helpful in the understanding of this opinion. Those plats, however, were inserted for illustrative purposes and were taken from exhibits prepared for trial.

As pertinent here, the plats put of record and referred to in the deeds were separate plats of the 23-, 31-, and 98-acre Ranchito subdivisions and not of the entire ranch. The basic facts are these: Edward James purchased approximately 1000 acres near Wimberley in 1947. He thereafter transferred or leased the property to various corporations in which he had a controlling interest. In 1949, for purposes of subdividing and selling lots, he conveyed two small tracts (23 and 31 acres) to the Eagle Rock Corporation. These tracts became known as Eagle Rock Ranchitas, Sections 1 and 2.

The stock of the Eagle Rock Corporation was owned entirely by the Consolidated Venetian Blind Company, of which Edward James was president and majority stockholder. Adjacent to

Section 1 and near

Section 2 was a 19-acre tract which bordered on Cypress Creek. James leased this 19 acres to another corporation, the Eagle Rock Ranch Club. It was a noriprofit organization with no stockholders. The incorpo-rators were James’s son, one of James’s employees and another person. The tract contained a lodge which had a kitchen, dining area, and rooms for recreation. Also on the 19-acre tract there were placed tennis, courts, a pitch-and-putt golf course, a playground, and other recreational facilities.. Cypress Creek was dammed at the 19 acres-for swimming and fishing.

An airplane landing strip was built on another part of the 1000 acres, outside the subdivisions and the 19-acre club tract. The lease from James to the incorporated club in 1949 provided that the land and the facilities of the club were to be available to the members of the club for swimming, tennis, fishing, and other privileges. It included the rights to “the airplane landing field,” roads, bridle paths, and other facilities (not located on the 19-acre club tract or in the subdivided tracts).

It provided that the lease to the club could be terminated upon certain contingencies including the failure to make a stated profit. And, as will be developed, the lease was terminated later for that reason. At that time, the club members lost the pleasure and recreational privileges they had as club members. Originally, in 1949, only lot owners could be members of the club, and no one was sold a lot unless he was accepted to membership in the club.

Later in 1949, before many of the lot owners purchased their land, the lease was amended to permit others, whr» were not lot owners, to have the privileges of the club, including those of pleasure and recreation. Thus the rights in the 1000 acres took on characteristics of a license or an easement in gross; i. e., at least as to the non-lot owners, the rights attached to individuals rather than to one or more tracts of land as easements appurtenant to land.

The lease states that the reason for this enlargement of club membership was that “the members of Lessee [club] have not been patronizing the facilities of the Club to a sufficient extent to pay the expenses of operating * * * such Club.” The facilities of the club and the use of the 1000 acres were used as selling devices to promote sales of the lots in the subdivisions. Advertisements were placed in newspapers and handsome brochures were printed to point out the advantages to be gained by owning a lot in the area and gaining access to the many facilities of the ranch.

As stated, lots were sold only to persons who made application for membership in the club and who were accepted. The application for membership, signed by the lot purchaser, contained this statement: “This application is made with the distinct understanding that * ⅜ * I acquire no interest whatsoever of any kind or character in or to club property * * The members agreed to pay a monthly fee to the club. The brochure entitled “Bountiful Relaxation” which showed the beauty of the whole ranch and its many facilities stated: “Eagle Rock Ranch Club is an incorporated club.

Members have the usual voting privileges for electing officers and directors. Every Ranchito-owner has one vote * * *. “While the property outside your own Ranchito is owned by a separate corporation, Eagle Rock Ranch members have an easement over the entire ranch. In other words, members of the chib have all the pleasure rights over the entire ranch property.

These rights are legally binding against any owner of the property for 25 years, and are subject to renewal after that time.” [Emphasis Is ours throughout the opinion.] The lot owners say that “members” means lot owners and not club members; that the “lot owners” thus get easements for 25 years by these unsigned representations.

Taken in context, we think “members” means “club members.” The sentence, “In other words, members of the chib” have certain rights, explains the word “members.” For purposes of this opinion it will be assumed that James in 1950 conveyed the 1000-acre ranch, and the lessor’s interest in the club tract, to the Consolidated Venetian Blind Company, a private corporation. Excepted from this conveyance were the two tracts of 23 and 31 acres: the Eagle Rock Ranchitos, Sections 1 and 2.

In 1952, the Venetian Blind Company conveyed all its interest to Conso Realty Company, another private corporation of which James was president, manager, and majority stockholder Up to this point then, the 23- and 31-acre Ranchito subdivision tracts were owned by Eagle Rock Corporation, and the balance of the 1000 acres by Conso Realty Company. The 19-acre club tract, owned by Conso Realty, was subject to the lease to the Eagle Rock Ranch Club Corporation. In 1952, a tract to the south of the 1000 acres, the Scudder tract, was acquired by the Eagle Rock Corporation.

On it was located a third subdivision, Eagle Rock Ranchitos,

Section 3. The sale of lots in the various subdivisions was begun in 1949. James employed Duncan, a real estate agent, to sell the lots on a commission basis. The plan of lot ownership coupled with the right to use the 1000-acre ranch was advertised in newspapers and by brochures. The idea was conveyed that the purchaser was to get the use of a 1000-acre ranch on which many thousand dollars had been invested. But no one could purchase a lot unless he first joined the Eagle Rock Ranch Club.

Interlaced through the advertising and brochures were the benefits to be derived by the “members of the club.” Between 1949 and 1955, approximately 75 lots were sold in the three subdivisions. As will be set out below, C. B. Smith purchased the interests of James et al. in 1955, and other lots were sold between 1955 and the time of suit. It is significant, however, that none of the deeds purported to grant the purchaser any rights or easement over the ranch or over any property outside of the purchaser’s own lot. Of approximately 100 lot owners, only 9 are plaintiffs in this suit.

They sue on their own behalf and on behalf of “unnamed plaintiffs” similarly situated. They say they represent the class of persons who purchased lots. In 1955, Eagle Rock Corporation and Conso Realty Company sold all of their interests (the ranch, the unsold lots in the subdivision and the lessor’s interest in the Eagle Rock Ranch Club property) to C. B. Smith of Austin for $255,000. Smith transferred the titles to the various properties to a new corporation, Eagle Rock Ranch, Inc. Eagle Rock Ranch, Inc., was a different corporation, with different stockholders, from Eagle Rock Corporation.

At the time of trial, then, the land (other than the lots which had been sold) belonged to Eagle Rock Ranch, Inc. The project was never a profitable undertaking for James or his corporations. Despite the use of the club and its facilities over a six-year period, James testified that the project lost between $400,000 and $500,-000. In its first year under Smith, the club lost almost $28,000. For the second year, it lost $27,239. Smith informed the club president of his intention to cancel the club’s lease.

In June of 1956, the lot owners were informed that the lease, under which members had privileges to use the ranch property and the club’s facilities, would soon terminate in accordance with the lease provisions giving the lessor the right to cancel in the event profits fell below a prescribed figure. At this time, Smith offered to sell the ranch and club facilities to the club members, most of whom were lot owners; but the members took no action.

In the letter giving notice of the lease’s termination, the members were told that club and ranch facilities would nevertheless continue to be available to paid-up members, and that it was expected that “the Eagle Rock Ranch facility” would continue to operate on a public patronage basis. But a year later, on June 1, 1957, with the club continuing to operate at a loss, both the club and the ranch were closed and the gates to them locked. On June 29, 1957, Robert W. Drye and eight other lot owners brought suit, as individuals and as a class, against C. B.

Smith and Eagle Rock Ranch, Inc., for declaratory judgment establishing a 25-year easement for recreation and pleasure across the entire ranch property. The theories of recovery alleged included easements by way of estoppel, dedication, and by implication. Within the ranch area, the lot owners sought, by private dedication and estoppel, to establish as a private park a strip of land between Sections 1 and 2 of the Ranchito Subdivisions.

They also sought damages against James, Conso Realty and Eagle Rock Corporation on the theory that James and the corporations had failed to disclose to Smith and his corporation the basis for the easements which did not appear of record. The Consolidated Venetian Blind Company was never sued or made a party to this suit. C. B. Smith and Eagle Rock Ranch, Inc., denied any knowledge of any alleged representations made to the lot owners by Duncan, James, or the James corporations.

Smith et al. alleged a cross action for damages against James, Conso Realty and Eagle Rock Corporation (but not the Venetian Blind Company). Further in the alternative, they sued James and his corporations for rescission and breach of warranty. They also had a counterclaim against the lot owners to remove cloud on title. James had a counterclaim for damages for conspiracy and slander. At the end of an eight-week jury trial, judgment was entered against Smith and James and the corporations in their suits, and against the lot owners in their alternative action against James for damages.

In accordance with answers to special issues, judgment was entered against Eagle Rock Ranch, Inc., and for the lot owners in their suit to establish the ranch easements and the park. They obtained a permanent injunction against interference with these rights. Only Eagle Rock Ranch, Inc., and C. B. Smith appealed from the trial court judgment. The lot owners did not appeal from the take nothing judgment against James and his corporations for damages and other relief. The case for the lot owners was submitted to the jury as a class action.

And the rights in the ranch were generally described in the charge to the jury as being to the entire ranch “for pleasure and recreational purposes.” For example, the jury •was asked: “Do you find * * * that •during the period from about June, 1949, io about April, 19SS, Edward C. James •caused representations to be made to prospective purchaser of lots at the ranch, including one or more of the Plaintiffs, that lot owners [would] have the right to use the ranch for pleasure and recreational purposes?” The jury answered, “Yes.” The general area in question is rural.

The purchasers paid more for these lots than is ordinarily paid for rural lots, indicating that they anticipated using the facilities of the ranch. They put improvements (houses which are called ranchitos) of considerable value on the lots. Their deeds to the land, however, made no mention of rights over the ranch by easement or otherwise. The question is whether they acquired legal rights in the ranch property by dedication, implied easement or by es-toppel. Alter Ego — Disregarding Corporate Entities At the outset, the lot owners are met with the separate ownerships of the properties by various corporations.

The úeeds to the properties came from the Eagle Rock Corporation, and the lot owners seek easements over land which stood in the name of the Venetian Blind Company and .Conso Realty Company, and land leased to the Eagle Rock Ranch Club Corporation. It is elementary that one corporation cannot dedicate land owned by another or grant easements over land not owned by it. Robbins v. Houck, 251 S.W.2d 429 (Tex.Civ.App.1952, writ refused, n.r.e.). If the lot owners cannot pierce the corporate veil, they cannot recover here. This Court held in Pace Corporation v.

Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955), that: “Courts will not disregard the corporation fiction and hold individual officers, directors or stockholders liable on the obligations of a corporation except where it appears that the individuals are using the corporate entity as a sham to perpetrate a fraud, to avoid personal liability, avoid the effect of a statute, or in a few other exceptional situations.” [284 S.W.2d at 351] There were no pleadings of fraud, as such, in this case or that the corporations were used as a sham, to justify wrongs, or to avoid personal responsibility.

There were no pleadings that the corporations were the alter ego of James. The Venetian Blind Company, in whose name the title to the ranch stood for approximately two years, was not made a party. We shall, however, for purposes of this opinion assume, without deciding, that the Venetian Blind Company, Conso Realty Company, the Eagle Rock Corporation, and the Eagle Rock Ranch Club Corporation were the same as Edward James; that they were his alter ego.

Our decision shall rest, then, upon the rights, or lack of them, which the lot owners got or failed to get, under the statutes and decisions of this State dealing with the conveyance of real property. The Statutes of Fraud and of Conveyances Again at the outset, the lot owners are confronted with the Statute of Frauds and the Statute of Conveyances. The substance of these statutes, adopted from the English, have been in force since the days of the Republic of Texas. Their

interpretation has become an integral and fundamental part of the land law of this State. The Statute of Conveyances says in part: “No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing * * *.” The Statute of Frauds says in part: “No action shall be brought in any court * * * unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith ****** “4.

Upon any contract for the sale of real estate or the lease thereof for a longer term than one year.” The right to go upon the land of another for pleasure and recreation, such as sought here, may be classified either as (1) a license, as a license to picnic or to hunt, or (2) an easement in gross, an interest in land, usually attached to a person hut not attached or appurtenant to the land of the owner of the right, or (3) an easement appurtenant to the land, a right which is attached to the land itself and passing with it.

Ordinarily licenses are revocable; and ordinarily, easements in gross are not transferable or assignable. Alley v. Carleton, 29 Tex. 74 (1867). The lot owners do not claim rights by license or by easements in gross, but claim easements appurtenant. James et al. assert that the rights sought for pleasure and recreation are mere licenses or easements in gross. We shall, however, treat them as easements appurtenant. Treating the alleged rights, then, as easements appurtenant, it has been held by this Court that easements appurtenant are-interests in land which require a writing' to create or transfer.

As urged here,, there are some exceptions to the rule: dedication, implied easements appurtenant, and easements by estoppel in pais. These are discussed later herein. But there was no writing here. Therefore, unless the lot owners can bring their case within one of the categories not requiring a writing for the creation of the rights, they cannot prevail. Rights by “Private” Dedication None of the parties to this litigation contends for a public dedication of the land, for pleasure and recreational purposes.

The plats of the three subdivisions put on record, and which are referred to in the deeds to the lot owners, provide: “We, Edward C. James [et al,] * * * do hereby make subdivision of said property for and on behalf of said Eagle Rock Corporation * * * . Said streets and easements are not dedicated to the public nor intended to be or become available for the public for any purpose.” The lot owners contend that the ranch in general, and the area between subdivisions 1 and 2, were dedicated to them, their heirs and assigns. The jury found that there had been a dedication.

But the definition of “dedication” in the charge to the jury made no reference to dedication to the public. “Dedication” was defined in substance as “the voluntary setting aside and devotion of property to a particular use or uses.” The definition in the charge did not say to whom the property was dedicated. That brings us to these questions: May there be a dedication to a limited number of persons? May there be a private dedication? We think the answer, at least as applicable here is, “No.” The authorities are uniformly to this effect, and we so hold. A case bearing some similarity to this is Kraushaar v.

Bunny Run Realty Co., 298 Mich. 233, 298 N.W. 514 (1941). There a subdivision was created next to a lake, and it was platted. The plat recited that “drives, roads, boulevards and terraces * * * are hereby dedicated to the use of lot owners of plat * * Instead of the roads and beach area being restricted to the use of the lot owners, the subdividers allowed members of the public to use them upon payment of a fee. The lot owners sued on the ground of dedication to them. The Court held that there was no such thing as dedication to individuals. If there was any dedication, the Court said, it was to the public.

See also Burnham v. Davis Islands, Inc., 87 So.2d 97 (Fla.Sup.1956), involving a golf course shown on a plat. There are two Texas cases which need to be distinguished. The first is Evans v. Southside Place Park Ass’n, 154 S.W.2d 914 (Tex.Civ.App.1941, writ refused for want of merit). The subdividers there created an association to maintain a park in Block 8.

The deeds to the lot owners expressly provided that Block 8 “is reserved as a permanent * * * playground for the exclusive use and benefit of the property owners of this Addition * * *.” The deeds further provided that, “The foregoing terms * * * shall be covenants running with the soil * * The question was whether the month-to-month tenants of a lot owner should also be entitled to use the park. It was held that they should not, that the use was reserved to “lot owners,” and the tenants were not owners.

The opinion then states: “Nor was there any dedication of the park to the public generally, the clear intendment running through all the deeds, the charter, and the by-laws of the Association, unmistakably being to thereby expressly withhold and negative any such implication, but specifically reserving the entire park Block 8 as ‘a permanent park and playground, for the exclusive use and benefit of the property owners’.” By refusing the application for writ of error in that case “for want of merit,” this Court approved the result reached.

The Court of Civil Appeals did not hold that there had been a private dedication. It held that there had not been a public dedication. The basis for the holding was that each lot owner, by express writing in his deed, obtained a covenant running with the land that Block 8 would be reserved as a park for the lot owners. Another case to be distinguished is Hogue v. Glover, 302 S.W.2d 757 (Tex.Civ.App.1957, writ refused, n. r. e.). The subdivision there centered around “Lake Helen,” a lake formed by a concrete dam across a creek within the City of Dallas.

The plat of the subdivision designated the area of Block B as “Lake Helen.” Each lot purchaser was told that he would receive a share of stock in a corporation, the Beckley Boating & Fishing Club, Inc. Then the sub-divider conveyed the area, Block B, to the corporation. A few years later the dam broke, and the “lake” again became part of the creek bed. The charter of the corporation was forfeited. Thereafter, a group of people, purporting to represent the defunct corporation, attempted to convey Block B to Fagg who conveyed it to Hogue.

The •suit was by the lot owners to enjoin Hogue from erecting a house on “Lake Helen.” The City of Dallas intervened. The injunction was granted. The Court of Civil Appeals affirmed, giving several reasons, at least two of which were sound and would account for this Court’s refusal of the writ, “No Reversible Error.” First, the area was not suitable for residential purposes under the zoning ordinance of the City of Dallas because it was a creek bed.

Second, there was no showing that those who purported to represent the defunct corporation .and who deeded the property to Fagg, who •conveyed to Hogue, had any authority to do so. The City, in the Hogue case, contended that Block B had been dedicated to the public by designating the area as “Lake Helen” on the plat. The City further claimed the area by virtue of its being within the bed of a stream. The Court held that there had not been a dedication to the public. It did not hold that there had been a private dedication ; and the briefs in this Court in that case made no such contention.

The Court of Civil Appeals, relying on the Southside Place Park case, discussed just above, held that the “so-called dedication [of Block B] was * * * a covenant running with the land * * * for the use and benefit of such home owners * * We need not comment on the correctness of this statement, since the case was correctly decided on other grounds. In any event, the case is not authority for the proposition that there was a private dedication to the lob, owners. We hold that the lot owners here acquired no rights by private dedication in the 1000-acre ranch or in the area between Subdivisions 1 and 2.

Implied Easements Appurtenant to the Land: Easements for Pleasure and Recreation There were no easements granted in the deeds to the lot owners. As another exception to the statutes set out above, easements are sometimes necessarily implied. Those will be here considered. Before considering whether easements for recreation and pleasure will be implied into the deeds by the court, it will be helpful to review briefly the course of acceptable easements appurtenant expressly granted in writing, with particular reference to easements for pleasure and recreation.

At common law, it was considered that a written easement to wander about over the land of another was invalid. It was referred to as a “jus spatiandi,” which was a contraction of a part of a Latin phrase (taken from the Roman law), which when translated was: “A praedial servitude cannot be created so as to give me permission to pick an apple, to wander about or to picnic on another’s land.” Only as late as 1955; the English Court of Appeals upheld a written easement in a park, a relatively smáll square,' súrrounded on three sides by homeowners and on the fourth side by the sea.

The deed to the lot owners contained the written easements to use the park, subject to a fee for upkeep. It was held that the area was subject to easements appurtenant to the lot owners, the jus spatiandi notwithstanding. The park was likened to a garden which traditionally (as an appurtenance) adjoined to a residence. The area and all its’uses were well defined. In re Ellenborough Park, 3 All E.R. 667 (1955). Thus, in England it-was stated that easements, even in writing, were traditionally limited to' six categories : air, light, ways or roads, support, water, and fences.

Probably because of this restricted view, the legislatures in several states, including California, Montana, Oklahoma, North Dakota and South Dakota, enacted statutes to permit servitudes or easements for rights of pasture, fishing, hunting, conducting lawful sports, and similar purposes. Texas has no similar statute. Apparently the policy of those jurisdictions limiting easements appurtenant was that the land should be left free for development and not burdened with uses which were less important to the economic development of the community.

This Court does not take the view that the types of permissible easements have been, or are, limited to the prescribed few listed above. Assuming that this Court will uphold express written easements appurtenant to land for pleasure and recreational purposes, this historical development influences our thinking on whether such easements will be implied by the courts under circumstances such as are here presented in the absence of a written agreement or deed of the parties.

It is stated in 17A Am Jur. 653, § 41, that: “Such doctrine of implied easements extends no further than to servitudes of a permanent nature well known or plainly apparent * * * evidently necessary to the convenient enjoyment of the property to which they belong and not for the purpose of pleasure.” A similar statement as to easements appurtenant by implication is found in Thompson: “That the right or privilege is merely convenient is not sufficient, but it must be necessary and essential to the proper enjoyment of the estate granted, and not for the purpose of mere pleasure.” 1 Thompson, Real Property (Perm, ed.) 643, § 394.

For there to be an easement appurtenant, either expressed in writing or implied, there must be a dominant estate and a servient estate. The easement attaches to the land of the dominant estate^, and not merely for the convenience of the owner thereof independent of the use of his land. The servient estate is subject to the use of the dominant estate to the extent of the easement granted or reserved.

It generally takes the form of a negative easement: the owner of the servient estate simply may not interfere with the right of the owner of the dominant estate to use the servient estate for the purpose of the easement. Pokorny v. Yudin, 188 S.W.2d 185 (Tex.Civ.App.1945, no writ). This concept is in contrast to an easement in gross which attaches to an individual and is not dependent upon the existence of a dominant estate in land. Alley v. Carleton, 29 Tex. 74 (1867).

If an owner used one part of his land for the benefit of another portion of his own land, the portion served had a “quasi-dominant tenement.” The portion which was used was subject to a “quasi-servient tenement.” The doctrine of implied easement appurtenant developed when the owner, under those circumstances, sold the portion of his land which had had the use of the other portion — as for drainage, support, way, or water.

If use of the “servient” tract was apparent, continuous, and necessary to the use of the “dominant” land sold, the courts presumed that the necessary use of the “servient” tract passed by implication to the purchaser. The law read into the instrument that which both grantor and grantee must have intended had they both given the obvious facts of the transaction proper consideration. Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, at 167 (1952).

For several reasons, including the Statutes of Frauds and Conveyances and the recording statutes, the courts have been careful in the engrafting of easements by implication. The requirements have become fairly standardized. They may be summarized as follows: 1. The use must be apparent, in existence at the time of the grant (as the quasi-servient tenement mentioned above). For example, a road into or out of the granted area, a stairway to a second-story dwelling, a party wall, a drain or aqueduct. 2. ' Its use must have been continuous— so that the parties must have intended that its use pass by the grant.

In some in-stánces the view is taken that the use is “continuous” if no further act of man is necessary to its continuous exercise; i. e., neither the grantor nor anyone for him will have to perform any act in order that the grantee may obtain the benefit of the alleged easement. Included within the concept of “continuous” is that degree of conspicuousness and apparentness that indicates permanency. 3. Its use must be necessary to the use of the dominant estate.

For example: a water or sewer line into the granted estate; a drain from the land; a way to and from the, estate granted; light and air; lateral support; and, it has been held in many instances, water. Ulbricht v. Fried-sam, supra, Footnote 11. The degree of “necessity” will be discussed later herein. In the great majority of the cases in which easements have been implied, the necessity has been economic or physical necessity for the use of the land rather than some merely desirable right for the occupant of the land. The Texas authorities, are in accord. In Howell v.

Estes, 71 Tex. 690, 12 S.W. 62 (1888), Howell owned two adjoining business lots on which were two buildings with a common wall. The stairway for both was in one of the buildings. The plaintiff acquired from Howell one of the buildings, the one without a stairway. The defendant, who acquired the other building, denied the plaintiff and his tenants the use of the stair. It was held that the use of the stair on defendant’s property had passed by necessary implication as an easement appurtenant to plaintiff’s building.

Reviewing the authorities on the qualities necessary for an implied easement appurtenant, the Court found these essential: that the use be apparent, open, permanent in character, and continuous. “A ‘discontinuous’ easement is said to be one which requires the act of man to complete it.” And it must be necessary to the use of the dominant estate. Though the plaintiff, at some expense, could have built an outside stairway, and to this extent the stair in the servient building was not strictly necessary, sufficient necessity was shown to support the easement.

The degree of “necessity” required was deliberately reviewed by this Court in Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163 (1952). The greater portion of that opinion dealt with an implied reservation of an easement rather than an implied grant. A stricter rule applies to an implied reservation.

The Court there weighed the requirement of “reasonably necessary” to the use of the dominant estate against “strict necessity.” In adopting the “strict necessity” requirement as to implied reservations this Court said: “* * * the whole theory of implied easements is somewhat in derogation of the registration statutes and indeed the Statute of Frauds * * The Court reasoned that “strict necessity” would be easier to apply.

As to implied grants, the Court said, “ * * * even in the case of an implied grant, courts do not lightly hold, the grantor to convey more than stated in his deed * * One other problem is presented’ here. It may be treated as part of the requirement of “apparentness” set out above. For the easement appurtenant to be implied, some degree of definiteness in the scope or extent of the interest is essential to its recognition as an interest in land or a property interest.

The Restatement of Property gives an example of definiteness and indefiniteness : “An example of a privilege of the first sort [definite] is the right of way with prescribed boundaries, of the second [indefinite], the privilege of strolling at pleasure through a field * * *. When a use has not the degree of definiteness necessary to the creation of an easement, the privilege to make it can be nothing more than a license.” 5 Restatement, Property 2910, § 450.

Easements for pleasure and recreation over a 1000-acre ranch including the right to study nature, picnic, hike, ride horseback, camp out, bird watch and other similar activities fall within the general category of “novelty easements.” They present problems even when they are created in writing. Supervision and enforcement by a court of an implied easement of this nature are difficult. We now apply these principles of this case. There had been no continuous, apparent, obvious, or permanent use of a portion of the ranch for the necessary use of another portion thereof.

There existed no quasi-servient or dominant estates at the time of the sales. Nor wasl there a definiteness or certainty in the servi-tudes sought to be established on the ser-vient estate. This fact is particularly impressive in view of the historic reluctance of the common law courts to recognize easements to wander about land and to use it for pleasure and recreational purposes even when there were written grants. It is our view that for these reasons, we may not imply easements appurtenant in favor of the lots in the subdivision over the 1000-acre ranch.

It is therefore unnecessary to decide whether the doctrine of “strict necessity” for an implied reservation, applied by this Court in Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163 (1952), applies also to implied grants of easements appurtenant. We therefore hold that the lot owners did not acquire easements appurtenant over the ranch by implication in their deeds. Estoppel in Pais One other exception to the statutes requiring a writing is the doctrine of estoppel in pais.

The owner of land, under some circumstances, may be estopped to1 deny the existence of an easement by making representations which have been acted upon by a purchaser to his detriment.

While the Court of Civil Appeals held there was no evidence of authority to make the representations by the person who made them, there is testimony that representations were made to purchasers that they would have “the run of the ranch”; that the easements would exist on the entire ranch; and that one or more of the purchasers understood that these rights came with the land and were not dependent (entirely) on membership in the club. The exact nature and extent of the doctrine of estoppel in pais have not been clearly defined. It has been applied in some definite categories of suits involving land.

Outside of these particular groups, however, the authority for its application is rare and nebulous. Most frequently the doctrine has been referred to in those cases arising out of dedication of a street, alley, or square. It is the dedication to the public which gives the rights in streets, parks, and similar areas the degree of certainty and permanency. But ¡estoppel in pais is not dependent upon a dedication and may arise and exist independent of it. Harrison v. Boring, 44 Tex. 255, at 266 (1875); Wolf v. Brass, 72 Tex. 133, 12 S.W. 159 (1888); 3 Tiffany, Real Property (3rd ed.), 312 et seq., Easements, § 800.

The areas of land involved in these cases, however, are generally well defined as are the servitudes sought to be imposed on them. The doctrine has also been used or referred to in opinions dealing with situations in which the owner sells land with reference to a map or plat upon which are shown and designated streets, alleys, squares and similar areas. It has been held that when a purchaser, relying upon such representations, buys with reference thereto and spends money to make improvements, the seller will not be heard to say that such easements do not exist. Oswald v. Grenet, 22 Tex. 94 (1858); Harrison v.

Boring, 44 Tex. 255 (1875); Lamar County v. Clements, 49 Tex. 347 (1878). These cases involved a single lot or block of city land. In other cases, the land purchased is described in the deed as bounded by a street or way, and the grantor is estopped to deny the existence of the street or way.

Because of the failure of the courts clearly to explain the true nature of estoppel in pais, Tiffany suggests that many of these cases would be based more properly on a construction of the grant in the light of the surrounding circumstances and upon the doctrine of implied easements, discussed above. 3 Tiffany, Real Property (3rd ed.), 315, § 800, Easements; and see 3 Powell, Real Property (1952), 413, § 409, Easements.

The doctrine of estoppel in pais has been applied when the seller allows the purchaser to expend money on the “servient” tract, as for example a drainage ditch across the grantor’s land, or a house or other structure which encroaches on the land of the “servient” estate. The lot owners here made no improvements on the “servient” estate. While estoppel cases are not limited to situations involving this type of expenditure, this group does form a large part of the cases affixing easements appurtenant by estoppel.

The doctrine has also been applied in some instances to restrictions in subdivisions as to the type of structure to be built and its location on the land. 5 Powell, Real Property (1956), 148 et seq., § 672. In commenting on these cases involving equitable servitudes and promises concerning the use of land, Powell says that the extension of this doctrine “has caused some judicial hesitance. Some courts have refused such an extension * * *. Other courts swallow the ‘promissory estoppel’ without a gulp * * 5 Powell, Real Property (1956), 151, § 672.

While the above does not purport to list all of the situations, pertinent here, in which estoppel in pais has been applied to real estate to circumvent the Statutes of Frauds and of Conveyances, it does illustrate the rather narrow band of cases in which the doctrine has been applied. We find no Texas authority for an extension of the doctrine to the broad facts here shown. Such authority as exists outside of Texas greatly preponderates against its extension. The case most strongly urged by the lot owners is McCleary v. Lourie, 80 N.H. 389, 117 A. 730 (1922). The case is discussed at length in the dissent hereto.

It is clearly distinguishable because the plat of the subdivision was placed of record, and each deed recited that the lot thereby conveyed was a part of such plat or plan as duly recorded, thereby incorporating the plat or part of the grant to satisfy the Statute of Frauds. There is no corresponding plat of the 1000-acre ranch here or any reference in any deed to any such plat. The only plats of record were separate plats of the particular Subdivisions 1, 2, and 3.

As we construe the plats of Eagle Rock Ranchitos 2 and 3, there is no corresponding area over which we could imply an easement by construction of the recorded plat or the individual deeds. The plat of Subdivision 1 is of “31.0 acres,” and this would include only the lots and streets. There is shown on that plat the 19-acre club tract with areas marked as “golf course,” “playground,” etc. But the lot owners requested no issue as to this 19-acre tract. They treated it as part of the whole 1000 acres over which they sought easements for pleasure and recreation.

And they have no point of error in this Court on this 19-acre club tract. Our conclusion, therefore, is that the authorities do not support an easement by estoppel in pais for pleasure and recreation to such an area as is involved here. We have further concluded that we should not extend the authorities. Our reasons follow. There are some preliminary considerations. Thompson states the rule to be that it is essential to the creation of estoppel that the representation be “communicated to him” [the promisee], that it be believed, and relied upon. 5 Thompson, Real Property (3rd ed.), 406 and 426, §§ 2616 and 2626.

Here, nine plaintiffs sue as individuals and purport to represent other unnamed plaintiffs and the class of [all] lot owners. The jury found that representations were made to “one or more of the plaintiffs.” The evidence shows a variety of representations and reactions thereto. No issue was submitted to the jury on estoppel as to any individual. The respondents argue that the basis of estoppel is a personal matter: representations to, and proof of reliance by, the individual. We shall assume, without deciding, however, that this is a proper suit for a class action.

The evidence, as pointed out above, was that brochures exhibited to purchasers said that “members of the club have all the pleasure rights over the entire ranch property”; that lot owners also became club members; and that the application for membership, signed by the lot owners, said, “This application is made with the distinct understanding that * * * I acquire no interest whatsoever of any kind or character in or to the club property * * *.” Respondents therefore contend that there is, therefore, no basis for estoppel.

We shall assume, however, that other representations were made “to one or more of the plaintiffs” sufficient to satisfy this feature of the case. The easement sought by estoppel is an easement appurtenant. Yet the rights sought have many of the characteristics of an easement in gross; i. e., privileges over the ranch which could be and were enjoyed by persons other than lot owners; privileges which were personally enjoyable but not necessary for the use of the purchased lots. Membership in the club was available to persons other than lot owners.

As said in the Restatement under Promises Respecting the Use of Land, “For a promise to run with the land of the promisor it is not enough that the performance of the promise operates to benefit either the prom-isor or the beneficiary of the promise in the use of the land but it must operate to benefit him in the physical use of the land.” 5 Restatement, Property, 3220, § 537, Servi-tudes (1944). The main difficulties, however, with the lot owners’ case is the nature and extent of the “easements” claimed, their jkidefiniteness, and enforcement of the rights claimed to have been obtained.

As indicated above, easements “for pleasure and recreation” create grave problems even when expressly granted in writing. To say the least, they^, were not favored at common law. First, rights to go upon land to hike, camp out, study nature and the like were classed as licenses and not interests in land. Licenses to hunt and fish are common even today. This is not to say that such an “easement” or interest in land could not be created. But the authorities for the imposition by the courts of an easement appurtenant to land for such purposes are meager.

The privileges sought here as an easement appurtenant to land by estoppel are indefinite. The “run of the ranch,” 1000 acres of land, contains no description of rights. Rights “for pleasure and recreation” over such an area is likewise indefinite. Some degree of definiteness in the scope or extent of an interest is essential to its recognition as a property interest.

As set out above, the Restatement illustrates the point in this way: a right of way over a prescribed area is definite, but “the privilege of strolling at pleasure through a field” is too indefinite. 5 Restatement, Property, 2910, § 450-Servitudes (1944)./ And see Conard, “Easement Novelties,” 30 Calif.L.Rev., 125 at 138 (1942). A by-product of the indefiniteness of easements for recreation and pleasure, not contained in a writing, is the problem of their enforcement. If the court is to decree the easements, it must fix their terms and be in a position to see that they are enforced.

Doing this for all of the various forms of “recreation and pleasure” over 1000 acres of land for years to come would be difficult indeed. If the airstrip, golf course, and the like are to retain their usefulness, they must be kept in repair. This problem relates to one of the requirements for the implication of an easement: that nothing be required of the grantor to perpetuate the easement. The easement which is implied is a negative one: that the grantor simply not interfere. In McCleary v.

Lourie, 80 N.H. 389, 117 A. 730, discussed above and in the dissent hereto, no act was required of the grantor except to allow people to walk through a designated grove to the lake. Much more difficult problems are presented here. While it is not a controlling question here, the question as to who is to pay taxes on this 1000-acre area indefinitely is a consideration. The alternative to the land’s being kept in repair is that it simply be left vacant and unkept for the use of lot owners. There is a rather strong public policy in favor of land use rather than non-use.

The policy is also in favor of the free alienation of property, particularly as the title to the property is reflected on the public records.

Viewing the problem from the State as a whole, to impose indefinite servitudes for pleasure and recreation on so large an area would tend to fetter estates, retard building and improvements thereon, and hinder the use of the land. 5 Powell, Real ■Property (1956), 153, § 673; Conard, “An Analysis of Licenses in Land,” 42 Columbia Law Review, 809, at 826 to conclusion (1942); 17-A American Jurisprudence, 646-647, § 37, Easements; 5 Restatement Property, 3179, Servitudes, § 526. As to the policy on alienability of land and unencumbered land titles, see 5 Restatement, Property, 3160.

Again, this is not to say that parties could not make a definite agreement in writing for the use of land for pleasure and recreation. No such question is before us. But we do hold that under the facts presented here, the authorities do not support the fixing of easements by estoppel in pais, and we are unwilling to extend the doctrine to the extent necessary to affix them here. In an appropriate case, a purchaser may have relief by reformation of his deed or in a suit for damages.

The lot owners here do not seek reformation; and except as to an alternative suit for damages against James, discussed below, they did not bring a suit for damages. Alternative Action for Damages against James The lot owners had an alternative cause of action for damages against James for “breach of contractual duty.” The breach referred to is James’s failure to inform his grantee, Smith, that the lot owners had easements by estoppel over the ranch.

The theory was that in the event their equitable rights of easement by estoppel were cut off by the purchase of legal title by Smith, they could then recover damages against James for his failure to give notice to Smith, the subsequent owner of the ranch. Of course, this action is not directed at rights allegedly created by dedication or to easements created by implication since these rights, if they had existed, would have passed with the land. They would not have been equitable in nature or subject to being cut off by a bona fide purchaser of legal title.

The jury findings were against the "lot owners on their theory of James’s non- • disclosure. The jury found that Smith bought with notice “that one or more plaintiffs claimed the rights to use the ranch for ■pleasure and recreation purposes.” The ■special issues on damages were conditioned ■ on a finding that Smith had no notice. The jury did not answer those issues. In short, the jury finding destroyed an essential ele-ment in the damages theory, and the trial •court entered a take-nothing judgment against the lot owners as to damages. The lot owners took no appeal from this adverse judgment.

Whether their failure to do so ■constituted waiver of their cause of action for damages, or whether the trial court’s judgment simply became final thereon are questions which need not be discussed here. In either event, the lot owners cannot now •.recover on that cause of action. The judgment of the Court of Civil Appeals is affirmed. SMITH, J., dissenting. . The deed from James to the Blind Co. is dated June, 1949, but was not delivered until 1950. . The Ide tract of 135 acres, a part of the ranch, was conveyed from James directly to Conso Realty Co. in 1953. .

Article 1288, Yernon’s Texas Civil Statutes Annotated. All references to statutes herein are to the Vernon’s Texas Annotated Statutes unless otherwise indicated. .

Article 3995. . City of Aransas Pass v. Minter, Tex.Civ.App., 34 S.W.2d 1113 (1930, writ refused); City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 44 S.W. 470 (1897): “A private easement, as for a private right of way, even, at common law, could only be conveyed by grant; and, besides being an interest in land, it is witbin the statute of frauds, and must be conveyed in writing.” 3 Tiffany, Real Property (3rd ed.), 241, Easements § 770. And see Fritz, “The Texas Law of Conveyancing,” Yol. 3, Vernon’s Texas Civil Statutes [annotating Art. 1288, the Statute of Conveyances] at p. 6, § 4.

This Court held that even a license, under some conditions, may rise to the dignity of an easement and must be in writing. Parsons v. Hunt, 98 Tex. 420, 84 S.W. 644 at 646 (1905). . 4 Tiffany.

Real Property (3rd ed.) 333, § 1099: “The purpose and effect of a common-law dedication is to create a right of user in the public, or at least in some particular class of the public, and not in some particular person or persons * ⅜ “As there cannot be a dedication in favor of a particular person, so there cannot be a dedication in favor of a limited number of persons.” Id., at 334. 2 Thompson, Real Property (Perm, ed.) 49, § 483: “Strictly speaking, there is no such thing as the dedication of property to a private use.

A private way can not be created by dedication and appropriation for the use of particular persons only.” To the same effect are 26 C.J.S. Dedication §, 8, p. 408, and 16 Am.Jur. 349, Dedication, § 5. Wolf v. Brass, 72 Tex. 133, 12 S.W. 159, at 160 (1888): “Technically speaking, a dedication can be made to public uses only * * ⅜.” There are cases which uphold dedications to particular groups for cemetery purposes or for religious purposes. Tiffany suggests that these are not properly “dedications,” but that the title passes by grant. 4 Tiffany, Real Property (3rd ed.) 334 and 335, § 1099. .

The question as to whether the streets located on the plats in the Eagle Rock Ranch area were dedicated to the public is not before us and we express no opinion thereon. . “Jus Spatiandi, — a Valid Easement, re Ellenborough Park,” 2 Sidney Law Review (1956-58) 370; “Re Ellenborough Park,” 3 All England Law Reports Annotated (1955) 667; “The Right to Use a Private Pleasure Ground,” 221 The Law Times (1956) 34. . Behan, Covenants Affecting Land (1924) 45; and see Alfred Conard, “Easement Novelties,” 30 California Law Review (1942) 125, at 126. . 1 Thompson, Real Property (Perm, ed.) 523, Easements, § 327. . This

section of American Jurisprudence was cited as authority in this Court’s opinion in Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959). The lot owners do not here rely on Ulbricht v. Friedsam, but a word should be said about it. Simplifying the facts, Friedsam owned land on Lake Buchanan. He granted the LORA an easement to overflow it below 1020-foot elevation but reserved the right to use the land to the water’s edge. This .right was expressly referred to as a “covenant running with the land.” Ulbricht purchased the upland part of the land' from Friedsam.

The metes and bounds, description, in part, called for the 1020-foot contour line. The main question was-whether this line was a boundary or a meander line. It was held to be a boundary line. The question was then over Ul-bricht’s right to get to the water, which-was below the 1020-foot line. The deed' to Ulbricht did not expressly convey an-easement, but the grantor did not reserve the “covenant running with the land,”' mentioned in the LORA lease.

It was. pointed out in the Ulbricht opinion that in another suit in which no appeal was. taken, Ulbricht obtained a judgment giving Mm easement rights to the use [the water and shores] of Lake Buchanan “as-a means of ingress and egress” to his-land. The evidence also showed that the land: purchased by Ulbricht had been continuously used to pasture livestock. Tliere-was no water on the uplands. The Court took judicial notice of the need of cattle-for water.

The Court held that the parties to the deed necessarily intended that-the rights to get to the water should pass to Ulbrieht, and the Court implied the grant of the easement appurtenant. The lands adjacent to Ulbricht’s had been subdivided, and the lot owners continuously and openly used the water for boating and recreation.

Having in mind the previous judgment giving Ulbrieht the easement on the waterfront, the necessarily implied easement for water for the livestock, the open and continuous use of the lake by owners of adjacent land, the Court held that the rights reserved by Friedsam in the LORA grant (the “covenant running with the land” to use the waterfront) passed by implication to Ulbrieht in Friedsam’s deed to Ulbrieht. As one of the authorities for this, the Court cited 17A Am.Jur. 653, Easements, § 41. That

section sets out circumstances under which easements appurtenant may be implied, but concludes by saying, “and not for purposes of pleasure.” It is not necessary to decide, and we do not hold here, that an easement for recreation could not be implied under any circumstances. It is held that they may not be implied here. . 3 Tiffany, Real Property (3rd ed.) 255, § 781. . 3 Tiffany, Real Property (3rd ed.) 257, § 782 et seq.; 1 Thompson, Real Property (Perm, ed.) 543, § 337 et seq.; 28 C.J.S. Easements § 33, p. 691 (which adds a requirement that the use be “permanent”) ; 17A Am.Jur. 652, Easements, § 41. .

Howell v. Estes, above, was followed in Pokorny v. Yudin, 188 S.W.2d 185 (Tex.Civ.App.1945, no writ), where easements appurtenant were implied for water, gas and sewer lines into the dominant tract. The general rules are also set out in Ulbricht v. Friedsam, 159 Tex. 607, 825 S.W.2d 669, at 676 (1959). . Alfred F. Conard, “An Analysis of Licenses in Land,” 42 Columbia Law Review 809 (1942); by tbe same author, “Basement Novelties,” 30 California Law Review 125 (1942). . See Callan v. Walters, 190 S.W. 829, at 831 (Tex.Civ.App.1916, no, writ).