Much of rural Texas runs on infrastructure crossing private land under decades-old, unrecorded agreements. In Boerschig v. Rio Grande Electric Cooperative, Inc., decided May 22, 2026, the Texas Supreme Court addressed what happens when a utility wants to expand that infrastructure and the landowner objects. WL 1468464, at *1 (Tex. May 22, 2026). The 5-4 decision held that an easement created “by estoppel” can be valid, but its scope is fixed by history.
Link to Factual Background Factual Background
In 1947, the non-profit Rio Grande Electric Cooperative (“Rio Grande”) obtained a document titled “Right of Way Easement” to run an electric line across a ranch — but never recorded it. The original line was modest: seventeen to twenty wooden poles carrying four wires on a single crossarm. Id. at 1.
In 2002, John Boerschig bought the 6,397 U-Bar Rach, which included property that the Rio Grande electrical line crossed. Boerschig could see the line and it appeared on his survey, but he did not know about the unrecorded easement document. Id. at 1. In 2012–2014, Rio Grande upgraded the line to serve a new pipeline customer and a new substation — tripling the poles to sixty and nearly doubling the wires to seven on two crossarms. Id. at 2. Boerschig sued for trespass. A jury found Rio Grande held an easement by estoppel and declined to find that the upgrade exceeded its scope. The courts below sided with the cooperative. Id. at 3.
Link to The Court’s Opinion The Court’s Opinion
The easement was valid. Although easements normally require a signed, recorded writing, a landowner may be estopped from denying one where the owner represented an easement would be conveyed, the holder believed it, and the holder relied to its detriment. A writing that fails as a formal easement can still be evidence of that representation. Id. at 4. Because Boerschig admitted actual notice of the visible line — it was “hard to miss” — the bona fide purchaser statute did not defeat the easement. Id. at 5-6.
But the upgrade exceeded its scope. Unlike an express easement, which can contain forward-looking language allowing expansion, an easement by estoppel has no writing to consult and is “strictly limited.” Id. at 8. Its scope is capped by the holder’s actual reliance investment, narrowed by the buyer’s notice at purchase. Here, Rio Grande’s only reliance investment was the original small line; its own CEO testified the upgrade served new customers, not continued service to existing ones. Boerschig had notice only of the 1947 line he could see, not of the unrecorded document. The Court held the upgrade was a trespass as a matter of law, reversed, and remanded — noting Rio Grande remains free to condemn an expanded easement and pay for it. Id. at 11. matter
Justice Bland, joined by three justices, dissented, arguing the majority overrode a jury verdict on disputed facts and threatened the many informal legacy easements underpinning rural Texas. Id. at 12–18.
Link to Practical Implications Practical Implications
- Record easements and scrutinize the ones you rely on. Unrecorded or defective rights may not support future expansion; flag them in diligence.
- An estoppel easement is frozen to its historical footprint. Long, tolerated use does not imply a right to scale up.
- Maintaining service differs from serving new demand. Ordinary upkeep is protected; growth-driven expansion is not.
- Notice sets the ceiling for buyers. A purchaser who saw a modest line does not inherit an unrecorded right to a larger one
- Condemnation, not self-help, is the path to expansion. Utilities should build the cost and timeline of eminent domain into project planning.