Is Necessity the Brother of Intention?
January 3, 2012
The basis for the concept of easement by necessity was developed early in the history of English common law. Numerous examples of this concept can be found as far back as the 14th century, including some spirited debates over whether the grant of a pond and the fish in the pond gives the grantee the right to drain the pond and take all of the fish.
Things haven’t changed much since those early easement debates--we now argue the point of whether the grant of a subterranean coal seam precludes another individual from drilling through the seam in order to reach the oil deposits below. Easement by necessity also exists (with some variations) in both the French and the German legal systems. To use the most basic example, if a grantor sells a field completely surrounded by his remaining lands, the grantee also gains a right to access the field, since the grantee would otherwise gain no benefit from the grant.
By all accounts, easement by necessity is a well-established principle in the American legal system, and it’s surprisingly consistent when it comes to basic requirements, although the application of the principles by the various states is subject to a wide range of variation depending on specific circumstance. Three prerequisites are consistently found in virtually any proceeding of this type: (1) There must be initial unity of title, followed by (2) a division of the tract, which (3) creates the necessity of an easement. Easements of this type are said to come into existence immediately by operation of law upon the fulfillment of the required elements; unlike prescriptive easements, no minimum statutory period is generally mandated, nor is there any demand that a pre-existing visible access exist. Beyond these common characteristics lurks a morass of details through which it may be necessary to wade.
Despite an ongoing debate between various jurisdictions and diverse opinions from multiple legal scholars over the last century, it remains unclear whether this principle arises as an expression of public policy or reflects the unwritten intent of the parties. In fact, both principles are represented throughout this article. However, there is general agreement that public interest in avoiding landlocked and useless property, as well as the reasonable rights of private landowners, are factors that the courts will consider. A recent case in the state of Washington summarizes both rationales: “[T]he intent to create an access easement over the grantor’s land is implied when a grantor sells landlocked property… An easement of necessity is an expression of a public policy that will not permit property to be landlocked and rendered useless.” 1 [cites omitted]
Unfortunately, the name of the easement suggests to the layman that a landowner’s need of access across the lands of another is in itself enough to prove the existence of the easement. To the contrary, necessity caused by any act other than the initial division that creates the necessity cannot be used to justify easement by necessity. Several years ago, I witnessed an attempt in the courtroom to misrepresent the principle in this way. The plaintiff owned a tract that had been part of the defendant’s parent tract many years before. However, the plaintiff’s tract (as originally conveyed) included access to a public road on the side remote from the defendant. After several years had passed, the plaintiff sold that portion of his tract that included public access, thus land-locking himself. Only at this point did he file suit to claim easement by necessity over lands of the defendant. The attempt failed.
An easement by necessity will sometimes be upheld in less than obvious circumstances, since it is well established that the easement may at times be claimed by a later landowner years after the grant that created the necessity, even if no use was made of the easement at the time of its creation. The Maryland court reflects on these principles with the statement:
If the way of necessity was not implied at the time of the grant, it cannot be established by a subsequent necessity … In other words, the necessity must be determined from the conditions as they existed at the time of the conveyance ... Hence a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed ... This rule is consonant with the generally held view that non-use alone is not sufficient to extinguish a way by necessity.2
In another case where the landowner had a temporary license for alternative access, the easement by necessity was held to exist from the moment the license expired.
As is the case with adverse possession principles, the courts are jealous in defending against any attempt to claim easement by necessity and generally require at least a clear preponderance of evidence on the part of any claimant attempting to do so. There have been countless instances where the easement by necessity has been denied, particularly when the portion retained by the grantor is the landlocked portion. As a general rule, any uncertainty in a description is construed in favor of the grantee and to the detriment of the grantor. In one Maine case, the original grantor sold the front portion of the land “free of all encumbrances” and retained the rear portion without any mention of an easement over the front portion. Even though the rear parcel remained completely landlocked, the court ruled that:
Although that conveyance left the Back Parcel landlocked, the Front Parcel was and has always been accessible. In such a case, we decline to imply that an easement by necessity arose, against the interests of the grantee, based solely on the fact that the grantor created and retained a landlocked parcel. There is no evidence here of the grantor’s intent to retain a quasi-easement as a true easement. To the contrary, the conveyance expressly covenanted that the Front Parcel was ‘free of all encumbrances.’ Therefore, the court properly concluded that no easement by necessity was created …3
Despite the failure of the claim in the case cited above, the possibility of easement by necessity in favor of the grantor was firmly entrenched in English common law even in colonial days:
In Clark v. Cogge, decided in 1607, there was a question as to whether the grantee could have a way by necessity over other lands of the grantor, and the court held he could have such a way, “for otherwise he could not have any profit of his land.” But the court also said, “If a man has four closes lying together and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved to him by law.4 [emphasis added]
Cases involving a grantee claiming easement by necessity are certainly more common, and while it is possible for the grantor to claim an easement by necessity in certain cases, the level of necessity becomes much more stringent when the grantor is the recipient of easement. It is widely agreed that mere inconvenience is not sufficient to create an easement by necessity--regardless of grantor-grantee status--and in any situation where the grantor is claiming the right, the level of necessity becomes nearly absolute. At a minimum, the courts will require evidence that the easement is “reasonably necessary for the enjoyment of the land.”
Columbia Law Review weighs in again on this issue, drawing upon case law from Arkansas and New York:
Easements of necessity are said to arise by implied grant or reservation. See Cherry v. Brizzolara (1909) 89 Ark. 309, 316, 116 S. W. 668; 2 Tiffany, Real Property (enlgd. ed. 1920) 1295 et seq. Where a grantor retaining an alleged dominant tenement claims such an easement over his grantee’s land, absolute necessity must be shown. Cherry v. Brizzolara, supra. But where the grantee claims the way, he need show only reasonable necessity. Paine v. Chandler (1892) 134 N. Y. 385, 32 N. E. 18.5
Yet another variation occurs when lots are conveyed simultaneously, as opposed to the more common variant of sequential conveyance described above. Although little case law is available on this scenario, the Maryland case cited previously states that “an easement by necessity also may be created where there are simultaneous conveyances by a common grantor, and one of the conveyed lots is landlocked and inaccessible, in which case an easement over the other simultaneously conveyed lot to benefit the inaccessible lot may be implied.”6
All too often, neither surveyors nor attorneys perform sufficient research when considering easement by necessity, yet only complete research will provide the proper framework from which to consider a claim. Numerous cases confirm the test of necessity must be made while considering the condition of the parcel and of surrounding lands at the time of the division that created the necessity. “Whether or not a sufficient necessity exists to warrant the creation of a way by implication is determined by the necessity existing at the time of the original grant.”7
The definition of necessity takes a different tack when the property in question adjoins a navigable waterway or an ocean. Questions then arise as to accessibility by water, such as: Is water access consistent, or only available at certain states of the tide or seasons of the year? Are there rocky shorelines or extensive mud flats that make water access dangerous or impractical? And what constitutes typical land use of other properties in the vicinity?
Coastal state case law contains much discussion of these questions, as summarized by the Maryland court: “An easement by necessity may exist over the land of the grantor even though the grantee’s land borders a navigable waterway, if the water route is not available or suitable to meet the requirements of the uses to which the property would reasonably be put … Thus, without a way of necessity the public policy of full utilization of land is frustrated.”8 Determining whether the property is landlocked is generally considered a question of fact, to be decided by the jury in the event of a court case.
Easements by necessity are unique in one respect: They disappear when the necessity ceases to exist (for example, if an additional express easement to the landlocked parcel is granted). However, like other easements, they are not extinguished by mere nonuse, and no specific time limitation will generally be imposed. Numerous cases state that clear and unequivocal evidence is required to eliminate an easement of this type. As long as the necessity exists, the easement continues. “It may therefore be stated that in this country, the scope of the easement by necessity must be such as to enable the dominant owner to enjoy his land for all lawful purposes, so long as the necessity continues.”9
One of the most complex--and most heavily litigated--circumstances related to easement by necessity occurs when subterranean land rights have been granted to various corporations for the mining of coal seams, oil and gas drilling and/or use of artesian water supplies. These grants may be characterized as horizontal estates in the strata of the soil. Any or all of the structures reasonably required for the extraction of these mineral resources, including railroad tracks, drilling rigs and holding reservoirs, will generally be allowed as a corollary of the mineral rights, even if description of the grant neglects to mention access. But the situation can create conflict when surface rights are held separately from the mineral rights. Individual states vary on the legal mechanism used to assure reasonable access for mining and drilling operations; these access rights are sometimes equated with easement by necessity. Only in a situation so complex can Owner A hold an easement through Owner B’s land, while Owner B, in turn, holds another easement over that of Owner A.
In a New York case dealing with easement by necessity, a contractor was attempting to excavate a 10-foot deep trench in an express easement only 10.42 feet wide and was accused of causing considerable damage beyond the limits of the easement. The contractor attempted to show evidence of an additional easement by necessity for clearing trees and brush, claiming that there was a “physical impossibility to excavate a seven to 15-foot deep trench in a 10-foot wide area, using modern equipment such as bulldozers and three-quarter yard cranes.”10 Unsurprisingly, the courts denied the motion to allow an increase in the scope of an express easement. New Hampshire reinforces this principle with the statement, “It has been held that, where the extent of a right of way is defined by the grant, it cannot be enlarged by implication.”11
Confusion frequently arises within the legal system regarding the precise relationship between the several types of quasi-easements. In at least one opinion, a Supreme Court decision seemed unable to distinguish between an easement by prior use and one by necessity.
American jurisprudence summarizes the principles by which the scope of an easement by necessity will be determined.
The extent of a way or easement of necessity is that which is required for the complete and beneficial use of the land to which such way is impliedly attached. Where an easement is implied by necessity, its scope must reflect the necessity which justifies the easement’s existence. However, a way of necessity is not limited to those purposes connected with the use of the dominant tenement existing at the time the easement was created, but is available for any and all purposes for which the dominant tenement may be adapted; the enjoyment of such a way is limited only by the necessity for its use in connection with all lawful uses of the land to which it is appurtenant. In other words, a way of necessity ordinarily is coextensive with the reasonable needs, present and future, of the dominant estate; it varies with the necessity, insofar as may be consistent with the full reasonable enjoyment of the servient estate.12
This summary can reasonably be applied to any of the permutations of easement by necessity described above, but it adds one final twist--while the original necessity justifies the existence of the easement, the extent of the easement may vary over time based on prevalent modes of transport, mining and the changing needs of society. By contrast, the scope of a prescriptive easement is defined by the type of use to which the quasi-easement was put during the period of time it was created.
The role of the surveyor in cases of this type is admittedly limited since easements by necessity come into existence by an operation of law. The surveyor may, however, play a supporting role in cases of this type by researching the sequence of conveyances that created the boundary lines associated with the area in question and by collecting evidence that might shed light on conditions at the time of the original necessity.
1. Visser v. Craig; 139 Wn. App. 152; 159 P.3d 453 (2007)
2. Stansbury v. MDR Development, L.L.C. Case # C 99-548333 (Maryland)
3. Northland Realty, LLC V. Bernard Crawford 2008 ME 92; 953 A.2d 359; 2008
4. Columbia Law Review, Vol. 25, No. 5 (Nov., 1925), p. 573
5. Columbia Law Review, Vol. 21, No. 7 (Nov., 1921), p. 721
6. Stansbury v. MDR Development, L.L.C. Case # C 99-548333 (Maryland)
7. Batchelder v. National Bank, 66 N. H. 3.86, 22 Atl. 592
8. Stansbury v. MDR Development, L.L.C. Case # C 99-548333 (Maryland)
9. Columbia Law Review, Vol. 25, No. 5 (Nov., 1925), p. 573
10. Tubb v. Rolling Ridge; 28 Misc. 2d 532; 214 N.Y.S.2d 607; 1961
11. Batchelder v. National Bank, 66 N. H. 3.86, 22 Atl. 592
Am. Jur. 2d Easements and Licenses in Real Property § 80 Ways of necessity
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.