Daily Development for Friday, April 30, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
EASEMENTS; CREATION; IMPLICATION: Under “”reasonable necessity” test used in
Mississippi for both implied easements and easement by necessity, inconvenience
does not equate with necessity, although need to build a bridge would; and even
though a party claiming an easement can make out a case by showing that the
necessity arises as a consequence of impact on restricted access on business on
property, claimant will may not succeed if claimant has located the business in
such a way as to create the business inconvenience itself.
Swan v. Hill, 855 So. 2d 459 (Miss. App. 2003)
A common grantor operated three business on one unified set of parcels, a
barbeque restaurant (colorfully named “Big Buck’s Barbecue Smokehouse”), a
bowling alley, and a car wash. The area surrounding these three business was
more or less an unobstructed paved area that provided parking and access for all
three businesses. He leased the car wash to an operator named Hill for ten
years, and ultimately Hill bought the car wash property. Later the common
grantor sold the restaurant and the bowling alley. None of the deeds mentioned
any rights to cross over the paved area on the other properties.
In 1988, five years prior to his purchase of the car wash in 1993, Hill had
installed an automatic car wash facility. The facts do not make clear whether
this replaced the earlier car wash or was supplemental to it. To access this
automatic car wash, patrons had to enter from the side facing the restaurant.
The car wash had alternative access on another street, but for over ten years,
since before the sale to Hill, there had been a sign on a larger thoroughfare
abutting the other two businesses that directed passers by to the car wash and
car wash customers clearly accessed the car wash across both of the other
business parcels, both before and after the division.
Swan, a successor owner of the restaurant, built a fence and moved his dumpster,
cutting off the boundary between his property and the bowling alley. This did
not completely block access to the car wash from the main street, and of course
there was access from the other street. But the combination of the fence and the
dumpster made it extremely difficult for patrons to get to the car was from that
direction, and further the fence blocked the line of sight to the car wash from
the main street, rendering it virtually invisible. Even more problematic was the
fact that the fence made it difficult, if not impossible, for patrons coming
from any direction to manuever their cars to get into the entrance of the car
wash.
Apparently things were not so pleasant between the car wash owner and the owner
of “Big Buck’s.” At one point the car wash owner filled in a number of potholes
in the parking lots of both properties, and the owner of the restaurant
recreated the potholes by digging out all the asphalt and dumping it on the
doorstep of the car wash owner. He admitted he did this our ot “pure meanness.”
[This is the kind of detail you never get in those stark New York Supp.
opinions, but is common in Mississippi “storyteller” opinions. The court made
nothing of these facts.]
The lower court had decided that, on the basis of these facts, Hill had an
easement by necessity and enjoined Swan from maintaining the fence. (This may
have explained the “asphalt surprise.”)
The appeals court reversed, concluding that the Hill, the claimant, had not made
out an adeaquate case of necessity.
Without much explanation, the court stated that the concepts of easement by
necessity and easement by implication are used interchangeably in Mississippi.
[If this is correct, it is a significant departure from other jurisdictions.
Ed.] Thereafter it described the claimed easement here as an easement by
necessity, although most other jurisdictions would regard it as an easement by
implication - as there clearly was an established dominant/servient relationship
between the restaurant property and the car wash property before the two parcels
were severed.
The court went on to explain that strict necessity is not required in
Mississippi, and that a need to build a bridge, for instance, might establish
the required degree of necessity. But it commented that “mere inconvenience” was
not enough. It reversed the court below because it concluded that the claimant
had not adduced sufficient evidence to show a significant drop in revenue nor to
show how difficult or expensive it would be to relocate the automatic car wash.
A concurrence, joined in by three of the seven judges, added that the fact that
the claimant had chosen to locate the automatic car wash near the property line
was a factor that ought to hinder the claimant’s case:
[T]hough this is not a discussed factor in the Mississippi precedent, surely a
necessity does not arise because of something tha tthe party seeking the
easement has done to his own property that restricts otherwise usable access. A
party with an opening to a street who builds a wall blocking his own access
cannot then turn to his neighbor and demand an alternative route.
[I]n the present case, the primary reason for the difficulty of access is the
manner in which Hill placed the car wash on the lot. Of course, he did so prior
to any issue of an objection to his use of the access across Swan’s property had
arisen. Faith in one’s neighbor is laudable, but it is not a legally enforceable
basis for an easement.”
Comment 1: Of course, the court had the actual facts before it, and we’re
working only with a rough description of the situation. And the editor has not
read the authorities upon which the court relies, but the editor fears that the
Mississippi court here has gone far far astray.
At least in other jurisdictions, an easement of necessity deals primarily with
raw access, while an easement by implication, a quite different concept, deals
with specific uses - all kinds of uses. The two concepts are distinct in a
number of aspects. Perhaps most notable is the rule that when the necessity
disappears, and easement by necessity disappears as well, but this does not
occur with an easement by implication, since the latter easement reflects the
probably understanding of the parties.
Here, at the time that Hill bought the car wash lot (remember he was the first
person to buy a parcel from the common owner), Hill himself, for five years, had
placed both the restaurant property and the bowling alley property in a servient
position with respect specifically to the access to the automatic car wash.
There was even a sign on the road directing passers-by to the car wash from that
road. To suggest that this access was not reasonably necessary because the
dominant owner could always relocate the car wash strikes the editor as
inconsistent with authority in other jurisdictions. It seems unavoidable that
the parties likely intended that there be continued access across the balance of
the common grantor’s land to the car wash from the adjacent street. Indeed, this
access continued after the sale for almost 15 years. The court’s view appears to
be that the only issue is access to the parcel, and not access of customers to
the car wash itself. The editor disagrees.
Comment 2: Further, since the question seems to be the use to which the common
grantor put the two parcels at the time of the original division of the parcels,
the fact that the purchaser of the alleged dominant tenement was the party who
installed the car wash should not be of any significance whatever. This
installation was permitted and approved by the landlord, and it was the landlord
who thereafter placed his adjacent parcel in a quasi-servient relationship to
the car wash, which resulted in the probable recognition of an implied easement
at the time of the split.
Comment 3: Clearly, if we are to credit the court’s review of the transcript,
the claimant did an awful job of documenting the degree of hardship necessary to
support an injunction when the challenge arose in 2000. But it strikes the
editor as quite difficult to reach the conclusion that in 1985, at the time
these lots were first split, no easement by implication came into being.
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