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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