Daily Development for Thursday, December 20, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; NECESSITY; PUBLIC LANDS: Prior ownership by state does not constitute "common ownership" sufficient to invoke easement by necessity doctrine.

Granite Beach Holdings v. State, 11 P.3d 847 (Wash. App. 2000).

According to the court, Granite Beach Holdings ("Granite"), through its managing agent, was in the business of buying property that is surrounded by another landholder ("in-holdings") in areas where government or conservation groups are buying land. Granite increased the appraised value by making paper improvements such as platting and sold the land back to the government or conservation group at an enhanced valuation. This brief statement at the outset of the case gave a pretty good indication as to how the court would ultimately hold.

Granite purchased a parcel of land surrounded by property owned by state and federal government. All the surrounding property consisted of trust lands in a forested rural area. The parcel that Granite acquired, however, had been owned and used for investment and personal recreation purposes for several years before. Despite its prior use, there was no formal easement to the property. In the past, the state had permitted various owners to use the existing logging road across its adjacent property. In fact, a previous owner had turned down an offer of an easement conditioned upon such owner being responsible for its share of the cost of maintaining the road.

When Granite attempted to take advantage of the offer made to its predecessor, the State stalled for a while, and ultimately concluded that Granite's proposed use of its property for "in holding" residential use was not consistent with the State's environmental preservation policies, and thus it refused consent to the use of the road. In fact, it ceased maintaining the road at all in the area of Granite's property.

Granite sued the State of Washington, claiming that it was entitled to an order quieting title to an easement over certain roads. While the case went forward, the State of Washington continued the process to approve the easement request for a resource management easement over one of the disputed roads, but remained adamant about Granite's proposed use. The trial court eventually dismissed all of Granite's claims on summary judgment. Granite appealed.

The Washington Court of Appeals held that there was no prescriptive easement based upon previous use of the property, because there was no showing of continuous use.

The more intriguing claim, however, was that of easement by implication or strict necessity. The court disposed of these by concluding that the "unity of title" requirement is not satisfied by a showing that the property at one time was all owned by the U.S. government. It noted that if such a proposition were valid, all land in the West would satisfy the unity test. In the court's view, this would render such a test meaningless. It distinguished a Montana case in which the court found an implied easement by reservation in favor of the federal government upon initial transfer. It also distinguished some Washington cases that had found implied easements in favor of railroads upon initial transfer from the federal government, indicating that in these cases there was an implied Congressional intent favoring access that was part of the grant.

The court also dismissed the claim that the Granite had the right to condemn a private right of access over roads over state lands used by other owners of nearby parcels. It noted that the Constitutional "private eminent domain" right to create easements of necessity had been held to be inapplicable to state land. Although the easements in question were not held by the State, the State was the servient owner, and any condemnation of easement rights, the court held, would necessarily increase the scope of these easements and amount to a condemnation of State land.

Finally, with respect to the inverse condemnation claim, the court noted that the question had never arisen in Washington as to whether an unconstitutional taking occurs when the state limits the use of a road on state trust lands to its historical uses, thereby the restricting the ability of the owners of neighboring property to acquire an easement for other purposes was one of first impression in Washington. But here, the question was a "no brainer," since the court held that Granite had no legal right or expectancy to be able to use the road. Thus, it lost no property interest.

The court held that there was no inherent right to cross state lands to develop their property for residential use, and that, even if there were such a right, it is not clear that it would supersede the statutory authority of the Department of Natural Resources to manage state lands. Given that Granite took possession of the property knowing of these potential access issues, the court felt no relief was necessary.

Comment 1: No argument with the conclusion, but the editor would have been happier if the court had not misapplied the concept of "common grantor" for purposes of easements by necessity to exclude situations in which the federal government, original owner of the parcels, transferred property. As the editor suggests above, the court's treatment of this issue does seem inconsistent with both the test (which is a pretty mechanical one) and with the precedent that the court attempts to distinguish.

Although, in general, the editor prefers "bright line" tests for the recognition of property rights, the editor departs from this position when the court is already in the area of divining "implied" rights. With respect to easements by implication, the editor prefers the "multiple factor" test first propounded in the First Restatement of Property, where issues of necessity, pre-existing use and common ownership were only factors to be taken into account in divining the probable intentions of the parties.

Such a test would readily solve the problem of federal transfers of property buried deep in the forest with no practical access, but the test would not abandon the practical concept that even federal government grants may sometimes have implicit aspects to them.

Further, "unity of title" is "unity of title." It's not a concept that really ought to have much interpretation.

Comment 2: Note also the court's ruling on the Washington "private condemnation of easements of necessity" doctrine. The doctrine is whatever the State's courts says it is, so not much to argue with there. But it is worth noting that the court holds that to permit this new user to cross an existing road easement is necessarily a further taking of the rights of the servient owner. Such a holding can be a useful weapon in the current wars concerning alleged surcharge of existing road and electric and power line easements in favor of telecommunications companies seeking to law fibre optic cable. There, one argument made by the cable layers is "no harm, no foul." Certainly in this case, to give Granite the right of access over these existing little used roads was unlikely to make any significant difference in the physical impact suffered by the servient owner, but nevertheless, the court found that to create the right to such a use involved a prohibited infringement of the State's property interest.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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