Daily Development for Monday, March 13, 2000

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

EASEMENTS; TERMINATION; FORECLOSURE: Release of dominant parcel for easement by necessity from mortgage that also covers servient parcel of such easement amounts to an implied release of the easement over the servient parcel as well.

Cox v. Trustmark National Bank, 733 So.2d 333 (Miss. App. 1999)

Cox sold seven acres to Jones, taking back a purchase money mortgage from Jones. Jones divided the acreage into two lots, one of which was a landlocked parcel. She sold the landlocked parcel to a corporation she controlled with her husband. At that time, a plat existed showing access across Jones' retained parcel, but the plat was never recorded.

Later, the corporation borrowed money from Trustmark to develop the landlocked parcel, giving Trustmark a mortgage on that parcel. Proceeds from the loan were paid over to reduce the Cox mortgage, and Cox gave a release on the landlocked parcel. Thereafter, the corporation defaulted on the landlocked parcel and Trustmark acquired it in foreclosure. It then brought suit against Jones and Cox to establish the existence of an easement of necessity across Jones' retained parcel.

Before the suit went to a hearing, Cox foreclosed on the Jones parcel. Cox then argued that any rights that Trustmark had in the Jones parcel to benefit the landlocked parcel had been foreclosed away. The actual dispute was mooted when a third party acquired both parcels, but by that time an issue of attorney's fees had arisen, so the court was constrained to resolve the basic issue of whether Cox's mortgage primed the easement by necessity claim of Trustmark.

The Mississippi Court of Appeals admitted that this was a "close question," but found that Cox's release of the landlocked parcel necessarily included an implied release of Cox's security interest in the servient parcel to the extent of the easement by necessity.

Comment: The editor agrees. A parcel of property, in common understanding, includes not only the physical boundaries but also "appurtenances," including the right to enforce servitudes. These rights normally pass with the property whether they are mentioned or not. Consequently, they should have passed with the release of the mortgage on the property subject to the Trustmark lien. In the editor's view, even if Jones' own corporation were attempting to enforce the easement by necessity, it should have had the power to do so. But the issue was made much simpler when a third party, with no involvement with the Cox mortgage, acquired title.

EASEMENTS; CREATION; NECESSITY: Florida court permits finding of easement necessity where argued "landlocked" parcel is only small part of larger parcel.

Keene v. Jackson, 732 So. 2d 1138 (Fla. App. 1999)

The Jacksons acquired Lot 4 in an area with lots of water. If the dissenting opinion's reading of the record here is to be credited, the Jacksons, at the time they acquired Lot 4, were not aware that it included a large area that did abut a public right of way, but also a smaller piece of land, known as Yon's Landing, which was located at the tip of a peninsula across about thirty feet of water. Later, when a survey indicated their ownership of Yon's Landing, the Jacksons brought suit against owners of the rest of the peninsula to establish an easement by necessity.

The evidence showed that one could walk to Yon's landing from the rest of Lot 4, but that one would be chest deep in water while doing so for a distance of about thirty feet. The trial court found, and the appeals court affirmed, that this established a reasonable necessity to use the adjacent owner's property. It also found that Yon's Landing and the rest of Lot 4 had been sold off of a larger tract that included the balance of the peninsula, so that there was a "common grantor."

The court rejected the argument of the owners of the peninsula that access to the rest of Lot 4 was all that the owners were entitled to receive. It also concluded that it did not matter that at the time the Jacksons acquired Lot 4 they were not relying upon having overland access to Yon's Landing. The property at Yon's Landing was substantial enough to permit the building of a residence, and the Jacksons were entitled to alter their plans and accordingly demand access.

Comment 1: The question of whether "over water" access is adequate to preclude an easement by necessity usually has been resolved in the same fashion as the court did here. Water is an obstacle, and generally speaking the courts do not assume that the parties who divided the parcel intended that the grantee of the waterbound parcel build a bridge. Compare: Dupont v. Whiteside, 721 So.2d 1259 (Fla.App. 5 Dist. 1998), the DIRT DD for 9/13/99) (fact that expensive road across wetlands could be built establishes that there is no "necessity.")

Comment 2: There are several other issues worth noting here, however. The first is that the owners of the peninsula were several grantees removed from the original common owner (although the argued dominant parcel was a direct grant from the common owner.) Thus, first, we have an "easement implied by reservation," which in some jurisdictions is harder to establish. There is a Florida statute on the subject, however (which the court does not quote) and this may have permitted implication of an easement more readily.

Comment 3: Another aspect of the problem is that the remote grantees of the servient parcel (the peninsula) are held to have assumed the responsibility for the easement when there was no physical evidence of its existence at the time they acquired their interest. They would have had to check the recorded grants back several transfers in order to find the original severance of the parcels in 1925. There certainly is an issue as to whether such parties ought to be bound in to an easement by necessity in a case like this. The new Restatement of Servitudes (Section 7.14) would preserve such easements, but one commentator (although he agrees with the Restatement as to policy) concludes that the authority runs against the preservation of such easements except when there is evidence of them on the ground. See Joel Eichengrun, "The Problem of Hidden Easements and the Subsequent Purchaser Without Notice" 40 Okla.. L. Rev. 3, 26 (1987)

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

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