Daily Development for Tuesday, November 16, 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; NECESSITY: Party acquiring a parcel of land in modern era takes with constructive notice that adjacent parcel was “landlocked” in 1866 when the two parcels were first separated, and therefore is on constructive notice that an easement by necessity arose.

Bogart v. Roven, 780 N.Y.S.2d 355 (A.D. 2004)

The old adage that “hard cases make bad law” applies here in an easement case. In 1866, three siblings own property that they elected to divide into two lots. One of the lots, lot 30, was adjacent to the road. The other, lot 49, became landlocked when it was separated in ownership from lot 30.

In fact, there is evidence that the siblings intended to create an express easement over lot 30 to get to lot 49. In the deed to lot 30, the grantor (ultimately the owner of lot 49) reserved “the privilege of crossing and recrossing with teams or trams the said premises at all time or times for the purpose of drawing wood for themselves, their successors and assigns.” There is some evidence that lot 49 was regarded as a “wood lot” and that the real purpose of this reserved easement was to cross over lot 30 to get wood from lot 49. That’s what the owners of lot 30 argued in the modern court - stating that all the parties intended was to create an access right for the collection of wood from lot 49 - a right that has no use in the modern era.

The deed to lot 49, executed by the parties who retained lot 30, does give a general right of ingress and egress across lot 30 for the purpose of accessing lot 49. This deed, incidentally, described lot 49 as “the wood lot.” The modern owners of lot 30 argued that, read together with the language in the reservation in the deed to lot 30, indicated that this general right of ingress and egress was in fact limited to the right to cross only for purpose of getting wood from lot 49. Again, this right is of no value, apparently, today. Specifically, the language stated that there was granted: “the undisturbed privilege given to cross and re-cross the lands of [grantor - the owner of lot 30] to get to said wood lot [otherwise identified as lot 49] at all time or times.”

The court conceded that if the parties in these simultaneous deeds in fact were referring to the same right, there might be some reason to read the easement set forth in the deed to lot 49 as limited by the purpose set forth in the reservation appearing in the deed to lot 30 - for wood fetching purposes only. But the court instead concluded that the reservation in the lot 30 deed was in fact a description of a general right to gather wood on lot 30, not the right to cross over lot 30 to get wood from lot 49. Thus, the only description of an access right to lot 49 appeared in the deed to lot 49, and should be read broadly.

This took the court, apparently, to another problem. For reasons it doesn’t make clear, the recorded deed to lot 49 might not have created an enforceable easement across lot 30. The court said that additional fact finding would be necessary to resolve this question. But, instead of remanding for this fact finding, the court solved the case another way, by noting that since lot 49 in fact was made landlocked by the severance of the parcels in 1866, an easement by necessity arose, “and we find that the circumstances constituting the ‘necessity’ were sufficient to place the defendants on inquiry notice of the easement claimed by the plaintiffs, regardless of whether such easement appears in the defendant’s chain of title.”

Comment 1: What was the problem with the lot 49 express easement? We’re only told that it was a “chain of title” problem. It may have resulted from the order of recording of the two deeds. It may have resulted from the indexing of the deed to lot 49. We simply don’t know.

Comment 2: Whatever the problem, the court should not have let that problem divert it into the somewhat silly ruling that the modern defendant was bound by inquiry to know the circumstances of the two lots in 1866. We are not told when the present defendant got his title, but in light of the antiquity of the original severance, we can assume that there were a number of conveyances since that time. To suggest that everyone who buys property is in fact on inquiry of the physical relationship of the purchased land to adjacent parcels 140 years earlier is, of course absurd.

Although the editor sees this description of constructive notice as absurd, he doesn’t think that it necessarily follows that there can’t be easements by necessity that bind future parties. Hey - “necessity” means that the easement is really necessary - as a matter of policy. If, implicitly, the original parties really believed that an easement was arising, the editor would permit the easement to be recognized even when it takes the modern owner by surprise. The editor just doesn’t like pretending that there is constructive notice of the juxtaposition of roads and lots over a century before.

For another recent case acknowledging the existence of a “gotcha” easement - claimed almost 70 years after the original parcels were severed - see Fike v. Shelton, 860 So. 2d 1227 (Miss. App. 2003), the DIRT DD for 9/3/04.

Comment 3: In fact, the editor would have solved the problem a different way entirely, concluding that the reference to the easement rights in the deed to lot 30 was ambiguous, and put the owner on inquiry notice to discover whether the owner of lot 49 might have had an easement. The editor thinks it likely enough that the parties in fact intended the lot 30 deed language to create a right of access to the “wood lot” that anyone aware of the language in that deed should have inquired further. Of course, the editor confesses that all he knows of the record is what the court chooses to tell us. There may have been other facts that support the court’s conclusion that the lot 30 easement clearly was for wood gathering on lot 30 only. But one would think the court would have let us in on those facts if they existed.

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