Daily Development for Monday, November 7, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; CREATION; IMPLICATION:   An implied easement requires a presumption of intent, and where the adjoining properties executed a deed with an express easement, destruction of that access through septic work that had been contemplated at execution of the deed did not give rise to a different, implied easement. 

Zotos v. Armstrong, 828 N.E.2d 551 (Mass. App. Ct. 2005). 

In 1995, French subdivided a property into two parcels.  Zotos purchased one lot, which included French’s home, and Armstrong ultimately acquired the other lot, which was undeveloped at time of trial.  The subdivision plan depicted access to the properties from an adjoining road via an easement on the southern end of the properties (the “Access Easement”).  A semi-circular driveway that crossed both parcels gave each property direct access to the Access Easement, and Zotos’ deed established an express easement over the Access Easement.  Prior to the subdivision, the entire semi-circular road was used by French.  

Zotos’ original closing was scheduled for January, 1996, but delayed until May 30 due to septic issues.  Upon the eventual closing, $20,000 was escrowed pending the installation of a new septic system.  Nancy Zotos had picked up the plans for the new septic system from the town’s director of public health and delivered them to her attorney, but she claimed she did not review them.  The construction of the new septic system started on May 29, one day before Zotos closed.  The installation of the new septic system blocked direct access from the Access Easement to Zotos’ portion of the driveway.  French, at least, was fully aware that the leach field of the septic system would make it impossible to use the existing portion of the semi circular road on Zotos’ property to get to the Access Easement, and the original septic plans had called for a new driveway extension (apparently to be built by French) to restore this access.  The extension was never constructed, and the court su!

strongly that French had an obligation to build it, but that issue was not before the court here. 

Zotos began using portion of the semi circular driveway over the other parcel to traverse to and from the Access Easement.  However, French eventually posted “no trespassing” signs and attempted to prevent such use.  Zotos then brought suit against French (Armstrong was substituted after he took possession of the other parcel) seeking declaration of an easement by implication or by necessity.

The Land Court found that French and prior owners had used the driveway in same fashion which Zotos now sought for sixty years, and that since some form of access must have been intended, and since continued use by Zotos was reasonably necessary for access, an implied easement should be granted.  Armstrong, having been substituted in the place of French, appealed. 

The Appeals Court, citing Hurley v. Guzzi, 103 N.E.2d (Mass. 1952), noted that an implied easement arises from a combination of necessity and the presumed intention of the parties.  The court noted that where an express easement has been granted, silence with respect to any other easement tends by implication to be significant in proving the intent not to grant such an easement.  Here, the Access Easement was expressly created to reach the main road.  Additionally, Zotos had actual knowledge of the septic installation plan, and should have been aware of the consequences detailed therein.  The plan shows that a new driveway would need to be created on the property, and failure to obtain an express easement over the second parcel to use the existing driveway established a lack of intent to create such access.  The court also noted that any contractual claim as to the creation of the second driveway per the plan was not at issue in the appeal.  The judgment was reversed, and a !

 new ju
dgment ordered declaring that no easement by implication existed.

Comment 1: The case is interesting because of the proper focus on the notion that an implied easement does not arise directly from facts, but only from the inference drawn from the facts that the parties likely intended that an easement exist.  It is sometimes overlooked that the presence of a preexisting quasi easement is only evidence that the parties intended that the easement continue in use, and hardly not conclusive.

This is less true of an easement by pure necessity, which presumably was not at issue here.  Based upon what the court tells us, the evidence does suggest that the parties did not intend that the other driveway continue in use, but note that the trier of fact found that there was an implied easement. 

Comment 2:  Note also that it may have been French who failed to follow through to provide the correct access improvements, so it is interesting that French and his successor in interest, who might have had actual or constructive notice of Zolo’s use of the old driveway, gets away with ducking the easement while simultaneously failing to follow through on providing the alternate access.  The court simply writes that off by saying that this dispute is not at issue in the case.

The editor might have ruled that French and anyone taking through him with knowledge of Zolo’s claim is estopped from relying on the existence of a roadway that French never built as establishing that there was no implied easement intended for Zolos over the old road.  In other words, Zolos gets the old road until French provides the new one.  But that’s just me . . . .

Readers are encouraged to respond to or criticize this posting.

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