Daily Development for Friday, September 3, 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: An easement by necessity in favor of a landlocked parcel may be asserted even after both dominant and servient parcels have changed hand several times over a period of years, and the easement can be made wide enough to accommodate the granting of a subeasement to a utility company to provide services to the landlocked parcel.

Fike v. Shelton, 860 So. 2d 1227 (Miss. App. 2003)

The original parcels were severed in 1932. Subsequent to that time, both dominant and servient parcels had changed hands several times, and no one had ever asserted the existence of an easement by necessity. Further, the alleged dominant owner here had added an additional 20 acre parcel to the parcel that was the benefitted parcel following the 1932 subdivision. The trial court awarded the dominant owner a fifty foot wide easement, although the normal easement for access to single family houses (the intended use of the dominant parcel) is only 25 feet. The dominant successfully convinced the court that the local public utility service provider would require a thirty foot wide utility easement in order to provide utilities to his house, and thus the total of fifty feet was reasonably.

In addition to asserting vigorously that there should be no easement following transfer from the original two parties after division, and complaining that the granted road was too wide, the alleged servient tenant argued that the dominant had no necessity claim because he’d been given permission by another neighbor to cross his land. Further, he pointed out that Mississippi statutes provided a “private right of eminent domain” for the establishment of a way of necessity, requiring payment to the servient party, and that this should be the proper means for establishing such a road.

The court, relying upon earlier Mississippi authority, upheld the lower court ruling on all counts. It stated that the passage of time and change of ownership did not dilute the doctrine of easements by necessity. Further, it implicitly approved the principle that “access” includes reasonable utility access when it approved the trial court’s award of a fifty foot easement. It also stated plainly that a revocable license is not the kind of “unrestricted access” necessary to eliminate a claim of easement by necessity.

As to the claim that a private right of condemnation existed, the court held that the easement by necessity was a common law doctrine that existed independent of the private right of condemnation. Where it is invoked, of course, the private right of condemnation is no longer appropriate. The dominant holder of a right of necessity has no need to pay for it because that owner of a predecessor implicitly paid for it when he purchased the property at severance.

Finally, the court held that the fact that the dominant claimant in this case knew at the time he purchased the land that there was no access also is irrelevant, since the easement had arisen long before.

Comment 1: This is truly a sweeping case, picking up and discussing in one case many of the variables that have bedeviled other courts in dealing with easements by necessity. The court resolves all the issues in favor of extensive recognition of the easement.

For a more conservative view of the scope issue, see, e.g. Thompson v. Whinnery, 895 P.2d 537 (Colo. 1995) (A court will not imply an easement of necessity when there is adequate access for the limited purposes for which the parcel was conveyed. In this case the purpose of the 1932 grand was for beaver trapping.) There are a number of cases holding that easements of necessity are not available for utilities. The editor lacks access to most of his research materials at the moment, but notes a similar holding in Hunter v. Keys, 600 N.W.2d 269 (Wis. Ct. App. 1999) An easement for access and egress authorizes the owner of the dominant estate to construct a road thereon, including the filling in of wetlands but does not entitle the owner of the dominant estate to install utility lines within the easement.

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