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.
Items reported here and in the ABA publications are for general information
purposes only and should not be relied upon in the course of representation or
in the forming of decisions in legal matters. The same is true of all commentary
provided by contributors to the DIRT list. Accuracy of data and opinions
expressed are the sole responsibility of the DIRT editor and are in no sense the
publication of the ABA.
Parties posting messages to DIRT are posting to a source that is readily
accessible by members of the general public, and should take that fact into
account in evaluating confidentiality issues.
ABOUT DIRT:
DIRT is an internet discussion group for serious real estate professionals.
Message volume varies, but commonly runs 5 15 messages per work day.
Daily Developments are posted every work day. To subscribe, send the message
subscribe Dirt [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription, send the message signoff DIRT to the address:
listserv@listserv.umkc.edu
for information on other commands, send the message Help to the listserv
address.
DIRT has an alternate, more extensive coverage that includes not only commercial
and general real estate matters but also focuses specifically upon residential
real estate matters. Because real estate brokers generally find this service
more valuable, it is named “BrokerDIRT.” But residential specialist attorneys,
title insurers, lenders and others interested in the residential market will
want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it
is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT
traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT
to the address:
listserv@listserv.umkc.edu
DIRT is a service of the American Bar Association Section on Real Property,
Probate & Trust Law and the University of Missouri, Kansas City, School of Law.
Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of
Law, UMKC School of Law, but Professor Randolph grants permission for copying or
distribution of Daily Developments for educational purposes, including
professional continuing education, provided that no charge is imposed for such
distribution and that appropriate credit is given to Professor Randolph, DIRT,
and its sponsors.
DIRT has a WebPage at:
http://cctr.umkc.edu/dept/dirt/
-----
To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu
with the text SIGNOFF BROKERDIRT.
Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.