Daily Development for
Monday, April 8, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; CREATION; IMPLICATION; PARKING RIGHTS: A party can establish an easement by implication based upon pre-severance use of servient property as a parking lot, and such use can arise by implication even when it would not arise by adverse possession. Peterson v. Beck, 537 N.W.2d 375 (S.D. 1995).

Owner of golf course maintained a parking lot and supper club. Patrons used the parking lot both for the golf course and the supper club. Owner sold the supper club and parking lot to an American Legion chapter, which continued the supper club operations. Golf course patrons continued to use the parking lot for both the golf course and the club, to which they generally repaired following a round of golf. After fourteen years, the the Legion sold its property to a housing developer.

The developer asserted exclusive ownership and control of the parking lot, and the golf course sued to quiet title. The lower court found that the prior use of the parking lot by golf club patrons did not establish any rights of adverse possession. However an implied easement based upon the preexisting parking use did arise at the time the club and lot were first sold, and continued to burden the present owner of the club property.

In affirming, the Supreme Court acknowledged the elements for a finding of an easement implied by prior use, namely; unity of title, the apparent use of one part of the estate in favor of another, where upon severance it is reasonably necessary for the use to continue. The court stated that notice of the easement was apparent from the manner in which the property had been used.

Reporter's Comment: This case is fairly basic in its application of black letter law. It emphasizes a point that many in the legal field tend to disregard - the point that courts do not use the terms "implication" and "prescription" interchangeably when dealing with the creation of easements.

Editor's Comment 1: The editor isn't so sure that this is "black letter law." One unusual feature of the case is the court's emphasis on the "balancing of factors" test for implied easements set forth in the Restatement on Property Sec. 476. This section, unlike pre-existing common law (and, in the editor's understanding, unlike the common law of most states) permits recognition of an easeement by necessity upon evaluating and balancing a series of enumerated factors. The common law test usually requires direct satisfaction of each factor. But the court does not seem to appreciate the difference, and the reliance upon the Restatement probably did not make a difference here.

Another unusual feature is the fact that the court found an implication implied by reservation (in favor of the grantor) in a rather broad and extensive use. Normally, courts are more reticent to find easements implied by reservation as opposed to easements implied by grant, and it is often said that a high degree of necessity is required. (The editor doesn't necessarily agree with this distinction but it does exist in the law.)

In this case, the court hardly mentions the degree of necessity in question, although it does acknowledge that the requirement exists. In fact, the facts of the case suggest that it would be difficult to make out a case of "high necessity." One would assume that some realignment of the rest of grantor's property would permit parking elsewhere on the premises - even assuming that the grantor is entitled to take into account the golf course useage in arguing for necessity. Golf courses have a lot of open space, after all, and some might be made into parking. Even more interesting is the fact that the golf course owner had since relocated its clubhouse, which suggests that the same degree of necessity no longer exists for parking at this precise location that once existed.

The court probably was influenced by the fact that the parties continued the joint use for fourteen years after the conveyance to the American Legion. But this useage clearly could have been a permitted use by the Legion, since permitting parking for golfers served the interests of the supper club. Further, under the implied easement doctrine, the facts necessary to establish the existence of the easement were or were not in place immediately upon transfer, and the subsequent useage should not have been a factor. It is not one of the factors suggested for analysis by the Restatement.

Editor's Comment 2: If a land developer had bought the supper club property, and sought immediately to tear down the club and terminate the parking by golf course patrons, it is difficult to imagine that the parties to the grant should be viewed as intending that the golf club had a parking easement by implication. The court had the additional fact in this case that the parties continued the parking use after the initial severance. But, as mentioned above, this should not have been a factor. The editor views this case as rightfully decided only if there is much stronger evidence of necessity than would appear to be the case on the facts given by the court.

Editor's Comment 3: While we're talking about parking easements, let's not forget that they can arise in leases as well. If an owner of multi-tenant commercial property with a common parking area leases to a tenant, that tenant normally can expect to have continued parking rights as well as access rights basically consistent with the preexisting useage. Unwary landlords can sacrifice needed flexibility by not inserting lease language limiting this expectation.

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