by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; CREATION; NECESSITY: A court will not imply an easement of necessity when there is adequate access for the limited purposes for which the parcel was conveyed. Thompson v. Whinnery, 895 P.2d 537 (Colo. 1995).

In 1938, T conveyed a 194-acre parcel to W's predecessors in interest. Although most of the parcel had access to a public highway, ten acres were accessible only by fording a creek from the rest of the parcel or by using a private dirt road on T's property. At the time of the grant, the ten acre parcel was used for fishing, trapping beaver and hunting.

W argued that it had an implied access easement across T's property to reach the 10 acres. The court acknowledged that there may need to be two points of access to a parcel where, as in this case, a natural obstacle divides the property. Further, it held that W had established two elements of an implied easement of necessity--the unity of ownership of the entire tract prior to division and the necessity for the easement at the time of the severance. Nevertheless, the court concluded that W had not proven the third element--the "great" necessity for the easement. Given the limited purpose for which the land was granted in 1938, W had failed to satisfy the burden of showing that access to the property was inadequate. The court did acknowledge that that the purpose for which a property is conveyed includes the uses of the parcel that the parties might reasonably have expected based on its "normal development," but nevertheless based its decision upon the perspective of the parties in 1938.

Comment: It is often said that the easement implied from necessity is more a creature of policy, intended to make property more marketable, rather than a creature of contract. This is demonstrated, for instance, by the common recognized rule that an easement by necessity, unlike an easement implied from prior useage, disappears when the necessity disappears. But, as this case indicates, the easement of necessity also has roots in the implied agreement of the parties. In fact, if the parties clearly negate the existence of any easement rights, they can "landlock" a parcel despite the adverse policy ramifications. Here, the court looks to the expectations of the parties to define the scope of the necessary access.

The court's approach, which seems consistent with other applications of the doctrine, nevertheless creates at least a minor anomaly in that the court is seeking "probable intent" in a situation in which it is quite possible the parties never thought about the issue at all. But to give the easement a broader scope would make the implied easement of necessity a more significant right than an express access easement, which clearly would have a scope limited by the parties' probable expectations.

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