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

EASEMENTS ; CREATION; NECESSITY: Because strict necessity of access existed in 1891 when property was severed by its former owner, plaintiffs that owned part of the severed parcel were entitled to an easement by necessity.

0Kelly v. Burlington Northern Railroad Co., 927 P.2d 4 (Mont. 1996).

The plaintiffs' property was bounded on three sides by mountains and other private property, and by a railroad's right of way on the other. For years, the railroad issued "crossing permits" for a fee, but when the plaintiffs learned that the permits did not provide insurable access, which made them ineligible for construction loans, they sued for asserting the right to an easement. The Montana Supreme Court reversed judgment for the railroad on the issue of easement by necessity, which requires (1) unity of title at the time property is severed, and (2) lack of practical access to a public road for access and egress. Although the trial court had found no evidence of necessity when the property was divided, the Supreme Court concluded that necessity must have been present because the property was surrounded on three sides by mountains and a railroad on the other. The Supreme Court dismissed as irrelevant evidence that current landowners had not tried to negotiate alternative access with neighbors, because necessity must be determined at the time of severance.

Comment: The case is unexceptional, but the editor notes it to bring out an interesting feature of the proposed Restatement of Servitudes not hitherto discussed. The Restatement would make implied easements and easements by prescription subject to the recording acts, except to the extent that they provide necessary access. In many cases, of course, there is evidence of easement useage upon the ground, so the application of recording acts is of little consequence. But the Restatement provides an important service in clarifying the rules with regard to "invisible" easements. The Restatement approach probably accords best with recording act policies and the rule that many lawyers think is probably the rule anyway, although there is scant authority.

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