Daily Development for
Monday, June 23, 1997

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

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.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.