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

EASEMENTS; CREATION; DEDICATION; IMPLIED FROM PLAT: An implied easement may arise under the the "beneficial enjoyment rule," which provides that when a grant of real property includes a reference to a plat, a grantee of a platted lot receives the right to all streets in the plat that are specially beneficial to that grantee.

Highland Construction, Inc. v. Paquette, 697 So.2d 235 (Fla. 5th DCA 1997).

The operator of an automobile salvage business and used car business was entitled to the implied easement because the deed contained the reference to a 1927 plat reflecting Vickers Street. Upon original dedication of the plat, the city accepted a dedication of the easement area as a public street, and it remained a street from 1927 until 1995, when the city vacated it. Plaintiff established that without access to the property through Vickers Street, there was no other viable means of access to the subject property. The critical question was whether loss of the easement would cause loss in the value of plaintiff's property.

The court indicated that an implied easement will be granted in such cases where there is a showing that the easement claimant will suffer a particular injury, differing not only in degree but also in kind from that sustained by the community at large resulting from the closure of the street.

Even though there was another means of ingress and egress, the court did not find this conclusive in determining that the Vickers Street access was so vital that an implied easement in fact existed. The other access ways were not viable for the uses that the owner was conducting on the land. In any event, the existence of alternative access is only a factor in the case of an implied easement, unlike what would be the case for "way of necessity" recognized in Florida by statute.

Comment: In fact, this opinion is a bit conservative when compared to opinions in other jurisdictions involving easments implied from plats. There are cases that recognize an implied easement in all roads laid out on a subdivision plat. Here, of course, one could argue that the fact that the platted roads were dedicated to the city suggested that the implied easement was coterminous with the city's use of the dedicated property for public road purposes. Thus, when the city later abandons, the rights of the landowner are less extensive than they might have been if we were looking at a newly platted subdivision in which there were no public roads.

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