Daily Development for
Friday, September 4, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Note that there are two reports on different aspects of the same case here. To be candid, I'd have come out the other way on both of them. I learned something, and I hope you do to, if just so that I don't feel so uninformed:

EASEMENTS; CREATION; IMPLICATION; COMMON GRANTOR: An easement by implication can arise when the owner of two adjacent lots is using one lot in a quasiservient relationship to the other lot at the time the lots are divided, and the easement can happen even when the division of property is accomplished through a tax foreclosure of one of the lots.

Griffeth v. Eid, 571 N.W. 2d 829 (N. Dak. 1998) (dicta).

Comment: An easement by implication is supposed to arise as a consequence of the implied intent of the parties. Clearly when a tax lot owner is suffering a tax foreclosure of his property, he does not intend that the party buying at the tax sale also will get an additional right in the form of access across other property owned by the tax lot owner.

The court, incidentally applied the same rationale in analyzing an easement by necessity. The editor has less difficulty with that conclusion An easement by necessity, however, is more a creature of policy, not a product of an implied understanding, so it is perhaps a little more defensible and understandable where a court declares that such an easement exists against a tax sale defendant.

EASEMENTS; CREATION; NECESSITY: The owner of a landlocked parcel is not entitled to an easement by necessity across adjacent property once owned by a common owner if the adjacent owner offers a reasonable easement across other property for a reasonable price.

Griffeth v. Eid, 573 N.W.2d 829 (N.D. 1998).

In rendering its decision, the court discussed the difference between an easement by implication and an easement by necessity. It noted that both types of easements require the claimant to prove that there is no other means of access reasonably available. It is possible, therefore, that the court's articulation of what constitutes "necessity" would apply to the analysis of an easement by implication claim as well. As the court found no quasi easement which it concluded is a necessary prerequisite to the establishment of a easement by implication the only issue it had to address specifically is what necessity must be shown for an easement by necessity to arise.

The trial court held, and the court affirms, that the claimant had not demonstrated that there was no reasonable means of access to the claimant's land through means other than the alleged easement of necessity. It pointed out that the claimant may have been able to negotiate access across a neighboring public park. In addition, it noted that the owner of the target parcel also owned another parcel neighboring that of claimant, and had offered to sell an easement across that parcel for $1,500, which the trial court and appeals court viewed as a "reasonable" price.

Comment 1: The editor finds interesting the focus on an alternative route that is available only for a price. He has seen few, if any, other cases in which the owner of the target parcel was able to avoid the declaration of an easement by necessity by offering to sell an alternative access. The editor's brief review of Bruce & Ely, The Law of Easements and License in Land (Warren, Gorham & Lamont 1988) and an Annotation at 10 ALR 4th 447 (1981) indicates that the most common "cost" question when cost is a factor of reasonable access is the cost of constructing an alternate route, not the cost of acquiring the rights to do so.

Comment 2: The facts are a bit unusual in that there was no "common grantor." The owner of the target parcel had been the owner of the claimant's parcel, but had lost the property at a tax sale. See discussion of this aspect of the case under the heading "Easements; Creation; Implication; Common Grantor." Consequently, it would appear more difficult than usual to conclude that an easement by necessity had arisen.

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 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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