Daily Development for
Tuesday, November 11, 1998
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
Once again I find that I have a series of easement cases that do not individually make a meal, but perhaps are more interesting when served buffet style.
EASEMENTS; CREATION; NECESSITY: A purchaser of landlocked property does not have an easement by necessity over the parcel from which his property was severed where the purchaser is remote to the severing transaction and there is no evidence that the alleged servient parcel was ever used for access to the landlocked parcel.
Lake George Park, L.L.C. v. IBM MidAmerica Employees Federal Credit Union, 576 N.W.2d 483 (Minn. Ct. App. 1998).
The purchaser argued that an easement by necessity is established by operation of law whenever a landlocked parcel is created by severing it from other property. The court rejected this argument on grounds that Minnesota law treats an easement by necessity as a type of implied easement and that one of the elements required to establish an implied easement that the use giving rise to the easement be continued so long and be so apparent as to show that it was intended to be permanent was lacking.
Compare: Walker v. Maddox, 708 So.2d 197 (Ala 1997), the DD for October 5, 1998. Walker states the usual rule that long passage of time between the original severance and the need for access to a landlocked parcel does not destroy the easement by necessity. Walker and many other cases also apply the rule where the property has changed hands since the original severance, although there is some authority that the recording acts might change things. Also, of course a prescriptive blockage might occur, but showing a blockage is problematic where the easement has not yet been located.
Comment: This case relies upon earlier Minnesota Court of Appeals precedent that in turn relies upon older precedent both in the Minnesota Supreme Court and the Minnesota Court of Appeals. The most recent precedent is the source of confusion. It identifies easements by necessity and easement by implication as the same concept. They are similar, and might be identified as separate subspecies: but they differ because easements by implication require a quasi easement - a preexisting servient use - and easements by necessity do not. The earlier precedent cases do not support this interpretation of Minnesota common law, but the immediate past precedent relied upon this court is the real source of the confusion.
EASEMENTS; SCOPE; PRESCRIPTION: The owner of a prescriptive easement for ingress and egress over another's land that was established through seasonal use for passage may not use the easement year round and may not install utility lines over the easement area when the use that gave rise to the easement was seasonal.
Block v. Sexton, 577 N.W.2d 521 (Minn. Ct. App. 1998).
EASEMENTS; SCOPE; STATUTORY: A statutory easement for ingress and egress based upon customary use does not include the right to install a sanitary sewer line within the easement area.
Moore v. Levaris, 495 S.E.2d 153 (N.C.App. 1998).
Defendants' lot did not pass percolation tests to develop septic facilities. Defendant negotiated an easement to locate a septic tank, septic field and related facilities on the property of a neighboring (but not abutting) land owner. Defendant installed a connecting sewer line to the septic tank and facility inside and along an existing access road traversing the property of Plaintiff.
Pursuant to applicable statute, neighborhood public roads are for general use as a means of ingress and egress. The Court found that the scope of such easement was limited to the right of ingress and egress held by the public, that the Defendants could not be allowed to enlarge the use of the easement, and that the grant of a right of ingress and egress did not permit Defendants to install a sewer line within the easement area.
Comment: The case makes sense. There have, however, been a few cases involving condemned public roadways where the easement acquired by the government was construed to be broad enough to include the later installation of utility lines beneath the surface of the road. Those cases, however, did not involve statutory access easements based upon customary usage, as is the case here.
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