Daily Development for Monday, September 13, 1999

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

EASEMENTS; CREATION; NECESSITY: Parcel is not landlocked for purposes of creation of easement by necessity for road across vendors' land to access portion of parcel even if purchasers would be required to construct new expensive access road through wetlands, including a requirement to donate eight acres for preservation easement.

Dupont v. Whiteside, 721 So.2d 1259 (Fla.App. 5 Dist. 1998).

Florida has a statute articulating the common law concept of easement by necessity. Under the statute, there must be no "reasonable and practicable" alternative route before the necessity will be recognized.

In this case, the lower court had found that the purchasers had established that there was no such access when they showed that to obtain access to their site they would have to obtain from the wetlands preservation agency a dredge and fill permit to construct the a roadway across some 700 feet of wetlands, at a cost in excess of $50,000, not to mention the eight acres they would be required to donate as substitute wetlands preserve.

The Florida Court of Appeals panel, in a split decision, reversed this factual finding and concluded that, because the road in fact was possible to build, concluded that the landowner's problem was merely one of "convenience" and not reasonable necessity. The court stated that the Florida Supreme Court had concluded that "strict" necessity was required, but the language it quotes from the Supreme Court suggests that the "reasonableness" of an alternative way in fact is relevant:

   "The term "necessity," as used in the common law doctrine   implying ways of necessity, means that no other reasonable mode   of accessing the property exists without implying the easement,   and the fact that one means of access is more convenient than   another does not make the more convenient means a necessity."

Although, in the view of the appeals court, the claimants had demonstrated that the desired route across their vendor's property was preferable (especially since, by time of trial, the vendor had in fact built a road and was letting other purchasers use it), the court concluded that this was not a case of "strict necessity."

The court remanded because there were facts supporting an alternative claim of estoppel or "executed license," sufficient to support the claimant's position.

Comment 1: The Florida statutory language does not significantly alter the commonly expressed statutory test, and consequently this case can be viewed as, in effect, a common law analysis.

Comment 2: Once the question of "reasonable mode of access" arises, should not cost of that access by a primary consideration? These days, access from anywhere to anything on earth can be accomplished at some price. But that does not mean that it is reasonable to create such access? Wetlands laws are expensive and time consuming to satisfy. As the dissenter stated: "[W]ith the advent of environmental laws and the creation of regulatory agencies such as [the local River Water Management District], it might be easier to traverse a river bywalking across the surface of the water than to obtain a derdge and fill permit to construct a road through some 700 feet of wetlands."

Although the editor has never seen the argument raised, might it be relevant to the question of "reasonableness" from a public policy standpoint that the alternative route, even with the mitigation and the permit process, nevertheless traverses land that the State has identified as environmentally sensitive.

Comment 3: Finally, it was evident here that each party submitted its experts at the trial court, which heard all the evidence and evaluated the witnesses. Although these were questions of expert opinion, of course, the fact remains that the oral testimony may have had an impact on the validity of the conclusions reached. Wasn't it best just to leave the determination of "reasonableness" here to the trial court, especially when the case will be remanded anyway on what the court suggests is a pretty strong case of executed license?

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

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. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA .

DIRT has a WebPage at: http://cctr.umkc.edu/dept/dirt>http://www.umkc.edu/dirt/