Daily Development for Monday, September 13,
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
"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?
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