Daily Development for Friday, September 24,
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
EASEMENTS; CREATION; NECESSITY: When a
geographical barrier inhibits, but does not prevent access to the public road
from the grantor's landlocked parcel, there can be no easement by necessity.
Schwab v. Timmons, 589 N.W.2d 1 (Wis. 1999).
This case considers and rejects major and
minor changes in the doctrine of easement by necessity. It is a very useful
teaching tool, and ought to be considered by law professors.
In the 1850's, the U.S. Government sold off
certain parcels abutting Green Bay. These parcels were largely on flat area
adjacent to the lake, but they included some property at the top of a bluff
transecting the properties. The bluff ranges from 37 to 60 feet. When the
government sold the property in the 1850's, it sold the parcels that are now
Schwab's first, and later sold to McCormick's predecessors. At the southern edge
of the parcels sold to Schwab's predecessors, there was a public road at the
level below the bluffs. It remains there today. When the government sold the
Schwab parcel, however, it did not retain an easement to get across the parcel
to the public road. According to the court, this was because each of the parcels
at that time included a portion at the top of the bluff, which did have access
to a public road.
McCormick acquired her parcel by inheritance,
and thereafter sold off the portion of the property at the top of the bluff, as
did a number of other landowners.
McCormick first argued that the government
division of the properties created a reserved easement by necessity in favor of
the government with respect to the property at the foot of the bluff, since
there was no practical access to the road at the top of the bluff.
Although the court talked some about the fact
that the severance occurred over 140 years ago, and that it would seem unfair to
impose the consequences of that severance upon Schwabs at this late date, it
didn't really conclude that it would reject this approach if there indeed was a
necessity created by the original government grant. It did, however, cite
Backhausen v. Mayer, 204 Wis. 286, 234 N.W. 904 (1931), for the proposition that
a "purchaser of land without knowledge or actual or constructive notice of
the existence of an easement takes title to the same relieved of the burden or
charge of the easement."
Instead, the court took a different approach.
It concluded that even though the bulk of the parcels created in 1850 were at
the bottom of the bluff, and even though a road up the bluff would cost over
$700,000, this does not mean that the parcels were "landlocked." The
court stated that as an absolute fact there was physical access from the lower
portion of the parcels to the upper portion, regardless of how difficult that
access was. It talks about elevators and stairways.
The court noted that McCormick's parcel now
is "landlocked," because she herself sold off the property at the top
of the bluff, but it concludes that no easement of necessity can arise when an
owner "landlocks herself."
McCormick's most innovative argument was that
she should be entitled to an easement simply on the basis of a reasonable
balance of land uses. Her property was effectively unusable, she argued, and as
a consequence she ought to be able to cross over the land of her neighbors to
get access, so long as this did not unduly injure her neighbors. Since her
neighbors already had a road that they used to get to the public road, and she
would simply be sharing with them, she argued that her request caused little
injury to the neighbors.
The Wisconsin court declined to
"drastically" expand the number of situations giving rise to an
easement by necessity and adopted a "reasonable use test" that
balances the equities by weighing the need to allow access by easement versus
the detriment such a burden may place on the burdened property.
Comment: The court does not indicate what
arguments and authorities McCormick mustered in her behalf. The notion that the
law can declare an easement by of necessity across the land of a stranger, not a
common grantee of an owner of all the parcels, is not an unusual one in the
Civil Law. For instance, Louisiana, following the Code Napoleon, has such a
concept, although the editor is unsure about how the Civil Law would define
See Watts v. Baldwin, 662 So.2d 519 (La.App.
1 Cir. 1995), the DD for 1/21/96 on the DIRT Website
Comment 2: This case is a
"hardball" decision on the necessity issue, although other facts may
explain the result. There are other cases that would conclude that practical
necessity is an adequate basis, and that being technically landlocked is not a
prerequisite for an easement by necessity.
See also, on the issue of
"necessity," Dupont v. Whiteside, 721 So.2d 1259 (Fla.App. 5 Dist.
1998), the DD for September 13, 1999, which will be on the DIRT website at the
end of September. (Swamp blocking access does not create "necessity.")
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