Daily Development for Friday, September 24, 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: 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 "necessity."

See Watts v. Baldwin, 662 So.2d 519 (La.App. 1 Cir. 1995), the DD for 1/21/96 on the DIRT Website (http://cctr.umkc.edu/dept/dirt)

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.")

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/