Daily Development for
Friday, February 19, 1999

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

EASEMENTS; CREATION; IMPLICATION: The court will not create an easement, either implied from a preexisting use or by necessity, where an unambiguous written easement expressly states that the easement was to terminate after a specified time.

Mougey Farms v. Kaspari, 579 N.W.2d 583 (N.D. 1998).

Defendant owned farmland adjacent to the Sheyenne river. Plaintiff owned land adjoining defendant's land, but with no river access. Plaintiff leased defendant's land for approximately twelve years, and during this time, the parties jointly purchased and installed an irrigation system which provided irrigation for both properties. Defendant granted plaintiff a written easement for the irrigation system which expired at the end of the ten year lease term. Defendant opted not to renew the lease or the easement. The court ruled that the above facts do not establish an easement, either by necessity or by implication.

Comment: This case makes the important point that, although easements by necessity are in part based upon the public policy in favor of making all land available for beneficial use, they are also creatures of the parties' implicit understandings, and if the agreement specifically denies the existence of any such easements, they do not arise no matter what the necessity. In some states, such as North Dakota, the problem is addressed by use of "private eminent domain" provisions permitting parties to acquire access easements by eminent domain proceedings. In fact, the court did provide such an eminent domain proceeding to go forward in this case. See below.

EASEMENTS; EMINENT DOMAIN: Although private right of eminent domain for purposes of obtaining easement to draw water from water source can be granted only when there is a "public purpose" served by such easement, the fact that the party seeking the easement has an appropriation right granted for purposes identified by the state as a "beneficial use," such as agriculture, is sufficient to establish the public purpose of the taking.

Mougey Farms v. Kaspari, 579 N.W.2d 583 (N.D. 1998).

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