Easements by Necessity Do Not Apply to Public Lands

July 18, 2009

Easements by necessity are probably not available when the subject properties' common ownership was governmental. In Murphy v. Burch (2009) 2009 DJDAR 5929, the appellate court would not find an "easement by necessity" over an existing private road crossing the defendants' property because the federal government had not reserved a right of access over defendants' property when it conveyed that property to defendants' predecessors. Plaintiffs owned four parcels of property to the east of defendants' two parcels. Access to defendants' two parcels was via a private road which connected with State Highway 162. That private road actually crossed through defendants' two parcels and connected to plaintiffs' four parcels. Plaintiff sought to quiet title to an easement across defendants' land, and defendants sought to quiet title and enjoin use of the access road by plaintiffs.

Prior to 1876 the federal government owned all the properties at issue and, between 1876 and 1929, deeded the parcels making up defendants' property to various owners. It did not not reserve an easement across defendants' parcels to Highway 162. In 1932, the federal government conveyed the four parcels now owed by plaintiffs to their predecessor. Those conveyances did not include any grant of easement over defendants' property to Highway 162. The access road is the only roadway access between plaintiffs property and Highway 162; plaintiffs property is otherwise landlocked. At trial, the parties agreed that plaintiff did not have prescriptive rights over the easement.

An easement by necessity arises from the presumption that when a party conveys property, the party conveys what is necessary for the use of the conveyed property, and retains what is necessary for the use of the property still owned. This is consistent with the larger policy at common law that one put one's property to productive use. Without access, this policy would be frustrated. The easement by necessity is implied from two factors: (a) strict necessity, such as when a property is landlocked; and, (b) common ownership at one time of the parcel without access, and the parcel across which access is sought. However, the easement by necessity will not exist if it is inconsistent with the parties' actual intent. The common law does not ensure a right of access to all landlocked parcels.

Here, the court noted that under normal circumstances, common ownership by the federal government does not give rise to implied reservations of easements. Necessity cannot really exist, as the government has a right of eminent domain to secure access whenever it wants it. Also, the nature of federal land grants is that the title should be of a nature that the owner can strictly rely upon it. Since no right of access was expressly reserved, an easement by necessity did not exist.