Easement by Necessity - Driveway disputes can be Problematic for Land Surveyors
The concept of Easement by Necessity developed early in the history of English common law—numerous examples can be found as far back as the fourteenth century, including some spirited debates over whether the grant of a pond and the fish in the pond gives the grantee the right to drain the pond and take all of the fish. The basic concept is still with us, though the details differ. Modern disputes are more likely to deal with personal or commercial driveway access to otherwise landlocked parcels. Variations of these easement are also found in the current French and German legal systems.
To use the classic example, if grantors sells a field completely surrounded by their remaining lands, the grantee also gains a right to access the field, since the grantee would otherwise gain no benefit from the grant.
Easement by Necessity is well-established doctrine in the American legal system and the various state courts apply the basic concept with admirable consistency. However, the case-by-case application of these principles are subject to a wide range of possibilities depending on specific circumstances of the case.
There are three prerequisites consistently found in any successful claim of Easement by Necessity:
…initial unity of title, followed by…
…a division of the parent tract into two or more parcels…
…that creates the necessity for the easement.
As is the case with adverse possession principles, the courts are reluctant to rule in favor of any Easement by Necessity, and generally require compelling evidence from any claimant attempting to do so. These easements come into being immediately by operation of law where all common law requirements are met. Unlike prescriptive easements, no minimum statutory period is applied. Nor is there any mandate for a pre-existing visible access as is the case for easements implied by prior use.
The resulting easement is presumed over the remaining lands of the original parent parcel; no claim can be made over the lands of a stranger to the original division that created the necessity.
Beyond these common characteristics lie a plethora of refinements that can complicate the claim.
States differ when considering whether easements by necessity arise as an expression of public policy or to reflect the unwritten intent of the parties. The debate is ongoing, and includes diverse opinions from multiple legal scholars over the last century. (Both positions have been validated in the sources used for this article.) Regardless of the preferred argument, public interest in avoiding landlocked and useless property and the reasonable rights of property ownership are significant. A recent case from Washington State summarizes both rationales: “[T]he intent to create an access easement over the grantor's land is implied when a grantor sells landlocked property… An easement of necessity is an expression of a public policy that will not permit property to be landlocked and rendered useless.” 
There is a strong argument in favor of ‘implied intent of the parties’ as the basis for easements by necessity. If Easement by Necessity was purely a rule of equity based on public policy considerations, there would be no reasonable requirement for a common grantor.
Confusion for the Unwary …
Unfortunately, the phrase “Easement by Necessity” suggests that simple need of access across the lands of another is, in itself, sufficient to justify an easement. In fact, necessity caused by any act other than that of the initial division that creates the necessity cannot be used to justify Easement by Necessity. Common law Easement by Necessity should not be confused with statutory private condemnation based on necessity, which does exist in a few jurisdictions.
An Easement by Necessity will sometimes be upheld in surprising circumstances. It is well-established that the easement may be claimed by a later landowner years after the original grant that created the necessity, even if no use was made of the easement at the time of its creation. The Maryland court reflects on these principles with the statement: “If the way of necessity was not implied at the time of the grant, it cannot be established by a subsequent necessity…In other words, the necessity must be determined from the conditions as they existed at the time of the conveyance… Hence a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed. … This rule is consonant with the generally held view that non-use alone is not sufficient to extinguish a way by necessity” 
Permissive use to access the problem parcel does not defeat a claim of Easement by Necessity because permission can be withdrawn at any time. On the other hand, an irrevocable license for access may defeat a separate claim in circumstances that appear very similar.
When the grantor landlocks himself
When interpreting deeds and other writings, any uncertainty in a description is construed in favor of the grantee and to the detriment of the grantor. For this reason, a heightened level of scrutiny is applied when the grantors have landlocked themselves. In general, the level of necessity must be absolute when the portion retained by the grantor is the landlocked tract.
In one Maine decision, the original grantor sold the front portion of the land “free of all encumbrances” and retained the rear portion without any mention of an easement over the front portion. Even though the rear parcel remained completely landlocked, the court ruled that: “Although that conveyance left the Back Parcel landlocked, the Front Parcel was and has always been accessible. In such a case, we decline to imply that an easement by necessity arose, against the interests of the grantee, based solely on the fact that the grantor created and retained a landlocked parcel. There is no evidence here of the grantor’s intent to retain a quasi-easement as a true easement. To the contrary, the conveyance expressly covenanted that the Front Parcel was “free of all encumbrances.” Therefore, the court properly concluded that no easement by necessity was created …” 
Despite the failure of the claim in the case cited above, the possibility of Easement by Necessity in favor of the grantor was firmly entrenched in English common law since the early 17th century: “In Clark v. Cogge, decided in 1607, there was a question as to whether the grantee could have a way by necessity over other lands of the grantor, and the court held he could have such a way, “for otherwise he could not have any profit of his land.” But the court also said, “If a man has four closes lying together and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved to him by law.”  Many modern courts have upheld legitimate claims where the grantor was the landlocked party.
Level of Necessity required?
It is widely accepted that mere inconvenience is not sufficient to create any Easement by Necessity—regardless of grantor-grantee status. In any situation where the grantor is claiming the right, the level of necessity becomes nearly absolute. At a minimum, the courts will require evidence that the easement is reasonably necessary for the enjoyment of the land.
Columbia Law Review weighs in on this issue, drawing on case law from Arkansas and New York: “Easements of necessity are said to arise by implied grant or reservation. See Cherry v. Brizzolara (1909) 89 Ark. 309, 316, 116 S. W. 668; 2 Tiffany, Real Property (enlgd. ed. 1920) 1295 et seq. Where a grantor retaining an alleged dominant tenement claims such an easement over his grantee's land, absolute necessity must be shown. Cherry v. Brizzolara, supra. But where the grantee claims the way, he need show only reasonable necessity. Paine v. Chandler (1892) 134 N. Y. 385, 32 N. E. 18” 
Another variation occurs when lots are conveyed simultaneously, as opposed to the more common claims based on the sequential conveyances from previous examples. Although little case law is available on this scenario, the Maryland courts have observed: “An easement by necessity also may be created where there are simultaneous conveyances by a common grantor, and one of the conveyed lots is landlocked and inaccessible, in which case an easement over the other simultaneously conveyed lot to benefit the inaccessible lot may be implied.” 
All too often, neither surveyors nor attorneys perform sufficient research when confronted by a possible Easement by Necessity. Only complete research including all affected tracts will provide the proper framework for determining the actual outcome. Many cases confirm that the test of necessity must be made while considering the condition of the parcel and that of surrounding lands at the time of the division which created the necessity. The New Hampshire court notes: “Whether or not a sufficient necessity exists to warrant the creation of a way by implication is determined by the necessity existing at the time of the original grant.” 
When Alternate Access by Water Exists:
Necessity takes a different tack when the property in question adjoins a river, lake or bay. Legitimate questions then arise regarding accessibility by water, including:
(1) Is water access consistent, or only available at certain states of the tide or seasons of the year;
(2) Are there rocky shorelines or extensive mud flats that make water access dangerous or impractical, and;
(3) What were the typical patterns of land use at the time the original conveyance created the necessity.
Coastal state case law includes discussion of these issues, as summarized by the Maryland court: “An easement by necessity may exist over the land of the grantor even though the grantee’s land borders a navigable waterway, if the water route is not available or suitable to meet the requirements of the uses to which the property would reasonably be put…Thus, without a way of necessity the public policy of full utilization of land is frustrated.”  However, several northeastern states including New York have concluded that access to a navigable watercourse generally precludes a claim of Easement by Necessity.
Extinguishing an Easement by Necessity
Easements by Necessity are unique in one respect; easements created under this doctrine disappear when alternative access is established and the necessity ceases. On the other hand, they are not extinguished by mere non-use, and statutes of limitation for real property are not applicable to their termination.
Numerous cases state that clear and unequivocal evidence is required to eliminate an easement of this type; however, if the necessity for the easement no longer exists—for example, if an additional express easement to the landlocked parcel is granted—the Easement by Necessity is extinguished immediately by operation of law. Conversely, as long as the necessity continues, the easement continues. “It may therefore be stated that in this country, the scope of the easement by necessity must be such as to enable the dominant owner to enjoy his land for all lawful purposes, so long as the necessity continues.” 
Expand a Utility Easement by Necessity?
The vast majority of legitimate claims of Easement by Necessity are associated with ingress and egress. In one New York case considering an Easement by Necessity for another purpose, a contractor was attempting to excavate a 10-ft. deep trench in an express easement only 10.42 ft. wide and was accused of causing considerable damage beyond the limits of the easement. The contractor attempted to show evidence of an additional Easement by Necessity for clearing trees and brush, claiming that there was a “physical impossibility to excavate a 7 to 15-foot deep trench in a 10-foot wide area, using modern equipment such as bulldozers and 3/4-yard cranes.”  The court denied his motion to allow an increase—based on necessity—in the scope of a utility easement originally created by express grant.
New Hampshire reinforces this principle with the statement, “It has been held that, where the extent of a right of way is defined by the grant, it cannot be enlarged by implication.” 
American Jurisprudence summarizes the principles by which the scope of an Easement by Necessity will be determined: “The extent of a way or easement of necessity is that which is required for the complete and beneficial use of the land to which such way is impliedly attached. Where an easement is implied by necessity, its scope must reflect the necessity which justifies the easement's existence. However, a way of necessity is not limited to those purposes connected with the use of the dominant tenement existing at the time the easement was created, but is available for any and all purposes for which the dominant tenement may be adapted; the enjoyment of such a way is limited only by the necessity for its use in connection with all lawful uses of the land to which it is appurtenant. In other words, a way of necessity ordinarily is coextensive with the reasonable needs, present and future, of the dominant estate; it varies with the necessity, insofar as may be consistent with the full reasonable enjoyment of the servient estate.” 
This summary can be applied to any of the permutations of Easement by Necessity described above, but adds one final twist. While the original necessity justifies the existence of the easement, the extent of the easement may vary over time based on prevalent modes of transport, mining, and the changing needs of society. By contrast, the scope of a prescriptive easement is defined by the type and location of use that created the right.
The role of the surveyor in cases of this type may seem trivial because an Easement by Necessity is created by an operation of law. However, the surveyor may play a supporting role by researching the sequence of conveyances which created the boundary lines associated with the area in question and by collecting evidence which might shed light on conditions current at the time of the original conveyance that created the purported necessity.
1. Visser v. Craig; 139 Wn. App. 152; 159 P.3d 453 (2007)
2. Stansbury v. MDR Dev.: 161 Md. App. 594; 871 A.2d 612 (2005)
3. Northland Realty, LLC v. Crawford 2008 ME 92; 953 A.2d 359 (2008)
4. Columbia Law Review, Vol. 25, No. 5 (Nov., 1925), p. 573
5. Columbia Law Review, Vol. 21, No. 7 (Nov., 1921), p. 721
6. Stansbury v. MDR Dev.: 161 Md. App. 594; 871 A.2d 612 (2005)
7. Batchelder v. National Bank, 66 N. H. 3.86, 22 Atl. 592
8. Stansbury v. MDR Dev.: 161 Md. App. 594; 871 A.2d 612 (2005)
9. Columbia Law Review, Vol. 25, No. 5 (Nov., 1925), p. 573
10. Tubb v. Rolling Ridge; 28 Misc. 2d 532; 214 N.Y.S.2d 607 (1961)
11. Batchelder v. National Bank, 66 N. H. 3.86, 22 Atl. 592
Am. Jur. 2d Easements & Licenses in Real Property § 80 Ways of necessity