“The 2Point Way” – Is Private Condemnation Possible? (Yes...) Yet Another Way to Create Easements
Private Condemnation has received little or no attention among land use professionals (or in surveying textbooks) yet statutes exist in many states that allow a private individual to initiate a court proceeding that ultimately creates a private easement across one of more of their neighbors.
At first glance, this process seems to run contrary to laws—established in many states—prohibiting condemnation of private land for purely private benefit. However, a constitutional challenge of a private condemnation under Section 300 of New York State Highway Law was defeated in the decision Pratt v. Allen, 116 Misc. 2d 244 (1982). The court notes that a similar challenge in a prior dispute resulted in an amendment to the New York State Constitution that allowed the continued application of Private Condemnation laws that had existed prior to statehood.
Continued application of relevant statutes is justified (in part) by public policies designed minimize disputes arising from landlocked tracts. All statutes reviewed for this article require that the servient owner be compensated for the added burden of a new easement. This provision represents a clear attempt to fulfill the underlying purpose of the Takings Clause in the United States Constitution.
Private Condemnation is not restricted to any particular geographic region. Western states are well-represented, with examples in Arizona, California and Wyoming. Midwest states with analogous statutes include Iowa, Missouri and Oklahoma. Colonial state statutes authorizing Private Condemnation are found in Georgia, New York, North Carolina and Pennsylvania.
Common Law vs. Statutory Rights
Some states have added to the general confusion by referring to the resulting servitudes as “private ways of necessity.” Given the statutory basis of their origins, easements by Private Condemnation should not be confused with the common law concept of “Easement Implied by Necessity.”
— A common law Easement Implied by Necessity is based on the presumed intent of the original parties. Since courts will not lightly assume that a tract of land was sold with no legal access, judges may presume an easement even where the relevant deed makes no mention of one. This method of creating an easement is predicated on an original common grantor, and the easement presumed must pass over the remaining lands of the original grantor whose conveyance created the landlock. No judicial intervention is necessary to create the easement. The width of such an easement varies between cases—determined by terrain and other specific circumstances.
— By contrast, Private Condemnation does not require proof of a common grantor, and the easement created may pass over the lands of a stranger. The process generally is initiated by a petition—in the required statutory format—presented to the court by an individual. Under most of these statutes, any private individual could—in theory—claim an easement over any neighbor, regardless of the sequence of conveyance or the existence of a common grantor. The location and width of the resulting way is established either by express statutory standards, or by viewers sent by the court to establish its limits.
The Colorado courts highlight the need to distinguish between the two sources of easement rights in Bear Creek Dev. v. Genesee Foundation, 919 P.2d 948 (1996): “While the common law easement and way of necessity must be differentiated, see State Department of Highways v. Denver & Rio Grande Western R.R. Co., 789 P.2d 1088, 1092 (Colo.1990) (way of necessity “exists where the common law or other remedies do not provide a basis of access”), they both depend on a finding of necessity. They differ, however, in that the common law easement is fixed in the past by the intent of the grantor, while the constitutional way of necessity only “exists because of necessity and not by reason of an implied grant.””
In Dabrowski v. Bartlett: 442 P.3d 811 (2019), the Arizona court concedes that a property owner who is otherwise landlocked may apply for an easement under A.R.S. 12-1202. As with the prior Colorado example, this court refers to the resulting right as a way of necessity: “Arizona law permits a landowner to engage in private condemnation when land ‘is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a way of necessity.’”
As in several similar state statutes, the individual claiming the easement must select a reasonable route that minimizes damage and inconvenience to the proposed servient tract. In this dispute, an existing road bed that might have been suitable in the past was no longer the most appropriate location because the servient owner had built a house and adapted the old road bed for his personal driveway.
Private Condemnation laws generally include specific language describing the circumstances where the procedure can—or cannot—be applied. Where the petition is approved, one or more ‘viewers’ will be selected and sent to the site to determine a suitable location and width of an easement. This process is described in Pennsylvania law under 36 Pa. Stat. 2732: “If it shall appear by the report of viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened, and the proceedings in such cases shall be entered on record, as before directed, and thenceforth such road shall be deemed and taken to be a lawful private road.”
Confusion Among Authorities
A recent Alabama decision highlights the confusion that surrounds claims under the various state statutes. In Weeks v. Herlong, Ala. 31 So. 3d 122 (2009), the judge states: “Well, I’ll tell y’all, I don’t know anything about private condemnations. So, I mean, I’ve never handled one of those. I’ve handled easements before. I’ve dealt with that but I don’t know how to handle a private condemnation. I would assume that if an easement is established, then there’s no need for a private condemnation so based on my ruling that the prescriptive easement did exist, I’m gonna deny the claim for this private condemnation.’”
Alabama is not the only state perplexed by its own Private Condemnation law. By judicial construction, the Georgia courts have incorporated their Private Condemnation code into some prescriptive easement claims, creating an odd hybrid between condemnation and adverse use. However, the source of the apparent confusion between the two doctrines is apparent upon consideration of the language of the statutes.
O.C.G.A. 4-9-1 describes four methods for creating an easement: The right of private way over another's land may arise from an express grant, from prescription by seven years' uninterrupted use through improved lands or by 20 years' use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter. The last item in this list is further described in later portions of the Code as Private Condemnation.
The 2007 Georgia decision Dovetail Properties, Inc. v. Herron, 652 S.E.2d 856 (2007) considers a recurring limitation in Private Condemnation statutes of several states—that they cannot apply if the owners intentionally landlocked themselves. In this case, the landlock was involuntary from the perspective of the claimant and the process initiated under OCGA § 44-9-40 (Article 3) could proceed.
Repealed or Revised
Some Private Condemnation statutes have been modified or repealed over the years, but servitudes created during the time period that the statutes were in force remain valid even in the face of later repeal of the law. For example, Statutory Cartway Proceedings under North Carolina law have been relatively limited since revisions of N.C.G.S. 136-69 circa 1950, but the broader early standards were applied for over a century, based on older versions of the statute originating circa 1798.
Tennessee Statute 54-14-101 was repealed in 2020, but it was established during the early development of the state and endured for over 140 years. A private way created under this statute could be up to 25 feet in width.
The examples above describe a few permutations of Private Condemnation in the United States. In general, these laws operate on a separate level from the right of condemnation by state agencies used to create highways, parks, gas line corridors and other public infrastructure. However, arguments against application of Eminent Domain for private gain have been used to nullify Private Condemnation statutes in some states. State courts that have declared Private Condemnation statutes unconstitutional in early phases of their development include:
-- Indiana (Logan v. Stogsdale, 123 Ind. 372 (1890))
-- Kansas (Clark v. Board of Comm., 69 Kan. 542, 77 P. 284 (1904))
-- Maryland (Arnsperger v. Crawford, 101 Md. 247 (1905))
-- Nebraska (Welton v. Dickson, 38 Neb. 767 (1894))