Easement by Necessity
What is the Easement by Necessity?
An easement implied by law when a parcel of land is landlocked as a result of a conveyance that severed it from access to a public road, ensuring the landlocked parcel has access.
Definition
An easement by necessity arises by operation of law when a conveyance creates a landlocked parcel -- a parcel with no access to a public road or utility service. The doctrine is grounded in the presumed intent of the parties to the severance: it is assumed that the grantor and grantee did not intend to create an inaccessible parcel. The necessity must arise from the severance itself, meaning the landlocked condition must be a direct result of the division of a formerly unified tract.
The requirement of strict necessity is the distinguishing feature of this type of easement. Mere convenience or difficulty of access is insufficient; the claimant must show that without the easement, the property is practically inaccessible. The easement is implied over the retained land of the grantor (or the land conveyed, if the grantor's retained parcel is the one that is landlocked). The easement lasts only as long as the necessity continues; if an alternative means of access later becomes available, the easement by necessity may terminate.
Unlike an easement by prescription, an easement by necessity does not require a period of adverse use. It arises at the moment of severance, even if never previously used, because it is based on implied intent rather than prescriptive use. The critical factual inquiry is whether the dominant and servient parcels were once held in common ownership and whether the severance created the landlocked condition. Prior use is not required, which distinguishes this easement from an easement by implication.
Key Elements
- 1Common ownership of the dominant and servient parcels prior to severance
- 2A conveyance that severed the unified tract into separate parcels
- 3Strict necessity for access (mere convenience is insufficient)
- 4The necessity must arise from the severance itself
- 5The easement lasts only as long as the necessity continues
Landmark Cases
Othen v. Rosier
148 Tex. 485 (1950)
Distinguished between easement by necessity, easement by implication, and easement by prescription, and emphasized the strict necessity requirement for an implied easement by necessity.
Finn v. Williams
376 Ill. 95 (1941)
Established that an easement by necessity requires proof that both the dominant and servient parcels were once part of a common tract and that the severance created the need for access.
Schwab v. Timmons
224 Wis. 2d 27 (1999)
Addressed the scope and duration of easements by necessity, confirming that they terminate when the necessity ceases to exist.
Exam Tips
- The key fact pattern is a landlocked parcel created by a severance from a larger tract. Always check whether the parcels were once in common ownership.
- Distinguish necessity from implication: necessity requires strict necessity but no prior use, while implication requires prior use but only reasonable necessity.
- Remember that the easement terminates when the necessity ends -- for example, if a new public road is built providing alternative access.
Common Mistakes to Avoid
- Confusing easement by necessity with easement by implication -- necessity does not require prior use, but it does require strict (not merely reasonable) necessity.
- Assuming an easement by necessity can arise between parcels that were never in common ownership -- common ownership prior to severance is an essential requirement.
Memory Aid
Necessity = No way out. If a conveyance creates a landlocked parcel, the law implies an easement because the parties could not have intended to trap the land.