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Rean v. Fitzgerald

A-6897-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

EASEMENTS; NECESSITY—One who buys a landlocked parcel without taking steps to obtain access rights and who waits as long as 55 years to assert an easement by necessity has a burden to show necessity by clear and convincing evidence in order to have a court of equity grant the easement.

A property owner sought access to a public road over neighboring properties. His request “was premised upon the legal fiction of easement by necessity. ... [S]uch an easement arises where the lot to be served by the easement and the lot or lots to provide that service were, at the time of the creation of the landlock, under unity of ownership.” In 1920, a fifty acre parcel was subdivided and sold to a single owner. Two of the lots, owned by the complaining property owner in this case, had no frontage on a public road. One of the lots had frontage on the public road. One of the two landlocked lots and the lot with access to the road were commonly owned. Access from that particular landlocked lot was through its “sister” lot. In 1946, that changed. The smaller landlocked lot was sold, thus severing the unity ownership as to it and its “sister” lot. That same year, however, the buyer of the landlocked lot also purchased the second landlocked lot and one other lot that had been part of the original fifty acre parcel. Thus, at that point, access to the smaller landlocked lot was provided by the other two lots now owned by the same owner. Two years later, the smaller landlocked lot was conveyed to the complaining owner who now owned both landlocked lots.

None of the various deeds in the relevant chains of title contained an easement for the benefit of the smaller landlocked lot. Both of the two lots that had access to a highway had “only fifty feet of frontage on a public road and both [had] structures, preexisting the severance of unity of ownership between [the smaller landlocked lots and the two lots with access to a highway], which would be encroached on by the easement” that was sought by the complaining owner.

“An easement by necessity, a subcategory of implied easements, arises by operation of law when a landowner conveys to another a parcel that is completely surrounded by the land retained by the landowner. ... This kind of easement ‘arises only where there has been unity of ownership and a subsequent severance of title resulting in the grantor or grantee owning a parcel which is landlocked. ... Unlike a quasi-easement which requires not only unity of ownership, but also continuous, permanent and reasonably necessary use of the quasi-servient property by the quasi-dominant property, ..., an easement by necessity requires only unity of ownership at the time of severance which has left the property to be served by the easement otherwise useless.” In determining whether an easement of necessity is established, “the critical circumstances are those that exist at the time when the landlocked parcel was created. ... The easement, once created, may lie dormant for many years until the owner of the parcel chooses to exercise it.” However, “[w]hen ‘necessity’ no longer exists the easement terminates.”

When the Court applied these principles to the circumstances in this case, it immediately found that the unity of ownership was severed between the smaller landlocked parcel and one of the two parcels that had access to a highway. That occurred when the smaller landlocked parcel “became part of a unity of ownership” with the other landlocked parcel and with the second parcel that had access to the highway.

This left the lower court with the need to balance the equities. In doing so, it found that the harm to the owner of the lot with access outweighed the alleged necessity of the owner of the smaller landlocked parcel. The Court charged the owner of the landlocked parcels “with bearing the blame for his landlocked status, noting that he purchased the lot ‘knowing it was landlocked and without requiring a deed of easement providing him access to a public road.’” The lower court also observed that the owner seeking the easement by necessity “also failed to take advantage of other opportunities to secure the access” that he was now seeking. Thus, the lower court denied the easement by necessity. On appeal, the owner of the landlocked lots questioned the lower court’s “underlying premise that [the owner] had a legal duty ‘to have continuously pursued any alleged and speculative opportunity to gain access to the road over the land of strangers, rather than the right of way over [the neighboring] property, that was created by the severance of unity of ownership of [the various lots].’” The Appellate Division agreed with the complainant that such a rule “involve[d] too much uncertainty,” but found that it was the landlocked lot owner’s “burden to establish the easement by clear and convincing evidence,” and that this owner had “presented nothing to dispel the sense that other means of access existed, or could have been obtained with less onerous consequences [than] would befall [the lot with access to the highway]” should the complainant succeed in putting a driveway through it. The Appellate Division was also troubled by another equitable consideration, i.e., that the complaining property owner had waited fifty-five years before asserting a right to an easement by necessity. To that, it said “[w]e think there is much to be said about [the] silence in light of his burden of proof.” In summary, the Court thought that the lower court had properly grappled with the equitable factors and, “[t]o put it more simply, [the owner seeking the easement] did not clearly and convincingly show [his] entitlement to an easement by necessity.”

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