Johnson, George W.

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Easements by Necessity: Water Access No Longer a Bar

University of Florida Levin College of Law

Florida Law Review Volume 18 Issue 4 Article 14 March 1966 Easements by Necessity: Water Access No Longer a Bar George W. Johnson Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation George W. Johnson, Easements by Necessity: Water Access No Longer a Bar, 18 Fla. L. Rev. 712 (1966). Available at: https://scholarship.law.ufl.edu/flr/vol18/iss4/14 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. UNIVERSITY OF FLORIDA LAW REVIEWFurther, it represents the policy choice taken by the Florida SupremeCourt on this issue. Whether the law and the policy on which thedecision rests are the best suited for Florida's needs is a far moreuncertain question.WILLIAM D. GODDARDEASEMENTS BY NECESSITY: WATER ACCESS NOLONGER A BARRedman v. Kidwell, 180 So. 2d 682 (2d D.C.A. Fla. 1965)The petitioner and the respondent purchased land from a commongrantor. The petitioner's land was inaccessible to public roads exceptover the respondent's land or a navigable river. The petitionersought a way of necessity over the respondent's land, but failed inthe trial court. On appeal, HELD, the petitioner should be given ameans of ingress and egress over the respondent's land. The SecondDistrict Court of Appeal found that section 704.01 (1) of the FloridaStatutes has adopted "a reasonable and practical" common law wayby necessity, and access to land by a navigable river is no longer"reasonable and practical."Two easements by necessity have been created in Florida by statute.Section 704.01 (1) is a codification of the common law way by neces-sity. Section 704.01 (2) provides relief to landlocked estates, in limitedsituations, when no common law way by necessity can be granted; itrequires (1) that the dominant estate compensate the servient estateand (2) the dominant estate must be located "outside any munici-pality [and be used] or desired to be used as a dwelling or for agri-cultural or for timber raising or cutting or [for] stock raising pur-poses." The court in the principal case did not state which type ofeasement it granted. It is reasonable to assume that the common lawway by necessity was granted because if the court had provided reliefunder section 704.01 (2), the case would have required a remand tothe trial court to determine the value of the easement under a pro-ceeding outlined in the statute.[Vol. XVlll1Johnson: Easements by Necessity: Water Access No Longer a BarPublished by UF Law Scholarship Repository, 1966CASE COMMENTSThe test of necessity required by sections 704.01 (1) and 704.01 (2)is the same. The language describing the degree of necessity in bothstatutes is "reasonable and practical." Section 704.03 of the FloridaStatutes defines the words "reasonable and practical," as used insections 704.01 (1) and 704.01 (2), as without the use of "bridge, ferry,turnpike road, embankment or substantial fill."Common law easements by necessity have their roots in Englishcommon law at least as early as 1379.1 The development of ways bynecessity from 1379 to 1606 is difficult to follow. In Clarke v. Cogge,there is a clear statement that a way by necessity should be grantedif "he [the landlocked owner] could not have any profits of his land."-2The Clarke court speaks in terms of results: it announced when aneasement by necessity will be granted, but not why. Packer v. Wel-stead provides the answer: "But it is also to the prejudice of the publicweal, that land should lie fresh and unoccupied."' The Englisheconomy was and still is closely tied to land. A way by necessitythere, then, is a public policy developed to insure that no land willbe taken out of the economic system merely because there is no meansof egress and ingress to a given estate.Certain limits have been placed upon this general public policyof a way by necessity as it is found in this country. The limits aroseprimarily because the common law way by necessity was given withoutcompensation to the servient estate. The fifth amendment to theUnited States Constitution provides that no man should be required togive up his land without just compensation. Yet the public policy ofkeeping land useful in our economy is a strong one. The courts gen-erally solved this conflict in terms of the intent of the parties at thetime of the severance of the estate into dominant and servient tenants.4The courts of the nineteenth century became so fascinated withthe intent of the parties that the basic public policy was sometimescompletely hidden in their opinions:51. Fitzherbert, Grants 41, cited in Simonton, Ways by Necessity, 25 COLUM.L. REv. 571, 572 n.5 (1925).2. Cro. Jac. 170 (K.B. 1607).3. 2 Sid. 39 (K.B. 1658).4. Jann v. Standard Cement Co., 54 Ind. App. 221, 102 N.E. 872 (1913);Doten v. Bartlett, 107 Me. 351, 78 At. 456 (1910); Bauman v. Wagner, 146 App.Div. 191, 130 N.Y. Supp. 1016 (4th Dep't 1911). If it was found that the partiesintended use of the grantor's lands as access to the grantee's estate, a way bynecessity was allowed; if the intent was otherwise, no way was allowed. Perhapsthis was another way of saying that the court was not depriving the grantor of avaluable property right without compensation because the grantor had receivedconsideration for the easement in the purchase price.5. Collins v. Prentice, 15 Conn. 39, 44 (1842).1966]2Florida Law Review, Vol. 18, Iss. 4 [1966], Art. 14https://scholarship.law.ufl.edu/flr/vol18/iss4/14UNIVERSITY OF FLORIDA LAW REVIEWAnd although it is called a way of necessity, yet in strictness,the necessity does not create the way, but merely furnishes evi-dence as to the real intention of the parties. For the law willnot presume, that it was the intention of the parties that oneshould convey land to the other, in such a manner that thegrantee could derive no benefit from the conveyance.... Thelaw, under such circumstances, will give effect to the grant ac-cording to the presumed intent of the parties.This statement of total reliance on the intent of the parties becomesalmost ludicrous when read in conjunction with the facts of the case.The litigants purchased their estates at the same auction. Exactlywhat purchasers at auctions intend can only be arrived at by judicialfictions. The strength of the public policy, in this opinion, is clearlyevident. The court did not want to deprive a man of his propertywithout compensation, but neither did it wish other lands to liefallow in order to preserve his rights. Therefore, it deprived a manof a valuable property right, based upon the fiction of his intent, sothat other lands could be useful in the economy. 6Modern decisions have placed more importance upon the degreeof necessity that will support the granting of an easement by necessitythan the intent of the parties.7 In terms of the policy behind ways bynecessity, the question now is: How productive in our economy willland be if the easement is not granted? The court should also con-sider whether or not the use to which the land could be put, if theway by necessity were granted, is of great enough importance to oureconomy to deprive the servient estate owner of a valuable propertyright without compensation.The principal case is the first Florida case to squarely face thequestion whether access to land by water should obviate a way bynecessity. The first case that involved this problem in modern terms6. Yet even the fiction of intent cannot help a grantee of an estate surroundedby lands with which the estate has no common grantor. In this situation, thereis nothing to which intent, fictitious or otherwise, may attach. No court has feltit could allow an easement in this situation. It has been suggested that if acourt could find some way to compensate the servient estate holder, it might wellgrant the way, but to do so without some legislation goes too far for a court. Joynerv. Andrews, 137 So. 2d 870 (2d D.C.A. Fla. 1962); TIFFANY, REAL PROPERTY §543(abr. ed. 1940); Simonton, Ways by Necessity, 25 COLUM. L. REv. 571 (1925).7. Walkup v. Becker, 161 So. 2d 893 (Ist D.C.A. Fla. 1964); Glass v. Barnett,70 N.E.2d 105 (Ct. App. Ohio 1946); Tucker v. Nuding, 92 Ore. 319, 180 Pac. 903(1919). Although the case dealt with powers of appointment over land, note thismodem expression of dissatisfaction with constructive intent: "I shall not indulgein any elaborate discussion of the rules of construction in an attempt to discoverthe assumed intent of the testatrix. . . . Rather, I believe the result must bearrived at by deciding whether it [the result] is a desirable policy. EquitableTrust Co. v. James, 29 Del. Ch. 166, 47 A.2d 303 (Ct. Ch. 1946).[Vol. XVIII3Johnson: Easements by Necessity: Water Access No Longer a BarPublished by UF Law Scholarship Repository, 1966CASE COMMENTSwas Feofees of Grammar School in Ipswich v. Proprietors of Jeffery'sNeck Pasture.S There the court found the land in question was ac-cessible to people and their needs by a river and steamboat, but notto livestock. The court held that a way of necessity should be grantedso that livestock could be moved to and from the pasture by land.The basic public policy can easily be seen operating in Ipswich. Rais-ing livestock is not practical on land accessible only by water, andraising livestock is of great enough public importance to subvert therights of a bordering landowner.The courts of other jurisdictions have reached varying results bysimilar policy reasoning. A cottage always in the past reached bywater could not maintain an easement by necessity; 9 a parcel of landpurchased to develop a steamer resort failed to create a way by neces-sity;10 subdivisions bordering tributaries to the Great Lakes weregiven easements by necessity." In each of the above opinions, thecourts recognized that in the proper case, access by water to thedominate estate would not obviate an easement by necessity.12In the principal case, the court recognized the modem trend, be-ginning in Ipswich, that access to land by water will not necessarilybar a way by necessity. The court reasoned that the public policybehind ways of necessity must be related to the times in which itoperates. The court felt society no longer considered that landaccessible only by water lacked -the degree of necessity required tomaintain an easement by necessity.No case has been found before the principal case, however, inwhich a court had before it two methods of granting a way by neces-sity. In its opinion, the court ignored the intended use of thedominant estate. In his brief, the respondent admitted that the pe-titioner intended to use the land for dwelling purposes outside anymunicipality. 3 Such a use is within the contemplation of section704.01 (2). Therefore, given the requisite degree of necessity, thecourt could have awarded a common law easement or an easementunder section 704.01 (2).8. 174 Mass. 572, 55 N.E. 462 (1899).9. Elliot v. Ferguson, 177 A.2d 387 (N.H. 1962).10. Bauman v. Wagner, 146 App. Div. 191, 130 N.Y. Supp. 1016 (4th Dep't1911).11. Cookston v. Box, 160 N.E.2d 327 (Ohio 1959).12. The utility of the dominate estate in these opinions was seriously impairedbecause the only access to the estate was over water. In terms of the policy behindways of necessity, the decisions turned equally upon the impairment of the domi-nate estate and a net benefit to society, in excess of the loss suffered by theservient estate, should the way be granted.13. Brief for Appellee, (app. p. 2), Redman v. Kidwell, 180 So. 2d 682 (2d.D.C.A. Fla. 1965).1966]4Florida Law Review, Vol. 18, Iss. 4 [1966], Art. 14https://scholarship.law.ufl.edu/flr/vol18/iss4/14UNIVERSITY OF FLORIDA LAW REVIEWThe qualification of the public policy behind easements by neces-sity is that no man should be deprived of his property without justcompensation. The respondent received his estate from the commongrantor twenty-three years before the petitioner. 14 Under these cir-cumstances, the intent of the parties could only be arrived at byjudicial fictions. In Florida, the public policy of ways of necessity canbe satisfied without the use of fictions. The court should have re-quired a showing that the intent of the litigating parties and theircommon grantor in fact reflected that the servient estate was pur-chased subject to the easement. If not, relief should have beengranted under section 704.01 (2). Florida courts now have at theirdisposal the power to give relief to landlocked estates and to com-pensate servient estates in proper cases. They should use it.15GEORGE W. JOHNSON14. Brief for Appellee, supra note 13, at 9.15. Caveat: The hypothesis of this comment depends upon a declaration bythe Florida Supreme Court that the proceeding in FLA. STAT. §704.01 (2) (1965),to determine the value of an easement granted under this statute, is constitutional.The nature of the proceeding is that of an eminent domain proceeding. There isa very serious constitutional question whether a private individual should beallowed to exercise such power; however, such a question is beyond the scope ofthis comment.[Vol. XVIII5Johnson: Easements by Necessity: Water Access No Longer a BarPublished by UF Law Scholarship Repository, 1966

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Easements by Necessity: Water Access No Longer a Bar

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