Visit our Home Page
AZREB.com | Article by Daniel Kloberdanz

EASEMENTS BY NECESSITY

By Dan Kloberdanz

 

Introduction.

 

The Arizona statutes permit an owner of land to condemn another's land for a "private way of necessity."[1]  Although one usually thinks of the private way of necessity as being available only for ingress and egress to landlocked property, the statutes do in fact grant a wide variety of possible uses to justify a private condemnation action.[2]  In addition to access for ingress and egress, the owner can obtain a right of way through the land of another for purposes of utilities, railroads, pipelines, drains for the purpose of removing water from land or preventing the accumulation of water on land, and for "mining, milling, lumbering, agricultural, domestic or sanitary purposes."[3] 

Distinguishing Between Statutory and Common Law Ways of Necessity.

 

The statutory "private way of necessity" is commonly confused with the common law concept of an "implied way of necessity."  An implied way of necessity is often referred to, albeit technically inaccurate under Arizona law, as an "easement by implication" or "implied easement."[4]

One main difference between the statutory way of necessity and the common law (implied) way of necessity is that a common law way of necessity arises only when the necessity for such an easement existed at the time of a severance of some property.[5]  Therefore, to establish a common law implied way of necessity, there must have been a prior "unity" of ownership of the dominant and servient estates, followed by a severance which simultaneously landlocks the dominant estate.[6]  On the other hand, under the statutory private way of necessity, there is no requirement that there be any prior "unity" between the proposed dominant and servient estates.[7] 

 

The other main difference is that with the statutory easement, the dominant estate must pay fair value for the easement.[8]  As explained below, this downside is often outweighed by the other advantages in pursuing a statutory private way of necessity.[9]

Persons Entitled to Bring Statutory Action.

The persons who are entitled to file an action for a private way of necessity are those who own land or those who are entitled to the "beneficial use of land," including structures on such land.[10]  The statutes require that the land be so situated "that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity over, across, through, and on the premises."[11]  As an example, the Arizona Supreme Court has held that a person holding a grazing permit from the government has a sufficient "beneficial interest" as to entitle that person to the right to bring a private condemnation action to secure ingress and egress.[12]

Characteristics of the Easement.

The statutes provide that the private way of necessity be "sufficient in area" for the intended purpose.[13]  In Solana, the Arizona Supreme Court stated that the condemnor's future use may be considered as well as the current necessity for the easement.[14]  This rule is a significant departure from the common law implied easements and prescriptive easements, which permit easements only to the extent such easements were actually used or were necessary at the time of severance.[15] 

The courts have also held that the easement granted under the statutory private way of necessity must be "appurtenant" to the condemnor's land, so that the easement runs with the land.[16]  Obviously, this permits the condemnor to transfer the easement to successors.

Just Compensation.

The statutory private way of necessity is authorized by the Arizona Constitution in Article 2, Section 17.[17]  This Section provides that no private property shall be taken or damaged for public or private use without "just compensation" having first been made by the condemnor.[18]  Therefore, the proper measure of compensation for the "taking" under the private way of necessity should be similar to the compensation that the State must pay for public condemnation.[19]  Few reported cases in Arizona discuss the proper method of compensation for property taken under the private way of necessity statutes.  The caselaw, however, does indicate that a defendant should be compensated for not just the value of the particular land taken, but for the damage to its land "as a whole" caused by the taking.[20]  Also, the Arizona Court of Appeals has held that the prevailing party in a private way of necessity action is not entitled to recover its attorney's fees or expert witness fees.[21]

Exception for Those Who "Voluntarily" Landlock Themselves.

 

In a 1980 Arizona Court of Appeals decision entitled Gulotta v. Triano, the court carved out an important judicial exception to one's statutory right of private way of necessity.[22]  The court held that a landowner may not acquire an easement by necessity over another's land "after he has voluntarily cut off an alternate means of access to his own property."[23]  In Gulotta, the plaintiffs (condemnors) owned a delicatessen and adjacent property and subsequently sold the delicatessen, taking an easement which possibly expired after a few years.  The appellate court reversed the trial court's judgment which had awarded the plaintiffs a statutory easement by necessity for approximately 122 square feet, for the payment of the fair market value of such property.  The defendants appealed the judgment and argued that the plaintiffs should not be able to condemn their property, because the plaintiffs either already had access, or they had voluntarily abandoned their access when they sold certain adjacent property.[24]  The appellate court held that the statutes should be "strictly construed," and therefore, the landowner should not be able to acquire an easement by necessity when that landowner voluntarily landlocks himself.[25]  The Gulotta court merely cited an 1892 Oregon case for support of this rule.[26]  The Oregon case was based upon an implied easement of necessity, rather than a statutory right of private condemnation.[27]  Therefore, the Gulottas' court's reliance on such caselaw appears to be misguided, although certainly the Gulotta rule is controlling law in Arizona today. 

 

Requirement of "Necessity" for Easement.

 

The courts have indicated that a landowner is not required to show "absolute" necessity for the taking of another's land, but is merely required to show the existence of "reasonable" necessity.[28]  In Solana, the Arizona Supreme Court stated that the condemnor "need not show that he has no outlet, but only that he has no adequate and convenient one."[29]  However, this particular language in Solana must be strictly construed, because in that case the condemnor in fact had no legal access, but merely the right to petition the county to obtain a means of ingress and egress through the establishment of a county highway.[30]  Since Solana, Arizona caselaw has shown that this language will be interpreted to solely relate to the adequacy and convenience of obtaining an easement, not to the adequacy and convenience of some existing route which the condemnor seeks to better by virtue of private condemnation.[31]  The Arizona Court of Appeals has recently held that if the condemnor does in fact have access, the court will not allow a condemnation merely because the existing access is less "convenient."[32]  In Bickel, the court denied the plaintiff a statutory easement by necessity, because the plaintiffs failed to prove that they had no common law implied easement of necessity for a different route, albeit a less convenient route.[33]

Another court-imposed limitation is that the courts will not grant a private way of necessity unless the intended purpose complies with applicable law.[34]  In Tovrea, the Arizona Court of Appeals held that the private condemnor is not immune from local zoning ordinances, and therefore, the condemnor must first establish that it can legally build the proposed roadway.[35]

Selection of Route.

Arizona courts have held that the condemnor has the right to select the route of the private way of necessity.[36]  The courts will only impose limitations in the selection process for "bad faith, oppression or abuse of power" by the condemnor.[37]  In this light, the courts in the State of Washington have held that even in the absence of bad faith, the court can require a different route if the proposed route was so injurious to the landowner as to amount to an "abuse of power."[38]  In Wagle, the Washington Court of Appeals held that a trial court should consider the "relative feasibility" of various routes so as to prevent unnecessary harm to the landowner whose property is taken.[39]  Arizona courts are likely to follow this rule.[40]

Conclusion.

A statutory easement by private way of necessity has several important advantages, including the condemnor's broad discretion to select the route, and the availability of an easement that meets the condemnor's future needs.  For a landlocked property owner, the statutory private way of necessity usually should be easier to obtain than the various easements implied by common law.  Although the condemnor must pay "just compensation" for the easement, such compensation will often pale in comparison to the attorney's fees and costs associated with proving an implied easement or prescriptive easement. 

Attorneys bringing an action for a common law implied easement or prescriptive easement, should carefully consider also bringing a claim for private condemnation as an alternative or "backup" theory.  The attorney for the landlocked party must keep in mind, however, the Bickel rule which requires the condemnor to establish that he is truly landlocked, including the absence of implied easements.  To this extent, the landlocked party is likely entitled to a statutory private way of necessity only if all other available theories fail.  Ironically, the landlocked party is often better off if the statutory private way of necessity is his or her only remedy.

 


[1].     A.R.S. ' 12-1201 et. seq.,

[2].     A.R.S. ' 12-1201.

[3].   See Salt River Valley Water Users' Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976) (right-of-way for spillways).

[4].   In Bickel v. Hansen, infra, the Arizona Court of Appeals explains the technical difference between the two common law concepts of "implied way of necessity" and "easement by implication."  An easement by implication requires that the proposed use must have been in existence before the separation of the parcels occurs.  On the other hand, an implied way of necessity "does not rest on a pre-existing use but on the need for a way across the granted or preserved premises."  Bickel, 819 P.2d at 961; see also Koestel v. Buena Vista Public Service Corp., 138 Ariz. 578, 676 P.2d 6 (App. 1984); Hellberg v. Coffin Sheep Co., 404 P.2d 770 (Wash. 1965).

[5].     Bickel v. Hansen, 169 Ariz. 371, 819 P.2d 957 (App. 1991), review denied.

[6].   Id., at 960-61 (Under common law, the seller is presumed by implication of the law to grant ingress and egress to the parcel to which he retains ownership, and likewise to the parcel he sells.); see also Pugh v. Cook, 153 Ariz. 246, 735 P.2d 856 (App. 1987).

 

[7].   Id., at 960; A.R.S. ' 12-1201 et. seq.

[8].     Cienega Cattle Co. v. Atkins, 59 Ariz. 287, 126 P.2d 481 (1942);  Jackson v. Pressnell, 19 Ariz.App. 221, 506 P.2d 261 (1973).

[9].   See the discussion below on selection of the route and characteristics of an easement by private way of necessity.

[10].     A.R.S. ' 12-1202(A).

[11].     A.R.S. ' 12-1202.  The Washington courts have stated that the "only requirement for a statutory easement is that the condemnor demonstrate a reasonable need for the easement to properly use and enjoy his property."  Wagle, infra 754 P.2d at 685.

 

[12].     Cienega, 126 P.2d at 484; see Atkins v. Hooker, 56 Ariz. 197, 106 P.2d 485 (1940).

[13].     A.R.S. ' 12-1202(A) ("An owner . . . may condemn and take lands of another, sufficient in area for the construction and maintenance of the private way of necessity.")

 

[14].     Solana Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593 (1949).

[15].  See Bickel, 819 P.2d at 961; Porter v. Griffith, 25 Ariz.App. 300, 543 P.2d 138, 140 (1975).

[16].     Solana, 210 P.2d at 596-97 (The Solana court also stated that the statutory private way of necessity would become "an open public way" because the condemnation statutes are for the benefit of the public.)

[17].     Arizona Constitution, Article 2, '17, which provides in part as follows:

 

Section 17.  Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes.  No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the State treasury for the owner on such terms and conditions as the Legislature may provide, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. * * *

[18].  Id.

 

[19].     Cienega, 126 P.2d at 485; Jackson, 506 P.2d at 262.

[20].     Cienega, 126 P.2d at 485.

[21].     Tovrea v. Trails End Improvement Association, 130 Ariz. 108, 634 P.2d 396, 397 (App. 1981).

[22].     Gulotta v. Triano, 125 Ariz. 144, 608 P.2d 81, 82 (App. 1980).

[23].  Id., 608 P.2d at 82. 

[24].  Id., at 82.

[25].  Id., at 82-83.  The language of the statutes do not provide any exception for those who voluntarily landlock themselves.  Therefore, the Gulotta decision appears to be incorrect.  The court could have reached the same outcome by ruling that the plaintiffs were not acting in good faith or were abusing their power (see endnote 37 below), although there is no indication in the Gulotta decision that the plaintiffs were not acting in good faith.

[26].  Id., at 82.

 

[27].     Lankin v. Terwilliger, 29 P. 268-270 (1892) (In discussing the requirements for a way of necessity, the Lankin court noted that the proposed easement was not necessary for access at the time of severance of the subject parcels.)

[28].     Solana, 210 P.2d at 598; Chandler Flyers, Inc. v. Stellar Development Corp., 121 Ariz. 553, 592 P.2d 387 (App. 1979) (concerning common law easement of necessity.)

[29].     Solana, 210 P.2d at 598. 

[30].  Id.

[31].     Bickel, 819 P.2d at 960.

[32].  Id., at 960-61.

[33].  Id., at 961.

[34].     Tovrea, 634 P.2d at 397.

[35].  Id.

 

[36].     Solana, 210 P.2d at 598.

[37].  Id. ("On the matter of selection of the route to be condemned the condemnor makes the initial selection and in the absence of bad faith, oppression or abuse of power its selection of route will be upheld by the courts.")

[38].     Wagle v. Williamson, 754 P.2d 684, 686 (Wash.App. 1988).

[39].  754 P.2d at 686.

[40].     Arizona's condemnation provision was taken from the State of Washington's Constitution, therefore, caselaw from Washington is "quite persuasive."  Cienega, 126 P.2d at 483; see also Solana, 210 P.2d at 597.



This article is offered as general guidance only and is not to be relied upon as specific legal advice. For legal advice on a specific matter, please consult with your broker or an attorney who is knowledgeable and experienced in that area.

© 2025 AZREB.com
© 2025 Arizona Real Estate Business
All rights reserved
AZREB

This article provided by AZREB.com