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." 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. 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."
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."
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. 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. 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.
The other main difference is that with the statutory
easement, the dominant estate must pay fair value for the easement. As explained below, this downside is often
outweighed by the other advantages in pursuing a statutory private way of
necessity.
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. 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." 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.
Characteristics
of the Easement.
The statutes provide that the private way of necessity be
"sufficient in area" for the intended purpose. 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. 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.
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. 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. 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. 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. 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. 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.
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. 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." 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. 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. The Gulotta court merely cited an
1892 Oregon case for support of this rule. The Oregon case was based upon an implied
easement of necessity, rather than a statutory right of private
condemnation. 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. 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." 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. 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. 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." 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.
Another court-imposed limitation is that the courts will not
grant a private way of necessity unless the intended purpose complies with
applicable law. 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.
Selection
of Route.
Arizona courts have held that the condemnor has the right to
select the route of the private way of necessity. The courts will only impose limitations in
the selection process for "bad faith, oppression or abuse of power"
by the condemnor. 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." 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. Arizona courts are likely to follow this
rule.
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.
. A.R.S. ' 12-1201 et. seq.,
. See Salt
River Valley Water Users' Association v. Giglio, 113 Ariz. 190, 549 P.2d
162 (1976) (right-of-way for spillways).
. 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).
. Bickel
v. Hansen, 169 Ariz. 371, 819 P.2d 957 (App. 1991), review denied.
. 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).
. Id.,
at 960; A.R.S. ' 12-1201 et. seq.
. 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).
. See the
discussion below on selection of the route and characteristics of an easement
by private way of necessity.
. 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.
. Cienega,
126 P.2d at 484; see Atkins v. Hooker, 56 Ariz. 197, 106 P.2d 485
(1940).
. 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.")
. Solana
Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593 (1949).
. See Bickel,
819 P.2d at 961; Porter v. Griffith, 25 Ariz.App. 300, 543 P.2d 138, 140
(1975).
. 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.)
. 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. * * *
. Cienega,
126 P.2d at 485; Jackson, 506 P.2d at 262.
. Cienega,
126 P.2d at 485.
. Tovrea
v. Trails End Improvement Association, 130 Ariz. 108, 634 P.2d 396, 397
(App. 1981).
. Gulotta
v. Triano, 125 Ariz. 144, 608 P.2d 81, 82 (App. 1980).
. 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.
. 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.)
. 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.)
. Solana,
210 P.2d at 598.
. Bickel,
819 P.2d at 960.
. Tovrea,
634 P.2d at 397.
. Solana,
210 P.2d at 598.
. 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.")
. Wagle v.
Williamson, 754 P.2d 684, 686 (Wash.App. 1988).
. 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.
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