Summary
applying doctrine of easement by necessity in scope "as would have been contemplated by the parties at the time of partition, in 1911"
Summary of this case from Bogia v. KleinerOpinion
C.A. No. 2196-S.
Submitted Date: December 22, 2003. Draft Report: March 10, 2004.
Final Report: March 30, 2004.
Cynthia J. Longobardi, Esquire, Hudson, Jones, Jaywork Fisher, Dover, Delaware; Attorney for Petitioner.
Eugene J. Bayard, Esquire and David C. Hutt, Esquire, Wilson, Halbrook Bayard, Georgetown, Delaware; Attorneys for Respondents.
MASTER'S REPORT: (Width of Easement)
This suit was brought to establish that an easement of necessity was created in 1911 when a parcel of real property in eastern Sussex County was partitioned into a 20-acre parcel (the "landlocked parcel") and a 72-acre parcel (the "72-acre parcel"). The petitioner owns the landlocked parcel, and the respondent owns the 72-acre parcel. In a final report to which no exceptions were taken, I found that the intention of the grantor to reserve an easement was demonstrated by necessity, as of the time of partition in 1911. Jensen and Sons, Inc. v. Mustard, Del. Ch., No. 2196-S, Glasscock, M. (August 7, 2003) (Report). A hearing was then held to determine the location and extent of the easement. Before the hearing, the parties agreed and have stipulated that the easement should run along the western-most edge of the serviant 72-acre parcel in an area where a license was granted to the petitioner by the respondent to allow logging on the parcel in 2001. The only question, then, is the width of the easement created of necessity in 1911.
The 72-acre parcel has been subdivide into lots, each owned by Pauline R. Mustard.
I refer to "the respondent" in the singular, although the petition names both Pauline R. Mustard and her daughter, Jane Dodd. Ms. Mustard owns the property in question; Ms. Dodd is joined only in her capacity as attorney-in-fact for her mother.
The parties agree that the easement in question must be sufficient to permit the reasonable use and enjoyment of the landlocked parcel. They differ, however, on whether that sufficiency should be determined by reference to the use and enjoyment of the property as would have been contemplated at the time of the partition (1911), or as circumstances exist today. In living memory, the landlocked parcel has been used solely as a wood lot. Testimony at the hearing indicated that it is possible that a single house may have existed on the parcel at some time in the distant past. The respondent's expert, a surveyor, Mr. Charles Adams, testified that use of such property in this area in 1911 would have been limited to the growing of timber, or for agriculture.
The parcel of land in question, however, is located on Angola Neck only a few miles from the ocean. Its highest economic use today is as a housing subdivision and its value as a housing subdivision is substantially greater than as a wood lot or for agricultural use.
DISCUSSION
The petitioner argues that the purpose of the doctrine creating easements of necessity is to encourage the full use of real property, and that fulfilment of that principle requires that the easement created be an elastic one: one which can expand to suit the full enjoyment of the property as that concept evolves. Because the highest economic use of the property today is as a housing subdivision, and because a subdivision would require a right-of-way of 50 feet, the petitioner argues that I should find that an easement now exists that is 50 feet in width. The respondent, on the other hand, points out that this Court rejected a similar request — that an easement of necessity be found to be 50 feet wide in order to permit subdivision of a landlocked parcel — in Larson v. Lobiondo, Del. Ch., No. 1362, Allen, C. (January 13, 1994) (Mem. Op.) at 8. The respondent argues that the time of partition is the relevant time for determining the width and scope of easement that is required for the use and enjoyment of the property.
The answer to this question lies, I believe, in an examination of the doctrine of easement of necessity.
What is termed an easement of necessity is in realty an easement demonstrated. . . . by proof in the form of a presumption that when a single parcel is divided in two, leaving one parcel landlocked, the parties must have intended an easement to provide access across the non-landlocked (serviant) parcel to the landlocked (dominant) parcel. In other words, the explicit grant establishing the landlocked and non-landlocked parcels is presumed to have included an implicit grant [or reservation] of an easement to provide access to the landlocked parcel.Jensen (Report) at 4 (citations omitted). Looked at in that light, it is clear that the doctrine of easement of necessity simply presumes to provide a term, involving the reservation of an easement, which the drafters themselves must have meant to (but failed to) include. In such a case, the court concludes that the grantor of the serviant parcel did not mean to cut off all access to the landlocked parcel, but in fact meant to reserve an easement sufficient to provide for the reasonable use and enjoyment of the property. See Larson (Mem. Op.) at 8. The presumption is that the failure to include such a reservation was inadvertent, and the Court therefore supplies the missing term to effectuate the intent of the grantor. Under the theory behind the doctrine of easement of necessity, then, the easement created must be an easement which would have been contemplated at the time of partition.
The petitioner points to cases from other jurisdictions which indicate that the easement presumed to have been created must be sufficient to provide for the future, and not simply the then-current, uses of the property. I agree that, given appropriate facts, this may be the case, but only insofar as the "future use" provided for is that use which would reasonably have been contemplated by the parties to the original partition. Therefore, the easement held by the petitioner is that easement sufficient to permit the reasonable use of the property, then and in the future, as would have been contemplated by the parties at the time of partition, in 1911.
The petitioner cites New York Central Railroad v. Yarain, Ind. Supr., 39 N.E.2d 604 (1942); Keen v. Paragon Jewel Coal Co., Va. Supr., 122 S.E.2d 543 (1961); Beck v. Mangels, Md. App., 640 A.2d 236 (1993).
Reasonable potential use as contemplated at the time of partition should be considered in determining the scope of an easement of necessity. I make no decision here, however, on whether that potential use goes beyond the use of the parcel as it exists at the time of partition, as opposed (for instance) to its potential use sub-divided into building lots. Compare Judge v. Rago, Del. Supr., 570 A.2d 253, 258 (1990) with Larson (Mem. Op.) at 8.
The contrary position advocated by the petitioner, that the easement must be an elastic concept sufficient to allow all uses, foreseen and unforeseen, which might arise in the future, would lead to the following anomaly: a careful drafter of a partition of real estate would provide for a sufficient easement to permit use of the landlocked parcel. His client's future use of the parcel would be limited to the uses consistent with the easement thus reserved. However, under the petitioner's view of the matter, a clever draftsman would simply leave out any mention of an easement, permitting a court at a later time to provide an easement of the width that is compatible with the use of the property as it has evolved. The petitioner suggests that such a construction supports the public policy in favor of the full use of property. In fact, it would contravene an equally important policy — that title to real property be settled. Under the petitioner's rationale, the width of the easement could not be settled in this litigation: the metastasizing easement would be capable of expanding in the future to permit the uses of the landlocked parcel which might then appear advantageous.
As relevant here, the testimony of Mr. Adams is that logging roads of the type that would be used to serve this property are in the range of 12 to 13 feet wide on average, and that a lane for agricultural or residential use in 1911 was commonly a perch (16.5 feet) in width. While the record indicates that the use of the property at the time of partition was as timberland, reasonable foreseeable future use at that time could certainly include agricultural/residential use. There is no evidence of record to suggest that a greater easement would have been required or desirable to permit the full use of the property as it would have been contemplated at the time of partition. It is reasonable to presume, therefore, that the party partitioning the property meant to reserve an easement in favor of the landlocked parcel for ingress and egress of one perch, 16.5 feet, in width. That is the width of the easement, therefore, which provides access to the landlocked parcel across the 72-acre parcel.
The record fails to demonstrate what use the petitioners intend to make of the landlocked parcel, and therefore the scope of the use permitted over the easement is not before me. Consistent with this report, however, the petitioners are entitled to use the easement as required for the enjoyment of the property for agricultural, residential or timber-growing purposes.
Once this report becomes final, the petitioner shall submit a form of order consistent with this report.