Opinion
C.A. No. 1540-K.
Submitted: August 8, 2003.
December 11, 2003.
David N. Rutt, Esquire, Moore Rutt, P.A.
John R. Garey, Esquire.
Dear Counsel:
Plaintiff Elmerita M. Johnson ("Johnson") seeks the imposition of an easement in her favor over lands of Defendant Harry H. Bell ("Harry"). Harry owns a two-acre parcel on Cicada Lane in Milford Hundred, Kent County, Delaware. Johnson is one of several owners in common, including Harry, of a parcel, otherwise landlocked, which is separated from Cicada Lane by, among other parcels, Harry's parcel. Access to that parcel has, for many years, been through Harry's parcel. Johnson sought to place a manufactured home on the parcel in which she holds an interest, but Harry denied her access over his lands. This action ensued, and this is the Court's post-trial decision.
Johnson is joined in this action by her husband, Plaintiff Loren Thomas Johnson. For convenience and because the relevant evidence involves Johnson, I refer only to Johnson and not to her husband Also, I mean no disrespect to Harry H. Bell or the other individuals to whom I will refer by their first names. Again for convenience, I use their first names for, as will shortly become apparent, there are numerous individuals with the surname of Bell who have a role in this litigation.
BACKGROUND
The lands involved in this proceeding have been in the Bell family for more than a century. In order to understand how this dispute arose, a little family history is necessary. I start with Eliza Bell ("Eliza") who died in 1947. Two of her children were Alonzo P.C. Bell ("Alonzo") and Amos Bell ("Amos"). Amos was Harry's father. Alonzo's daughter, Ida Brewington ("Ida"), was Johnson's mother. Thus, Harry and Johnson's mother were cousins.
Ida died in 1982. Harry disputed that Johnson is a member of the Bell family. Following trial, I concluded that Johnson had demonstrated successfully her status as Ida's daughter.
Two parcels are involved in this litigation. Harry owns a parcel (the "Servient Parcel") of approximately two acres that fronts on Cicada Lane. Sally B. Bell ("Sally") conveyed the Servient Parcel to Harry, her son, in January 2002. Sally had inherited the parcel from Amos, her husband, on his death in 1970. Amos had acquired the Servient Parcel in 1937 by a deed from Maggie B. Craft and Nina B. Brooks, who subdivided a larger parcel that they had inherited from their father, Edward Beauchamp ("Beauchamp").
Beauchamp had acquired the larger tract from Joseph Bell who had received it from Joseph Houston.
The other parcel (the "Dominant Parcel") is a farm, roughly 60 acres in area, acquired by Eliza in 1900. Eliza's will granted a life estate in the Dominant Parcel to her four children — Catherine Johns, Blanche Bell Harris ("Blanche"), Amos and Alonzo — and two of her grandchildren — Edith Bell Scott ("Edith") and Melita Bell. Eliza's will further provided that, on the death of the survivor of the six life tenants, title to the Dominant Parcel would vest in her "heirs then living, in equal shares, and proportions and in fee simple." Alonzo, the last surviving life tenant, died in February 2002. The Dominant Parcel is now owned by several individuals, including Johnson and Harry, as tenants in common.
Eliza purchased the Dominant Parcel at a sheriff's sale held to pay a debt of Caleb Bell ("Caleb"), her husband Caleb also had acquired the Dominant Parcel from Joseph Houston, a relative. Thus, the Servient Parcel and the Dominant Parcel were once part of a larger tract owned by Joseph Houston.
When it was first established as a separate parcel in the 1800s, the Dominant Parcel had access to a public road that did not make use of the Servient Parcel. That access went through what was (or became) the backyard of Maggie Craft, who retained a portion of the parcel devised by Beauchamp. In the 1940s, Amos was living in an old farmhouse on the Dominant Parcel which at that time belonged to Eliza. For his convenience, Amos, with the help of Harry (who was approximately 10 years old), built an additional access road over the Servient Parcel which was then farmland Amos allowed other family members to use the New Access over the Servient Parcel. With the passage of time, the Old Access became impassable because of overgrowth and the deterioration of a "bridge" over a wet area. For the next three decades, family members and their guests going to the Dominant Parcel used the Servient Parcel for access. Shortly after Amos' death in 1970, Sally changed her residence from the Dominant Parcel to a mobile home which she had placed on the Servient Parcel.
This access road will be referred to as the "Old Access."
Harry resided on the Dominant Parcel from the early 1940s until he went to college in 1956. He returned to live on the Servient Parcel in 2002. In the interim, he had visited on a regular basis.
This access road will be referred to as the "New Access." A lane had connected the Dominant Parcel and the Servient Parcel, but it did not cross the Servient Parcel to the public road.
When the Old Access was last used cannot be determined with any confidence. The New Access and the Old Access co-existed for several years and, by 1970, only the New Access was in use.
The Dominant Parcel has been rented as farmland for years. The farmer has separate access. The source of this access is not clear but, presumably, he either owns or rents other lands adjacent to the Dominant Parcel.
Alonzo, who was 99 years old when he died, had lived on the Dominant Parcel for decades and had used the New Access over the Servient Parcel for his access to the public road. In the 1970s, he moved from the old farmhouse to a manufactured home that was, by the time of his death, titled in his name and Johnson's name. The manufactured home had been placed on the Dominant Parcel in the early 1970s for the benefit of Blanche and Edith, who were also life tenants. Following Alonzo's death, Johnson moved into the manufactured home on the Dominant Parcel. Not long thereafter, the manufactured home was destroyed by fire. Johnson's efforts to place a new home on the Dominant Parcel led to this dispute. Because Harry prevented the placing of the new manufactured home by denying access over the Servient Parcel, Johnson has incurred substantial interest and storage expenses.
As part of the process for placing a new home, Johnson had prepared a minor subdivision plan for filing with Kent County. I put aside the question of whether a tenant in common can file a subdivision plan for a parcel in which she is but one of the owners and identify a specific lot within the larger parcel for placement of her home. More importantly, the proposed plan shows a 50-foot wide access road across the Servient Parcel. The evidence — both the testimony and the photographs — demonstrates that the New Access is no more than 15, or perhaps 20, feet in width.
ANALYSIS
Johnson claims an easement across the Servient Parcel by: (i) prescription; (ii) necessity; and (iii) by agreement to or acquiescence in the relocation of the easement from the Old Access to the New Access.
1. Easement by Prescription
Prescriptive easements, which are generally "disfavored because they necessarily work forfeitures of existing property rights," require "a party [to] establish by clear and convincing evidence that `she or a person in privity with her, used the disputed property: (i) openly, (ii) notoriously, (iii) exclusively, (iv) adversely to the rights of others for an uninterrupted period of twenty (20) years.'"
Berger v. Colonial Parking, Inc., 1993 WL 208761, at *3 (Del.Ch. June 9, 1993).
Anolick v. Holy Trinity Greek Orthodox Church, 787 A.2d 732, 740 (Del.Ch. 2001) (quoting Forwood v. Delmarva Power Light Co., 1998 WL 136572, at *7 (Del.Ch. Mar. 16, 1998) (footnote omitted)); see also Brown v. Houston Ventures, L.L.C., 2003 WL 136181, at *5 (Del.Ch. Jan. 3, 2003).
Moreover, this case involves an easement for the benefit of family members and that constitutes an additional factor that may shed light on whether the use was "adverse" or "hostile." Here, during the prescriptive period, the Servient Parcel was owned by the sister-in-law (or aunt by marriage) of those persons who had the right to use the Dominant Parcel as life tenants under Eliza's will.
Brown, 2003 WL 136181, at *6-*7. For the approaches of other jurisdictions to this problem, see, e.g., Boldt v. Roth, 618 N.W.2d 393, 398 (Minn. 2000); Totman v. Mallory, 725 N.E.2d 1045, 1049 (Mass. 2000); Petsch v. Widger, 335 N.W.2d 254, 261 (Neb. 1983).
The prescriptive period asserted by Johnson did not commence before Amos' death in 1970. Letter of David N. Rutt, Esq., Aug. 8, 2003. Before then, Amos had been both a life tenant in the Dominant Parcel and the fee owner of the Servient Parcel. In general, one cannot claim title adverse to one's self. See, e.g., Zavarelli v. Might, 749 P.2d 524, 527 (Mont. 1988).
Johnson has demonstrated by clear and convincing evidence that the use by Alonzo and other family members of the New Access was open and notorious and that the use of that access was exclusive.
I do not reach the question of whether Alonzo and Johnson were in privity with each other. That they owned the manufactured home as tenants in common is not determinative. That home constituted personal property as evidenced by the title to the home issued by the Division of Motor Vehicles. Any inquiry into privity must look to the nature of the consecutive interests in the real estate. For present purposes, I assume that Johnson and Alonzo (and the other family members using the New Access) were in privity with each other.
See Anolick, 787 A.2d at 744 n. 17 (driveway as open and notorious use).
See id. n. 15 (reciting that exclusive use must exist only in the sense that it is exclusive as against the public at large and not the owner of the dominant estate).
The more difficult question is whether Johnson and those with whom she is in privity claim a use that was adverse to the rights of Sally during a continuous 20-year segment of the 32-year period in which Sally owned the Servient Parcel. There simply is no evidence, much less clear and convincing evidence, that Alonzo and the other family members who also resided on the Dominant Parcel used the New Access over the Servient Parcel adversely to the rights of Sally, the fee owner. The better inference is that Amos had allowed the use of his lands for the benefit of his family members and Sally continued that permissive policy after Amos' death. Even though Sally was not related to them by blood, as a former sister-in-law (or aunt), a familial relationship still existed. More specifically, Johnson has failed to prove, with clear and convincing evidence, that the use, whether by Alonzo or others, was adverse for a period of 20 years.
Johnson's use of the New Access before Alonzo's death in 2002 was as Alonzo's guest and not under any independent claim of right. Moreover, until Alonzo's death, Johnson had no cognizable interest in the Dominant Parcel.
2. Easement by Necessity
Johnson next claims an easement by necessity because, without the New Access, the Dominant Parcel will be landlocked. "[I]f a landowner landlocks one parcel by conveying another, an easement by necessity will arise across the conveyed land" The Dominant Parcel, when laid out in the 19th Century, had a separate and adequate access over what appears to have been a portion of the larger parcel from which the Servient Parcel was eventually carved by Maggie Craft. However, that access was located some distance from the Servient Parcel. By the time the Servient Parcel was conveyed to Amos, the access for the Dominant Parcel was clearly understood to be over lands other than the Servient Parcel.
The Old Access is impassable. That, by itself, does not demonstrate that the parcel is landlocked. Johnson further argues that the legal right to use the Old Access has been lost with the passage of time. In substance, Johnson asserts, or perhaps concedes, that the Old Access has been abandoned. Although I accept, for purposes of this letter opinion, that the Dominant Parcel is landlocked, I draw no such conclusion because any such conclusion would, first, arguably affect the rights of persons not parties to this proceeding and, second, the evidence before me is insufficient to support definitively that conclusion. In addition, if the Old Access was an easement by necessity, "[a]n easement of necessity cannot be terminated by mere non-use." Pencader Assocs., Inc. v. Glasgow Trust, 446 A.2d 1097, 1100 (Del. 1984). An easement by necessity, however, may be abandoned "where there is manifested a clear intent, expressed or through acts of relinquishment, to abandon." Id.
Judge v. Rago, 570 A.2d 253, 258 (Del. 1990). As set forth in Judge an easement by necessity is a form of an implied easement. Typically, the doctrine of implied easement is employed to preserve a specific use that existed before the severance. The doctrine of easement by necessity allows for access when there was no obvious easement then in existence. Johnson does not contend that any easement or access existed over the Servient Parcel when the Dominant Parcel was created.
"The necessity `is determined as of the time the parcels were originally separated even though application for establishment of the easement is made by subsequent owners of the landlocked parcel.' . . . The necessity cannot be created by remote grantees." Pencader Assocs., Inc., 446 A.2d at 1100 (quoting Ghen v. Piasecki, 410 A.2d 708, 712 (N.J.Super.Ct. App. Div. 1980)).
Accordingly, the access for which Johnson advocates was not "necessary" when the Dominant Parcel was created because of an alternate and adequate access. In the absence of necessity, at the time of the severance, for an easement over the Servient Parcel, there is no basis for finding an easement by necessity decades later when the original easement is no longer used by those having an interest in the Dominant Parcel.
"The proof must be sufficient to show an absolute necessity." Id.
Another potential issue which I do not address is whether, assuming that there is an easement across the Servient Parcel, Johnson's proposal to subdivide the Dominant Parcel would unreasonably burden the Servient Parcel.
3. Relocation of Easement
Johnson argues that the New Access over the Servient Parcel is the result of a relocation of the Old Access that had been through Maggie Craft's backyard and that it reflects the agreement or acquiescence of Amos (or Sally). That principle, however, applies, at most, to the relocation of an easement over a servient parcel. It does not apply to the establishment of an easement over a separate parcel, especially when the ownership is different. The simple fact is that Harry's parcel is not a servient parcel. In addition, the Old Access and the New Access co-existed as alternate access roads for several years. Amos and, later, Sally allowed family members to use the New Access. The Old Access lapsed, not by virtue of any act or acquiescence by Amos or Sally, but because those individuals who could have used it chose not to.
Johnson relies upon 25 Am. Jur.2d Easement and Licenses in Real Property, §§ 76-80. "Parties to an easement may fix its location through agreement or by use and acquiescence." Id. § 77 (footnote omitted).
The Servient Parcel was once part of the larger parcel owned by Beauchamp that contained the Old Access serving the Dominant Parcel. The location of that access was clearly established and continued in effect at that location after the Beauchamp property was subdivided. Once the Servient Parcel was separated out, it was no longer part of the parcel subject to the easement serving the Dominant Parcel. Thus, the easement which Johnson seeks must be viewed as a new one and not as merely a relocation of an existing one.
Ultimately, Johnson's approach fails because implicit in her argument is an obligation on the part of Amos to maintain the Old Access. Amos was free to use his lands as an alternate access to the Dominant Parcel for his convenience and to allow the permissive use by other family members without being held responsible for the demise of the Old Access. I also note that there is no evidence of any agreement by Amos (or Sally) to substitute the New Access for the preexisting access.
4. Damages
Johnson seeks damages from Harry for his interference with the placement of her new home by refusing to allow the use of the Servient Parcel for the delivery and placement of the home. These damages include storage fees and interest. Because Johnson has no right to cross Harry's lands, it follows that she has no claim against Harry for his denial of access.
5. Accounting
Johnson also seeks an accounting from Harry for his handling of the rental income generated by the lease of the Dominant Parcel for farming purposes. Harry has received income from that rental. As a tenant in common with several others in the Dominant Parcel, the funds are held in a fiduciary capacity for the benefit of all co-tenants (or possibly for the estates of the life tenants). The evidence is insufficient for the Court to determine (1) how much rental income Harry received; (2) the expenses, including taxes, that Harry may have paid; or (3) the identity of all the tenants in common in order that a proper division of any rental proceeds may be accomplished. Thus, Harry will be required to account for his handling of the farm rental funds.
Johnson provided a family tree. It is not clear whether the family tree is accurate with respect to the identity of the current tenants in common in the Dominant Parcel.
CONCLUSION
In summary, Johnson's complaint for imposition of an easement across the Servient Parcel, whether by prescription, necessity or acquiescence in a relocation, and for damages for Harry's interference with the placement of her new home will be dismissed and judgment entered in favor of Harry. Harry will be required to account for the Dominant Parcel's farm rental funds.
I acknowledge that public policy considerations militate against a finding that may leave a tract landlocked. See, e.g., Judge, 570 A.2d at 258. Those public policy considerations neither require nor support the burdening of a fee simple interest with an easement which has no basis in law or equity.
I ask that counsel confer and submit a form of order to implement this letter opinion.