Creating an Easement Chapter 3 Necessity
E.Easement by Necessity
a. Also known as implied easements by necessity. Graff v. Scanlon, 673 A.2d 1028 (Pa. Commonw. 1996).
b. Distinguished from implied easements from existing use: Implied easements on the grounds of necessity must be distinguished from implied easements from a prior use (also referred to as easements by implied reservation). The two types of easements are often confused by both litigants and the courts because both easements require unity of ownership and subsequent severance. Graff v. Scanlon, 673 A.2d 1028 (Pa. Commonw. 1996). at 1042 & n.4. (Citing 11 Am.Jur. Proof of Facts 3d 601, Way of Necessity.) An easement by necessity arises upon a showing that there was a conveyance of a part of a tract of land in such a manner that the part conveyed or the part retained is denied access to a public road. Conversely, an implied easement from a prior use "[is] based on the theory that continuous use of a permanent right-of-way gives rise to the implication that the parties intended that such use would continue, notwithstanding the absence of necessity for the use." Graff v. Scanlon, 673 A.2d 1028 (Pa. Cmwlth. 1996).
a. “An easement by necessity may be implied when " 'after severance from adjoining property a piece of land is without access to a public highway.' " Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 314 n. 4, 356 A.2d 763, 767 n. 4 (1976) (quoting Soltis v. Miller, 444 Pa. 357, 359, 282 A.2d 369, 370 (1971).
b. An easement by necessity arises upon a showing that there was a conveyance of a part of a tract of land in such a manner that the part conveyed or the part retained is denied access to a public road. Burns Manufacturing Co. v. Boehm, 467 Pa. 307 (1971)
c. “A grantee is entitled to an easement over the lands of his grantor where the property conveyed to him is "so situated that access to it from the highway cannot be had except by passing over the other land of the grantor." Commonwealth v. Burford, 225 Pa. 93, 98, 73 A. 1064, 1066 (1909)
d. “A grantor is entitled to an implied easement by necessity when he grants away his exterior land thereby leaving his remaining land without an outlet." Ogden v. Grove 38 Pa. 487 (1861)
e. An easement implied on the grounds of necessity is always of strict necessity; it never exists as a mere matter of convenience. Possessky v. Diem, 440 Pa.Superior Ct. 387, 655 A.2d 1004 (1995)
f. Requirements: (a) unity of ownership prior to severance by common grantor; (b) severance by conveyance; and c) easement must be “strictly" necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement. Phillipi v. Knotter, 748 A.2d 757, 761 (Pa. Super. 2000)
g. generally necessity exists where the dominent tenement is landlocked. See Bodman v. Bodman, 456 Pa. 412 (1976); Tricker v. Pennsylvania Turnpike Comm’n 717 A.2d 1078 (Pa. Commonw. 1998) appeal denied in 559 Pa. 684 739 A.2d 547 (1999).
h. Strict necessity does not exist where some access to land exists; property must be without any access. See Phillipi v. Knotter, 748 A.2d 757, 761 (Pa. Super. 2000)at 761.
i. unlike implied easements from existing use there is no need that any use be apparent and continuous. See 7 Summ. Pa. Juris. 2d Section 18:50.
Scope owner of dominent tenement is entitled to reasonable and lawful use of the easement.
Termination – when necessity ends. Phillipi v. Knotter, 748 A.2d 757, 761 (Pa. Super. 2000) at 760
The difficulty is in locating the easement
9c0 James S. Tupitza 2010