July 27, 2018
Easements by Necessity, Implication and Estoppel
A. Easement by Necessity
As it is implied, rather than expressly granted by a written document, an easement by necessity is an implied easement. The first discussion of the doctrine of easement by necessity in New Mexico appears in the case of Michelet v. Cole, 20 N.M. 357, 149 P. 310 (1915). That case discussed the doctrine of easement by necessity generally, stating: ''upon the severance of the tenements [an easement] does not pass unless it is a way of necessity, or the operative words of the conveyance are sufficient to grant it de novo." 20 N.M. at 362 (citation and quotations omitted, emphasis added). However, there is no statement of a specific rule in the case, which stemmed from the reversal of demurrer.
The next case to discuss the doctrine was Venegas v. Luby, 49 N.M. 381, 164 P.2d 584 (1945). The Venegas case discussed the concept as an "implied easement," and held that if an owner subjects one part of his land to a visible servitude in favor of another part and then conveys away the dominant portion, there is an easement by implied grant established. The court held that there had to be unity of title, a visible servitude in favor of one part of the land, a conveyance of the dominant estate, and the servitude has to be reasonably necessary for full enjoyment of the part of the land granted. The court went on to say that absolute necessity was not the rule but only "reasonable necessity." At the same time, "mere convenience" was not adequate to establish "reasonable necessity." The court found reasonable necessity when there could be no other reasonable mode of enjoying the dominant estate without the easement.
It was not until the case of Otero v. Pacheco, 94 N.M. 524, 612 P.2d 1335 (Ct. App. 1980) that the doctrine was again discussed. In the Otero case, there was an easement by reservation claimed for a sewer line. Since the owner claiming the easement was the owner during unity of title, the claimed easement was one of implied reservation rather than implied grant, as had occurred in Venegas. The court held that the doctrine applies to a reservation in addition to a grant of easement. The Otero v. Pacheco case stated as follows: "the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration." Id. at 526, citation omitted. The doctrine was held to apply even though the grantor's deed warrants the grantee's estate to be free of encumbrances, such as easements.
The facts of the Otero v. Pacheco case did not greatly assist in the advancement of the doctrine of implied easement. The court in that case found such an easement for a sewer line running under the servient estate. The court held that there must be a reasonable necessity for that easement, not mere convenience. However, the dissent in that case pointed out that the purchaser of the servient estate was a bona fide purchaser for value (and therefore did not purchase the property subject to the easement) because the purchaser had no idea that there was sewer line under his property. ld. at 526 ("The general rule is that a bona fide purchaser does not take subject to an easement unless he has actual or constructive knowledge of its existence"). The majority in the case held that there was an easement despite this argument, stating that there was "constructive knowledge," without citing any facts upon which this constructive knowledge was based other than the fact that the house which the sewer line served had to have a sewer line and the owner of the servient estate should have known that the sewer line went across his property.
The doctrine was again discussed in Amoco Production Company v. Sims, 97 N.M. 324, 639 P.2d 1178 (1981). In that case, the doctrine was discussed as a “way of necessity.” The court held: "A way of necessity can only arise where an owner of property severs a portion of his property and the portion retained or sold is cut off from access to a public route by the land from which it was severed. ... The essential elements which must be proved include unity of title from which the dominant and servient estates are subsequently created." ld. at 326. In the Amoco Production Company case itself, the court held the doctrine inapplicable because there was no proof of unity of title or that roadways existed at the time the parcels were severed. The same result (lack of a common owner) occurred in the case of Brooks v Tanner, 101 N.M. 203, 208,680 P.2d 343 (1984).
Herrera v. Roman Catholic Church, 112 N.M. 717, 720, 819 P.2d 264 (Ct. App. 1991) summarized that to establish easement by necessity, the following elements must be shown: (1) unity of title in which the dominant and servient estates had the same owner prior to separation of the tracts; (2) severance of the dominant and servient estates, such that access to a public road by the dominant estate is curtailed; and (3) that "a reasonable necessity existed for such right of way at the time the dominant parcel was severed from the servient tract." Reasonable necessity and unity of title must have existed concurrently. The court stated there is a presumption that when a grantor conveys, absent a clear intention to the contrary, the grantor is presumed to have intended to have reserved or granted a means of access to the property so the land can be beneficially utilized. The intent of the grantor is a question of fact. At the same time, the court stated: "Generally, the law does not favor claims of easement and the burden is upon the person asserting such claim to prove it clearly." Finally, the court found that if there is a revocable permission to use another's property for an alternative access, this does not negate an easement of necessity since that permission can be revoked and the person can be left landlocked in any event.
The case of Hurlocker v. Medina, 118 N.M. 30, 878 P.2d 348 (Ct. App. 1994), re‐stated the elements of easement by necessity. The court discussed at length that unity of title does not mean that there has to be one undivided parcel, as long as the original owner owns both the dominant and servient estates simultaneously.
The court also held that an easement of necessity rests more on the intent of the parties than the public policy of the productive use of land. The question of the intent of the parties to grant an easement at the time of the severance of title is a question of fact. The court did not state that there is a presumption in regard to this intent. However, reading Hurlocker in conjunction with other cases discussing the doctrine leads one to conclude that, presently, the easement claimant will only be required to prove three elements to establish a prima facie case: (1) unity of title; (2) severance causing one tract to be landlocked; (3) reasonable necessity. The burden will then shift to the opposing party to prove a contrary intent of the parties to the severance to defeat the claim.
It would appear, from the case of Michelet v. Cole, supra, that the owner of the servient estate over which the easement of necessity passes has the right to locate that easement so long as it is reasonably convenient for the owner of the dominant estate.
The Restatement (Third) of Property: Servitudes § 2.15 generally discusses "Servitudes Created by Necessity": A conveyance that would otherwise deprive the land conveyed to the grantee, or land retained by the grantor, of rights necessary to reasonable enjoyment of the land implies the creation of a servitude granting or reserving such rights, unless the language or circumstances of the conveyance clearly indicate that the parties intended to deprive the property of those rights. Id., cited with approval in Kysar v. Amoco Prod. Co., 2004‐NMSC‐25, 135 N.M. 767, 93 P.3d 1272; Hurlocker, 118 N.M. at 33 ("we find the Restatement of the Law Property (Servitudes) Section 2.15 (Tentative Draft No. 1, 1989) ... persuasive"). The Restatement further provides in § 2.12, for "servitudes implied from prior use":
.... Unless a contrary intent is expressed or implied, the circumstance that prior to a conveyance severing the ownership of land into two or more parts, a use was made of one part for the benefit of another, implies that a servitude was created to continue the prior use if, at the time of the severance, the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use.
The following factors tend to establish that the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use:
(1) the prior use was not merely temporary or casual, and
(2) continuance of the prior use was reasonably necessary to enjoyment of the parcel, estate, or interest previously benefited by the use, and
(3) existence of the prior use was apparent or known to the parties, or
(4) the prior use was for underground utilities serving either parcel.
Id. Based upon the comments, this section was created to redress the problems created when a single parcel is split and sold, and the transaction is not properly documented demonstrating the rights of the new (and old) owners to continue to use roads, utilities, and the like. Id., cmt. a.
B. Easement by Implication
Easement by implication exists largely in cases involving subdivision plats and deed descriptions. The court in Huning v. Potts, 90 NM 407 (1977) held "It is well‐settled in New Mexico that if land is purchased under an agreement and representation that it will abut a street," whether a street in existence or one to be created later, the grantor and his heirs are estopped to deny the existence of the street and the purchaser acquires a right of way over the land". In Cree Meadows, Inc. (NSL) v. Palmer, 68 N.M. 479, 484, 362 P.2d 1007, 1010 (1961) ("a purchaser acquires an easement to the use of all the streets and areas delineated in the [subdivision] plat"); Ute Park Summer Homes Ass'n v. Maxwell Land Grant Co., 77 N.M. 730, 734‐735, 427 P.2d 249 (1967); Agua Fria Save the Open Space Ass’n v. Rowe, 2011‐NMCA‐054, 149 N.M. 812, 255 P.3d 390 (2011) (developer did not represent that a tract would remain an open space for the use of all owners in the subdivision; therefore, the homeowners did not acquire an implied grant, covenant or easement). Thus, where a subdivision plat includes a reference to streets, parks, alleys, or other common areas, the existence of the plat creates an implied easement in favor of all of the owners of property within the subdivision to such areas. Although both opinions use the term "easement", the principle at issue is not one of easement, but rather an estoppel to prevent the developer from selling land under representations contained in the plat, then trying to use some land for a purpose different from that represented.
The Restatement (Third) of Property: Servitudes addresses various types of implied easements. See supra with regard to Restatement (Third) of Property: Servitudes § 2.12. Sections 2.13 and 2.14 address servitudes that are implied from "map or boundary references" (§2.13) and from a "general plan of development" (§2.14).
C. Easement by Estoppel
A related and relatively untested easement theory is easement by estoppel. That doctrine was first referred to in Luchetti v. Bandler, 108 N.M. 682, 777 P.2d 1326 (Ct. App. 1989). The only statement concerning the elements of that easement in the Luchetti case are that the imputed knowledge under the prescriptive easement cases may not be enough to establish estoppel for purposes of this doctrine. The doctrine was again referred to in Luevano v. Maestas, supra, in dicta where the court held that an easement by estoppel requires evidence of longstanding use of a road coupled with inaction by the landowner. No further discussion of the doctrine occurs in that case either. Therefore, we are left with some speculation on the meaning of the doctrine under New Mexico law.
Generally, courts apply this doctrine in one of two circumstances: (1) a landowner represents that an easement exists when it does not; or (2) a landowner permits improvement of the landowner's property by a person who acts on the mistaken belief that the person holds an easement over the property. The Law of Easements and Licenses in Lands, Bruce and Ely, ¶ 6.01. The elements, as with estoppel in other contexts are: (1) misrepresentation or fraudulent failure to speak; and (2) reasonable detrimental reliance. Id. The Restatement (Third) of Property: Servitudes § 2.10 (which has not been adopted in New Mexico), allows "Servitudes Created by Estoppel" under the following circumstances:
If injustice can be avoided only by establishment of a servitude, the owner or occupier of land is estopped to deny the existence of a servitude burdening the land when:
(1) the owner or occupier permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief; or
(2) the owner or occupier represented that the land was burdened by a servitude under circumstances in which it was reasonable to foresee that the person to whom the representation was made would substantially change position on the basis of that representation, and the person did substantially change position in reasonable reliance on that representation.