November 18, 2013
Generally, a landowner does not have a right of way, access to air, light, and view over adjoining property in the absence of an easement. An easement is a form of right created in favor of the holder of an easement to make some use of the adjoining property. An easement to access, light and air may be implied because of necessity. The existence of real and clear necessity is determined on the facts and circumstances of the particular case. An implied easement is a creature of the common law, and it can only arise in connection with a conveyance of the property. It is based on the theory that whenever someone conveys property, the grantor includes or intends to include in the conveyance whatever is necessary for its beneficial use and enjoyment and to retain whatever is necessary for the use and enjoyment of the land retained.
The “holder” of an easement right, or the owner of the land that is benefiting from the easement, is called as the “dominant tenant” and the property benefiting from an easement is called as the “dominant estate”. The property owner “loaded” by the easement is referred to as the “servient tenant” and the property loaded by the easement is the “servient estate”.
In order to establish an easement by necessity, one must show that: (1) the claimed dominant estate and the claimed servient estate were held in a common ownership which was ended by a transfer of part of the land and (2) as the property is transferred, it became “necessary” for the dominant tenant to have the easement. It is not necessary to show absolute necessity. It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that grantor intended grantee should have the right to continue to use the property in the same manner and to the same extent which his grantor had used it. Additionally, necessity may be established if the easement is necessary to the beneficial use of the land granted, and to its convenient and comfortable enjoyment, as it existed at the time of the grant.
A way of necessity arises when one grants a piece of land surrounded by his other land, or when the grantee has no access to it except over the land retained by the grantor or land owned by a stranger. An implied easement of necessity arises only by implication in favor of a grantee and his privies as against a grantor and his privies.
An easement by necessity may arise even where other inconvenient access to the parcel in question exists. It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that grantor intended grantee should have the right to continue to use the road in the same manner and to the same extent which his grantor had used it, because such use was reasonably necessary to the fair, full, convenient and comfortable enjoyment of his property.