E-Alert Case Updates

No Easement by Necessity on Neighboring Property for Parcel Divided by Eminent Domain

Clifton v. Wilkinson
121232, 2013 WL 4854351 (Va. Sept. 12, 2013)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

The Virginia Supreme Court overturned the trial Court’s holding that an easement by necessity was formed when a parcel of land became land locked by the revocation of the neighboring landowner’s permission to use an access lane that provided entry to the landlocked parcel. The Court held that an easement by necessity did not exist because the inaccessible parcel of land was created through an eminent domain taking, and not through the division of one parcel of land. The Court reversed the ruling and entered final judgment.

In 1957, Plaintiff’s deceased husband was conveyed an 18.35 acre parcel of land. In 1961, Virginia State Highway Administration obtained a strip of land that divided the 18.35 acre parcel, resulting in one portion of the property, the southern parcel, becoming land locked. In the condemnation proceeding, Plaintiff’s husband, the owner of the divided property, was given $1,450 for the land, and $2,450 for damages to the residue property. Plaintiff’s husband was able to utilize the southern parcel for cultivation by renting a neighbor’s land with access to the land locked property via an access road. When the Plaintiff’s husband passed, 45 years later, Plaintiff and the owners of the neighboring parcel, Defendants, failed to come to an agreement for a purchase of the access road property, thereby effectively land locking the southern parcel again. Plaintiff brought suit, requesting that the court declare that an easement by necessity existed across the Defendant’s property to the southern parcel. The trial court agreed and found in favor of Plaintiff.

The Virginia Supreme Court first noted that while nearly all the land in Virginia was owned by the same person at some point in history, that was not sufficient to meet the requirements for the creation of an easement by necessity. The easement by necessity is created when there is “(1) common ownership of the dominant and servient tracts ‘at some point in the post,’ (2) the easement must be ‘reasonably necessary to the enjoyment of the land’ which fact must be proved by clear and convincing evidence, and (3) there is no other means of access (to the landlocked parcel), even one less convenient or more expensive to develop.” Id. at 3. The Court held, however, that “an easement by necessity arises only when the grantor of the dominant tract conveys [the servient land] to another without providing any right of access to it.” Id. at 6. In the present case, the inaccessibility was created by the eminent domain taking, not by a conveyance without accessibility. The Court finally noted that damages associated with making the property land locked were at issue in the condemnation proceeding, for which the owner had received compensation.