Moorings Ass'n, Inc. v. Tortoise Island Communities, Inc.

• Decision Date: 13 December 1984
• Docket Number: No. 83-499,83-499
• Citation: 460 So.2d 961
• Parties: The MOORINGS ASSOCIATION, INC., Individually and The Moorings Association, Inc., a Class Representation, Appellants, v. TORTOISE ISLAND COMMUNITIES, INC., and Tortoise Island Group, Ltd., Appellees.
• Court: Florida District Court of Appeals

Page 961

460 So.2d 961

The MOORINGS ASSOCIATION, INC., Individually and The Moorings Association, Inc., a Class Representation, Appellants, v. TORTOISE ISLAND COMMUNITIES, INC., and Tortoise Island Group, Ltd., Appellees.

No. 83-499.

District Court of Appeal of Florida Fifth District.

Dec. 13, 1984.

J. Daniel Ennis of Ennis & Northcutt, Indian Harbour Beach, for appellants.

Kerry I. Evander of Reinman, Harrell, Silberhorn, Moule & Graham, P.A., Melbourne, for appellees.

ORFINGER, Judge.

This appeal is from a final order dismissing appellants' second amended complaint and cause of action. We reverse because we find that the complaint sufficiently alleges a cause of action for an implied easement.

Appellants, The Moorings Association, Inc., individually, and The Moorings Association, on behalf of the homeowners of The Moorings Subdivision, pursuant to Rule 1.220, Florida Rules of Civil Procedure, sued appellees Tortoise Island Communities, Inc. and Tortoise Island Group, Ltd. The Moorings is a residential subdivision located on the east side of a canal known as the Great Canal. On the west side of the canal is an island and west of the island is the Banana River. Because we are dealing with an order dismissing appellants' (plaintiffs) second amended complaint, we assume the correctness of all well-pleaded allegations.

The appellants alleged that the Moorings homeowners purchased their lots from T.O.L., Inc., a subsidiary of Condeland Corporation, and, as part of the inducement to purchase, they were promised an access canal across the adjacent island to the Banana River, thus giving the lot owners direct access to the Banana River from the Great Canal. After some of the lots were sold, Condeland actually constructed the access canal, known as the "Moorings Cut," completing it in 1967. Since that time, the cut has been used by most Moorings residents who own boats for ingress and egress to the Banana River.

In 1967, after opening the canal, T.O.L. and Condeland Corporation executed and delivered written grants of easement through the "Moorings Cut" to thirteen of appellant's homeowners. It appears from the allegations of the second amended complaint that each grant of easement was by a separate document specifically naming each of the thirteen lot owners as a grantee. The thirteen express easement holders are apparently not parties to this action, except as members of the association. In the letter which accompanied these easement grants, the developer recited that the grants were in "fulfillment of our promise to provide permanent access for you, your family, and all residents of the Moorings to the waters of the Banana River" (emphasis added). The thirteen recorded easements contained a recitation that the grant "... is intended to give the Grantees the right and privilege, in common with others of access by boat in the waters of the Banana River ...".

It was also alleged that T.O.L. subsequently conveyed the island to the appellees, Tortoise Island Communities, Inc. and Tortoise Island Group, Ltd., who were fully aware of the existence of the access canal and of its continuous use by the Moorings residents. In July, 1982, the appellees filled in portions of the canal, thereby preventing the appellants from using the cut as a direct access to the Banana River. As a result, the appellants brought an action seeking an injunction against any further filling of the cut, removal of the fill already placed in the cut, an adjudication of a constructive trust, and an adjudication of an express or implied easement on behalf of the residents who purchased their property in reliance upon the existence of the easement.

An easement may be created either by express grant, by implication or by prescription. Winthrop v. Wadsworth, 42 So.2d 541 (Fla.1949); Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953). While the complaint fails to allege facts showing an express grant to these appellants or acquisition of an easement by prescriptive use, it does sufficiently allege an easement by implication, so that the dismissal of the second amended complaint was error. The trial court was apparently erroneously led to believe that an easement by implication must depend on a showing An implied easement is based on the concept that whenever a grantor conveys property, he includes or intends to include in the conveyance whatever is necessary for its beneficial use and enjoyment. 25 Am.Jur.2d Easements and Licenses § 24 (1966). An implied easement may generally arise from an implied grant or reservation in a deed, from a conveyance calling for a way as a boundary, from a conveyance with reference to a plat or map showing streets or ways, or as a way of necessity. 20 Fla.Jur.2d Easements § 20 (1980). Whether an easement arises by implication depends on the intent of the parties as shown by the circumstances under which the conveyance was made. 25 Am.Jur.2d Easements and Licenses § 24.

of "strict necessity" such as is required to claim a common-law way of necessity, now codified in section 704.01, Florida Statutes (1983), but that standard is too rigorous in determining whether or not there exists an easement by implication as is asserted here.

There are three essential elements for the creation of an easement by implication: (1) unity of title between the dominant and servient estate and a subsequent separation; (2) necessity that, before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) necessity that the easement be essential to the beneficial enjoyment of the land granted or retained. Kirma v. Norton, 102 So.2d 653 (Fla. 2d DCA 1958).

In the case at bar, unity of title is alleged. The complaint also asserts that it was the intent of the developer to create an easement in favor of all Moorings residents, that the access canal was open and visible and that the appellees were not bona fide purchasers without notice, that the use of the access canal from 1967 to 1982 was so long, continued and obvious as to show that it was meant to be permanent, and that by filling in the canal the appellees were depriving the owners of a valuable property right and were diminishing the value of their property.

On the element of "necessity," Florida courts recognize that the degree of necessity required to be alleged fluctuates with the type of implied easement. For example, the common-law implied grant of a way of necessity is codified in Fla. Stat. § 704.01 and requires that in order for such an easement to exist there must be "no other reasonable and practicable way of egress, or ingress" and the easement must be "reasonably necessary for the beneficial use or enjoyment of the part granted or reserved." Thus, the statute requires that there be an absolute necessity for the easement. Such strict necessity is not asserted sub judice, and it is clear that appellants are not relying on the existence of an easement under the statute.

Rather, appellants appear to be basing their right to recovery on the common-law doctrine of implied grant or "quasi-easement," recognized by Florida courts as related to, but different from the doctrine of strict necessity. See, Williams Island Country Club, Inc. v. San Simeon at the California Club, Ltd., 454 So.2d 23 (Fla. 3d DCA 1984); Star Island Associates v. City of St. Petersburg Beach, 433 So.2d 998 (Fla. 2d DCA 1983); Dinkins v. Julian, 122 So.2d 620 (Fla. 2d DCA 1960). The doctrine of implied easement contemplates that when a landowner conveys part of his land, he impliedly grants all apparent or visible easements upon the part retained which were at that time used by the grantor for the benefit of the land conveyed and which were reasonably necessary for use of the land conveyed. Star Island Associates at 1003; Dinkins at 622, quoting 2 Thompson on Real Property § 392 (1980).

In Dinkins v. Julian, the court discussed the doctrine of implied grant as a principle of law separate and distinct from the implied grant by way of necessity. There, the plaintiffs sought equitable relief to prevent obstruction of a roadway which had been in long and continuous use, and which made their properties corner lots because After dispensing with the implied grant by way of necessity because the complaint did not allege strict necessity, the Dinkins court addressed the doctrine of implied grant. Relying on Thompson on Real Property, the court recognized the doctrine of implied grant, holding that there must have been a separation of title and a use, before separation took place, which continued long enough to show that the use was meant to be permanent. The implied easement, the court stated, is "gathered from the circumstances surrounding the conveyance and this is taken to mean that whatever is obviously in use as an incident or an appurtenance passes by implication when the land is sold." Dinkins, 122 So.2d at 623. The court further stated that a presumption exists that the parties contracted with reference to the visual condition of the property at the time of sale, but that this presumption may be rebutted by showing actual knowledge to the contrary. Nevertheless, because there was no allegation of unity of title, the court held that an implied grant was not sufficiently alleged.

of the intersection of that roadway with other streets in the subdivision.

Dinkins recognizes that the creation of an easement by implication from a pre-existing use does not require an absolute, but only a reasonable, necessity, such as will contribute to the convenient enjoyment of property, other than mere temporary convenience. See also, 25 Am.Jur.2d Easements and Licenses § 33 (1966). See also, Kirma, supra, a case involving a sewer pipe which ran from a subdivision under a subsequent grantee's property and out into a river, where the court observed that an easement by implication is "held...