Dupont v. Whiteside, 98-874

• Decision Date: 23 December 1998
• Docket Number: No. 98-874,98-874
• Parties: C.E. DUPONT and Joyce Dupont, his wife, Appellants, v. Carl A. WHITESIDE and Leona Whiteside, his wife, Appellees.
• Court: Florida District Court of Appeals

721 So.2d 1259

C.E. DUPONT and Joyce Dupont, his wife, Appellants, v. Carl A. WHITESIDE and Leona Whiteside, his wife, Appellees.

No. 98-874

District Court of Appeal of Florida, Fifth District.

December 23, 1998.

Ronald W. Brown of Dobson and Brown, P.A., St. Augustine, for Appellants.

Lew Merryday, Palatka, for Appellees.

COBB, Judge.

C.E. Dupont and Joyce Dupont, his wife, plaintiffs below, appeal from an adverse final judgment granting an easement of necessity to Carl Whiteside and Leona Whiteside, his wife, over certain lands owned by the Duponts.

In 1980 the Duponts sold off a portion of their property to the Whitesides. The property purchased by the Whitesides, approximately 32 acres, included frontage on the St. Johns River. The Whitesides planned to build their home on the river front portion of the parcel; however, the public road accessing the property (School Street) was on the lower portion of the property away from the river and separated from it by wetlands. The Whitesides built their home in 1981 at a cost of approximately $240,000.00.

Mr. Whiteside testified that when considering the purchase of the property, his wife informed Mr. Dupont that they could not get to the portion of the property where they planned to situate their home. According to Mr. Whiteside, Mr. Dupont responded that he was putting "a road in right then." Dupont completed the road before the closing on September 24, 1980. This road traverses the Duponts' property, and provides direct access to the river front portion of the property acquired by the Whitesides. The Whitesides used this road to get to and from their home for some 14 years.

In July 1994, Mr. Dupont objected to the Whitesides' continued use of the roadway. Dupont gave the Whitesides 60 days within which to establish alternative access. The deed of conveyance to the Whitesides contains no grant of easement across any of the Duponts' land. The instant lawsuit was filed by the Duponts to enjoin the Whitesides from their continued use of the roadway over the Duponts' land. The Whitesides filed a counterclaim seeking an irrevocable license to use the roadway based on their expenditures in constructing their home, or, in the alternative, a common law or statutory way of necessity.

At trial the testimony centered primarily on two issues: (1) the parties' understanding at the time the Whitesides purchased the property; and (2) the availability of access to the Whiteside's home without traversing the Duponts' property. According to Mr. Dupont, the Whitesides never asked for an easement and he never offered them an easement. According to Dupont, the Whitesides said they were going to get to their home by building their own road. Dupont testified that he gave them temporary permission to use the roadway over the Dupont land until they could get their own roadway built, but they never attempted to build their own access way to the river front. Dupont sold off other river front parcels and included in those conveyances grants of easement over his lands.

As to the second point, the Duponts presented evidence from an engineer, Logan, that the Whitesides could construct a roadway over their land. Logan testified that although part of the Whitesides' land was possibly wetlands and a culvert would be required, a permit for the proposed construction was obtainable from the St. Johns Water Management District. Logan could not say how much such a road would cost to build.

The Whitesides presented testimony from Epsten, an environmental specialist with the St. Johns River Water Management District who handles permitting for the district. Epsten visited the property and concluded that approximately two-thirds of the distance from the Whitesides' river front home to their uplands was flood plain forest and inundated. He determined that a road through the Whitesides' property would have to be built through approximately 700 feet of wetlands and the Whitesides would likely have to execute a conservation easement to the district covering as many as 8 acres of other adjoining wetlands.

Turner, the Whitesides' other witness, testified that he is a surveyor with experience in wetlands determination and road-building through swamps. Turner testified that the cost of construction of a road on the Whitesides' land from their river front home to the uplands would be in the area of $40,000.00 to $50,000.00. Turner added that the most reasonable and practical route to the Whitesides' river front home is the one they have been using across the Duponts' land.

The trial court entered a final judgment finding that the Whitesides "have no `practicable' way of egress or ingress to their property except by way of the constructed roadway across the property of the [Duponts]" and awarded the Whitesides an implied way of necessity easement over the existing roadway through the Duponts' property.

The evidence below was undisputed that the Duponts sold to the Whitesides a parcel of land which is located at the end of a public road. The Whitesides thus do not lack access to their property but they do lack convenient access to the river front portion of it where they built their home.

In Florida the common law rule of an implied grant of way of necessity has been codified at section 704.01, Florida Statutes:

(1) Implied grant of way of necessity.-

The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained of hereafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United Sates; provided, however, that where there is a common source of title subsequent to the original grant from the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise.

Claimants such as the Whitesides seeking to establish a way of necessity have the burden of proof to establish that they have no practicable route of ingress or egress. Moran v. Brawner, 519 So.2d 1131 (Fla. 5th DCA), rev. denied, 528 So.2d 1182 (Fla.1988). The term "practicable" as used in 704.01(1) is defined to mean "without the use of bridge, ferry, turnpike road, embankment or substantial fill." § 704.03, Fla. Stat. Under section 704.01(1), no easement can be inferred from a conveyance that creates no necessity. Enzor v. Rasberry, 648 So.2d 788 (Fla. 1st DCA 1994); Dixon v. Feaster, 448 So.2d 554 (Fla. 5th DCA 1984). In Dixon, this court explained:

A way of necessity was implied by the common law based on the reasonable presumption that the original parties intended the grantor to convey to the grantee whatever easement over lands retained by the grantor as was necessary for access for

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