Enzor v. Rasberry

• Decision Date: 23 December 1994
• Docket Number: No. 93-850,93-850
• Citation: 648 So.2d 788
• Parties: 20 Fla. L. Weekly D143 Rhett E. ENZOR, Jr., Appellant, v. William Clinton RASBERRY, Jr., Thomas B. Ray, Timothy E. Ray, and W.C. Rasberry, Appellees.
• Court: Florida District Court of Appeals

Page 788

648 So.2d 788

20 Fla. L. Weekly D143

Rhett E. ENZOR, Jr., Appellant, v. William Clinton RASBERRY, Jr., Thomas B. Ray, Timothy E Ray, and W.C. Rasberry, Appellees.

No. 93-850.

District Court of Appeal of Florida First District.

Dec. 23, 1994.

Donald H. Partington of Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone, Pensacola, for appellant.

Walter J. Smith, Smith, Grimsley, Remington, Bauman, Pinkerton, Petermann & Saxer, Fort Walton Beach, for appellees.

BENTON, Judge.

We review a final judgment quieting title to a road traversing property owned by plaintiffs below, William C. Rasberry, Jr., Thomas B. Ray, Timothy E. Ray, and W.C. Rasberry, who filed suit to extinguish Rhett E. Enzor, Jr.'s claim to a common law way of necessity across their land. We conclude that the trial court erred in finding that Mr. Enzor had reasonable and practicable alternative means of egress from and ingress to his property. We therefore reverse and remand.

In explicating the facts of the case, words alone fail us. We invite the reader's attention to the diagram attached as an appendix to the opinion, a composite of Exhibits 1 and 2 to the final judgment. Able counsel produced a comprehensive stipulation, part of which follows:

1. The Plaintiff's and Defendant's property [except Parcel A] at one time were owned by the same common owners, W.C. Rasberry and Helen Rasberry.

2. Defendant, RHETT E. ENZOR, JR., acquired his property from the estate of his father, Dr. Rhett Enzor, who being landlocked, had access to a public road (Antioch Road) across a portion of Plaintiffs' property....

3. In approximately 1967, Dr. Rhett Enzor's access to public road (Antioch Road) across a portion of Plaintiffs' property would have been cut off by the construction of Interstate 10.

4. That the State of Florida condemned a portion of Plaintiffs' property for a "service road" which service road traversed from Antioch Road to a dirt road on the Plaintiff Rasberry's property where it ended in the vicinity of the pre-existing dirt trail that Dr. Rhett Enzor had traversed for access to his property....

5. After the condemnation proceeding and during and after construction of Interstate Highway I-10, Dr. Rhett Enzor had access to his property by way of the service road to its termination point and thereafter on the dirt trail to Defendant's property.

....

9. That the Defendant contends that a residence located on his property is his homestead.

10. In September, 1978, the State Road Department conveyed to Defendant by quit claim deed the property described as a borrow pit, which had been previously used by the State Road Department for construction of Interstate 10.

At one time Mr. and Mrs. W.C. Rasberry owned parcels B, C, D, and the parcels labelled "Purchased From Rasberry (1964)" and "Purchased From Rasberry (1968)." The Rasberrys never owned the Gordon/Enzor property, a hunting camp (parcel A). Dr. Rhett Enzor, appellant's predecessor in title, purchased parcel A in 1963 from strangers to the present litigation.

1964 Purchase Of Already Landlocked Parcel

Mr. and Mrs. W.C. Rasberry allowed Dr. Enzor access to parcel A from Antioch Road by a dirt road (old trail road), which crossed parcels B and D. On August 15, 1964, Mr. and Mrs. W.C. Rasberry conveyed to the same Dr. Rhett Enzor the parcel described on the diagram as "Purchased From Rasberry (1964)." Landlocked, this parcel also had access to Antioch Road, the nearest public road, by way of old trail road, which crossed parcels A, B, and D. The segment of old trail road traversing parcel A (owned by Dr. Enzor before he purchased any of the Rasberry property) connected the parcel purchased from Rasberry in 1964 to parcels B and D, which remained the property of Mr. and Mrs. W.C. Rasberry.

Although parcel B and the parcel purchased from Rasberry in 1964 have a common corner, the conveyance of the parcel "Purchased From Rasberry (1964)" did not impair access from the parcel "Purchased From Rasberry (1964)" to Antioch Road, because the shared corner, a single mathematical point, did not allow access between parcel B and the parcel "Purchased From Rasberry (1964)" before (or after) the conveyance. It was not the 1964 conveyance that "created the situation causing the dominant tenement to become landlocked." Matthews v. Quarles, 504 So.2d 1246, 1247 (Fla. 1st DCA 1986). After the conveyance as before, access from the parcel purchased from Rasberry in 1964 to the nearest public road was over old trail road across parcel A, then across parcels B and D. ¹

New Highway Alters Access Route

In 1967, the State of Florida condemned portions of parcel D ² for construction both of Interstate Highway 10 and of a parallel "service road" to the south, so marked on the appended diagram. These acquisitions and ensuing construction severed old trail road as it crossed parcel D, cutting off all of the parcel "Purchased From Rasberry (1964)," all of parcels A and B, and some of parcel D from Antioch Road. ³ When built, however,

the service road, which started at Antioch Road and joined old trail road south of the interstate highway, provided alternative access. During and after construction of the interstate highway, Dr. Enzor could reach his property from Antioch Road by taking the service road to old trail road and proceeding from the junction as before.

Conveyance Creates Servient Tenement

In 1977, Mr. and Mrs. W.C. Rasberry conveyed parcels B (less the borrow pit) and C to the immediate predecessor in title of Adams & Sons Timber Service Company (Adams). (Dr. Enzor acquired the borrow pit from the state in 1978.) The final judgment reports:

In 1977, Rasberry conveyed Parcels B and C (conti[g]uous parcels in Section 35) to the predecessor in title to Adams & Sons Timber Service Company.... On January 10, 1978, Adams & Sons conveyed Parcel B to Rhett Enzor. Dr. Enzor then accessed his hunting camp from Antioch Road, south of the Interstate, going west on the service road until it intersected the trail road as it continued on to the south, southwest to his Parcel B, then across his land in Section 34 and finally into his hunting camp in Section 3.

This means of access was the same as Dr. Enzor had used since the construction of the service road a decade earlier and, from the junction of old trail road and the service road to the parcel he purchased from Rasberry in 1964, the same as he had used since 1964.

The Rasberrys' 1977 conveyance to Adams' predecessor in title caused parcel B's initial "landlocking." Although parcel C was conveyed along with parcel B, neither was accessible by public road or right-of-way, while parcel D remained accessible by Antioch Road. Section 704.01(1), Florida Statutes (1993), provides:

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 his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which he 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 States.

(Emphasis supplied.) As codified by this statute, the "common-law rule of an implied grant of a way of necessity" requires the proponent of such a way of necessity to establish three elements:

In order for the owner of a dominant tenement to be entitled to a way of necessity over the servient tenement, (1) both properties must at one time have been owned by the same party, (2) the common source of title must have created the situation causing the dominant tenement to become landlocked, and (3) at the time the common source of title created the problem the servient tenement must have had access to a public road. Roy v. Euro-Holland Vastgoed, B.V., 404 So.2d 410 (Fla. 4th DCA 1981); Hanna v. Means, 319 So.2d 61 (Fla. 2nd DCA 1975).

Quarles, 504 So.2d at 1247. Both parcels "B-C" and D were owned by Mr. and Mrs. W.C. Rasberry when they conveyed parcel "B-C" to Adams' predecessor in title, causing parcel "B-C" to become landlocked at a The rule in Florida is clear that a "way of necessity over remaining lands of the grantor, created by implied grant upon the severance of land, ... passes by each conveyance to subsequent grantees thereof." Roy v. Euro-Holland Vastgoed, B.V., 404 So.2d 410, 412 (Fla. 4th DCA 1981), quoting 25 Am.Jur.2d Easements and Licenses Sec. 95 (1966). Adams' acquisition of parcel "B-C" included the appurtenant common law way of necessity over parcel D; and Dr. Enzor's acquisition, albeit only of parcel B, likewise included the appurtenant common law way of necessity over parcel D.

time ⁴ when the servient tenement (parcel D) had access to a public road.

Service Road Vacated

The service road was a public road at the time of the Rasberrys' conveyance to Adams' predecessor in title. This changed, after Adams conveyed to Dr. Enzor: The State transferred jurisdiction over the road to Okaloosa County, which vacated it, closed the road to the public, and gave the Rasberrys a quitclaim deed.

Upon the County vacating the service road in 1979, the Enzors' access through the Rasberry tract was with the express permission of Mr. Rasberry, who also consented to the Enzors installing a gate at Antioch Road on the Rasberry parcel.

(Final Judgment at 2). We do not believe these turns of events ⁵ evince any intention on Dr. Enzor's part to abandon his right to a common law way of necessity over parcel D, the easement he...