MacCaskill v. Ebbert

• Decision Date: 10 June 1987
• Docket Number: No. 16377,16377
• Citation: 739 P.2d 414,112 Idaho 1115
• Parties: Paul MacCASKILL, Plaintiff-Appellant, v. Robert EBBERT and Elise Ebbert, husband and wife, Donald G. Siegel and Carol McKenna Siegel, husband and wife, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 414

739 P.2d 414

112 Idaho 1115

Paul MacCASKILL, Plaintiff-Appellant, v. Robert EBBERT and Elise Ebbert, husband and wife, Donald G. Siegel and Carol McKenna Siegel, husband and wife, Defendants-Respondents.

No. 16377.

Court of Appeals of Idaho.

June 10, 1987.

Roger E. Crist (Crist and Barsotti), Ketchum, and Robert M. Tyler, Jr. (argued) (Elam, Burke and Boyd), Boise, for appellant.

Thomas C. Praggastis (argued) (Roark, Donovan, Praggastis, Elkins and Phillips), and E. Lee Schlender, Ketchum, for respondents Ebbert.

George R. Kneeland (Kneeland, Korb, Collier and Benjamin), Ketchum, for respondents Siegel.

SUBSTITUTE OPINION UPON DENIAL OF PETITION FOR REHEARING

This opinion supersedes the Court's prior opinion dated December 31, 1986.

BURNETT, Judge.

This is an appeal from a summary judgment rejecting a claim of easement by necessity to "landlocked" property. Such an easement customarily arises where part of a tract is conveyed and, as a result of the severance, the part conveyed or the part retained is deprived of legal access to a public road. Cordwell v. Smith, 105 Idaho 71, 665 P.2d 1081 (Ct.App.1983). The question presented in this case is whether an easement by necessity might also arise where the severed property has legal access but the access is physically impassable. The district court said no. We reverse.

I

The following facts are not in dispute. Paul MacCaskill owns property known as tax lot 2742 in the Sun Valley Subdivision near Ketchum, Idaho. At one time the lot was part of a large unified tract owned by Earl and Ethel Weatherhead. As shown in the simplified illustration below, the Weatherhead property adjoined a public road. In the spring of 1948, the Weatherheads sold part of lot 29, and all of lots 31, 32 and 33. Later that year, they sold the remainder of lot 29 and all of lots 28 and 30, cutting off legal access from the road to interior portions of the tract. Legal access was temporarily restored when a purchaser named Gruener acquired the interior land along with parts of roadside lots 29 and 30. Gruener held these properties until 1979, when he sold lot 2742 to Paul MacCaskill's predecessor in interest. Lots 32 and 33 subsequently were resubdivided into "new" lots 32, 33A and 33B as shown in the sketch. Robert and Elise Ebbert eventually acquired lots 32 and 33A. A security interest in the Ebbert lots is held by Donald and Carol Siegel.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

MacCaskill sued the Ebberts and Siegels, seeking an easement across the Ebbert property for access to lot 2742. ¹ MacCaskill asserted that due to steep terrain, no other access route to the public road was feasible. His complaint was grounded in two alternative theories--private condemnation under I.C. § 7-701, and recognition of an easement by necessity. MacCaskill moved for summary judgment on both theories. The district judge denied the motion as it related to condemnation, holding that a genuine issue of fact existed as to whether it was actually necessary to cross the Ebbert property rather than to reach the public road by a different route. However, the judge entered partial summary judgment in favor of the Ebberts and Siegels on the question of easement by necessity. The judge declared that because lot 2742 had enjoyed a legal access to the road until it was severed from other land owned by Gruener, any easement by necessity could run only upon the remainder of Gruener's land, not upon the Ebbert property. The partial summary judgment was certified under I.R.C.P. 54(b), and this appeal followed. Further proceedings on the private condemnation claim have been stayed pending the outcome of the appeal.

II

Before we turn to the specific issue of necessity created by a physically impassable access, we pause to note the historical development and modern status of easements by necessity. Such easements are creatures of the common law. References to them can be found in cases from other jurisdictions dating well back into the early nineteenth century. See generally 25 AM.JUR.2D Easements and Licenses §§ 34-38 (1966).

Early Idaho decisions were reticent about embracing the common law easement by necessity. Indeed, on some occasions, the Idaho Supreme Court suggested that statutory provisions for private condemnation (presently codified as I.C. §§ 7-701 and 40-2316) might fulfill the purposes previously served by the common law. Justice Morgan, speaking for the Court before the turn of the century, cited with approval a fellow jurist's statement that "I consider our statute in regard to private roads as simply based on [the] common law right, and regulating its exercise. The right existed before the act was passed, by the established rules of the common law in regard to the construction of grants." Latah County v. Peterson, 3 Idaho 398, 401-02, 29 P. 1089, 1090 (1892). In Carbon v. Moon, 68 Idaho 385, 195 P.2d 351 (1948), the plaintiffs sought to establish that a public highway existed across the defendants' property. When the claim was rejected, the plaintiffs fell back on the theory of easement by necessity. The Supreme Court noted that there was insufficient evidence to support the claim. It further remarked that "our road statutes provide a complete and sure remedy to those occupying the position in which [plaintiffs] find themselves." Id. at 392, 195 P.2d at 355.

Nevertheless, the common law easement survived. In Close v. Rensink, 95 Idaho 72, 501 P.2d 1383 (1972), our Supreme Court explicitly recognized the easement's continued viability. The Court explained that an easement could be implied on the basis of necessity because the parties at the time of severance presumably recognized the need for access. Thus, the easement was grounded in a presumption of intent--just as an analogous easement by continuous use could be implied upon a presumption that the parties meant an existing access to continue. ² The Rensink court cited no prior Idaho authority in its discussion of easements by necessity. Instead, it relied upon Martino v. Fleenor, 148 Colo. 136, 247, 365 P.2d 247 (1961), a case which, in turn, cited a general discussion in 17A AM.JUR. Easements § 58 (1957).

The easement by necessity was recognized again, and was held to exist upon the facts presented, in Burley Brick & Sand Co. v. Cofer, 102 Idaho 333, 629 P.2d 1166 (1981). The Court, continuing to rely on Martino, reiterated that an easement of necessity rests on the presumption that when a party conveys property, he conveys whatever is necessary for the beneficial use of that property. The Court noted that whether an easement should be implied as a result of necessity depends on terms of the deed creating the severance and on other circumstances of each case. The Court quoted with approval a statement in Martino and in the AM.JUR. article that the easement by necessity is anchored in a public policy of preventing lands from being "rendered unfit for occupancy or successful cultivation." 102 Idaho at 335, 629 P.2d at 1168.

Since Burley Brick, the Idaho Supreme Court has not returned to the subject of easements by necessity. However, we have addressed the topic. In doing so we have deemed ourselves constrained to follow the Supreme Court's lead in Rensink and Burley Brick, recognizing the easement and imparting a public policy rationale to it. In Cordwell v. Smith, supra, we set out the three elements required to establish an easement by necessity: (1) unity of ownership prior to division of a tract; (2) necessity for an easement at the time of severance; and (3) great present necessity. In Bob Daniels & Sons v. Weaver, 106 Idaho 535, 681 P.2d 1010 (Ct.App.1984) , we added that "[a]n easement by necessity ... is not a creature of contract; it is a creature of public policy. Such an easement arises independently from any contract and may even thwart the intent of the sellers or purchasers." Id. at 543, 681 P.2d at 1018. In making this observation we did not declare that intent is irrelevant or that the parties are powerless to bargain away an easement by necessity. Rather, we meant to emphasize that the easement does not depend on an express mutual agreement in order to come into existence. It arises, and will be recognized, when its three elements have been established. It is not defeated by a contrary expectation harbored by one of the parties.

Thus, in Idaho, the easement by necessity has evolved into a hybrid reflection of presumed intent and public policy. It is the intent component which distinguishes such an easement from a statutorily condemned easement. See, e.g., Daywalt v. Walker, 217 Cal.App.2d 669, 31 Cal.Rptr. 899 (Ct.App.1963); Doten v. Bartlett, 78 A. 456 (Me.1910); Penn Mutual Life Ins. Co. v. Nelson, 170 Or. 248, 132 P.2d 979 (Or.1943); Tucker v. Nuding, 92 Or. 319, 180 P. 903 (1919); Brasington v. Williams, 143 S.C. 223, 141 S.E. 375 (1927); see 2 G. THOMPSON, REAL PROPERTY § 364 (1980). Condemnation is an act of public power vested by statute in a private plaintiff who may never have engaged--and whose predecessors may never have engaged--in any previous transaction with the current or prior owners of land across which an easement is sought. Such a taking must be accompanied by just compensation. The common law easement, in contrast, rests on a presumption that when a severance occurs, the parties recognize the necessity, if any exists, for providing a means of access. They strike their bargain accordingly. Therefore, an easement can be recognized, consistent with public policy, without requiring additional compensation to be paid. The easement endures while the necessity exists, unless by express agreement the easement is negated or extinguished. If the easement has been negated or extinguished, another easement may be created only by voluntary negotiations or by an involuntary taking through the power of eminent domain, upon a showing of reasonable necessity. In either of those...