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Murphy v. Burch – No Easement By Necessity For The Owner Of A Landlocked Parcel.
November 26, 2007
This is a somewhat unusual case in that the court left a landlocked parcel landlocked reversing the trial court’s grant of an easement by necessity. It appears that the critical fact was that the land transfer arose from a federal land patent. In so reversing, the court of appeals explained that the settled California rule is that a right-of-way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way as when the claimants’ property is landlocked [citations] and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity. Regarding the first requirement, one court has held that a way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. . . .”’ [Citation.] The philosophy behind this presumption is that the demands of our society prevent any man-made efforts to hold land in perpetual idleness as would result if it were cut off from all access by being completely surrounded by lands privately owned. A preliminary requirement to establishing a way of necessity is that the dominant and servient tenements be under the same ownership at the time of the conveyance giving rise to the necessity.
In reversing the trial court’s judgment, the Court of Appeal ruled that it is the existence of the power of eminent domain that is relevant, because that existence—and not the exercise of the power—vitiates the always-critical requirement of “strict necessity” for the creation of an easement by necessity.