Also known as: servitudes by necessity · servitude of necessity · easement by necessity
Written by attorneys — see sources below.
An implied nonpossessory interest in land that arises upon severance of commonly owned parcels when one parcel is left without access to a public road or other essential right. The interest continues only while the necessity that prompted its creation persists.
Seth Shapiro sold a landlocked parcel to Simone Sanders without reserving an access easement. A necessity servitude arose over Seth's retained land for ingress and egress. Years later Simone purchased an adjoining strip that gave her parcel direct frontage on a county road. Once the new access became available the servitude terminated because the original necessity no longer existed.
Santiago Sanchez and Sierra Santos acquired separate parcels that had never shared common title with the neighboring tracts. Both parcels lacked road access. They sued the surrounding owners seeking servitudes by necessity. The claims failed because no prior unity of ownership had been severed to create the necessity.
Prior to 1854 the United States owned the property involved in this dispute and had divided it into three lots along Green Bay in the Village of Ephraim in Door County, with Lot 2 the northernmost, Lot 3 in the middle, and Lot 4 the southernmost. In 1854 the United States granted Lot 4 by patent to Ingebret Torgerson while retaining Lots 2 and 3. At that time the eastern boundary of the lots extended beyond the present bluff line to a public roadway. In 1882 the United States granted Lots 2 and 3 to Halvor Anderson. After the federal conveyances the lots were subdivided into smaller parcels. James Schwab's parents purchased parcels in Lot 2 in the 1940s. Those parcels originally extended from the waters of Green Bay below the bluff eastward to land above the bluff with access to a public roadway and a house. The parcels were gifted to James Schwab in 1965 and 1974. Schwab later conveyed the property above the bluff to relatives and retained only the parcel below the bluff. Dorice McCormick inherited her parcel in Lot 2. Her parcel originally included land both above and below the bluff with highway access from above. She conveyed the upper portion to a third party. The petitioners' parcels are now bordered on the west by Green Bay and on the east by a bluff ranging from 37 to 60 feet in height. A private road runs north from the southernmost respondent parcel across the respondents' properties and terminates on the Lenz parcel. The petitioners seek to extend that road northward for access to their own parcels. In 1988 the petitioners petitioned the Village of Ephraim pursuant to Wis. Stat. § 80.13 to extend North Shore Drive as a public road over the respondents' properties. The village board declined the request. The petitioners filed their initial complaint in May 1996. They filed an amended complaint in August 1996 seeking a declaratory judgment for an easement. The circuit court granted the respondents' motions to dismiss. The court of appeals summarily affirmed the dismissal. The Wisconsin Supreme Court granted review.
View caseThe servitude continues only while the necessity that created it persists. Acquisition of alternative permanent access ends the servitude even if the new route is less convenient.
Supporting sources
The servitude arises only when a conveyance severs unity of ownership and leaves one parcel without necessary access that it previously enjoyed. No servitude is implied if the parcel never held the access right before severance.
Supporting sources
No. Each subdivided parcel inherits the same access privileges that the original dominant estate possessed. The servitude runs to the land rather than to any single owner.
Supporting sources
…to extend to the foreshore or whether the public's right of way from the public streets to the foreshore exists because of an easement by necessity, dedication, or prescription. It has been contended that “trespass actions will not lie against New Jersey citizens who, without injuring improvements, traverse upland beach abutting a…