ESTABLISHING EASEMENTS BY NECESSITY ARE NOT NECESSARILY AFFORDABLE
Establishing a mandatory easement is not a foregone conclusion no matter how great the need of the owner of the inaccessible lot. Such an owner would have the burden of overcoming the requirements of actual intent and strict necessity.
An easement of necessity is recognized only in certain limited circumstances where it is absolutely essential for access. A plaintiff must establish that (1) the servient and dominant tenements were in common ownership at some point in time and (2) as a result of a conveyance by the common owner, one parcel became completely landlocked. Lichty v. Sickels (1983) 149 Cal. App. 3d 696, 699-700. It does not matter whether the claim for an easement was made by the immediate grantee from the common grantor. Mesmer v. Uharriet (1916) 174 Cal. 362, 366-367.
a. Actual Intent of the Parties.
The creation of an easement by necessity also hinges on the presumed actual intention of the parties, such that an easement will not be implied if contrary to the expressed or implied intention of the parties. Hewitt v. Meaney (1986) 181 Cal. App. 3d 361, 366. The courts are split on how much weight should be given to the absence of any evidence suggesting a mandatory easement. Some cases have held that the mere land locking of a lot is sufficient to create the easement. Reese v. Borghi (1963) 216 Cal. App. 2d 324, 331. Another case has held that knowledge that one of the lots was landlocked showed an express understanding that the lot would not have an easement. Daywalt v. Walker (1963) 217 Cal. App. 2d 669, 675.
b. Requirement of Strict Necessity.
The greater problem for a plaintiff is that he or she has the burden to establish strict necessity, which is a high threshold under California law. In order to establish an easement by necessity, a plaintiff must show that (1) the lot is completely landlocked; (2) the easement must be absolutely necessary for access to it; and (3) there cannot be any other possible means of access. Horowitz v. Noble (1978) 79 Cal. App. 3d 120, 130. Under California law, the right of way from necessity must have no other way. Kripp v. Curtis (1886) 71 Cal. 62, 65. What this means is that a plaintiff cannot just approach his or her preferred lot for access and demand access. Rather, to play it safe, he or she should reach out to all abutting landowners and exhaust communications and negotiations before seeking relief in the courts.
A legal fight over easements can be very expensive and time consuming. It is better for a plaintiff to be proactive in negotiations and creative outcomes rather than threaten the imposition of a mandatory easement by court order. The possibility that a plaintiff may fail to meet his or her burden, and as there are usually other potential ways to access a lot should encourage a plaintiff to shop around his or her offer and determine the actual fair market value of his or her proposed easement. The mandatory easement process need not be a destructive fight but rather a business transaction where both parties are winners.