Schwab v. Timmons

Supreme Court of Wisconsin · Property

PropertyEasementsEasement by NecessityImplied Easementseasement by necessityimplied easementlandlocked parcelcommon ownership

Facts

The parties owned waterfront parcels in Door County located between Green Bay and a steep bluff. Historically, the lots extended east above the bluff to what is now a public roadway, and when the United States conveyed Lot 4 in 1854 and Lots 2 and 3 in 1882, the lots were not landlocked. Petitioners' parcels originally included land above the bluff with road access, but petitioners later conveyed away that upper land and retained only the lower bluff-side parcels. Petitioners then sought to use and extend a private road running over respondents' parcels to reach their now-isolated parcels below the bluff.

Issue

Whether petitioners were entitled to an easement by implication or by necessity over respondents' properties where the parcels were not landlocked at the time of severance by the United States, petitioners later conveyed away their own road access, and petitioners also argued that geographical barriers should justify recognition or expansion of an easement by necessity.

Rule

An easement by implication requires separation of title, a pre-severance use that was so long continued and so obvious or manifest as to show it was meant to be permanent, and necessity to the beneficial enjoyment of the land granted or retained. An easement by necessity arises only where a common owner severs a landlocked portion of property by conveying it, and the owner of the landlocked parcel cannot access a public roadway from his or her own property; mere inconvenience or geographical barriers do not suffice where another method of access exists at reasonable expense, and Wisconsin will not expand the doctrine to create hidden easements contrary to recording and conveyancing policy.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Madison, Olivia Kern owned a 40-acre tract touching County Road M. She sold the back 10 acres to Rafael Soto and kept the frontage parcel. The deed said nothing about access, and the back parcel has no route to any public road except by crossing Olivia's retained land.

If Rafael sues for an easement by necessity over Olivia's retained parcel, what is the most likely result?

Explanation. An easement by necessity arises when a common owner severs a landlocked parcel and the owner of that parcel cannot access a public roadway from the parcel itself. Here, Olivia's conveyance created the landlocked condition, so the law would imply a way of necessity over the land retained by the grantor. Pre-severance continuous use is an implied-easement requirement, not the core rule for necessity. (Derived from Schwab v. Timmons (n.d.).)