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24. For whom will the court likely decide?
The investor has sued the man for the right to cross the man's land to the public highway.
Recently, the man told the investor that he could no longer cross the man's land for access to the public highway. A neighbor has told the investor that he can use her land for access to another public road «for a price.»
Five years ago, the man again conveyed the rear half of the land, this time to an investor in a deed that made no reference to any easement to the public highway.
The woman used the easement until she reconveyed the land back to the man 10 years ago. The deed to the man made no reference to the easement.
Fifteen years ago, the man conveyed the rear half of the land to a woman and at the same time conveyed an express easement to the woman that provided access from her land across his retained land to the public highway.
A man owned a large tract of land that had frontage on a public highway. The land had no access to any other road.
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The basic ways of creating an easement are by express grant, implication, and prescription. An easement by express grant is one that is recorded and signed by the grantor and must comply with all the formalities of a deed. An easement by implication is created by operation of law rather than a written instrument. There are three types of easement by implication: (i) an intended easement based on a use that existed when the dominant and servient estates were severed; (ii) an easement implied from a recorded subdivision plan; and (iii) an easement by necessity.
An easement by necessity is created when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. When this happens, a right-of-way for absolute necessity is created by implied grant over the lot with access to the public road or utility line.
An easement can be destroyed by merger. By definition, an easement is the right to use the lands of another for a special purpose. On this basis, the ownership of the easement and the servient tenement must be in different persons. If the ownership of the two comes together in one person, the easement is extinguished. For the merger to be effective, complete unity is required. This means that the duration of the servient tenement must be equal to or longer than the duration of the dominant tenement with which it is combined. If complete unity is acquired, the easement is extinguished.
A is correct. The express easement granted to the woman was terminated by merger when she reconveyed her land to the man, who again became the common owner of both tracts. The man then conveyed the rear half of the land to the investor, whose land is now landlocked. An easement by necessity is implied for the benefit of the landlocked parcel at the moment of severance of the common ownership.
B is incorrect. The investor will likely prevail, but not for this reason. The express easement conveyed to the woman was terminated by merger when she reconveyed her land to the man. The man, as the common owner of both tracts of land, then conveyed the rear half of the land to the investor, whose land is now landlocked. An easement by necessity is implied for the benefit of the landlocked parcel at the moment of severance of the common ownership.
C is incorrect. It is true that the express easement granted to the woman was terminated by merger when she reconveyed her land to the man. But the man, as the common owner of both tracts of land, then conveyed the rear half to the investor, whose land is now landlocked. An easement by necessity for the benefit of the landlocked parcel is implied at the moment of severance of the common ownership.
D is incorrect. The express easement granted to the woman terminated by merger when she reconveyed her land to the man. The man, as the common owner of both tracts of land, then conveyed the rear half to the investor, whose land is now landlocked. An easement by necessity for the benefit of the landlocked parcel is implied at the moment of severance of the common ownership. The fact that the neighbor has offered to sell the investor a right of access is irrelevant.