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31. Who is likely to prevail?
The cousin has sued the woman, seeking access across the woman's land to the public highway.
One year later, the man died intestate, leaving a cousin as his only heir. The cousin visited the man's land for the first time and discovered that it had no access to a public highway. A neighbor who owned adjoining land fronting on the public highway offered to sell the cousin a right to cross the neighbor's land for access to the highway. Although the neighbor's price was reasonable, the cousin rejected the offer. The woman has refused to allow the cousin to cross her land for access to the public highway even though the woman's land is still vacant.
A man conveyed the eastern half of a tract of vacant land to a woman by a warranty deed. The woman promptly recorded the deed. The land conveyed to the woman fronted on a public highway. The land retained by the man was landlocked.
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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 prescription is similar to acquiring land by adverse possession. An easement by implication is created by operation of law rather than a written instrument. There are three types of easements 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 absolute necessity is created by implied grant over the lot with access to the public road or utility line.
A is correct. When a landowner sells only a part of the land in such a way that it causes one lot to lose access to a public road or utility line, a right-of-way by absolute necessity is created. This implied grant is reserved over the lot with access to the road. In this case, when the man conveyed the tract of land to the woman, an easement by necessity was created and reserved by the landlocked tract. Therefore, the cousin has an easement by necessity across the woman's lot.
B is incorrect. An easement by necessity is an implied easement. The cousin has an easement by necessity because it was created in the initial conveyance, not because the land is vacant.
C is incorrect. The easement across the woman's land was created with the initial conveyance before the cousin inherited the land. The right-of-way already existed before the neighbor offered to sell the cousin an easement.
D is incorrect. The man was not required to expressly reserve an easement in his deed. The easement was created by necessity through the conveyance which left his tract landlocked. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient. It does not matter that the man landlocked himself, an easement by necessity is still created.