§7.5 - Creation of Easements by Implication

• Jurisdiction: Washington

§7.5 CREATION OF EASEMENTS BY IMPLICATION

There are several types of implied easements: those implied from prior use, those implied by necessity, and those implied from plats. Care should be taken when reading cases because courts have sometimes been less than clear with regard to the elements required to create these easements, sometimes mingling the discussion of easements implied from prior use with those of easements by necessity. Adding to this mix is the statutory private way of necessity that may be condemned by nongovernmental parties under Chapter 8.24 RCW. See §7.5(4).

(1) Implied from prior use

The principle behind the creation of easements implied from prior use is that the conveyance of a dominant estate should be accompanied by the advantages and burdens that were appurtenant to the estate prior to separation of the title. Roe v. Walsh, 76 Wash. 148, 135 P. 1031, reh'g denied, 76 Wash. 148 (1913). Conveyance of an estate should be accompanied by everything necessary to its reasonable enjoyment, or at least those things that the grantor, during the time it was in his or her possession, used for his or her benefit. Bushy v. Weldon, 30 Wn.2d 266, 191 P.2d 302 (1948).

The courts will often speak of the basis of an easement implied from prior use as the presumed understanding or intention of the parties. Roe v. Walsh, 76 Wash. 148. Thus the elements may be discussed in terms of whether such an intention may be inferred. The only absolutely required element is that of unity and severance of title to the property. Silver v. Strohm, 39 Wn.2d 1, 234 P.2d 481 (1951); Rogers v. Cation, 9 Wn.2d 369, 115 P.2d 702 (1941).

Easements by implication are not favored by the courts because they are in derogation of the rule that written instruments speak for themselves. Therefore, the burden in proving the several elements required for the creation of an easement to be implied from prior use is on the claimant who is attempting to establish the easement. Rogers v. Cation, 9 Wn.2d 369. These elements are that during unity of title an owner has made use (a quasi easement) of one part of a parcel of land (quasi-servient) for the benefit of another part of the parcel (quasi-dominant) in a way that would be an easement if the land were in separate hands, that this use was apparent and continuous during the unity of title, and that after the parts are divided the use is reasonably necessary to the use and enjoyment of the quasi-dominant parcel. There is an extensive discussion of the elements necessary for the creation of an easement by implication from prior use, with particular attention to the showing of apparent and continuous use and the appropriate level of necessity, in Woodward v. Lopez, 174 Wn.App. 460, 300 P.3d 417 (2013).

(a) Unity of title and severance

An easement implied from prior use begins with a parcel of property owned by a single person (or by co-owners). Rogers v. Cation, 9 Wn.2d 369, 115 P.2d 702 (1941). Unity of title is an absolute requirement; when two members of a family owned adjacent parcels of land and one used a road across the other to reach the first parcel, there was not that required unity of title necessary to create an easement by implication. Landberg v. Carlson , 108 Wn.App. 749, 33 P.3d 406 (2001), review denied , 146 Wn.2d 1008 (2002). The unity may exist even though the parts of the parcel are possessed by different parties. For example, in Hubbard v. Grandquist, 191 Wash. 442, 71 P.2d 410 (1937), final transfer of a land deed was contingent on the payment of several installment charges. A use was impressed on the estate after the vendee had taken possession of the estate but prior to final payment of the installment charges. Held: the easement qualified as a "prior use" during unity and was thus conveyed with the dominant estate because it came into use before final title had been passed.

Before the division of the property, the use is of course not an easement (because not a right in another's land). Thus the division of ownership is necessary to make the quasi easement a true easement. Adams v. Cullen, 44 Wn.2d 502, 268 P.2d 451 (1954). The division or severance may be involuntary, as in a judicial proceeding or foreclosure. Puget Sound Mut. Sav. Bank v. Lillions, 50 Wn.2d 799, 314 P.2d 935 (1957), cert. denied, 357 U.S. 926 (1958); Berlin v. Robbins, 180 Wash. 176, 38 P.2d 1047 (1934).

If the quasi-dominant estate is conveyed first, the quasi easement becomes an easement by an implied grant. If, however, the estate upon which servitude has been impressedthe quasi-servient estateis conveyed first, the easement takes the form of an implied reservation. Adams v. Cullen, 44 Wn.2d 502. Because an implied reservation is, by definition, in derogation of the grantor's deed and its covenants, it "stands upon narrower ground than a grant." Schumacher v. Brand, 72 Wash. 543, 547, 130 P. 1145 (1913). Therefore, notoriety of the prior use required of the grantor of an estate with an implied reservation must be greater than that for prior use for an implied grant so that the easement is clearly apparent to both parties upon conveyance. Adams v. Cullen, 44 Wn.2d 502; Ashton v. Buell, 149 Wash. 494, 271 P. 591 (1928).

The prior use of a quasi easement is important because it establishes the presence of an implied understanding between the grantor and the grantee that the right-of-way used in the past to benefit the conveyed estate will be used in the future. Roe v. Walsh, 76 Wash. 148, 135 P. 1031, reh'g denied, 76 Wash. 148 (1913). The prior use of the quasi easement need exist only upon the transfer of title of the dominant estate. Rogers v. Cation, 9 Wn.2d 369. But because the courts consider the basis as intent, the prior use requirement may be viewed only as an indicia.

Actual use of the quasi easement by the grantor prior to conveyance may not be required if both parties take the quasi easement into account when determining the purchase price for the estate. White v. Berg, 19 Wn.2d 284, 142 P.2d 260 (1943). In the White case, the court held that a water supply line, which had been set up but not used by the grantor, was conveyed with the dominant estate as an implied easement appurtenant to the estate.

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