Easements Implied from a Preexisting Use: Escape from the Rabbit Hole.

Author:Hartenstine, J. Michael

This is the story of a rabbit hole. (1) A rabbit hole into which Florida caselaw on implied easements based on a preexisting use descended in 1986 and has been trapped ever since. The descent was precipitated by Tortoise Island Communities, Inc. v. Moorings Ass'n, Inc., 489 So. 2d 22 (Fla. 1986), an opinion so "cryptic and enigmatic" (2) and "unclear" (3) that it seriously could be questioned if an easement arising by implication from a preexisting use still existed in Florida. (4) The story commences in 1960 with a seemingly forgetful judge, then follows the journey of applicable Florida jurisprudence to its present chaotic state. The story concludes with a suggested escape from this rabbit hole that presently is the law of easements implied from a preexisting use. But first, a brief explanation of implied easements.

Implied Easements

In their definitive treatise on easements, (5) Jon Bruce and James Ely, Jr., note that implied easements at common law are of two varieties--ways of necessity and easements implied from quasi-easements. Ways of necessity are implied to provide access to otherwise landlocked property. Easements implied from quasi-easements are based on owners' use of part of their property for the benefit of another part. Since owners cannot grant easements to themselves over their own property, the beneficial use is initially a "quasi-easement," which ripens into an easement when title to the benefited and burdened parts vests in different persons. For example, use of a sewer line across the front part of an owner's property to provide sewer service to a home on the rear part is a quasi-easement in favor of the rear part. If the rear part is sold to a third party, the quasi-easement for use of the sewer line is converted to an easement in favor of the purchaser of the rear part.

Although ways of necessity and easements implied from quasi-easements both require an initial common ownership of the burdened and benefited parcels followed by a severance of the ownership, ways of necessity do not require any prior use or evidence of intent to create an easement. (6) The mere conveyance of a parcel having no access to a public road except over another parcel owned by the same grantor creates an access easement--i.e., a way of necessity--in favor of the grantee over the grantor's other parcel to reach the public road.

In contrast, easements implied from quasi-easements arise only where continuation of a prior use is deemed necessary for the enjoyment of the severed parcel. If continuation of a prior use is deemed necessary, then the parties are presumed to have intended the use to continue even if the conveyance documents are silent as to the use. The implication of an easement from a preexisting use "is based on what the parties probably intended or had reasonable grounds to expect." (7)

Entrance to the Rabbit Hole

In Dinkins v. Julian, 122 So. 2d 620 (Fla. 2d DCA 1960), Judge Shannon, writing for the Second District, observed that an implied easement from a preexisting use arises from circumstances surrounding a conveyance. "[W]hatever is obviously in use as an incident or an appurtenance passes by implication when the land is sold." (8) Judge Shannon noted the doctrine of implied easements from a preexisting use (what he called an implied grant) had been used considerably in other states, but "to date, has only been discussed in Florida." (9)

Here we encounter the rabbit hole. Judge Shannon seemingly forgot his opinion in Kirma v. Norton, 102 So. 2d 653 (Fla. 2d DCA 1958), just two years earlier in which the court upheld an implied easement for continued use of a sewer line. (10) In Kirma, the court set forth the requirements for an implied easement based on a preexisting use: a) unity of title between the dominant and servient estate; b) a severance of the unified title; and c) circumstances existing at the time of the severance that would make an implied easement necessary for the complete enjoyment of the estate granted or reserved.

Judge Shannon did not elaborate on the meaning of "necessary" in Kirma, but in Dinkins he quoted Thompson on Real Property for a "reasonably necessary" standard. (11) The Second District subsequently affirmed the "reasonably necessary" standard in Star Island Associates v. City of St. Petersburg Beach, 433 So. 2d 998 (Fla. 2d DCA 1983):

The doctrine of implied easement is that when a landowner conveys part of his land, he impliedly grants all apparent or visible easements upon the part retained which were at that time used by the grantor for the benefit of the land conveyed and which were reasonably necessary for use of the land conveyed. (12)

The "reasonably necessary" standard was expressly adopted in lieu of a "strict necessity" standard by the Third District in Williams Island Country Club, Inc. v. San Simeon at the California Club, Ltd., 454 So. 2d 23 (Fla. 3d DCA 1984).

Consistent with the foregoing cases, the Fifth District in Moorings Ass'n, Inc. v. Tortoise Island Communities, Inc., 460 So. 2d 961 (Fla. 5th DCA 1984), decision quashed, 489 So. 2d 22 (Fla. 1986), ostensibly applied the "reasonably necessary" standard in deciding that subdivision lot owners stated a cause of action for an implied easement to use an adjacent canal to access a river. The owners did not require the canal to access the river, since other canals also offered access; the canal at issue simply offered more direct and convenient access. An implied easement from a preexisting use, the court ruled, does not require "an absolute, but only a reasonable, necessity, such as will contribute to the convenient enjoyment of property, other than mere temporary convenience." (13)

With this ruling, the Moorings court pushes us into the rabbit hole. "Convenient" and "necessary" are ordinarily regarded as antithetical terms ("convenient" implying a lack of necessity rather than a degree of necessity), but they are treated by the Moorings court as virtually synonymous. Confounding and conflating the terms, the Moorings court strips "reasonably necessary" of any element of necessity and effectively replaces the "reasonably necessary" standard with a standard of convenience or advantage.

Descent into the Rabbit Hole

In its reversal of Moorings, the Florida Supreme Court stated: "The issue of law is whether an easement by implication from a preexisting use requires an absolute necessity or only a reasonable necessity such as will contribute to the convenient enjoyment of property." (14) From this statement, the court signaled its disagreement with the Moorings court's redefinition of "reasonably necessary," but not without obscuring the Florida Supreme Court's reasoning. If the court had framed the issue as whether circumstances merely contributing to the convenient enjoyment of property constituted a reasonable necessity, the court could have clarified that mere convenience is not the same as "reasonably necessary" and otherwise left intact prevailing caselaw. By framing the issue as it did, the court appears to have created the false choice of "absolute necessity" on the one hand and "unnecessary convenience" on the other hand, and excluded consideration of the one choice--actual, reasonable necessity--that is most consistent with the law of implied easements from preexisting uses.

The Florida Supreme Court then disposed of the issue: "The court below held that a reasonable necessity was sufficient. In a well reasoned dissent, Judge Cowart maintained that such easement required an absolute necessity. We agree with Judge Cowart's reasoning and adopt it as our own." (15)

Now we plunge headlong down the rabbit hole. Contrary to the court's assertion, nowhere in Judge Cowart's lengthy dissent in Moorings do the words "absolute necessity," "absolutely necessary," or even "absolute" appear. Judge Cowart does mention "necessity" 11 times, but only in reference to a way of necessity. Judge Cowart's dissent does not address the degree of necessity required for implication of an easement based on preexisting use or even mention easements implied from a preexisting use. The court's attribution to Judge Cowart of a position he did not espouse--that an implied easement from a preexisting use requires an absolute necessity--is inexplicable. Nevertheless, the Florida Supreme Court justices agreed with Judge Cowart's reasoning and adopted it "as our own." What reasoning, then, did the court adopt, and what does Tortoise Island actually hold?

Does Tortoise Island Require Absolute Necessity?

Florida cases since Tortoise Island have uniformly interpreted Tortoise Island as requiring absolute necessity for an implied easement. According to the First District in Matthews v. Quarles, 504 So. 2d 1246 (Fla. 1st DCA 1986), the Florida Supreme Court "held that an easement by implication requires an absolute necessity, and not merely a reasonable necessity." (16) This statement is problematic for two reasons. First, the closest the court in Tortoise Island comes to such a "holding" is its mistaken claim that "Judge Cowart maintained that [an easement by implication from a preexisting use] required an absolute necessity." (17) Since the court adopted Judge Cowart's opinion as its own, any "holding" of Judge Cowart would become the supreme court's own holding. If Judge Cowart "held" or "maintained" that absolute necessity is required, it certainly would be fair to say that was the court's holding. But Judge Cowart said nothing about absolute necessity in his opinion. How, then, can the court have "held" anything about absolute necessity? Second, Matthews dealt with a way of necessity as codified in F.S. [section] 704.01(1), not an easement by implication from a preexisting use. Tortoise Island expressly concerned an easement by implication from a preexisting use, and the First District citation of Tortoise Island in support of its opinion in Matthews is misplaced.

The First District is not alone in its...

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