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If it is "necessary" for me to access my property by crossing my neighbor's property--do I have an easement?

Posted by Gayla K. Austin | Jun 04, 2021 | 0 Comments

In this April  2021 term case, the Wyoming Supreme Court examined the requirements for establishing that an implied easement is  "necessary and beneficial to the enjoyment of property" --that is the very definition of an implied easement.  The property in this case has no encumbrances of record, meaning there were no recorded easements.  In 2014 the Plaintiff sold 40 acres to Defendant and also conveyed an easement to the Game and Fish so its employees could use the road to drive through the ranch to access elk feeding grounds.  The Defendant knew the Plaintiff claimed that there was an implied easement but purchased the property anyway and installed a fence that block access to the trails the Plaintiff had been using.  

What is the standard in Wyoming to establish an easement by necessity?

To establish an implied easement (easement by necessity) it must be shown there is (1) common ownership followed by a conveyance separating the unified ownership; (2) before severance, the common owner used part of the property for the benefit of the other part, a use that was apparent, obvious and continuous; and (3)  the claimed easement is necessary and beneficial to the enjoyment of the parcel previously benefitted. 

What is an "implied easement" or necessary easement? 

Implied easements are recognized in the law as designed to create an easement where the parties to a transaction did not record an express easement.  The failure to record an easement is often due to an oversight or a lack of sophistication in the transaction.  Implied easements are seen in cases for pipelines and roads, both of which are physical infrastructure serving the dominant property.  

What about when the use is commercial or recreational? 

In this case, the property of the Plaintiff was fully accessible and did not "need" the easement to use their property.  There were alternative routes which did not require the use of the neighbor's property.   However, the Plaintiff wanted to use the existing trails for horse back rides and sleigh rides.  The claimed easements were only purported to be necessary for continued commercial and recreational operations, which is not what the law of implied or necessary easements is designed for.  Implied easement law is suited to address physically necessary access to property for roads, utilities, water and sewer.  

How do you show necessity to establish the easement? 

In Wyoming, the necessity required to establish an easement the court has said:  

  • If no use can be made of land conveyed or retained without the benefit of an easement, it is assumed that the parties intended the easement to be created. 
  • If land can be used without an easement but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the conveyor or the conveyee on the basis of necessity. 
  • In the different situations that may appear, a constantly decreasing degree of necessity will require a constantly increasing clearness of implication from the nature of the prior use.  
  • Necessity must be determined based on the circumstances existing at the time of severance. 

In this case, necessity for an easement was not found because alternative routes were available and there was very little evidence about how much alternatives would cost.  In this case, the Plaintiff failed to show necessity existed at the time of severance and so no easement was required or allowed. 

There are many types of easements and reasons to have a recorded easement.   I would be pleased to review your real property documents and offer a free consultation.  Please call 307.200.1914.  

About the Author

Gayla K. Austin

I enjoy helping clients put it all together with legal advice regarding real property, estate planning and business entities.

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