Interesting Appellate court decision

The opinion makes sense to me. I wonder they would have looked at an ingress egress easement differently.

It does not say if the easement user ended up paying the landowner the $7500 every one else paid.

I think that judgment was wrong, since the plaintiff failed to earlier make an agreement when offered, he is now estopped from getting it at a later date.

That the generator is not big enough is no fault of the defendant and was entirely irrelevant to the access issue.

Paul in PA

Paul in PA, post: 415726, member: 236 wrote: It does not say if the easement user ended up paying the landowner the $7500 every one else paid.

I think that judgment was wrong, since the plaintiff failed to earlier make an agreement when offered, he is now estopped from getting it at a later date.

That the generator is not big enough is no fault of the defendant and was entirely irrelevant to the access issue.

Paul in PA

The $7500 is irrelevant . The court ruled that the an easement of necessity existed from the time of the original conveyance. The size of the generator is also not relevant. The reasons the court found for finding that the generator was not an appropriate substitute for utility access were mostly based on the drawbacks of a generator in general. Increasing the size would allivate these concerens.

aliquot, post: 415919, member: 2486 wrote: The $7500 is irrelevant . The court ruled that the an easement of necessity existed from the time of the original conveyance. The size of the generator is also not relevant. The reasons the court found for finding that the generator was not an appropriate substitute for utility access were mostly based on the drawbacks of a generator in general. Increasing the size would allivate these concerens.

The $7500 is very relevant. It was an offer by the plaintiff. Seeing as how the plaintiff finally has his full easement the offer is now an obligation.

Improving and expanding the use of an easement by others can damage or reduce the use and value to the landowner, this the other neighbors agreed in a payment. If the plaintiff shares in an easement with a burden of shared maintenance, the plaintiff may in fact owe monies to the adjoiners for not paying his fair share.

Plus an undescribed easement can be moved by the landowner. It also appears that the plaintiff's easement may have extended beyond the easements of the neighbors.

Lastly an easement of necessity is not a free ride. Because it is a transfer of rights in property it has value and that vaule at minimum was established by the plaintiff prior to litigation.

The Court may have been right in granting it, but failed to follow the conditions of all the laws.

Paul in PA

That is an interesting decision and I note the appeals court's willingness to review the case after finding summary judgement by the trial court was valid.

In my area extension of rights under a written easement isn't happening without additional agreement between the estates (similar to Paul's point). That fact isn't negated when a modern convenience becomes a standard utility.

For the court to decide that the value of property is hindered by absence of a modern convenience seems very far reaching and subjective.

I don't know if estoppel is the preferred end game. However, I do feel the court could have served property rights more appropriately by requesting the parties negotiate electrical connection under the pretext of the existing agreement defined by the earlier connections and leaving the easement by necessity alone.

Paul in PA, post: 415932, member: 236 wrote: The $7500 is very relevant. It was an offer by the plaintiff. Seeing as how the plaintiff finally has his full easement the offer is now an obligation.

Improving and expanding the use of an easement by others can damage or reduce the use and value to the landowner, this the other neighbors agreed in a payment. If the plaintiff shares in an easement with a burden of shared maintenance, the plaintiff may in fact owe monies to the adjoiners for not paying his fair share.

Plus an undescribed easement can be moved by the landowner. It also appears that the plaintiff's easement may have extended beyond the easements of the neighbors.

Lastly an easement of necessity is not a free ride. Because it is a transfer of rights in property it has value and that vaule at minimum was established by the plaintiff prior to litigation.

The Court may have been right in granting it, but failed to follow the conditions of all the laws.

Paul in PA

There is no obligation to pay for something that is already yours, Even if you offer to pay for it in order to avoid a more expensive legal battle. The transfer of rights came and was paid for when the the initial conveyance occured. There is no free ride here.

The Trial Court correctly followed precedent but we are reversing because the way of necessity includes utilities.

"In other words, "the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties"; id.; because courts ascribe to the parties a fictitious intent"...the easement is founded in the original deed contract, that is why he doesn't have to pay the $7500 which was paid by the other property owners as a sort of settlement.

And
based on "the public policy that no land should be left inaccessible or incapable of being put to profitable use."

I believe you are wrong in not considering that excavation for multiple utilities outside of the physical way used for ingress and egress is an additional burden on the property. The $7500 was an offer for expanded use and disturbance, which was at the time refused. That the court now says that that expanded use is allowed does not negate the value of that use and disturbance.

In addition I noted that the expanded easement was paid for by other adjoiners and is now to the benefit of the plaintiff. Even if the Court is correct that plaintiff does not owe the defendant he in fact owes the adjoiners something for the fact that they paid for use plus the installation costs.

The original document is clear that it is for a passway or driveway and not a public right of way. I have surveyed numerous lots served by easements for driveways that receive utilities by other routes and if they do use the driveway area, the language is specific to that additional use, location and sometimes even as a separate agreement.

Sometimes a driveway is only a driveway just as a fence is sometimes only a fence.

In fact the Court missed rulings in New Jersey and possibly other Colonial States over the meaning of a passway. In New Jersey and many other Colonial Sates it was common for an individual to hold a deed for a town lot, sufficiently large for a house and stable as tract 1, tract 2 being a meadow lot, not within the town, sufficiently large for grazing a few horses and cows with a hay field and Tract 3 being a woodlot, sometimes far removed to provide firewood. All were included as a single deed and most often sold as an entirety. These woodlots were often accessed only by a woods road, a meager traveled way, most often traveled by a sledge on snow in the winter.These were originally combined on one deed, many became separated in later years. I sat in as Planning/Zoning Board engineer on an application by someone who purchased a woodlot only and wanted to build on it by turning the wood road access into a driveway and or private road. The plan was rejected in that case law required the applicant to acquire a proper right of way and not have access via a marginal road. The land had legal access for use as a woodlot, but no other use. Similarly in the above case the plaintiff had legal access for a driveway and any extended use would require acquisition of right of way. Now the Court can assist the plaintiff in acquiring an easement by necessity but there is no necessity that requires it to be free. Same thing applied to the wood road, expanding the use required agreement from the landowners and thus compensation.

As an aside, similar to the woods road, the meadow lots often had a cattle way from the meadow to a road and/or to a stream. A cattle way was only for cattle and those tending same. Thankfully most often the small meadows were acquired and merged into larger farm tracts, whereas the woodlots often became forgotten. Some wood lots have been acquired by those who still use firewood and/or use them solely for hunting, others finally fell to the municipality.

I have also seen subdivisions fail because a 1 rod wide farm access easement could not be enlarged by necessity to the right of way required for a road. In fact planning boards have correctly refused to allow multiple lot uses in an original single farm access way.

Mr. Karoly, if the use is to be 'Profitable" then one should be more than willing to share that profit. That goes beyond law, that is "Equity".

Paul in PA

Paul in PA, post: 415972, member: 236 wrote: I believe you are wrong in not considering that excavation for multiple utilities outside of the physical way used for ingress and egress is an additional burden on the property. The $7500 was an offer for expanded use and disturbance, which was at the time refused. That the court now says that that expanded use is allowed does not negate the value of that use and disturbance.

In addition I noted that the expanded easement was paid for by other adjoiners and is now to the benefit of the plaintiff. Even if the Court is correct that plaintiff does not owe the defendant he in fact owes the adjoiners something for the fact that they paid for use plus the installation costs.

The original document is clear that it is for a passway or driveway and not a public right of way. I have surveyed numerous lots served by easements for driveways that receive utilities by other routes and if they do use the driveway area, the language is specific to that additional use, location and sometimes even as a separate agreement.

Sometimes a driveway is only a driveway just as a fence is sometimes only a fence.

In fact the Court missed rulings in New Jersey and possibly other Colonial States over the meaning of a passway. In New Jersey and many other Colonial Sates it was common for an individual to hold a deed for a town lot, sufficiently large for a house and stable as tract 1, tract 2 being a meadow lot, not within the town, sufficiently large for grazing a few horses and cows with a hay field and Tract 3 being a woodlot, sometimes far removed to provide firewood. All were included as a single deed and most often sold as an entirety. These woodlots were often accessed only by a woods road, a meager traveled way, most often traveled by a sledge on snow in the winter.These were originally combined on one deed, many became separated in later years. I sat in as Planning/Zoning Board engineer on an application by someone who purchased a woodlot only and wanted to build on it by turning the wood road access into a driveway and or private road. The plan was rejected in that case law required the applicant to acquire a proper right of way and not have access via a marginal road. The land had legal access for use as a woodlot, but no other use. Similarly in the above case the plaintiff had legal access for a driveway and any extended use would require acquisition of right of way. Now the Court can assist the plaintiff in acquiring an easement by necessity but there is no necessity that requires it to be free. Same thing applied to the wood road, expanding the use required agreement from the landowners and thus compensation.

As an aside, similar to the woods road, the meadow lots often had a cattle way from the meadow to a road and/or to a stream. A cattle way was only for cattle and those tending same. Thankfully most often the small meadows were acquired and merged into larger farm tracts, whereas the woodlots often became forgotten. Some wood lots have been acquired by those who still use firewood and/or use them solely for hunting, others finally fell to the municipality.

I have also seen subdivisions fail because a 1 rod wide farm access easement could not be enlarged by necessity to the right of way required for a road. In fact planning boards have correctly refused to allow multiple lot uses in an original single farm access way.

Mr. Karoly, if the use is to be 'Profitable" then one should be more than willing to share that profit. That goes beyond law, that is "Equity".

Paul in PA

I appreciate your post, very interesting. My post above mostly just quoted the Appellate Court opinion.

The appeal is from summary judgment. What happens in summary judgement is the trial court finds there are no triable issues of fact and they decide the case on the law only. The trial court said the law is the way of necessity only includes access therefore Francini has no utility easement as a way of necessity. This presented a pure question of law to the Appellate Court which holds in this case of first impression that in Connecticut a way of necessity includes utilities. If it is a way of necessity then it is founded in the original Deed transaction and therefore it was included in the original purchase by Francini so he doesn't need to pay for it again.

This opinion is not the end of the case. We don't know what happened next. The Appellate Court simply reversed the summary judgment.

Paul in PA, post: 415972, member: 236 wrote: I believe you are wrong in not considering that excavation for multiple utilities outside of the physical way used for ingress and egress is an additional burden on the property. The $7500 was an offer for expanded use and disturbance, which was at the time refused. That the court now says that that expanded use is allowed does not negate the value of that use and disturbance.

In addition I noted that the expanded easement was paid for by other adjoiners and is now to the benefit of the plaintiff. Even if the Court is correct that plaintiff does not owe the defendant he in fact owes the adjoiners something for the fact that they paid for use plus the installation costs.

The original document is clear that it is for a passway or driveway and not a public right of way. I have surveyed numerous lots served by easements for driveways that receive utilities by other routes and if they do use the driveway area, the language is specific to that additional use, location and sometimes even as a separate agreement.

Sometimes a driveway is only a driveway just as a fence is sometimes only a fence.

In fact the Court missed rulings in New Jersey and possibly other Colonial States over the meaning of a passway. In New Jersey and many other Colonial Sates it was common for an individual to hold a deed for a town lot, sufficiently large for a house and stable as tract 1, tract 2 being a meadow lot, not within the town, sufficiently large for grazing a few horses and cows with a hay field and Tract 3 being a woodlot, sometimes far removed to provide firewood. All were included as a single deed and most often sold as an entirety. These woodlots were often accessed only by a woods road, a meager traveled way, most often traveled by a sledge on snow in the winter.These were originally combined on one deed, many became separated in later years. I sat in as Planning/Zoning Board engineer on an application by someone who purchased a woodlot only and wanted to build on it by turning the wood road access into a driveway and or private road. The plan was rejected in that case law required the applicant to acquire a proper right of way and not have access via a marginal road. The land had legal access for use as a woodlot, but no other use. Similarly in the above case the plaintiff had legal access for a driveway and any extended use would require acquisition of right of way. Now the Court can assist the plaintiff in acquiring an easement by necessity but there is no necessity that requires it to be free. Same thing applied to the wood road, expanding the use required agreement from the landowners and thus compensation.

As an aside, similar to the woods road, the meadow lots often had a cattle way from the meadow to a road and/or to a stream. A cattle way was only for cattle and those tending same. Thankfully most often the small meadows were acquired and merged into larger farm tracts, whereas the woodlots often became forgotten. Some wood lots have been acquired by those who still use firewood and/or use them solely for hunting, others finally fell to the municipality.

I have also seen subdivisions fail because a 1 rod wide farm access easement could not be enlarged by necessity to the right of way required for a road. In fact planning boards have correctly refused to allow multiple lot uses in an original single farm access way.

Mr. Karoly, if the use is to be 'Profitable" then one should be more than willing to share that profit. That goes beyond law, that is "Equity".

Paul in PA

I do think the use of the easement is an additional burden, but the crux of the decision was that Connecticut law dictates that an easement for utilities was created at the time of the original conveyence. There is no need to pay for something they already own.

The neighbors were not a party to this suit. They got their easements for much less than the plaintiff ended up payin in legal fees. The idea that they are owed something is confusing to me.

Expanding an easement to serve a new subdivision is putting an additional burden on an existing easement. I agree that those subdivisions should have been denied. I don't know the details in this case, maybe that argument could be made that the easement is now serving too many parcels when this case is heard , but that does not seem to have been brought up in this proceeding . No new burden is being placed on this easement. The utility easement existed from the moment of conveyance.

Dave,

A way of necessity means there is no means of access, which could also mean no access to utilities. Once a need for a way is determined the second action is to determine a fair price, which the Court did not do. Neither did they remand it back to the original Court to determine same. The value of the use is then also a matter of law. The law in Connecticut does not appear clearly governed by statute as by statement the Court went beyond the state.

Aliquot,

Installation of utilities is in fact an extra burden upon the easement. Per the original easement statement for access for a passway or driveway, utilities were not included. That the location for utilizes may reasonably within a driveway easement is a statement of reasonable use, but such a choice does not mitigate additional burden. One possible assumption is that the utilities would be placed on a pole line. Overhead wires would clearly be an additional and possibly hazardous burden on airport premises. That the airport owner wanted them to be in a different location to the plaintiffs property seems to indicate that possible concern. The other adjacent parcels may have been well clear of any possible obstructions. too much information is left out of why the airport owner was only extra concerned over this one parcel.

Paul in PA

Paul, does Pennsylvania require a payment when an easment of necessity is found to exist? In the states I am familiar with if an easment of neccissity is found to exist no additional payment is required. Although it was unwritten, the easment was purchased along with the original property. If a payment is required in this case it will be the job of the lower court to require it. This case was only an apeal of the decision on summary judgment.

I agree that adding utilities to the written easement is an added burden, but that is not what will happen here if an easment by necessity exists. When property benifiting from an easment by necessity is purchased it includes the unwritten easement. This would be in addition to and seperate from the written easement.

An easement of necessity comes from the fact you do not have legal access to a public road for your specific purpose. A parcel can be landlocked for various reasons and the parcel that created that lack of access is sometimes not readily determined. A parcel may have had original access on a road now vacated or relocated. It is possible to acquire an easement of necessity over a different parcel, which definitely requires payment. The holder of the original property sometimes purchases it subject to such unknown burdens but sometimes it is purchased clear of unknown burdens. Plenty of easements are created via subdivision plats that are unknown to purchasers. Most have a specific use. A sanitary sewer easement cannot be converted to a drainage easement by regarding. A power line pole easement cannot be created into a gas line easement.

The easement that was acquired by the parcel in question was a passway or driveway. It may have been only 8 or 10 feet in width. I know of cases were the user of such an easement wanted to put in underground utilities, Since width was undefined the owner of the burdened property said sure, just dig up your driveway and afterwards replace the paved surface. he user ended up buying and additional easement along side the driveway and paid for the easement and the value of trees.

An easement of necessity is a private taking, yes, compensation is required. The necessity is what exits, the easement is what has to be created to fill the necessity.

The cause of necessity is often the fault of the owner of a parcel that landlocks himself. Now if that landlocked parcel was occupied and had access through the sold off parcel the existence of prior use may be sufficient to establish an easement. But if the land was vacant the owner or subsequent owners are SOL.

Paul in PA

They simply reversed the summary judgment:
"The judgment is reversed and the case is remanded with direction to deny the defendant's motion for summary judgment and for further proceedings according to law."

I'm guessing the further proceedings are a trial.

The easements of necessity I'm familiar with come from the parent Tract. The courts are reluctant to grant them. The brother of them are implied easements which usually involved facts such as an existing driveway that give rise to the implication.

the court said "Today, we conclude that easements by necessity may provide not only physical access to landlocked property, but a property landlocked from commercial utilities may likewise receive an easement by necessity to access utility services. Easements by necessity are not artifacts of a more ancient era and must serve their intended purpose, to render land useful, in the present day as the beneficial use of land conforms to modern innovations and needs" Basically, the utilities are necessary for one to enjoy their land.