M. Philip Amodeo, personal representative of the estate of Roscoe Hatch, Jr., appeals from the judgment entered after a non-jury trial in the Superior Court (Hancock County, Marsano, J.) declaring that no implied easement exists across the Swan’s Island property of Sidney R. Francis, Jr. and his sister Emilie Francis Cushman to provide access from the nearest public road to shore property owned by the Hatch estate. Amodeo argues that the estate’s property is landlocked and that an implied easement was created when the parcel now owned by the estate originally was separated and conveyed from a larger property. We affirm the judgment.
In 1899 Sylvia Stockbridge inherited a large piece of Swan’s Island property situated between a town road and the eastern shore of the island. In 1920 she conveyed to Mary Gray Hatch a small portion of that land with shore frontage and a right of way to provide access from the town road across Stoekbridge’s remaining land. In 1921 Mary Gray Hatch conveyed the shore lot and right of way to Roscoe Hatch, Sr.
In 1924 Stockbridge conveyed a lot of land on the shore directly north of Roscoe Hatch, Sr.’s lot to Sophie Lytle Hatch, Roscoe Hatch, Sr.’s wife. In 1936 Roscoe Hatch, Sr. conveyed his lot with its deeded right of way to his wife, who now owned a double shore lot with deeded access to the public road.
Meanwhile, in 1927, Stockbridge had conveyed a lot on the shore directly south of the Hatch lots to George and Isabel Briggs. The Stockbridge-Briggs deed includes no grant of a right of way. The right of way to the Hatch lots, however, runs along the boundary between the Hatch lots and the Briggs lot. In 1956 George Briggs, Isabel having died and left George her sole heir, conveyed the Briggs lot to Roscoe Hatch, Jr. For
Francis already owned the land abutting on the south and west the lot that had been owned by the Briggs and now was owned by Roscoe Hatch, Jr. because in 1948 Sylvia Stockbridge had conveyed to Francis the property extending from the Briggs lot to the town road. When Alice P. Francis acquired Sophie Lytle Hatch’s property, therefore, Roscoe Hatch, Jr.’s parcel, bounded on the east by the Atlantic Ocean, became surrounded on the other three sides by property owned by Francis.
In 1964 Sylvia Stockbridge’s daughter conveyed to Alice P. Francis another large parcel of land over which a significant portion of the right of way to the original Hatch shore parcel runs. With the exception of a short stretch of the right of way that crosses an intervening neighboring property, the right of way at issue runs entirely across Francis property, terminating along the common boundary between the land Alice P. Francis acquired from Sophie Lytle Hatch and the land owned by the estate of Roscoe Hatch, Jr. Defendants Sidney R. Francis, Jr. and Emilie Francis Cushman inherited the property of Alice P. Francis in 1988.
That same year Roscoe Hatch, Jr. died. M. Philip Amodeo, the plaintiff here, is the personal representative of Hatch’s estate. In 1990 Amodeo filed on behalf of the Hatch estate a complaint seeking a declaratory judgment as to the existence and scope of an implied easement across the Francis property from the public road to the Hatch estate’s property on the shore. Following a non-jury trial, the court entered a judgment in favor of the Francis heirs, declaring that no easement existed across the Francis land to provide access from the public road to the Hatch estate’s parcel. This appeal followed.
Where thei-e is no express grant, covenant, or statute creating an easement, no easement created by prescriptive use, and no easement by estoppel, any easement that exists must have been created by implication.
See Frederick v. Consolidated Waste Servs., Inc.,
I
An implied easement is created by quasi-easement when
a common grantor severs real estate, conveying part of it and retaining the balance (or conveying it to a third person), and the circumstances at the time of the conveyance denote the grantor’s intent to subject the retained land (the servient estate) to an easement benefitting the conveyed land (the dominant estate). In order for such an implied easement to be recognized (1) the “property when in single ownership [must have been] openly used in a manner constituting a ‘quasi-easement,’” (defined ... as existing conditions on the retained land that are apparent and observable and the retention of which would clearly benefit the land conveyed; (2) the common grantor, who severed unity of title, must have “manifested an intent that the quasi-easement should continue as a true easement,” to burden the retained land and to benefit the conveyed land; and (3) the owners of the conveyed land must have continued to use what had been a quasi-easement as a true easement.
II
An easement by necessity is created when
a grantor conveys a lot of land from a larger parcel, and that conveyed lot is “landlocked” by the grantor’s surrounding land and cannot be accessed from a road or highway. Because of the strict necessity of having access to the landlocked parcel, an easement over the grantor’s remaining land benefitting the landlocked lot is implied as a matter of law irrespective of the true intent of the common grantor.
Frederick v. Consolidated
Waste
Sens., Inc., 573
A.2d at 389. The creation of an easement by necessity does not depend on any preexisting use of the land or on the intent of the grantor at the time of the conveyance.
Bowers v. Andrews,
The parties here do not dispute that the Hatch lot was conveyed from a larger parcel owned at the time by Sylvia Stockbridge and now owned in large part by the Francis heirs. Neither do the parties dispute that their parcels are so situated that access may be provided to the estate parcel in the form of an easement crossing the Francis land. The single issue here with respect to the creation of an easement by necessity is whether access to the Hatch estate parcel, for all practical purposes, is lacking, rendering the parcel “landlocked.”
Whether a property is landlocked is a question of fact.
See Morrell v. Rice,
A surveyor’s map entered in evidence establishes the estate’s property as lying not within a cove or harbor but fronting on the open Atlantic. The estate offered undisput
It is
a venerable rule that
no
easement by necessity may be determined to exist benefiting a water-bounded and otherwise landlocked property absent evidence that access via the boundary water is unavailable. In
Hildreth v. Googins,
We emphasize that it is not the mere physical proximity of water that defeats the claim here that the Hatch estate parcel is landlocked but rather the lack of evidence that access to the parcel via the water is unavailable for all practical purposes. We have 'held that when evidence
does
establish that access to an otherwise landlocked property via a bounding waterway is unavailable for all practical purposes, that property is landlocked.
Morrell v. Rice,
Because we affirm, on the basis of a failure of the plaintiff to meet his burden of proof, the judgment that no easement exists across the Francis property to provide the Hatch estate’s shore parcel access to the town road, we need not reach the issue of the scope of such an easement.
The entry is:
Judgment affirmed.
All concurring.
Notes
. A special case of an easement by necessity may occur in circumstances involving the simultaneous conveyance of lots by a common grantor when one of the conveyed lots is inaccessible. See
Morrell v. Rice,
. The Francis heirs offered no evidence at all but rested at the close of the plaintiff estate’s evidence.