Plаintiff, Craig L. Herrera, appeals from a final judgment upholding an easement by necessity in favor of defendants Jose Tranquilino and Frances Martinez, husband and wife, and Orlando and Florence Martinez, husband and wife (defendants) over lands owned by plaintiff. The single issue presented оn appeal is whether the trial
This is the second appeal arising out of the same quiet title suit. During the initial trial, defendants admitted that plaintiff was the owner in fee simple of three adjoining pаrcels of land, described as Tracts A, B, and C in plaintiffs suit to quiet title. Defendants, however, counterclaimed, alleging the existence of an easement running from their home on an adjoining tract across plaintiff’s property to a public highway. The issues involving the other named defendants, including the Archdiocese of Santa Fe, have been previously resolved.
In its original judgment, the trial court found that defendants were the owners of an express easement across plaintiff’s property. Following an appeal, this court, in a memorаndum decision, held that defendants failed to establish the existence of an express easement, but remanded the case to the trial court for entry of additional findings and conclusions to determine whether the evidence in the record supported defendants’ аlternative claim of an easement by necessity.
Following remand, the trial court entered an amended judgment on July 20, 1988, finding that defendants were the owners of an easement by necessity from their property across plaintiff’s land to the Taos Highway (U.S. Highway 68). As shown by the record, plaintiff’s property consists of three adjoining parcels; the land owned by defendants abuts the western edge of plaintiff’s Tract A. The easement by necessity found by the court extends from defendants’ land on the west, easterly across each of the three tracts ownеd by plaintiff to U.S. Highway 68. The land west of defendants’ property belongs to the San Juan Pueblo and is swampy and inaccessible by vehicular traffic. The land north and south of the three tracts belonging to plaintiff is owned by third parties who were not joined in the lawsuit. Formerly, a dirt road referred to as El Camino Real extended from an area near defendants’ land and ran north to San Juan Pueblo. The road, however, has been closed for many years and has never been accessible during the period that defendants have owned their property. In order to gain access from defendants’ land to the area where the previous roadway existed, it was necessary to cross a portion of the lands now owned by plaintiff, which were formerly held by the same landowner who owned the tracts now belonging to both рlaintiff and defendants. A prior lawsuit initiated by defendants, which sought to have declared a permanent right of access to and from their property across the lands of adjoining third parties, was dismissed with prejudice.
The trial court in the instant case determined that all of рlaintiff’s and defendants’ lands were previously owned as a single unit by Tomas and Juanita Espinoza, the original patentees. The trial court’s decision filed May 27, 1988, also determined that the chain of title of defendants was as follows: Juanita Espinoza and or Tomas Espinoza, tо Manuel Borrego, to Celida Borrego Lopez, to Abedon and Gertrudes Borrego, to defendants; that at the time Abedon Borrego purchased what is now the lands of defendants, there was no access from the land to the north or to the south; that the only reasonаble route for vehicular traffic in 1974, when defendants acquired the land from Abedon Borrego, was from their east boundary in common with the west boundary of plaintiff’s Tract A, and then across Tracts A, C and B; and that neither plaintiff nor his predecessors in interest had previously taken аny action to frustrate or foreclose defendants’ use of an easement across the three tracts owned by plaintiff and which provided a means of access to defendants’ land.
The trial court also found that the easement claimed by defendants follоws a route from a public road on the east, westerly across plaintiff's Tracts B, C, and A to defendants’ land adjoining plaintiff’s Tract A on the west, and such route “is their only access to their land, and is reasonably necessary for them to enjoy ingress and egress to said land. Further, it rеlates to and concerns property which was commonly owned by Juanita and/or Tomas Espinoza.”
A reasonable necessity exists for the finding of an easement in favor of Defendants Martinez аcross Plaintiffs Tract B, then across Tract C and the bridge across the ditch, and then across the northern boundary of Tract A, to their land adjoining the western boundary of Plaintiffs Tract A. Further, the lands of Plaintiff and Defendants have a common grantor, and Defendants Martinez are owners of such an easement by necessity.
Do the facts in the instant case support the trial court’s determination of the existence of an easement by necessity? We answer this question affirmatively.
Plaintiff does not contest any of the findings entered by the trial court or the existence of substantial evidence supporting these findings; instead, he challenges whether the trial court erred as a matter of law in adopting its conclusion of law that defendants had established an easement by necessity, and whether the findings of fact adopted by the trial court were sufficient to support the court’s conclusions.
Easements may be created by express agreement, prescription or by implication. Kuhlman v. Rivera,
Whether an original landowner intended to convey or reserve an easement in order to provide access to a given tract is a question of fact to be determined from the terms of the conveyance and the surrounding circumstancеs. Hewitt v. Meaney,
A way of necessity can only arise where an owner of property severs a portion of his property and the portion retained or sold is cut off from access to a public route by the land from which it was severed. See Close v. Rensink,95 Idaho 72 ,501 P.2d 1383 (1972). The essential elements which must be proved includе unity of title from which the dominant and servient estates are subsequently created. See, e.g., Wagner v. Fairlamb,151 Colo. 481 ,379 P.2d 165 , cert, denied,375 U.S. 879 ,84 S.Ct. 149 ,11 L.Ed.2d 110 (1963), and 2 G.W. Thompson, Commentaries on the Modem Law of Real Property, §§ 362-368 (repl.1980).
Thus, to establish an easement by necessity, the proponent must show: (1) unity of title, indicating that thе dominant and servient estates were owned as a single unit prior to the separation of such tracts, Brooks v. Tanner,
We agree with plaintiff that for an easement by necessity to exist the “necessity” for the creation of the easement and the unity of title must be shown to have concurrently existed. See Othen v. Rosier,
Unless clearly erroneous or deficient, findings of the trial court will be construed so as to uphоld a judgment rather than to reverse it. See Newcum v. Lawson,
The trial court is required to make findings only with regard to ultimate facts. Empire West Cos. v. Albuquerque Testing Laboratories, Inc.,
In Finn the court determined that where a parcel of land is severed from the original tract, creating a situation where one parcel of land has no access to a public roadway except over the remaining lands of the grantor or strangers, an easement over the remaining lands of the grantor may be implied from the grant. In such situation, the easement need not be put to continuous use but may lie dormant through successive grantees so as to be available to a subsequent grantee. Id., 376 111. at 99,
The circumstances in Finn are analogous to the facts of the instant case. Here, the lands of both plaintiff and defendants were previously held as a single unit by the owners; both parties derived their titles from the same original source. The evidence supports an inference that a reasonable necessity existed for the easement at the time of the original severance.
The judgment of the trial court is affirmed.
IT IS SO ORDERED.