COA Addresses Issue in Implied Easement Case
Chris Burti, Vice President and Legal Counsel

We have on several occasions noted in our articles that litigation over access rights is steadily increasing. What was formerly a modest concern for a title examiner has become one that requires much more strict scrutiny. Access rights by prior generations were taken pretty much for granted as it was rare for neighbors to contest the right to cross an established path. Use of the property tended to stay the same and this resulted in little dissatisfaction upon change in ownership. In rural areas that change in ownership might often be to a related party to the original owner. It was, therefore, common to be able to obtain a title insurance policy without an access exception simply based upon affidavits of long use given by older long-time residents of the locale.

Burgeoning development has brought change at an ever-increasing rate. Long-time residents or even new residents who dislike the character of the change often resist these changes. Disputing access rights is proving to be an effective tool to resist any changes in the use of adjoining property. Often the mere threat of a challenge is enough to bring on negotiations and palatable compromises. Obviously, the increase in litigation evidenced by the number of recent easement cases reaching the appellate level suggests that settlement is less frequently achieved.

The complexity of access issues is compounded where property does not abut a public road; where there is no plat dedication of a private road, no a deed grant or any reservation, nor any other express grant of easement of record. In such cases, access, where it exists, often relies on the doctrines incorporated in cases that may be broadly described as involving implied easements. In Woodring v. Swieter; 637 S.E.2d 269, (2006) the North Carolina Court of Appeals set out an excellent summary with citations of the law of North Carolina with respect to such implied easements, and its summary is set out with slight edits for brevity as follows:

Easement by Prescription

In order to establish an easement by prescription, a claimant must meet the following criteria: (1) the use must be adverse, hostile, or under a claim of right; (2) the use must be open and notorious; (3) the use must be continuous and uninterrupted for a period of 20 years; and (4) there must be substantial identity of the easement claimed. Concerned Citizens of Brunswick County Taxpayers Ass'n v. State, 329 N.C. 37, 45, 404 S.E.2d 677, 682 (1991). The burden of proving the elements essential to the acquisition of an easement by prescription is on the party claiming the easement. Id.
    …    Although the color of title doctrine had previously been applied primarily to obtaining ownership in fee simple by adverse possession, this Court held in Higdon v. Davis, 71 N.C. App. 640,647-48, 324 S.E.2d 5, 11-12 (1984), aff'd in part and rev'd in part, 315 N.C. 208, 337 S.E.2d 543 (1985), that the doctrine was equally applicable to obtaining an easement by prescription. The Supreme Court, however, in partially affirming and reversing the Court of Appeals in Higdon, specifically declined to address whether an easement in North Carolina could be acquired by prescription under color of title. See 315 N.C. at 217, 337 S.E.2d at 548 ("Because we find that the evidence as a matter of law does not support a finding of seven years' use of the easement under color of title, we decline to decide whether in North Carolina an easement may be acquired by seven years' adverse use under color of title."). But see 1 Webster, supra § 15-18, at 721 ("If a landowner can lose a full fee simple absolute to a claimant succeeding under the adverse possession by color of title doctrine, there is logic to the argument that an easement, a mere incorporeal hereditament, could be acquired by a claimant under the same theory . . . .").

Easement Implied by Prior Use

To establish an easement implied by prior use, a party must prove that: (1) there was a common ownership of the dominant and servient parcels and a transfer which separates that ownership; (2) before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was apparent, continuous, and permanent; and (3) the claimed easement is necessary to the use and enjoyment of the claimant's land. Tedder v. Alford, 128 N.C. App. 27, 32-33, 493 S.E.2d 487, 490 (1997), disc. review denied, 348 N.C. 290, 510 S.E.2d 917 (1998). "Once these elements are established, 'an "easement from prior use" may be implied to "protect the probable expectations of the grantor and the grantee that an existing use of part of the land would continue after the transfer."'" Id. at 33, 493 S.E.2d at 490 (emphasis added) (quoting Curd v. Winecoff, 88 N.C. App. 720, 724, 364 S.E.2d 730, 732 (1988)).

Easement Implied by Necessity    

"In some instances property could not be used for the purpose for which granted or any beneficial purpose unless an easement is implied." 1 Webster, supra § 15-13, at 701. "North Carolina follows the generally accepted view that the requirements for such an easement are: (1) a conveyance (2) of a portion of the grantor's land (i.e., the grantor retains a portion of his land) and (3) after this severance of the two portions or parcels, it is necessary for the grantee to have an easement over the grantor's retained land to reach a public road." Id. at 702 (emphasis and internal footnote omitted).
    "[T]he easement must arise, if at all, at the time of the conveyance from common ownership." Broyhill v. Coppage, 79 N.C. App. 221, 226, 339 S.E.2d 32, 37 (1986). Consequently, all elements required for the easement's creation must exist at the time of the severance of the alleged dominant and servient estates. 1 Webster, supra § 15-13, at 702.

 Easement by Estoppel
    As a general matter, "'[e]quitable estoppel precludes a party from asserting rights "he otherwise would have had against another" when his own conduct renders assertion of those rights contrary to equity.'" Ellen v. A.C. Schultes of Md., Inc., 172 N.C. App. 317, 321, 615 S.E.2d 729, 732 (2005) (quoting Int'l Paper Co. v. Schwabedissen Maschinen & Anlagen, GMBH, 206 F.3d 411, 417-18 (4th Cir. 2000)), disc. review and cert. denied, 360 N.C. 575, 635 S.E.2d 430 (2006). Accordingly, an easement by estoppel "'may arise where one cognizant of his own right keeps silent in the knowledge that another will be innocently and ignorantly induced to . . . expend money or labor in reliance on the existence of such an easement.'" Delk v. Hill, 89 N.C. App. 83, 87, 365 S.E.2d 218, 221 (1988) (quoting Patrick K. Hetrick, Webster's Real Estate Law in North Carolina § 316 (rev. ed. 1981)), disc. review denied, 322 N.C. 605, 370 S.E.2d 244 (1988). See also Packard v. Smart, 224 N.C. 480, 484, 31 S.E.2d 517, 519 (1944) (concluding successors in interest of single building spanning two adjoining parcels were bound by appurtenant cross-easements by estoppel following predecessors' oral agreement to jointly use common hallways). "[I]n order for the doctrine of equitable estoppel to apply, the party against whom estoppel is asserted must have full knowledge of its rights and of facts which will enable it to take action as to enforcement thereof." State Farm Mut. Auto. Ins. Co. v. Atlantic Indem. Co. , 122 N.C. App. 67, 76, 468 S.E.2d 570, 575 (1996) (emphasis added).
    Thus, in Delk, this Court held the plaintiff had shown sufficient evidence of an easement by estoppel to withstand summary judgment when he had graded a road across the defendant's property "at plaintiff's great expense," in the belief that he had an easement and following a request by the defendant. 89 N.C. App. at 87, 365 S.E.2d at 221.

One question that arises with some frequency is whether the passage of time where the landlocked owner has not accessed the property at all or has otherwise used a permissive easement for more than twenty years affects an implied easement. Jernigan v. McLamb NO. COA07-1540, a unanimous opinion from the North Carolina Court of Appeals filed on September 2, 2008 gives some guidance on this issue.

In this access case, the tract from which all parties derived their title was divided among six heirs in 1925. Only four of the six lots resulting from the 1925 division are pertinent to the case. The plaintiff owns Lot 4 which was acquired from the purchaser of lot from the division grantee. The defendants in the appeal inherited Lot 1, their father having purchased the property from a division grantee. A former party in the case who settled and granted an easement to the plaintiff owns Lot 3. The owners of lot 5 are unidentified. The Court noted, significantly, that “neither plaintiff nor defendants are direct heirs or descendants from the 1925 … division.”

The defendants’ Lot 1 is approximately 50 acres and has access to a public road; it abuts the seventy-acre Lot 3 to the south, which in turn abuts the fifty-three acre Lot 4 on the North, Lot 5 lies to the North of Lot 4. Thus, it appears that according to the court’s recitation of the evidence in the case Lot 4 does not have direct access to a public road. The predecessors in title to Lot 4 used a farm path which crossed Lots 1, 3, 4, and 5, as well as portions of property not part of the original estate to access the property. Defendant, B. McLamb, built a home in the center of Lot land closed part of the farm path across it around 1980, because the farm path would wash out when it rained. He built a new driveway in a different location which the plaintiff, his predecessors in title and others used to access the remainder of the original path.  The plaintiff has permissive access to his property across two alternate routes. One of these routes crosses Lot 5 of the original division and another property that was not part of the original division.

After a dispute, the defendants blocked the plaintiff’s access across Lot 1, and he brought suit claiming he had acquired an implied easement by necessity, or in the alternative: an easement implied by prior use; an easement by estoppel; or an easement by prescription. The trial court determined that as there was permissive access and stated in the order that “Plaintiff has access to his property from Highway 55 and is currently receiving the full use and benefit of his property, and it is not necessary for [p]laintiff to use the [d]efendants' McLamb, Herring, and Patrick (now McLamb) property . . . to have the full fair, convenient, and reasonable, physical, economical, and comfortable use, benefit, and enjoyment of his property.”

In the appeal, the plaintiff challenged the trial court's rulings and argued that the trial court erred in ruling he was not entitled to an easement by necessity. The Court of Appeals agreed that since  Lot 4 and the property in dispute were owned and conveyed from a single common tract and that the two means of permissive access from Lot 4 to public roads are over the property of strangers to his title, that he has no legally enforceable access to his property and having no legal access, is entitled to an easement by necessity.

The Court cited the classic 1971 decision in Oliver v. Ernul, 277 N.C. 591, 178 S.E.2d 393, where our Supreme Court explained that a “ way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over grantor's other land or land of a stranger. In such cases, grantor impliedly grants a right-of-way over his land as an incident to purchaser's occupation and enjoyment of the grant.” The Court then said;

“Such easements are a ‘“result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessity (sic) for the beneficial use of that property . . . .”’ Pritchard v. Scott, 254 N.C. 277, 282, 118 S.E.2d 890, 894 (1961) (quoting 17A Am. Jur., Easements § 58).”

Citing appropriate decisions the Court listed the requirements to satisfy the elements of an easement by necessity. The party claiming the right must prove that the dominant tract and the servient tract were once held in common ownership that was severed by a conveyance, that the necessity arose from the conveyance, that it arose at the time of conveyance from the common grantor and that it is not necessary that the common grantor be the immediate grantor. Absolute necessity is not a required element as long as there are physical conditions and use that would lead one to reasonably believe that the grantor intended the grantee to have access. “‘Although a plaintiff may have a permissive right-of-way to a public highway, a plaintiff who has no legally enforceable right-of-way to a public highway may be entitled to an easement by necessity.’ Whitfield, 116 N.C. App. at 339, 447 S.E.2d at 799 (citing Wilson v. Smith, 18 N.C. App. 414, 418, 197 S.E.2d 23, 25, cert. denied, 284 N.C. 125, 199 S.E.2d 664 (1973)).”

In Wilson, the North Carolina Court of Appeals affirmed an award of an easement by necessity when the plaintiffs were unable to obtain a deed of trust for a construction loan because they did not have legal access, though they did have permissive access to a public road and, as a result, did not have “full beneficial use of their property.” Further, the Court noted here that in Whitfield, the Court of Appeals granted a plaintiff only having permissive access to his property, an easement by necessity without requiring evidence of any present economic hardship or loss of use.

The Court determined that the evidence in this case supported the trial court's findings that plaintiff and defendant own lots derived from a common grantor, that defendants' property abuts a public road, and that plaintiff has no legally enforceable access to his property, that he only has permissive use over two routes to access his property, at least one of which crosses a stranger's property. There was no evidence that the common grantor intended to deny access to Lot 4 over the other property constituting his original tract, and trial court made no findings of fact as to whether the plaintiff’s permissive access existed at the time of the 1925 division. The Court of Appeals held that the portion of the trial court's ruling denying plaintiff an easement by necessity was “affected by an error of law”, reversed the judgment and remanded to the trial court for entry of an order granting an easement by necessity.

At least two points of interest for the practitioner should be considered. It is clear that there was no assertion of the right of implied easement of necessity for access for over three quarters of a century. Many have opined that the right cannot be abandoned nor is any limitations period applicable to extinguish the right over time. The lack of discussion on the subject in this opinion in light of the facts suggests that we may assume such may be the case, but note that the issue was apparently not litigated nor raised on appeal, thus the opinion in this case is not dispositive of the question. A second consideration will be the need to locate the easement in the trial court for the judgment to be dispositive. While the reported facts in the opinion and the case law on the issue suggests that part of the easement might properly be determined to lie in the old path, that issue could also be contested in the trial court. The balance of the route after being blocked by the residence will likely be left to the reasonable discretion of the servient owner under the common law, but that also may be contested. The outcome might prove interesting as the history of the parties’ unwillingness to come to any agreement might suggest.

Dirt Tales From the Deed Vault - Episode 18
John Dillard, Vice President and Legal Counsel

                In this month’s installment the Statewide Title Newsletter focuses on the topic of Access.  In this article, we look at how the title policy insures access.

            In both Owner’s and Lender’s policies of title insurance, access may be insured upon the certification by an independent attorney that the insured land contains legal access either by adjoining a public road or over a private appurtenant easement.  An appurtenant easement is an easement created for the purpose of benefiting particular land. It attaches to, passes with and is an incident of ownership of the particular land.  Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 161, 418 S.E.2d 841, 846 (1992).

            Once the attorney makes this certification, what kind of coverage does the title policy give with respect to access?  Number 4 under Covered Risks in the ALTA 2006 Policy covers against a defect of “No right of access to and from the land”. 

            Compare access coverage in the 2006 policy with that given in the Expanded Policy, also known as the ALTA Homeowner’s Policy.  The Homeowner’s Policy specifically provides for coverage “against lack of vehicular or pedestrian access to and from insured land” under Item 11.  The Homeowner’s Policy is available for 20% additional premium.

            The language in the 2006 policy is similar to the language used in previous policies.  The court has interpreted this coverage in Marriott Financial Services v. Capitol Funds, Inc.  288 NC 122 (1975).  In Marriott, the court ruled that title insurance insures the legal right of access and not actual access.  In other words, if a plat shows an easement providing access to the land, it doesn’t matter that the lay of the land makes it impossible to actually construct a road; as long as there is an easement for a road, the insured land has legal access.  Although the Homeowner’s Policy gives more specific coverage to access, it is not certain a court would interpret it to provide a better quality of access.

            The issue of access has become important because of the large number of foreclosures taking place.  All too often the property being foreclosed has been found to be lacking in legal and/or actual access.  Therefore, it is more important than ever for the certifying attorney to make sure the property they are seeking to have insured has good access.  How can this be accomplished?

            First, by verifying there is proper language granting the right of way.  Language such as “together with” or “granted” or “conveyed” with a description of the right of way that can be readily ascertained and located on the ground will suffice.  Language  reserving the right of way without any words of conveyance will not be sufficient to grant an easement that can be insured. 

            Second, the attorney must examine the underlying fee to the easement to make sure it has not been encumbered.  If the servient tract has a deed of trust against it that is not released, then when the easement is conveyed that easement will be subject to the deed of trust.  If that deed of trust is later foreclosed the grantee’s grant of easement will be extinguished.  Releases must be obtained from deeds of trust encumbering easements that provide access to the insured property.  If you are examining title that is receiving the original grant of easement then you should also make sure the grantor of the easement has the right to convey a grant of easement. 

            Easement and access problems have become much more problematic in light of the current real estate market that is awash in foreclosures. Many problems can be avoided down the road if a little extra diligence is applied before certifying as to access.