Fike v. Shelton - 860 So. 2d 1227 (Miss. App. 2003)

Rule:

A claimant seeking an easement by necessity has the burden of proof and must establish that he is entitled to a right of way across another's land. An easement by necessity arises by operation of law when part of a commonly-owned tract of land is severed in a way that renders either portion of the property inaccessible except by passing over the other portion or by trespassing on the lands of another. The party asserting the right to an easement must demonstrate strict necessity and is required to prove there is no other means of access. An easement by necessity has a right of access that is appurtenant to the dominant parcel and travels with the land, so long as the necessity exists. By acquiring the dominant estate, one has already paid for and procured the legal right of access to and from that parcel. The easement or right-of-way will last as long as the necessity exists and will terminate after other access to the landlocked parcel becomes available.

Facts:

Appellee James B. Shelton III purchased forty acres of real property in Mississippi that has no road access. His forty acres were at one time two separate twenty-acre tracts of land, although he purchased both twenty-acre tracts together as one and on the same date. Appellee asserted that he was entitled to an easement by necessity through appellant John D. Fike's property because twenty acres of his forty-acre parcel were at one time part of a commonly-owned tract of land with the appellant’s property prior to its partitioning in 1932. Appellee’s twenty-acre tract that was in common ownership with the appellant’s property was hereinafter called parcel one. The tract that was not in common ownership with the appellant was hereinafter called parcel two. For his part, appellant owned a sixty-acre tract of land located to the southwest of appellee's property and it was connected with parcel one. This property was also adjoined a public road. Appellant argued that appellee had access to his property because other adjoining landowners had granted appellee verbal permission to cross their property. Appellee countered that he was given permission to walk across the land to reach his property but was not given permission for motorized travel. Appellant then asserted that appellee was given unrestricted access for entry to his property. Appellee contended that use of the property was in the form of a license that was revocable at will. The public roads in this case were the only public roads that would provide access to appellee’s forty acres; said access would require an easement. Appellee then filed a complaint for the establishment of an easement. He petitioned the court to decree an easement or alternatively, to order the board of supervisors to construct a private road. The chancery court held that appellee was entitled to an easement by necessity across appellant's property, and that the easement was to be 50 feet wide. Appellant then sought review arguing that the court erred in encumbering his property with an easement, because appellee was given permission from adjoining landowners to access his property, defeating the strict necessity prerequisite. 

Issue:

Was the appellee entitled to an easement by necessity across appellant's property?

Answer:

Yes.

Conclusion:

The court affirmed the judgement and found that access from the adjoining landowners' property was limited to foot travel by one, and access from the other property was in the form of a license that was revocable at will. The court further held that the limited scope of permission granted to appellee was insufficient to extinguish his right to an easement by necessity. Since an easement by necessity arose at the moment the property was severed in 1932. Furthermore, the court also discussed that appellee was not required to petition the county board of supervisors under Miss. Code Ann. § 65-7-201 (Supp. 2002), because he was entitled to an easement by necessity. Based on the evidence, all necessary parties were joined. The granting of 50-foot easement was also for purposes of ingress and egress and for utility accommodation, and to give appellee a room to bring equipment in to construct and repair the road. Its location was proper. Accordingly, appellant was not entitled to compensation for the easement, as it was an easement by necessity.