To establish an implied easement, three things must be shown: (1) that during the unity of title an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another, (2) continuity, and (3) that the easement is reasonably necessary for the fair enjoyment of the property it benefits.
Defendant lessee acted upon the property purchase option contained in its lease agreement with plaintiff lessor. Defendant then announced its intention to grade and level that portion of the land where a drainage ditch had been put in for plaintiff’s benefit, and plaintiff sought an injunction to prevent defendant from removing the drainage ditch. The trial court gave judgment in favor of defendant, and the appellate court reversed and remanded for trial. Judgment was again entered for defendant. On plaintiff’s appeal, state appellate court affirmed the the trial court judgment in favor of defendant.
Was plaintiff lessor correct to ask the trial court to prohibit defendant lessee from removing a drainage ditch that was put in for the benefit of plaintiff under an implied easement?
Plaintiff lessor needed only to show that the easement was reasonably necessary in order to satisfy the necessity element of an implied easement, and it sufficiently established that element. However, the appropriate date of severance used to determine whether the easement was apparent was the date of the lease, and the drainage ditch was not apparent as of that date. Further, the instant case was not an appropriate case for a natural water flow theory because plaintiff, as the dominant estate, was attempting to impose water runoff greater than the natural flow on defendant lessee. Finally, plaintiff failed to establish an express easement in the lease and deed.