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Easements - Implied



The elements required to create an implied easement from former use include:

  1. the use giving rise to the easement was in existence at the time of the conveyance subdividing the property;
  2. the use has been so long continued and so obvious as to show that it was meant to be permanent; and
  3. the easement is necessary for the proper and reasonable enjoyment of the dominant tract.

O'Connor v. Kaufman, 250 Neb. 419, 550 N.W.2d 902 (1996); Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996). See also Hengen v. Hengen, 211 Neb. 276, 318 N.W.2d 269 (1982).

To determine whether an implied easement from former use was created, courts look to "the time of the conveyance subdividing the property" that first brought into question whether an implied easement was created. O'Connor v. Kaufman, 250 Neb. 419, 550 N.W.2d 902 (1996). See also Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996); Hengen v. Hengen, 211 Neb. 276, 318 N.W.2d 269 (1982).

There are two types of implied easements: (1) those that arise as an element of necessity or (2) those that arise from what has been said or done by the parties to the transaction. Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996).

In Hillary, the court stated " ' "[a] way of necessity usually arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is entirely surrounded by the land from which it is severed or by this land and the land of strangers...." ' " Id. (quoting Johnson v. Mays, 216 Neb. 890, 895, 346 N.W.2d 401, 404 (1984)). Generally, when the court alludes to implied easements that arise by necessity, they are referring to easements that are created to reach land that is otherwise landlocked and could not be utilized. Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996).

The degree of necessity required to prove the existence of an implied easement from former use is "reasonable necessity." Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996). In Bennett v. Evans, 161 Neb. 807, 74 N.W.2d 728 (1956), the court made it clear that there is a well-recognized distinction between implied grants and implied reservations in that the rule of strict necessity is applied to implied reservations, but not to implied grants [easements arising from former use]. Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996).

In Hengen v. Hengen, 211 Neb. 276, 318 N.W.2d 269 (1982), the court addressed whether the owners of the southwest quarter of a section of land had an implied easement, arising from use before severance of the section, to obtain irrigation water from a canal in the northwest quarter. The court found an implied easement existed, stating "[t]he necessity involved ... is to transport the irrigation water from the canal in the northwest quarter to the southwest quarter...." The court found the easement was necessary for the proper and reasonable enjoyment of the dominant and did not discuss alternative methods of transporting the irrigation water.

"[O]nce it is determined that the elements required for the creation of an implied easement existed at the time of the conveyance subdividing the property, the easement becomes appurtenant to the property and the elements for creation are no longer relevant to a determination of the continued existence of that easement upon a subsequent conveyance." Hillary Corp. v. United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996). An implied easement remains in existence upon subsequent conveyance unless and until it is somehow terminated. Id.