Brief Fact Summary. Eugene and Curtis Finn (Plaintiffs) became owners of the back 40 acres of a 140-acre property. Plaintiffs’ land had no outlet to the public highway.
Synopsis of Rule of Law. Where an owner of land conveys a parcel, which has no outlet, a way by necessity exists across the lands remaining.
Issue. Are the Plaintiffs entitled to a right of way by necessity across the Defendant’s tract of land?
Held. Yes. Decree affirmed.
Where an owner of land conveys a parcel, which has no outlet to a highway except across the remaining lands of the grantor or over the lands of strangers, a way by necessity exists over the remaining land of the grantor. 17 Am.Jur. Easements Section: 48. Thus, in this case, when the land was severed by Williams in 1895, the only outlet available to the smaller land (now held by Plaintiffs) was across stranger’s land or across the larger portion of grantor (now held by Defendant). The rule would operate to create a right of way across the Defendant’s land for the Plaintiffs.
If there has been a unity of title, such as in this case, the right of way by necessity can lie dormant through several transfers of title and yet remain as a right appurtenant to the title, which can be exercised at any time by the holder. This solves the problem of the passage of time between the severance of the original estate and the establishment of the right by Plaintiffs to a way by necessity.
The court found that a right of way by necessity was necessarily implied in the 1895 conveyance severing the estate. The implied right of way by necessity passed to Plaintiffs in 1937.
The fact that other owners of the 40-acre tract were permitted to use the private roads across the lands of strangers is immaterial, the Plaintiffs have no such permission. The right of way by necessity implied in the severance of the tracts in 1895 is a right to which Plaintiffs may avail themselves.
Discussion. This case contains a good statement of the rule regarding right of way by necessity. The doctrine applies to create a right as against the remaining parcel of the grantor because such a result is far more equitable than enforcing a right of way against the land of a stranger, who had no control over the original conveyance which left the granted parcel without an outlet.