<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    Property Law Legal Research Blog

    Expansion of Easements by Necessity in Virginia

    Posted by Steven G. Friedman on Mon, Dec 18, 2017 @ 10:12 AM

    Steve Friedman, Senior Attorney, National Legal Research Group

                "An easement is the privilege to use the land of another in a particular manner and for a particular purpose, but it does not give the owner of the dominant estate an ownership interest in the servient tract." Beach v. Turim, 287 Va. 223, 228, 754 S.E.2d 295, 297 (2014) (internal quotation marks omitted). "Easements may be created by express grant or reservation, by implication, by estoppel or by prescription." Id.

                Each type of easement is established (and sometimes governed) by a different set of rules. See Palmer v. R.A. Yancey Lumber Corp., 294 Va. 140, 803 S.E.2d 742, 749 (2017) (noting that "express easements and easements by prescription . . . have their own set of rules separate and apart from the rules governing easements by necessity").

                For instance, an easement by necessity, a specific type of implied easement, is only recognized when, inter alia, "the easement is reasonably necessary to the enjoyment of the dominant estate." 803 S.E.2d at 749 n.11 (internal quotation marks and brackets omitted); see also id. ("The easement thus arises at the time the dominant and servient estates are severed, even if it is not judicially established for many years after the severance."). Another well-recognized rule regarding easements by necessity is that the easement is commensurate with the necessity such that the easement terminates if and when it is no longer necessary. See Jon W. Bruce & James W. Ely Jr., The Law of Easements and Licenses in Land § 10:9 (Westlaw database updated Sept. 2017).

                Recently, the Virginia courts were faced with a question of first impression in the Commonwealth regarding easements by necessity: does the court have the authority to widen an established easement by necessity without the servient landowner's consent? See Palmer, 803 S.E.2d at 748. Joining the majority of states that have addressed the issue, and building upon existing Virginia law on easements, the Supreme Court of Virginia answered the question in the affirmative. See id.

                Specifically, the court reasoned that because an easement by necessity hinges on "a reasonable and practicable necessity," "the scope of the easement by necessity may increase to meet the increased necessities of the property." Id. at 750-51 (internal quotation marks omitted). "Such an increased necessity may require increasing the sort of and quantity of traffic over the easement," or as is the case then-before the court, "widening the easement." Id. at 751 (internal quotation marks omitted).

                Accordingly, the Supreme Court of Virginia held as follows:

    [A]s a matter of law, under the "reasonable necessity rule" the width of an existing easement by necessity may be expanded without the consent of the servient landowner. . . . [H]owever, . . . the limiting principle underlying this rule dictates that modifications to such easements for the beneficial enjoyment of the dominant estate must not create unreasonable burdens on the servient estate. Accordingly, . . . the trial court must balance the benefits and burdens relative to both estates in deciding upon what modifications, if any, will be approved.

    Id. at 752; see also id. (citing and following cases from Connecticut, Florida, Kansas, Indiana, Maine, Maryland, Michigan, Montana, North Dakota, Pennsylvania, Vermont, and Wisconsin).

                Applying this newly stated rule to the facts before the court, it affirmed the trial court's decision that tractor-trailers could be driven across the subject easement of necessity and approved specific modifications to widen said easement in order to accommodate such vehicles.  See id. at 753-56.

    Topics: property, easements by necessity, expansion of easement

    New Call-to-action
    Schedule Your  Free Consultation
    Seven ways outsourcing your legal research can empower your practice