Easements; Landlocked Property

Schwab v Timmons, 589 NW2d 1 (Wis 1999).

Facts: Owners of landlocked parcels of real estate (Schwab) brought action requesting an easement by necessity or by implication over properties owned by the adjoining landowners (Timmons). The circuit court dismissed the case and Schwab appealed. The Schwab property became landlocked when they granted away their own road access some time after 1974. The property previously granted is not the same property Timmons owns, over which Schwab desired an easement. Both properties were owned in common prior to 1854 by the United States. Schwab claimed that he was entitled to an easement by necessity or by implication over the Timmons's properties, or in the alternative, that the common law should be expanded to recognize an easement by necessity where property was landlocked due to geographical barriers and due to the actions of the common owner and grantor. In regard to the latter claim, Schwab suggested that the court adopt a "reasonable use" test, whereby the necessity and benefit of allowing access by easement to develop otherwise useless land was weighed against the detriment such a burden may place on other property.

Holding: Affirmed. An easement by implication arises only when there has been, among other things, "a separation of title, [and] a use before separation took place which continued so long and was so obvious or manifest as to show that it was meant to be permanent ..." Bullis v Schmidt, 5 Wis 2d 457, 460-61, 93 NW2d 476 (1958). There is no easement by implication here because there was no obvious or manifest use by the United States, prior to separation of title, of the property now owned by Timmons. Moreover, there is no easement by necessity because it was Schwab himself who granted away the road access, and it would be contrary to Wisconsin's policy against encumbrances to award an easement to the grantors over parcels of unrelated third parties. Easements by necessity are granted not over the property of third parties, but over the property of a grantor who has granted away a parcel that is landlocked. Finally, the common law should not be expanded to include the reasonable use test, since that would be contrary to the established public policy that a buyer of land may rely on the public records as information of all the conveyances and upon the words of the instruments for all rights thereunder.

ILLINOIS ANALYSIS: This case would likely have a similar outcome in Illinois. Neither easements by way of necessity nor easements implied in law have been said to exist over the property of unrelated third parties when no prior similar use of that property existed, and there is no indication that the law would be expanded to allow this.

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