FOX INVESTMENTS, A PARTNERSHIP, APPELLANT,
v.
A.J. THOMAS AND VIOLA THOMAS, HIS WIFE, APPELLEES
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Fox Investments sought a statutory easement across the Thomas property under Florida law. The trial court denied the request based on the doctrine that a common law easement of necessity bars statutory easement claims. The appellate court reversed, holding that the common law easement had terminated when Fox's predecessor acquired an alternative route to the highway.
The court held that the common law easement of necessity terminated when Morris Fox acquired the Thomas property and an alternative practicable means of access to the highway became available. Therefore, the existence of that terminated easement does not bar the statutory easement claim, and the case is remanded for further proceedings on the merits of the statutory easement request.
[1] A common law easement of necessity terminates when the necessity that created it ceases to exist.
[2] The acquisition of title to both the dominant and servient estates by the same owner extinguishes any prior easement of necessity between those estates.
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Join FLexlaw to unlock all legal intelligence“the existence of a common law easement as described in section 704.01(1) bars the establishment of a statutory easement under section 704.01(2)”
States the rule from Reyes v. Perez that the trial court applied to deny the statutory easement
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Join FLexlaw to unlock all legal intelligenceL.W. Fussell originally owned both the Fussell and Fox properties. Upon his death in 1951, the properties were separated—the Fox property to his wife …
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DANAHY, Judge.
This dispute involves a configuration of separately owned land parcels as reflected in the following sketch:
The appellant owns the Fox property and the appellees own the Thomas property. In this action the appellant sought a statutory easement across the Thomas property pursuant to section 704.01(2), Florida Statutes (1981). The trial judge rendered a final summary judgment adverse to the appellant on the authority of Reyes v. Perez, 284 So. 2d 493 (Fla. 4th DCA 1973). The Reyes decision stands for the proposition that the existence of a common law easement as described in section 704.01(1) bars the establishment of a statutory easement under section 704.01(2). The trial judge tacitly found that the appellant’s property enjoys a common law easement of necessity across the Fussell property; he ruled, therefore, that the appellant is not entitled to a statutory easement over the Thomas property. We reverse because, in our view, any common law easement across the Fussell property for the benefit of the Fox property terminated prior to the time the present action was initiated.
At one time L.W. Fussell owned both the Fussell and the Fox properties. Upon his death in 1951, the Fox property devolved to Mr. Fussell’s wife and the Fus-sell property to Mr. Fussell’s sons. We agree that the separation of these parcels gave rise to a common law easement of necessity across the Fussell property for the benefit of the Fox property. Later, however, the appellants’ grantor (Morris Fox) acquired title to the Thomas property and shortly thereafter also acquired title to the Fox property. Thus, while he owned both the Fox property and the Thomas property, Morris Fox could use and did use the Thomas property as a means of reaching Deen Still Road from the Fox property. The appellant argues that under these circumstances, any common law way of necessity across the Fussell property to State Road 33 terminated. We agree.
Apparently no Florida court has addressed the proposition of law involved here, but we find it to be well settled in other jurisdictions. E.g., Thornton v. McLeary, 161 Miss. 697, 137 So. 785 (1931) (involving a similar fact situation). Thus it is said that easements created by necessity have an implied purpose to make possible the utilization of the dominant land, and such easements expire as soon as the necessity disappears. 3 Powell on Real Property ¶ 422. The right to a way of necessity expires when the claimant acquires another practicable outlet to a highway because a right of way of necessity arises from necessity alone and continues only while a necessity exists. 2 Thompson, The Modem Law of Real Property § 368 (1980).
Accordingly, we hold that the appellant’s quest for a statutory easement across the appellees’ property is not barred by the existence of a common law way across the Fussell property, since any such easement terminated prior to this action.
REVERSED and REMANDED for further proceedings consistent with this opinion.
OTT, C.J., and SCHEB, J., concur.
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Parham v. Erwin K. Reddick and Marjorie Reddick, 537 So. 2d 132 (Fla. 1st DCA 1988)…erty Law, § 11-13 (1984). Furthermore, easements created by necessity have the implied purpose to make possible the use of the dominant land, and therefore will terminate when the necessity for their existence disappears. Fox Investments v. Thomas, 431 So. 2d 1021, 1022 (Fla. 2d DCA 1983). For example, a common law way of necessity will expire when the owner of the dominant estate acquires adjoining property which provides access to a public or private road. Id. By the same token, the fact that a landlocked o…
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Ford v. Miller, 506 So. 2d 464 (Fla. 2d DCA 1987)…rcel 2 and that is not a legal basis for extinguishment of an easement created by express grant. The Millers contend that they did raise a justiciable issue in their cause of action. In support of this contention they cite Fox Investments v. Thomas, 431 So. 2d 1021 (Fla. 2d DCA 1983), for the holding that when a common law easement of necessity arises upon the separate ownership of two parcels of property originally under common ownership and the two parcels eventually return to common ownership, the common la…
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- Reyes v. Perez, 284 So. 2d 493 (Fla. 4th DCA 1973)