Easements by Necessity & Prescription

Impossible, Impracticable, or Merely Inconvenient: Access for the Landlocked Parcel

The necessity easement is born the moment a common owner splits the land. Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014) — clarifying that "the necessity easement is the legal doctrine applicable to claims of landowners asserting implied easements for roadway access to their landlocked, previously unified parcel" — holds that the claimant "must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed." The proof runs in two tenses — "a party seeking a necessity easement must prove both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question," because "[a] way of necessity is a temporary right, which arises from the exigencies of the case and ceases when the necessity terminates." The court drew the doctrinal line at the roadway itself: "Roadways by nature are typically substantial encumbrances on property, and we accordingly require strict, continuing necessity to maintain necessity easements," while prior-use easements are reserved for "lesser improvements to the landlocked parcel, such as utility lines that traverse the adjoining tract." Once the way exists, though, it is not frozen at the founding — Morrell v. Rice, 622 A.2d 1156 (Me. 1993) holds that the scope "is not determined solely in reference to the time of its creation. Rather, the better rule is that the scope should be defined with reference to the reasonable enjoyment of the land and all lawful uses to which it may be put," so a way of necessity is "coextensive with the reasonable needs, present and future, of the dominant estate" and "can include not only the right of entry and egress, but also the right to make use of the easement for installation of utilities."

How necessary the access must be is where the states divide, and two high-court decisions stake the poles. Morehouse v. Dux North LLC, 226 N.E.3d 758 (Ind. 2024) chose the strict pole: "an implied easement of necessity requires a showing that access to property by another means is not just impractical but impossible." The court was explicit about what it was rejecting — "We eschew any such holistic test of necessity in favor of a straightforward, bright-line rule: A court will imply an easement of necessity only if the parcel is truly landlocked, meaning it has no legal access to (or from) a public road" — so ravines, wetlands, and construction costs establish nothing in Indiana if a legal route exists on paper. Pennsylvania reads "strict necessity" through practicability instead — Bartkowski v. Ramondo, 219 A.3d 1083 (Pa. 2019) held that "[w]here it is manifestly impracticable, even though theoretically possible, to create ingress and egress across one's own property, the landowner may establish that a right of way over a neighboring property is "strictly necessary" in the legal sense," directing courts to weigh "the existence of zoning restrictions and the likelihood that the party can obtain the necessary variances or exceptions; the existence of state or federal regulations that prohibit certain uses of the land in question; the topography of the land and the practicability of constructing alternative access; the environmental consequences of construction; the costs involved; and, of course, whether and to what extent these impediments existed at the time of severance" — while insisting, "We do not intend to dilute or diminish the rigors of the "strict necessity" standard."

Prescription is the other road in — it needs no common grantor and runs on use rather than the deed chain. Albany & Eastern Railroad Co. v. Martell, 469 P.3d 748 (Or. 2020) states the elements: the claimant "must establish an open and notorious use of [the] land adverse to the rights of [the owner] for a continuous and uninterrupted period of ten years," a use is "adverse" if it is "inconsistent with the owner's use of the property or if it is undertaken not in subordination to the rights of the owner," and "[u]se by permission is not adverse." Long use carries its own presumption — "where a claimant has shown an open, visible, continuous, and unmolested use of land for the period of time sufficient to acquire an easement by adverse user, the use will be presumed to be under a claim of right" — though it "applies in ordinary cases, in which the person claiming the easement by prescription is a stranger to the landowner," and drops out where the owner gave permission or in "common road" cases, "when a claimant uses a road that the landowner constructed or that is of unknown origin." Adversity "is to be measured by an objective standard; that is, by the objectively observable acts of the user and the rightful owner." But the right you get is only as big as the use that made it — Latvala v. Green Enterprises, Inc., 521 P.3d 725 (Idaho 2022) holds that "[w]hen an easement is acquired by prescription, the extent of the right is fixed and determined by the manner of use in which it originated," that "any changes in the use of a prescriptive easement cannot result in an unreasonable increased burden on the servient estate," and that "the increase in use must be reasonably foreseeable at the time the easement is established" — so decades of vehicular access to an undeveloped parcel did not carry the right to haul in men and materials for a home, a use "beyond the scope of the prescriptive easement."

Run the title first. A necessity claim lives or dies at the severance moment, so trace the chain back to the common grantor, fix what access existed the day the parcels split, and remember the right ceases when the necessity does. Then calibrate to the forum: in a bright-line state, cost and topography evidence is wasted unless the parcel has no legal access at all, while in a practicability state the case is built on experts — permits, wetlands, grades, and construction budgets. Where the use history is long, plead prescription in the alternative, but audit for permission first, because a friendly arrangement with the neighbor defeats adversity. And counsel clients on the scope asymmetry: a necessity easement flexes with the dominant estate’s reasonable needs, while a prescriptive easement stays frozen to the use that created it — a poor foundation for development plans.