Few things are more troubling than discovering that there is no recorded access to property you own. Landlocked property is not uncommon in Idaho. A parcel may be landlocked because it was split off from a larger parcel without an easement, because there is no recorded easement for the road that has historically been used to access the property, or because what was believed to be a public road is declared by the county, highway district or a judge to not be so. When this happens, the question immediately arises: What can I do to get access?
Fortunately there are several ways to establish access to landlocked property under Idaho law. If an existing road has been used to access the property, an easement may be established either by implication or prescriptive use. If not, an easement may be established by strict necessity or condemned under Idaho eminent domain law.Implied Easement by Prior use
An easement may be implied by prior use if there was “(1) unity of title or ownership and subsequent separation by grant of the dominant estate; (2) apparent continuous use long enough before separation of the dominant estate to show that the use was intended to be permanent; and (3) the easement must be reasonably necessary to the proper enjoyment of the dominant estate.”1 In other words, the road must have been in use at the time the landlocked property was sold off from the neighboring property, and the road must be reasonably necessary to access the landlocked property. Reasonable necessity does not mean the desired road is the only possible means of access, but it does require that any alternative legal access be so difficult or expensive as to render the property unfit for its intended use.2 An easement implied by prior use may be of such width and construction as is reasonably necessary to use the property.3 Once this type of easement is established it does not disappear simply because the established road is no longer necessary.4Prescriptive Easement
If the existing road was established after the properties were separated, an easement may nonetheless be established by “prescriptive use.” This type of easement requires proof that use of the road was “(1) open and notorious; (2) continuous and uninterrupted; (3) adverse and under a claim of right; (4) with the actual or imputed knowledge of the owner of the servient tenement; (5) for the statutory period.”5 Prior to 2006 it took only five years of use to establish a prescriptive easement. It now requires 20 years, but the five year period still applies for road in use for at least five years prior to 2006.6 Importantly, the width, location, and use of a prescriptive easement is limited to the use that was made during the five- or 20-year period.7 This may include both a “primary easement” for the historic road surface as well as a wider “secondary easement” for snow removal, vehicle passage, etc.8 However, use of the road must remain consistent with the use that was made during the prescriptive period. For example, a prescriptive easement that was established to access a single home cannot thereafter be used to access a subdivision.Implied Easement by Strict Necessity
If there is no road at all to the landlocked property then an easement may be implied by strict necessity. Under this doctrine, an easement exists if there was “(1) unity of title and subsequent separation of the dominant and servient estates; (2) necessity of the easement at the time of severance; and (3) great present necessity for the easement.”9 The requirement of “great present necessity” means there is no other legal access to the landlocked property. Usually this involves proof that there are no other roads leading to the property, but it can also be proven where an existing road that serves one part of the property is incapable of serving other parts of the property due to topography.10Eminent Domain
In some instances an easement by strict necessity cannot be established because there was no unity of title between the property being accessed and the property over which the desired access is to be located, or because there was some other legal right of access at the time the properties were separated. When this happens, the landowner may exercise eminent domain to condemn an easement if the road leads to a residence or farm.11 To condemn an easement there must be no reasonably convenient alternate way to access the residence or farm.12 And condemnation is allowed only if there is an existing residence or farmland on the landlocked property—it cannot be used to establish a road for a home yet to be constructed or land that has not yet been farmed.13 In addition, unlike the easements discussed above, acquiring an easement by condemnation requires the payment of compensation to the owner of the land over which the easement crosses.Enlist an Idaho Road Law Attorney to Help You
Our real estate lawyers frequently advise clients across Idaho in both establishing and defending against road easement claims. If you need legal assistant with establishing access to landlocked property, call us toll free at 877.232.6101 or email us at email@example.com to schedule an appointment.
1 Davis v. Peacock, 133 Idaho 637, 642 (1999).
2 MacCaskill v. Ebbert, 112 Idaho 1115, 1120 (Ct. App. 1987).
3 Capstar Radio Operating Co. v. Lawrence, 160 Idaho 452, 464 (2016).
4 Id. at 643.
5 Beckstead v. Price, 146 Idaho 57, 62 (2008) (quoting Akers v. D.L. White Constr., Inc., 142 Idaho 293, 303 (2005)).
6 Machado v. Ryan, 153 Idaho 212, 222 (2012).
7 Caldwell v. Cometto, 151 Idaho 34, 38 (2011).
8 Machado v. Ryan, 153 Idaho 212, 221 (2012).
9 Bear Island Water Ass’n v. Brown, 125 Idaho 717, 725 (1994).
10 MacCaskill v. Ebbert, 112 Idaho 1115, 1119-20 (Ct. App. 1987).
11 Idaho Code § 7-701.
12 McKenney v. Anselmo, 91 Idaho 118, 122 (1966).
13 Dengler v. Hazel Blessinger Family Trust, 141 Idaho 123, 129 (2005).