Can a Government Agency Grant an Easement by Necessity That may Cause a Landlocked Situation?

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“Question in short: Can government entities explicitly grant Easement by Necessity to private landowners, particularly if the government entity may have created a landlock situation?

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

I did my homework and read all the responses to questions relating to easements. Even so, my situation is slightly different and so I hope you can help. My wife and I recently bought a parcel of land in eastern Washington with the intent of building a single family home. Our lot and the two adjoining properties are “landlocked” by parallel irrigation canals to the north and south. Our neighbor to the east appears to be using the south canal easement as his ingress/ egress to the nearest county road about 1/4 mile to the east. We wanted to place a bridge across the smaller and older north canal which would give us direct access to another paved county road. The local irrigation district said they would permit the bridge if we provided proof of other access to the parcel (In other words, the bridge cannot be considered the sole and permanent access). A check of our deed shows no obvious ingress/egress information, and a stipulation notes that the title guarantee c ompany cannot guarantee ingress/egress to the lot. (We do not recall this issue coming up when we bought the property, and we did not at the time understand the significance of this stipulation.)

How do we now establish access/egress to our lot? Common sense would tell me that we could access the south canal easement as our neighbor does, but there is no recorded statement to this effect on our deed. Do we stand a chance of convincing the Bureau of Reclamation to explicitly grant us use of the easement, which should satisfy the permitting requirement for the other bridge? Do we have have a case for an Easement by Necessity, and is the Bureau of Rec., being a federal entity, required to grant it?

Also worth noting: I was told by a Bureau of Rec. representative that the Bureau may have landlocked my property when they expanded the south canal in 1953. In doing so, must they make provisions for access to our lot? With the two parallel canals and with what appear to be two landlocked parcels on either side of us to the east and west, we have no other options for access and it appears we could easily establish necessity. Without access this lot stands to remain vacant and unimproved ad infinitum, regardless of our success or failure.

Thank you for taking the time to review our inquiry.”

You’re correct that your situation is unusual, and unfortunately the only answer I can give you at this point is “it depends.”

Generally speaking, an easement by necessity is created when someone subdivides land, thus creating a “landlocked” parcel. Despite the name, “necessity” alone does not create an easement by necessity; the necessity needs to have come about due to a subdivision. So you’ll need to go back through the land records to determine how your parcel was created in order to determine whether or not you have such an easement, and if so where.

Another possibility, generally speaking, is an easement by prescription. If, like your neighbor, you or the prior owners of your property have been using the south canal area for access for long enough (how long “long enough” is varies from state to state), you may have established a legal right to continue using it.

Another idea that comes to mind is the possibility that you have a nuisance claim against the Bureau if they blocked access to your land when they extended the canal.

All of those ideas, unfortunately, come with a really big BUT: In many areas, government-owned land is exempt from certain normal rules, such as the prescriptive easement rule. So because some of the surrounding land is owned by a government agency, the regular rules may not apply.

If you can’t convince anyone to grant you access just by asking nicely, I would suggest that you consult with a local real estate attorney, who should be able to do the necessary research to determine whether you have any legal rights which are enforceable.



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Author: House Attorney

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