The plaintiff sought a declaration that it has an easement by necessity to cross the defendant’s property to gain access to County Road 134. Property law buffs (or those studying for the bar exam) will recall that an easement by necessity is established when there is:
- unity of ownership of the dominant and servient estates prior to severance;
- necessity of a roadway; and
- existence of the necessity at the time of the severance of the two estates.
The resolution of this case turned on the third element–specifically, whether CR 134 existed when the two tracts were severed nearly 150 years ago in 1866. Because the plaintiff did not meet its burden of establishing that CR 134 was being used at that time, the Court of Appeals affirmed the trial court’s finding that the plaintiff does not have an easement by necessity across the defendant’s property to access CR 134.