To: Joe Boatwright Esq.

From: Joseph Anthony Franco III RE: Wise Easement Date: April 28, 2011

Statement of Facts

Mr. Buckles told our client Mr. Wise about property that he owned that was 100 acres of woodlands located off of State Road 310 in Putnam County, Florida. Mr. Buckles offered to show the property to Mr. Wise by taking him through a small dirt road. Mr. Buckles then informed our client that the property had been owned by him for the last 20 years. Our client then offered $60,000 dollars right on the spot and the two proceeded to draw up a contract on the hood of Mr. Buckles truck. The contract stated that the property was being sold as is and our client Mr. Wise failed to have a title search or survey of the property performed before he made the purchase of the land. The next week our client took his wife to see the property and tried to take the same dirt road that Mr. Buckles took him down, but was stopped by the owners of parcels B and C and told that they did not have a legal access to this road. They went on to tell our client that if he did not leave they would call the police on him. Our client then left and then discovered a road that is denoted as a Pig Trail on the map and attempted to entire his land by this route but was met by the owner of parcel D who informed him that he did not have his permission to use this trail and if he caught him on his property again he would shoot him! After this Mr. Wise called our office and set up an appointment to look into his legal options on how to obtain an easement. Daniel Wilhite was hired to look at all of the deeds for the property and an old
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survey of the land. Mr. Wilhite informed me that parcel A has no legal access to State Road 310 or any other road way. He also stated that approximately 75 years ago parcels A, B, and C was all part of one land grant, or one large parcel of land. The parcels where separated 75 years ago into the 3 parcels A, B, and C, with A being the only one left without a grant of any legal access. Mr. Wihite went on to say that parcel A is landlocked and has no legal access to any roadway. He advised us to look at old maps and that the Pig Trail looks to have been in existence for at minimum for the last 50 year. Our client informed me that he wants to use the land for hunting and would like to cut the timber on the property and sell it to the local lumber mill. He also is not interested in exploring the option of using the Pig Trail which is owned by the owner of parcel D due to him being told that he would be shot the next time he talked to him. He has also approached the owners of parcels B and C who would allow him to use The Dirt Private Road as an easement but they want $30,000. The owners of the two parcels also want to place restrictions on the use of the easement such as the amount of traffic, the type of vehicles, noise restrictions, and other types of restrictions. Our client has been informed of our legal fees of $250.00 an hour and he has agreed to pay them as long as we can find him a legal access to his property.

Question Presented
Can a person who purchases a parcel of property that is landlocked, be granted a legal way of easement?

Short Answer
Mr. Wise meets all of the requirements to be granted a statuary way of necessity. Since his land is outside of a municipality, it is being used or desired to be used for a dwelling or agricultural purposes (timber) and it is landlocked, he meets all of these elements and will be granted a statutory way of necessity.

Discussion
Our clients main concern is whether or not he is entitled to a legal easement to be able to enter the landlocked property that he just bought. There are three different ways to under Florida law that he may be able to be granted an easement: through an implied way of necessity, statutory way, and prescriptive easement.

Implied Way of Necessity

The implied way of necessity is recognized when a person meets has be granted to lands that have no accessible right of way except over someone elses land. In such circumstances a right of way is presumed to have been granted or implied. For the implied easement in the land to exist there must not be any other reasonable or practical way of egress or ingress into his property. The use of the road request must be reasonably necessary for the beneficial use or enjoyment of the land granted. The second criteria that must be met for an implied way of necessity easement to granted is that a common grantor of the parcels of land, when the original parcel of land was divided that division must have created the property becoming land lock, and

lastly at the time the property became landlocked the servant tenement had to have had an access to a right of way.
Florida Statute 704.01 (1) provides that for a way of an implied way of necessity exits if the following criteria are meet. (1). A perosn conveys a portion of his or land to which there is no accessible right of way except over lands retained by the person making the conveyance. (2) A person coveys a portion of his or her land and the land retained by the conveyor is inaccessible except over the land that was conveyed. (3) The surrounding parcels of land must have been originally a part of a larger property and when the lands where divided, this action must have caused the landlocked property. All of these elements must be met as a whole; if even one of these elements can be disproved then an easement of necessity will not be granted.

In Matthews and Woodruff v Quarles, the plaintiff Paula Quarles purchased a four- acre plot of land in 1975. In order to gain access to the nearest public road from her property, she land must travel on a dirt road which forces her to cross over her neighbors. Mattews and Woodruff Matthews v. Quarles, 504 So. 2d 1246 (Fla. Dist. Ct. App. 1st Dist. 1986). The court looked at the pertinent facts and determined that Mrs. Quarles was indeed entitled to a common law way of necessity. First, all parties properties in this suit were originally part of one big parcel of land that was originally owned by a J.W. Daw in 1938. Second, when the original owner broke the large property into smaller parcels he caused the four acre land now owned by Mrs. Quarles to be landlocked. Lastly At the time the original owner created the situation, the servant tenant must not have had access to a public road. Id. The court found that these facts meet all the elements required for a way of necessity easement to be granted. The Florida courts have held that the test for an implied grant of way of necessity must be an absolute necessity, not just reasonable necessity. . Moorings Asso v. Tortoise Island Cmtys., 460 So. 2d 961 (Fla. Dist. Ct. App. 5th Dist. 1984). In Palm Beach v Equestrian Club, The owner of Palm Beach Polo Holdings sought access to its property from a private roadway. The property was originally purchased at a bankruptcy auction
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along with a neighboring property. The owner and another company were then formed, and the property was divided between the two entities. The trial court found that while access over the private road might have been more convenient, it was not an absolute necessity in that the owner had been able to access the lot over the neighboring property. The owner and another company were then formed, and the property was divided between the two entities. The trial court found that while access over the private road might have been more convenient, it was not an absolute necessity in that the owner had been able to access the lot over the neighboring property. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass'n, 949 So. 2d 347 (Fla. Dist. Ct. App. 4th Dist. 2007) Since there was an alternate way of egress and ingress into the landlocked property, Palm Beach Polo Holdings do not meet the requirements of there not being another reasonable or practical route. (Id) According to Florida Statute 704.01(1) Mr. Wise has a good claim to receive an easement on implied way of necessity because he meets all the elements. Our client meets the first element because his property is landlocked and there is no other reasonable or practical way for him to access State Road 310 without an easement being given to it. Without the easement Mr. Wise will not be able to use the benefits or enjoy the land granted. According to the old survey and the title work that Mr. Wilhite, about 75 years ago Mr. Wises parcel along with the three surrounding parcels were, actually part of one large land grant. This proves that the properties where originally owned by one person. Once the original property was divided into the three separate parcels of the land, Mr. Wises property was left without a easement. This shows that a common source of title created the situation ( lack of an easement) resulting in a land-lacked tenement, and at the time the dominant tenement became landlocked, the servant had access to a right away Enzor v. Rasberry, 648 So. 2d 788 (Fla. Dist. Ct. App. 1st Dist. 1994). These facts
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meet all the requirements for an implied grant of way of necessity, but due under the Marketable Record Title Act ( MRTA) his claim will be extinguished.

Marketable Record Title Act

The MRTA states that property owners must have a marketable deed for each individual property they own. After a 30-year period, restrictions that have not been stated on the deed will no longer exist. If any restrictions or exceptions are noted in the deed, the restrictions can still apply. When the property is transferred over to someone else, the 30-year period starts over again.
Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in: (1) The person claiming such estate; or (2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

In Allen v St. Petersburg Bank & Trust Co, the appellants Hicks Sumner Allen, and Edna

Summer Childs and the local bank co owned a parcel of land. Due to failure to pay taxes, the state acquired the property rights and gave the deed to the appellees predecessor. The appellees brought forth an action against Allen and Childs claiming that they had no interest in the parcel. The court found that the tax deed may be conveyed under the Marketable Record Title Act, due to this the appellants were required to file notice of said property within 30 years. Since this requirement was not met the appellants interest in the property is transferred to the bank. Since the tax deed executed to the appellee extinguished the appellants individual interest in the parcel

of land due to their failure to file their notice within the allotted time limitations. Allen v. St. Petersburg Bank & Trust Co., 383 So. 2d 1171 (Fla. Dist. Ct. App. 2d Dist. 1980).

The Marketable Title Act will terminate our clients bid for an implied easement. The biggest problem that we will run into is the lack of knowledge of the ownership history of the land. According to Mr. Buckles, the man who sold the land to our client, he owned the land for the last 20 years. The statute requires the property must have a public record title transaction affect the title to the land for not less than 30 years. Also because the title of the property was passed from Mr. Buckles to our client and there is no legal documents or anything appearing on public record the MRTA will apply which cancels our motion for an easement by implied way of necessity. A common law way of necessity can arise before the root of title of therefore, the right to a way of necessity easement is extinguished by the MRTA and our client cannot get an easement through this manner.

Statutory Way of Necessity

For our client to be qualified for a statutory way of necessity, the landowner must meet the requirements of Fl. Statute 704.01(2). The first requirement is our client must establish that the land is outside of a municipality, and being used or desired to be used" for residential or agricultural purposes. The land must also be shut off or hemmed in so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road." If these elements are met, the owner of the landlocked property is entitled to "use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service,

. . . over, under, through, and upon the lands which lie between" the landlocked parcel and the public or private road "by means of the nearest practical route." Florida Statutes 704.01 (2)

statutory way of necessity exclusive of any common-law right exists when any land or portion thereof outside any municipality which is being used or desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, franchised cable television service, and any utility service, including, but not limited to, water, wastewater, reclaimed water, natural gas, electricity, and telephone service, over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route.considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.

The purpose of the statutory way of necessity, is to serve the legitimate public purpose of allowing access to landlocked property so that it may be transformed from useless and unproductive land into valuable and productive property that provides a residence to the owner or produces valuable raw materials such as timber or agricultural product Deseret Ranches of Florida, Inc. v. Bowman, 349 So. 2d 155 (Fla. 1977). In Desert v Bowman, the appellee landowners brought an action against appellant surrounding landowner because there was no route of ingress or egress available from appellee's land to the nearest public or private road. Moreover, turning unused lands and resources into productive agents it promotes the overall property development, both the property in question but also the adjoining properties. Failing to grant access to landlocked property that the owner needs or desires to use for the purpose stated in the statute may leave the landlocked owner at the mercy of the adjoining landowners who will then have the final and in some cases absolute, whether access will be
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granted. This type of policy would deter people from buying landlocked parcels of land and they would forever stay useless. (Id.) According to Florida Statute 704.01 (2) a statutory way of necessity exists when any land of portion of land is being used for agriculture or for timber raising and all other elements of the statutory way of necessity are met then one is entitled to such an easement Perkins v. Anderson, 518 So. 2d 1354 (Fla. Dist. Ct. App. 1st Dist. 1988). In this case the appellants where in a landlocked parcel of land. The state had built a new road from a public highway to the northern boundary of the appellees land; the appellants did not have a legal and enforceable way over that entire road. Without an easement being granted to use this access way to their landlocked property, the appellants do not have another practical route to a public highway. Since the appellants claimed at trail that they had desired to use the property for timber cultivating, and were granted a county agricultural tax exemption by planting trees on the property ( Id). The appellants also asserted that they wanted to use a dwelling on the property and even made so improvements to the land. Due to these facts the court found the appellant meet the requirements to be granted a statutory way of necessity. In Franklin v Boatwright, the court gives examples of what is deemed reasonable and what is not. In this case the appellee Quincy Boatright, argued that his land was hemmed in and that they were not afforded any sort of reasonable or practical way to enter their land Franklin v. Boatright, 399 So. 2d 1132 (Fla. Dist. Ct. App. 1st Dist. 1981). The court goes on to say that even if there is an alternative easement, or another way for the appellee to enter their land it must be practical and reasonable, Boatwrights other way of ingress and egress would have forced him to have to traverse over property that was covered in mud and muck and the terrain was rough. For a route to be considered practical a reasonable person must believe that it can be traversed
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without a great difficulty, because the land was almost impossible to cross without a vehicle made explicitly for such terrain it was deemed impractical and unreasonable ( Id) . Mr. Wise informed me that he wishes us the land to cut timber and sell it to the local timber mill. This is extremely significant because it meets one of the main requirements stated in Fl. Statute 704.01, that the land must be desired to be used for residential or agricultural purposes including timber. The alternative route through the Pig Trail while it is accessible it is not practical for what our client wishes to do with it. I client has already expressed his wishes of using that land for timber because of the size of the trail. The Pig Trail is described as a small road that is only big enough for one car to pass through and a 4 wheel drive vehicle must be used in order to access the road. For our client to use the property to harvest timber he will need to be able to bring in large equipment for the cutting and processing of the timber, as well as large trucks to transport the timber to the local mills. Our client also has stated the he plans on hunting which means he is going to have to build some sort of structure to live in when he is hunting. He also is going to have to have some sort of structure such as an office building to handle the loading and the timber cutting daily operations. By building these structures our client will satisfy the dwelling element that you are required to meet in order to per granted a statutory way of necessity. Based on the fact of the case as we know it our client should be eligible for a statutory way of necessity. Our client desires to use his land for both a dwelling during hunting season, and also he want to harvest the timber for profit. Mr. Wises land is also landlocked between their surrounding parcels of land. The only way that our client can access the public road is by

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using the private dirt road the is art of both land owners B and C. There is an alternative access but it is not reasonable or practical. It is too small and the terrain is not suitable for the type of vehicles that are going to be need to for the cutting and transporting of timber so this access is not going to work. Another problem with the Pig Trail is that the owner has threatened our client saying that he will shoot him if he sees him again making this access unpractical for our client.

Marketable Record Title Act

For persons holding an estate in land of record for 30 years or more MRTA acts to extinguish all claims the existence of which depends upon any act, title transaction, event omission that occurred prior to the effective date of the root of title. 712.02, 712.04, Fla.Stat.

The court case of H & F Land determining whether an owner of landlocked property has a valid claim to a statutory way of necessity does not require another property owner or a court to "go behind" a legitimate deed and conduct a historical evaluation of the chain of title H & F Land v. Pan. City, 736 So. 2d 1167 (Fla. 1999). In Blaton v Pinellas Park, the plaintiff alleges that he owns a landlocked parcel and that he is entitled to access to that property under section 704.01(2). Blanton also alleges that he attempted to negotiate an easement over a portion of defendants property, valued at $18,100 for property tax purposes, and that he was quoted a price in excess of $1.1 million Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004). According to the Florida Supreme Court in Blanton, the purpose of a statutory way of easement is to promote the public policy that weighs in favor of holding the MRTA is inapplicable to a statutory weigh of necessity, because it would hinder the land owners ability to use the land to in its most beneficial way (Id.)

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A statutory way of necessity easement is not extinguished by the Marketable Record Title Act. According to the Florida Supreme Court in Blanton, section 712.04 in the MRTA, limits the claims extinguished by MRTA to those that depend upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. Blanton v. City of Pinellas Park, 887 So. 2d 1224 (Fla. 2004). Due to judicial determination under section 701.04, there is no definitive act, title transaction, event or omission that gives rise to a claim to a statutory way of necessity for the purposes of applying MRTA. (Id). Our client meets all of the requirements to be granted a statutory way of necessity, because his land is landlocked, he desires to use it to harvest timber, and there is no reasonable way to access the land. Similar to the Blanton case, our client also tried to negotiate for the use of an easement through owners of parcels B and C but they demanded that he pay them $30,000. If the MRTA extinguished the statutory way of easement, like it does the implied way of necessity, then our client is at the mercy of his neighbors and is powerless to enjoy the benefits of his land.

Fees, Size, Location

According to Florida Statute 704.04, the court has the right to use its own discretion to answer all questions that are not mutually agreed upon. This includes the type, duration of use, and the extent and the location of the easement. The amount of compensation, the attorney's fees and court costs are to be awarded to the party who is not found to have acted unreasonably and have refused to comply with the provisions stated in Florida Statute 704.01(2). Once this happens if either party has requested for the losing party to pay these fees, the amount of

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compensation will be determined by the jury. Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). If our client in successful in his claim for a statutory way of necessity then he should be eligible to have the defendants pay our legal fees. In Stein v Derby, the courts found that all reasonable costs of the Circuit Court, including a reasonable attorneys fee, will be paid by the losing party. Stein v. Darby, 126 So. 2d 313 (Fla. Dist. Ct. App. 1st Dist. 1961). This is important because the owners of the parcels B and C are asking for $30,000 to gain access to private the Dirt Road and since our client meets the requirements to be given a statutory way of necessity. It may actually cost the owners of B and C money in the long run, because our legal fees may exceed the $30,000 that they are asking and if the courts decide that the easement is worth less than that, and our legal fees are more than the court orders our client to pay they may actually have to pay our client and lose the easement.

Prescriptive Easements

To be eligible for a prescriptive easement one must prove that there use of the land is actual. To do this it must be shown that the use was continuous and uninterrupted. There cannot be large time gaps or breaks in the use or enjoyment in the land by the person applying for a prescriptive easement for at least 20 years. Next you must prove that use is for a defined area of the land and that use was either acknowledged by the owner or that a reasonable person could tell that you used the land. Finally you cannot have the permission of the owner of the land that you are attempting gain an easement to be on that land. A prescriptive easement is continuous and will last through the possession of it, should its holder choose to sell the property. The easement
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would shift to the new owner, so that they can exercise its entailments and use the land as the previous owner. If it can be proven that the previous owner was entitled to a prescriptive easement, the new owner through the transfer of the deed will also be entitled on.
To establish a prescriptive easement, a claimant must prove the following, by clear and convincing positive proof that the actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of 20 years. That the use was related to a certain, limited and defined area of land. That the use has been either with the actual knowledge of the owner, or so open, notorious, and visible that knowledge of the use must be imputed to the owner. Finally that the use has been adverse to the owner--that is, (a) without express or implied permission from the owner, (b) under some claim of right, inconsistent with the owner's rights, and (c) such that, for the entire period, the owner could have sued to prevent further use.

The period required for the acquisition of an easement by prescription in Florida is 20 years and the time can requirement can be tacked on by successive users. Dan v. BSJ Realty, LLC, 953 So. 2d 640 (Fla. Dist. Ct. App. 3d Dist. 2007). The actual amount of time or how often the owner is going to use the land is dependent on the way a reasonable land owner in that area would use the land. Zetrouer v. Zetrouer, 89 Fla. 253 (Fla. 1925). In this case the appellant A. B. Zetrour argued that he had used his neighbor R. G. Zetrour, land actually, continuously, and uninterrupted for 35 years when he took his cattle across the road to graze. The appellee argued that this did not meet the requirement because the cattle did not cross this road to graze in this land more than one time a year at most and at one time they missed a year. R. G Zetrour went on to argue that these facts did nit disproved the continuous and uninterrupted use elements of a prescriptive easement and therefore he is not eligible for it. (Id.) The court found that the manner in which A. B. used the land did in fact meet the requirements of continuous and uninterrupted because it was used in the manner that a reasonable tenant in that land would have used it for the purpose that A. B. intended.

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Another element that must be met is that the road is being used with the knowledge of the owner or that your using the land is so visible that if the owner did a reasonable survey of the land they would be able to see the use of the road. J. C. Vereen & Sons, Inc. v. Houser, 123 Fla. 641 (Fla. 1936). The element of hostility simply means that the exercise of the easement must be against the interests of the person over whose land the easement is asserted. If it is proven that you were given permission to use the road to access the landlocked parcel of land then you cannot be given an easement through prescription. (Id). The final element that must be proven is that the use of the land is adverse to the owner. According to the holding in Horton, an easement cannot be acquired if the use of the land or road is by express or implied permission. Horton v. Smith-Richardson Inv. Co., 81 Fla. 255 (Fla. 1921). When a right of way is opened or maintained by the owner for his own benefit, and the person claiming prescriptive easement, the presumption arises that the use is in subordination and not adverse to the true title, the courts assume that the joint use is being permitted. If the owner sees his neighbor using the way of egress or ingress, the courts deem that to be the owner permitting him to use it for no other reason than to be neighborly Guerard v. Roper, 385 so. 2d 718 (Fla. Dist. Ct. App. 5th Dist. 1980). In the Guerard case, the appellant Mr. Roper used a road that was owned by the appellee, Guerard, to gain access to his farm, but the appellee Roper, also used the same road to obtain access to his orange grove. Roper tried to gain a prescriptive easement through this road because he meets the time constraints of a prescriptive easement. The court found in favor of Guerard and noted that although appellee and his predecessors in title had been using the road for

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the prescriptive period, it was use in common with appellant and his predecessors. Since Guerard was aware of the appellees use of his road, he incurred no damage to his enjoyment of the land; the court found that it can be interpreted by the appellants actions that access was granted to the appellee. Guerard v. Roper, 385 So. 2d 718 (Fla. Dist. Ct. App. 5th Dist. 1980). It is unclear if our client meets the requirement for the first element of a prescriptive easement. The original owner Mr. Buckles did in fact use the property for 20 year statutory period, but it is debatable whether his use was open and uninterrupted. Mr. Buckles stated that he only used the property once or twice a year at most, without knowing how he used it, and how a reasonable land owner in this part of the country would use the land there is no way to know if this meets the element. The second element of that must be meet is that the land is to be used in a certain, limited and defined area. Our client meets this by Mr. Buckle, because it can be assumed that he used the Dirt Private Road to enter his land for the duration of his ownership because that is the route he used to give our client the tour of the property. Whether Mr. Buckles neighbors had actual knowledge, or could see that he was using the road is unknown at this time, because of this it is not known if the 3rd element is met. The facts present at this time does not mention whether or not adverse to the owner. It is not known if Mr. Buckles had express or implied permission from the owner, or if it interfered with the road owners ability to enjoy the property, and because of all of this it is not known if Mr. Buckles could have been sued for trespass to prevent further use. In conclusion without additional facts our client will not be granted a prescriptive easement. Mr. Buckles arguably meets the first element of a prescriptive easement, while the 20 year requirement was meet the manner in which he used the land is very questionable if

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Entering the land two times at most, meets the continuous and uninterrupted. It is also unknown if the use of the road was known to the owners, or that his use of the property was in such a way that if the owners had made a reasonable survey of the land that they would have been able to see him. Finally it is not known if the use of the land caused no harm and was not adverse in any way to the property owners. Since we only have evidence to meet one of the elements and all elements are required for a prescriptive easement to be granted, Mr. Wise will not get this grant.

Mutuality of Easements
If our client is granted a prescriptive easement then he cannot be granted an implied way of necessity or a statutory way of necessity. The next option would be the statutory way of necessity, you cannot be granted both a statutory easement and an implied way of necessity. If you meet the requirement for a statutory easement then you cannot be granted an implied way of necessity.

Conclusion
Our client should be granted a statutory way of necessity. While he does meet the statutory requirements of implied way of necessity, Mr. Buckles title only going back 20 years and not the statutory limitation of 30 years, due to this violating the Market Record Title Act, the implied way of necessity will become extinguished. Finally while it is arguable that our client meets Some of the elements for a prescriptive easement, he does not meet all of them which is required for this easement to be granted. Mr. Wise only meets the requirements to be granted a statutory way of necessity.

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