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Docket Number

No. 37283

Attorney(S)

Splawn Bounds, for appellants. Loney, Westland, Koontz Raekes, by Philip M. Raekes, for respondents.

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Smart Summary

Summary of Opinion: Otto Hellberg et al. v. Coffin Sheep Company et al., No. 37283 (Sup. Ct. Wash., July 22, 1965)

Factual and Procedural Background

Hellberg leased approximately 3,000 acres from Coffin under a 10-year lease commencing January 1, 1958 and ending December 31, 1967. The lease included an agreement that Coffin would sell and Hellberg would buy the property at the end of the lease period. The leased premises (the "Hellberg property") are located in southern Benton County (Horseheaven Country) with the Columbia River as the southern boundary. The leased land is landlocked except for a clearly defined route called the "old Coffin road" that connects the Hellberg land to Primary State Highway No. 8 (PSH 8) at the Coffin headquarters and traverses Coffin-controlled land for several miles before entering the leased property.

Litigation arose after Coffin padlocked a gate across the old Coffin road where it meets PSH 8. Hellberg sued for injunctive relief to restrain interference with use of the old Coffin road and sought a declaration that the road was a public highway. The Superior Court for Benton County (No. 19135, John T. Day, J.) entered judgment on April 11, 1963 in favor of the plaintiffs, finding (among other things) that the road was a public highway by virtue of continuous public use and maintenance and that Hellberg had both an easement of necessity and an implied easement appurtenant over the old Coffin road. The defendants appealed. The Supreme Court of Washington affirmed the judgment as modified on July 22, 1965.

Legal Issues Presented

Whether Hellberg (as lessee of landlocked property) is entitled to ingress and egress over the old Coffin road — either because the road is a public highway, by an easement of necessity, or by an implied easement appurtenant to the leased land.
Whether an easement of necessity or an implied easement appurtenant can arise in the landlord-tenant context (i.e., in favor of a lessee) when the lessor retains surrounding land.
If the trial court's decree enjoining interference with the road was appropriate in scope, or whether the decree was overly broad and required modification.

Arguments of the Parties

Appellants (Coffin) — Contentions as stated in the opinion

Coffin asserted there was another access road available (i.e., that the old Coffin road was not the only practicable access), a contention the trial court rejected on the evidence.
Coffin contended the evidence was insufficient to establish that the old Coffin road was reasonably necessary for the quiet enjoyment of the leased premises (challenging the basis for an implied easement or easement of necessity).
Coffin argued there could be no implied easement because there had been no severance of title — Hellberg was only a tenant, not an owner; accordingly, Coffin relied on the proposition that implied easements require a transfer/severance of title.

Respondents (Hellberg) — Positions reflected in the opinion

Hellberg sought an injunction against interference with their use of the old Coffin road and a declaration that the road was a public highway.
Hellberg asserted (and the trial court found) that there was no other practicable road providing access from the leased land to PSH 8 or any other practicable exit from the Horseheaven Country, making the old Coffin road necessary for ingress and egress.
Hellberg relied on alternative legal bases for relief: that the old Coffin road was a public highway, that they had an easement of necessity, and that they had an implied easement appurtenant to the leased land.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State ex rel. Mountain Timber Co. v. Superior Court, 77 Wn. 585, 137 P. 994 (1914)	Common-law principle that a vendor (or lessor) impliedly grants ingress and egress over retained land where the sold/leased land has no outlet.	The court cited it to support the proposition that a lessor implicitly grants access to landlocked premises and to show the common-law foundation for easements over a grantor's/lessor's land.
Bailey v. Hennessey, 112 Wn. 45, 191 P. 863 (1920)	Describes the rule for easements by implication arising from former unity of title, open and notorious servitude during unity, and reasonable necessity upon severance.	Quoted and relied on as a foundational formulation of the implied-easement rule and as authority for analyzing implied easements here.
Rogers v. Cation, 9 Wn.2d 369, 115 P.2d 702 (1941)	Reiterated the Bailey rule and emphasized that the rule is not hard-and-fast; presence or absence of secondary characteristics is not necessarily conclusive.	Used to support the court's approach that the implied-easement rule is flexible and that the relevant factors should be applied to determine the parties' presumed intention.
White v. Berg, 19 Wn.2d 284, 142 P.2d 260 (1943)	Reiteration/authority recognizing implied easements under the established elements.	Cited as part of the line of Washington cases treating implied easements and their elements.
Evich v. Kovacevich, 33 Wn.2d 151, 204 P.2d 839 (1949)	Sets out the essentials for creation of an easement by implication: (1) former unity of title with manifest use, (2) separation by grant of dominant tenement, (3) reasonable necessity for quiet enjoyment.	The court quoted Evich to list the elements and to explain that unity of title plus separation and necessity are the test for an implied easement.
Adams v. Cullen, 44 Wn.2d 502, 268 P.2d 451 (1954)	Explains that an implied easement may arise when unity and separation exist, and that the second and third elements are aids to determine presumed intention.	Cited to reinforce the court's statement of the governing test and to emphasize the role of presumed intention and user in applying the doctrine.
Berline v. Robbins, 180 Wn. 176, 38 P.2d 1047	Authority in the line of cases cited regarding implied easements (listed among cases reiterating elements).	Included as part of the precedential support for the elements of implied easements.
Hubbard v. Grandquist, 191 Wn. 442, 71 P.2d 410 (1937)	Discusses timing and circumstances when transfer-of-title facts at the time of transfer may determine easement issues.	Quoted as authority for the proposition that the situation at the time of transfer of title may affect whether an easement arises when the lease terminates and title transfers.
Andrews v. McCutcheon, 17 Wn.2d 340, 135 P.2d 459 (1943)	Holds that easements by implication pass to lessees; demonstrates easements arise in leasehold contexts.	Applied to reject the argument that a tenant cannot acquire an implied easement; used to show rights pass to lessees by implication.
Sierad v. Lilly, 204 Cal.App.2d 770, 22 Cal.Rptr. 580 (1962); Ng v. Warren, 79 Cal.App.2d 54, 179 P.2d 41 (1947); Lebel v. Backman, 342 Mass. 759, 175 N.E.2d 362 (1961); Weigand v. American Stores Co., 346 Pa. 253, 29 A.2d 484 (1943)	Out-of-state authorities supporting that implied easements can arise in landlord-tenant relationships and that the form of conveyance is not determinative.	Relied on as supporting authorities showing the landlord-tenant relationship commonly produces law recognizing implied easements in leases.
Owsley v. Hamner, 36 Cal.2d 710, 227 P.2d 263, 24 A.L.R.2d 112	Contains an extensive discussion of implied easements in the landlord-tenant context and states the test of "reasonably necessary for the beneficial enjoyment of the property leased."	Quoted and used to emphasize that easements implied for leases need not be absolutely necessary to make premises tenantable but reasonably necessary for beneficial enjoyment.
Bellon v. Silver Gate Theatres, Inc. (cited in Owsley excerpt)	Phrase cited: test of whether ways are "reasonably necessary for the beneficial enjoyment of the property leased."	Used via Owsley to support the court's view of the proper standard for necessity in the lease context.

Court's Reasoning and Analysis

The Supreme Court analyzed the dispute by addressing both alternative bases upon which Hellberg could obtain access: (1) the status of the old Coffin road as a public highway, and (2) private easement doctrines (an easement of necessity or an implied easement appurtenant).

On the public-highway theory the trial court had found the road to be a county road because it had been used as a public highway for ten years and had been worked and kept up at public expense for seven years (RCW 36.75.080; RCW 36.75.070). The Supreme Court, however, expressed substantial doubt whether public use of the road was anything more than permissive and noted no apparent public claim of interest or county advocacy for a broader public determination. For that reason the court declined to rest Hellberg's relief on a broader public-highway adjudication, preferring to limit the burden placed on Coffin's land to what was necessary to protect Hellberg's private rights.

The court stated that an easement of necessity reflects a public policy (citing RCW 8.24.010) that property should not be landlocked. Condemnation under that statute is available, but condemnation is unnecessary where the way of necessity is over the grantor's or lessor's own land; in such circumstances the common law treats the grantor/lessor as having impliedly granted ingress and egress. The court cited State ex rel. Mountain Timber Co. in support of this doctrine.

Turning to implied easements appurtenant, the court set out the established Washington law (Bailey, Evich, Adams, Rogers, White, and others) describing the elements: (1) former unity of title, (2) separation of the dominant tenement (by grant or demise), and (3) reasonable necessity for the easement to secure quiet enjoyment. The court emphasized that unity and subsequent separation are absolute requirements, while the other two characteristics serve as aids to determine the presumed intention of the parties based on extent and character of use, the nature of the property, and relation of the parts.

Applying those principles to the facts the court observed: Coffin previously had unity of title; Coffin's lease to Hellberg constituted the separation of the dominant tenement (the leased 3,000 acres); and the old Coffin road had been used as the only practicable ingress and egress to the leased property. The trial court's specific findings that no other practicable road existed and that the old Coffin road provided the only convenient access were accepted by the Supreme Court as supported by the record. Accordingly, the court concluded that an easement existed by implication appurtenant to the leased land and that an easement of necessity also existed for Hellberg while the leasehold continued.

The Coffin argument that there could be no implied easement because Hellberg was only a tenant was rejected: the court cited Andrews v. McCutcheon and other authorities and Restatement provisions to show that implied easements can and do arise in leasehold contexts; the form of conveyance is not determinative so long as the lease constitutes an interest in land sufficient to create the easement by implication.

The court noted that the easement of necessity could terminate if another access road were provided that removed the necessity before the lease expired. The court also declined to decide whether, at the time title transfers at the end of the lease, the requisites for either an easement of necessity or an implied easement appurtenant would continue to exist.

Finally, the Supreme Court concluded the trial court's original decree was too broad in scope. The remedy was therefore affirmed but modified: relief would be confined to protecting Hellberg's ingress and egress rights (including their assignees or successors) at least while the landlord-tenant relationship continued, and the cause was remanded for entry of a new decree consistent with that limitation.

Holding and Implications

Affirmed as modified.

Holding (direct effects):

The Supreme Court affirmed the trial court's determination that Hellberg, as lessee, has an easement of necessity and an implied easement appurtenant to the leased land over the old Coffin road, entitling Hellberg to ingress and egress over that road.
The decree is modified to limit its scope: the defendants are enjoined from interfering with the plaintiffs' (and their assignees' or successors') ingress and egress over the road at least for the duration of the landlord-tenant relationship; the broader portions of the original decree were remanded for entry of a narrower decree consistent with this holding.
The court expressly left unresolved whether the rights would continue or be established when (or if) title to the property passes at the end of the lease period.
Each party will bear his own costs on appeal.

Implications (scope and precedent):

The decision reinforces that easements by implication and easements of necessity may arise in the landlord-tenant context; the form of the conveyance (lease vs. fee conveyance) is not dispositive.
The court avoided establishing a broad public-highway determination because it saw no present public interest pressing for such a result and found private easement remedies adequate to protect the tenant's access rights.
No novel or sweeping new rule was announced; the court applied existing Washington authorities (and recognized restatement and treatise authorities) to the facts and limited the decree to what was necessary to protect the lessee's rights while the lease continues.

Source limitation notice: This summary is based exclusively on the text of the provided opinion. It does not add information beyond what the opinion states and does not attempt to resolve questions the court expressly left open (e.g., the status of easements upon transfer of title at lease termination).

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OTTO HELLBERG et al., Respondents, v. COFFIN SHEEP COMPANY et al., Appellants. Reported in 404 P.2d 770.

[1] Easements — Creation — Condemnation — Policy. The right granted by RCW 8.24.010 to the owner or one entitled to the beneficial use of landlocked property, to condemn a private way of necessity for ingress and egress, is in furtherance of the public policy that will not permit property to be landlocked and rendered useless.

[2] Same — Creation — Appurtenant to Land. An implied easement, i.e., one arising by implication as an appurtenance to land and not requiring condemnation, exists over the land of the grantor or lessor of landlocked property where there has been (1) a former unity of title and a subsequent separation by a grant or demise of the landlocked (dominant) estate, (2) an apparent and continuous quasi easement existing for the benefit of one part of the estate to the detriment of the other during the unity of title, and (3) a certain degree of necessity that the quasi easement exist after severance. The first requirement is absolute, while the second and third are aids to construction in determining the cardinal consideration — the presumed intention of the parties as disclosed by the extent and character of the user, the nature of the property, and the relation of the separated parts to each other.

[3] Same — Creation — During Leasehold — Effect. Easements implied as appurtenances to land arise in landlord-tenant relationships as well as in the case of fee simple conveyances, the form of the conveyance and the nature of the beneficial interest of the dominant tenant not being determinative.

See Ann 130 A.L.R. 768; Am. Jur., Easements (1st ed. § 119).

HILL, J.

We shall refer to the plaintiffs in this action as Hellberg and the defendants as Coffin.

Hellberg leased some 3,000 acres from Coffin for a 10-year period, commencing January 1, 1958, and ending December 31, 1967; and, in addition, Coffin agreed to sell and Hellberg agreed to buy the property at the end of the lease period. This we will refer to as the Hellberg property. It is located in the southern part of Benton County in the Horseheaven Country, its southern boundary being the Columbia River. It is landlocked by the property of others (primarily, if not entirely, that of Coffin), except for a well defined road to which we will refer as the "old Coffin road" which connects the Hellberg land with Primary State Highway No. 8 (referred to herein as PSH 8). Its connection with PSH 8 is at the Coffin headquarters, and from that point it runs southeasterly (southerly about 2 miles and easterly 3 miles) traversing parts of five sections, all belonging to or controlled by Coffin, until it reaches the Hellberg property; it then continues south through that property to the Columbia River (roughly 3 miles).

The present litigation stems from Coffin padlocking a gate across the old Coffin road at its intersection with PSH 8. Hellberg brought this action to restrain any interference with the use of the old Coffin road and to have it declared a public road. Coffin contends there is another access road, but the evidence sustains the trial court's finding that there is no other practicable road which would give Hellberg access to PSH 8 or to any other practicable road out of the Horseheaven Country.

The trial court enjoined any interference with Hellberg's right to ingress and egress over the old Coffin road and upheld that right on several different legal theories.

The trial court found that the old Coffin road was a public highway because it had been used as such for 10 years, and because it had been worked and kept up at public expense for seven years.

"Highways used ten years are county roads. All public highways in this state, outside incorporated cities and towns and not designated as state highways which have been used as public highways for a period of not less than ten years are county roads: . . . ." RCW 36.75.080

"Highways worked seven years are county roads. All public highways in this state, outside incorporated cities and towns and not designated as state highways, which have been used as public highways for a period of not less than seven years, where they have been worked and kept up at the expense of the public, are county roads." RCW 36.75.070

The trial court also found that Hellberg had an easement of necessity over that road and also an implied easement over it as an appurtenance to the lands leased to him by the defendants.

We are satisfied from the record that Hellberg is entitled to access to his property over the old Coffin road, either on the basis of a way of necessity or on the basis of an implied easement appurtenant to the land; hence, we see no necessity of discussing the other reasons given by the trial court for enjoining the interference with that access by Coffin. We entertain substantial doubt as to whether the use by the public of the old Coffin road was other than permissive. In the absence of some claim of interest on behalf of the public and because of the marked disinterestedness on the part of Benton County, we see no reason to impose any greater burden on the Coffin land than that necessary to give Hellberg the relief to which he is entitled.

A determination of whether the old Coffin Road from its intersection with PSH 8 to the Columbia River (not only through the Coffin land but through that of Hellberg as well) is a public highway, may well await some interest on the part of the public not now apparent. Only the Hellbergs are seeking the right to use that road in the present litigation, and that can be secured for them on the trial court's holding that they had an easement of necessity, or that they had an implied easement appurtenant to the land, both of which are based on substantial evidence. Both easements arise by implication, but to avoid confusion we shall not refer to the easement of necessity as an implied easement.

[1] An easement of necessity is an expression of a public policy that will not permit property to be landlocked and rendered useless. In furtherance of that public policy, we give the owner, or one entitled to the beneficial use of landlocked property, the right to condemn a private way of necessity for ingress and egress. RCW 8.24.010.

[2] Condemnation, however, is not necessary where the private way of necessity is over the land of the grantor or lessor of the landlocked property.

The theory of the common law is that where land is sold (or leased) that has no outlet, the vendor (or lessor) by implication of law grants ingress and egress over the parcel to which he retains ownership, enabling the purchaser (or lessee) to have access to his property. State ex rel. Mountain Timber Co. v. Superior Court, 77 Wn. 585, 588, 137 P. 994 (1914).

Under the findings of the trial court, Hellberg has no access from his leased land to any highway except over the land of Coffin, the lessor, by way of the old Coffin road. The right of the landlocked tenant to ingress and egress over his lessor's property cannot be gainsaid.

Concerning easements by implication as appurtenances to land, this court has said ( Bailey v. Hennessey, 112 Wn. 45, 48, 191 P. 863 (1920)):

Easements by implication arise where property has been held in a unified title, and during such time an open and notorious servitude has apparently been impressed upon one part of the estate in favor of another part, and such servitude, at the time that the unity of title has been dissolved by a division of the property or a severance of the title, has been in use and is reasonably necessary for the fair enjoyment of the portion benefited by such use. The rule, then, is, that upon such severance, there arises, by implication of law, a grant of the right to continue such use.

The foregoing quotation was reiterated in Rogers v. Cation, 9 Wn.2d 369, 115 P.2d 702 (1941); White v. Berg, 19 Wn.2d 284, 142 P.2d 260 (1943), and Evich v. Kovacevich, 33 Wn.2d 151, 156, 204 P.2d 839 (1949). In the latter case we said:

The essentials to the creation of an easement by implication are, as variously stated by this court, the following: (1) a former unity of title, during which time the right of permanent user was, by obvious and manifest use, impressed upon one part of the estate in favor of another part; (2) a separation by a grant of the dominant tenement; and (3) a reasonable necessity for the easement in order to secure and maintain the quiet enjoyment of the dominant estate. Bailey v. Hennessey, supra; Berline v. Robbins, 180 Wn. 176, 38 P.2d 1047; Hubbard v. Grandquist, 191 Wn. 442, 71 P.2d 410; . . . .

And in Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954), we said:

An implied easement (either by grant or reservation) may arise (1) when there has been unity of title and subsequent separation; (2) when there has been an apparent and continuous quasi easement existing for the benefit of one part of the estate to the detriment of the other during the unity of title; and (3) when there is a certain degree of necessity (which we will discuss later) that the quasi easement exist after severance.

Unity of title and subsequent separation is an absolute requirement. The second and third characteristics are aids to construction in determining the cardinal consideration — the presumed intention of the parties as disclosed by the extent and character of the user, the nature of the property, and the relation of the separated parts to each other. 3 Tiffany, Real Property (3d ed.), 253, 254, § 780; Bailey v. Hennessey, 112 Wn. 45, 191 P. 863 (1920). In Rogers v. Cation, 9 Wn.2d 369, 376, 115 P.2d 702 (1941), we pointed out phat the rule is not a hard and fast one, and that the presence or absence of either or both of these requirements is not necessarily conclusive.

We are concerned in such cases with the presumed intention of the parties as disclosed by the extent and character of the user, the nature of the property, and the relation of the separated parts to each other. Evich v. Kovacevich, supra; Rogers v. Cation, supra; 3 Tiffany, Real Property § 780, at 253, 254 (3d ed. 1939); 17A Am. Jur. Easements § 33 (1957).

We have here the former unity of title in Coffin, the separation by the lease of the 3,000 acres to Hellberg, and the quasi easement of the old Coffin road over the Coffin land which furnishes the only practicable ingress and egress to the leased premises. Coffin, however, contends (if the implied easement applies to leases) that the evidence is insufficient to warrant a finding that this easement is reasonably necessary to the quiet enjoyment of the leased property.

The evidence fully substantiates the trial court's finding that there is no exit from land held by Hellberg and no road available other than the road in question (the old Coffin road) for convenient service to the areas leased by Coffin to Hellberg.

The findings of the trial court leave no question as to the reasonable necessity for the use of the old Coffin road by Hellberg.

[3] However, Coffin takes the position that there can be no implied easement because there has been no severance of title, and Hellberg is only a tenant. Hellberg is, at the moment, only a tenant and, by the same token, Coffin is his landlord. Rights and easements do pass to lessees by implication. Andrews v. McCutcheon, 17 Wn.2d 340, 135 P.2d 459 (1943). See also Sierad v. Lilly, 204 Cal.App.2d 770, 22 Cal.Rptr. 580 (1962); Ng v. Warren, 79 Cal.App.2d 54, 179 P.2d 41 (1947); Lebel v. Backman, 342 Mass. 759, 175 N.E.2d 362 (1961); Weigand v. American Stores Co., 346 Pa. 253, 29 A.2d 484 (1943). The landlord-tenant relationship probably has produced more law relating to implied easements than any other. See Annotations 24 A.L.R.2d 112.

It is pointed out in 3 Tiffany, Real Property § 788, at 274 (3d ed. 1939):

An easement by implication based on a pre-existing quasi easement, comes into being only in connection with a grant or transfer of title to an interest in land, but the creation of the easement does not depend upon the use of a particular form of instrument. . . . And it has been regarded as so passing upon a devise of land as well as of a conveyance, and upon a lease as well as upon a conveyance in fee simple.

See also 1 Tiffany, Landlord and Tenant § 128, p. 818.

An extensive discussion of implied easements, as applied to the landlord-tenant relationship, is found in Owsley v. Hamner, 36 Cal.2d 710, 718, 227, P.2d 263, 268, 24 A.L.R.2d 112, 120, and we quote a brief excerpt:

Plaintiffs contend that the evidence does not establish that the ways and patio are necessary to make the leased premises tenantable or for the enjoyment of the premises, and, therefore, they do not constitute easements appurtenant by implication. The law is not, however, that for such easements to be implied, they must be absolutely necessary or such as to make the leased property tenantable. The prevailing test, as stated in Bellon v. Silver Gate Theatres, Inc., quoted supra, is whether they are "reasonably necessary for the beneficial enjoyment of the property leased." [Citations omitted.] The same test has been held proper in implied easements arising from a conveyance, as distinguished from a lease, of property.

Restatement, Property (1944), discusses the creation of easements by implication, §§ 474, 475, 476. See, also § 484, Comment b, for the extent of such an easement. It is clear that the implication may be created by a lease. § 475 reads:

Creation of Easements by Implication — Form of Conveyance.

In order to create by implication an easement upon the conveyance

(a) of an estate in land, the conveyance must satisfy the formal requisites established by local law for the creation of an estate in land of the duration of that conveyed. (Italics ours.)

In Comment a, on the above-quoted section, reference is made to § 9 (Restatement, Property (1936)), which defines "estate" as follows:

The word "estate," as it is used in this Restatement, means an interest in land which

(a) is or may become possessory; and

(b) is ownership measured in terms of duration. (Italics are again ours.)

The suggestion that Hellberg, as a tenant, has no right to an easement of necessity or an implied easement appurtenant to land is untenable.

We have discussed the rights of these parties based on their present relationship as landlord and tenant. The easement of necessity could conceivably terminate before the termination of the lease upon the completion of another access road to the leased property, ending the necessity; but the old Coffin road is clearly appurtenant to the land during the period of the leasehold. Whether, when the lease terminates and the Hellbergs become the contract purchasers or owners of the leased property, the requisites will exist for either an easement of necessity or an implied easement appurtenant to land, we do not now determine. There is some authority that the situation at the time of the transfer of title may determine those issues. Hubbard v. Grandquist, 191 Wn. 442, 71 P.2d 410 (1937).

The decree appealed from being too broad in its scope, the cause is remanded for the entry of a new decree. The decree appealed from is affirmed insofar as it requires the defendants not to interfere with the ingress and egress of the plaintiffs and their assignees or successors, at least so long as the landlord-tenant relationship continues; and insofar as it adjudges that the plaintiffs have, as lessees and tenants of the defendants, an easement of necessity, and an implied easement appurtenant to land over the old Coffin road.

The decree being modified, each party will bear his own costs on this appeal.

ROSELLINI, C.J., OTT and HALE, JJ., and RYAN, J. Pro Tem., concur.

HELLBERG v. COFFIN SHEEP CO