Plaintiff owns all 3 parcels: A, B & E. See diagram.
Plaintiff conveys Parcel B to Defendants
However, (legal malpractice alert!) Plaintiff failed to expressly reserve any easements appurtenant to the retained Parcels A and E.
Plaintiff contends that it retained--by implied reservation--easements no. 1 and no. 2 over parcel B to access Parcels A and E.
Notice this is not a case of a landlocked parcel and an implied easement by necessity. Plaintiff has some access to Parcels A and E. Rather, Plaintiff wants access to two driveways over Parcel B: No. 1 which gives him access to the rear of Parcel A for deliveries and No. 2 which gives him access to the Parking Lot of Parcel E.
What is Plaintiff's theory for implied easements here?
The theory is an Easement Implied from a Pre-existing Use (also known as a "quasi easement"). p. 583.
Here are the three elements (p. 584):
1. common ownership and severance;
2. before severance--prior use of one part of the united parcel for the benefit of another part and the prior use was apparent and obvious, continuous and permanent; and
3. the claimed easement is "necessary and beneficial" to enjoyment of the dominant parcel or parcels.
The theory of this doctrine is an inference of the intention of the parties to fill "common gaps resulting in incomplete thought." (p. 584) DO NOT ENGAGE IN INCOMPLETE THOUGHT WHEN REPRESENTING A CLIENT--SWEAT THE DETAILS!
How necessary is "necessary and beneficial"?
Strict necessity? --No
Reasonably necessary or "important to enjoyment" of the retained dominant parcels? (p. 585)
The court holds that in view of "strong evidence of the plaintiff's prior use of the driveways in question and the defendant's knowledge thereof" the "elastic necessity requirement" is satisfied. (p.587)
