A ii 7, 1977
F: m: KMG
Re: Easements of Necessity
In Florida, easements can be created in the following
1. by express grant
2. by exception or reservation
3. by prescription
4. by implication
5. by statute.
Tis memo will deal only with the latter three methods.
Creation of an easement by prescription requires twenty
years of continuous and uninterrupted use. Although the period
f r creation of ownership through adverse possession is only
ven years, the Florida Supreme Court in J. C. Vereen & Sons,
lic. v. Houser, 123 Fla. 641, 167 So. 45 (1936) held that the
mmon law prescriptive period of twenty years applies to the
ceation of easements by prescription instead of the shorter
s atutory period of seven years for adverse possession. To
acquire a prescriptive easement, the claimant must prove that
i r the prescriptive period he exercised the easement openly,
rCtoriously, adversely, hostilely, continuously, uninterruptedly,
ad with the knowledge and acquiescence of the servient owner.
Creation of an easement by implication is commonly referred
i1 as an easement of necessity. Florida Legislature has adopted
a statute at Chapter 704.01, Florida Statutes, clarifying the
>mmon law rule of an implied grant of a way of necessity. In
e pertinent part, that statute provides "Such an implied grant
Easement in lands or estates exists where there is no other
rasonable and practical way of egress, or ingress and the same
Reasonably necessary for beneficial use or enjoyment of the
Srt granted or reserved. An implied grant arises only where
Sunity of title exists from a common source other than the
oiginal grant from the state or United States; provided, however,
hat where there is a common source of title subsequent to the
oiginal grant from the state or United States, the right of
he dominant tenement shall not be terminated if title of
Lther the dominant or servient tenement has been or should
Transferred for non-payment of taxes either by foreclosure,
version, or otherwise." Therefore, unity of title is required
r creation of an easement by this method.
April 7, 1977
L B from KMG
More important to the District, is the statutory way of
ncessity exclusive of the common law right which is found at
subsection 2 of 704.01, Florida Statutes. That statute provides,
"lased on public policy, convenience and necessity, a statutory
way of necessity exclusive of any common law right exists when
ay land or portion thereof outside any municipality which is
ting used or desired to be used as a dwelling or for agricul-
ral or for timber raising or cutting or stock raising purposes
all be shut off or hemmed in by lands, fencing, or other
improvements of other persons so that no practical route of
ress or ingress shall be available therefrom to the nearest
tactical public or private road. The owner or tenant thereof,
Anyone in their behalf, lawfully may use and maintain an
esement for persons, vehicles, stock, and electricity and
telephone service over and upon the lands which lie between the
sIid shut-off or hemmed-in lands and such public or private
1 ad by means of the nearest practical route, considering the
Le to which said lands are being put; and the use thereof, as
a oresaid, shall not constitute a trespass; nor shall the party
t us using the same be liable in damages for the use thereof;
I ovided that such easement shall be used only in an orderly
ad proper manner." Therefore, it seems that any time a land-
,ner is cut off from a road by the condemning practices of
ie District, he has a statutory easement if he is using his
Lnd for one of the purposes set out in the statute. 704.03
fines the word "practicable" as used in 704.01. "Practicable"
Construed to mean "without the use of bridge, ferry, turnpike
1 ad, embankment, or substantial fill."
704.02, Florida Statutes, pertains to your question con-
Srning whether the District could require persons having an
e segment of necessity to maintain gates. That section provides
Sat, "When the land on which the statutory easement referred
Sin S704.01(2) shall be in use, or afterwards put to the use
Enclosing farm or grove products or livestock, the owner or
Snant of the dominant tenement using the easement of the same
Mall ... when requested by the owner of the servient tenement,
eect and maintain either a cattle guard or a gate at each place
iere said tenement intersects a fence. Any such gate is to be
kpt closed when not open for passage, and any such cattle guard
Sgate so erected and maintained shall be in substantial con-
)rmity with the character of the fence at the intersection."
Therefore, it is clear that not only can the District require
ie person using the easement to keep the gate closed, it can
aso require him to put up the gate.
S>ril 7, 1977
iJB from KMG
1 ge 3
The 1976 session of the Florida Legislature added a new
1 pe of statutory easement -- namely a conservation easement.
S action 704.06, Florida Statutes, deals with this type of
a segment, which may be of considerable interest to the District.
W ile they cannot be acquired by eminent domain or condemnation,
n. privity of contract or benefit to the dominant estate needs
t be shown. They are perpetual, but must be expressly granted
& d recorded. Please see the attached copy of S704.06 for your
f rather edification.
f title e
f title E
tate or I
ay of n
s ch pub!
s all not
t us usintl
t ereof; p
o ly in ai
common law, statutory easements defined
Vhen lands enclosed, person using ease-
ment to maintain gates.
judicial remedy and compensation to servi-
,asements and rights of entry.
Common law, statutory easements de-
PLIED GRANT OF WAY OF NECESSI-
common law rule of an implied grant of a
cessity is hereby recognized, specifically
nd clarified. Such an implied grant exists
rson has heretofore [granted] or hereafter
ds to which there is no accessible right-of-
t over his land, or has heretofore [retained]
er retains land which is inaccessible ex-
the land which he conveys. In such in-
right-of-way is presumed to have been
reserved. Such an implied grant or ease-
nds or estates exists where there is no
unable and practicable way of egress, or
d same is reasonably necessary for the
use or enjoyment of the part granted or
n implied grant arises only where a unity
ts from a common source other than the
ant from the state or United States; pro-
ver, that where there is a common source
sequent to the original grant from the
united States, the right of the dominant
hall not be terminated if title of either the
r servient tenement has been or should
red for nonpayment of taxes either by
reversion, or otherwise.
TUTORY WAY OF NECESSITY EX-
OF COMMON LAW RIGHT.-Based on
y, convenience, and necessity, a statutory
ssity exclusive of any common law right
Sany land or portion thereof outside any
y which is being used or desired to be
welling or for agricultural or for timber
cutting or stockraising purposes shall be
hemmed in by lands, fencing, or other
nts of other persons so that no practica-
egress or ingress shall be available there-
nearest practicable public or private
ner or tenant thereof, or anyone in their
ully may use and maintain an easement
vehicles, stock, and electricity and tele-
ice over and upon the lands which lie
Ie said shut-off or hemmed-in lands and
or private road by means of the nearest
ute, considering the use to which said
ing put; and the use thereof, as abfresaid,
institute a trespass; nor shall the party
he same be liable in damages lbr the use
vided that such easement shall be used
rderly and proper manner.
ch. 7326. 1917; I(GS 4!99, CG;L 7088; 1. ch. 28070. 1953.
704.02 When lands enclosed, person using
easement to maintain gates.-When the land on
which the statutory easement referred to in a.
704.01(2) shall be in use, or afterwards put to the use
of enclosing farm or grove products or livestock, the
owner or tenant of the dominant tenement using the
easement of the same shall, if no compensation is
paid under s. 704.04, when requested by the owner
of the servient tenement, erect and maintain either
a cattle guard or a gate at each place where said
easement intersects a fence. Any such gate is to be
kept closed when not opened for passage, and any
such cattle guard or gate so erected and maintained
shall be in substantial conformity with the character
of the fence at such intersection.
History.-s. 2. ch. 7326. 1917; RGS 5000(; (;GI. 709; s 2. cl. 28070, 1953.
704.03 "Practicable" defined.-For the pur-
poses of this chapter the word "practicable," as used
in s. 704.01, shall be held and construed to mean
"without the use of bridge, ferry, turnpike road, em-
bankment, or substantial fill."
History.-- 3. ch. 7326, 1917; R(S 5001; C((G. 7090; s. 3. rh 28070. 1953.
704.04 Judicial remedy and compensation to
servient owner.-When the owner or owners of
such lands across which a statutory way of necessity
under s. 704.01(2) is claimed, exclusive of the com-
mon law right, objects or refuses to permit the use of
such way under the conditions set forth herein or
until he receives compensation therefore, either par-
ty or the board of county commissioners of such
county may file suit in the circuit court of the county
wherein the land is located in order to determine if
the claim for said easement exists, and the amount
of compensation to which said party is entitled for
use of such easement. Where said easement is
awarded to the owner of the dominant tenement, it
shall be temporary and exist so long as such ease-
ment is reasonably necessary for the purposes stated
herein. The court, in its discretion, shall determine
all questions including the type, extent, and location
of the easement and the amount of compensation,
provided that if either of said parties so requests in
his original pleadings, the amount of compensation
may be determined by a jury trial. The easement
shall date from the time the award is paid,
History.-s. 4, ch. 28070. 1953.
704.05 Easements and rights of entry.-
(1) The rights and interests in land which are
subject to being extinguished by marketable record
title pursuant to the provisions of s. 712.04 shall
include rights of entry or of an casement, given or
reserved in any conveyance or devise of realty, when
given or reserved for the purpose of mining, drilling,
exploring, or developing for oil, gas, minerals, or fis-
sionable materials, unless those rights of entry or
c(asemenit are excepted or not affected by the provi-
sions of s. 712.03 or s. 712.04. However, the provi-
sions of this section shall not apply to interests
reserved or otherwise held by the state or by any of
its agencies, boards, or departments.
Any person claiming such a right of entry or
nent may preserve and protect the same from
guishment by the operation of this act by filing
ice in the form and in accordance with the pro-
es set forth in ss. 712.05 and 712.06. If the peri-
* filing the notice would expire prior to January
77, the period shall be extended to January 1,
ENTS Ch. 704 7Z- 7
(3) This section is intended, and shall be deemed,
to operate both prospectively and retrospectively.
(4) The provisions of this section shall not revive
any right or interest that was extinguished by the
operation of chapter 712 prior to June 6, 1975.
History.-s. 1, ch. 70-100; s. 1. ch. 73-140; s. 1, ch. 75-94.
1 ~ 1I
prior to th
o- the s
ing the te:
(4) If a
poses of th
taken as i
tion of int
6838; a. 2, ch. 2
1,2, ch. 76-124
ing offer or sal
fc-a. 1.01 "P'
which is a]
or all of tl
ans a ri
il as lai
te, or ur
f1, soil, I
e term <
nt in th
of the d
kg the r
f this cl
ss will e
'm of th
he fact t
, ch. 4022,1
)705, 1955; i
n easements; creation; acquisi-
tion easements; creation; ac-
is section, "conservation ease-
it or interest in real property
to retaining land or water areas
ieir natural, scenic, open, or
staining such areas as suitable
its, or wildlife; or maintaining
d which prohibits or limits any
or placing of buildings, roads,
other advertising, utilities, or
)r above the ground.
lacing of soil or other substance
fill, or dumping or placing of
ghtly or offensive materials.
destruction of trees, shrubs, or
Dredging, or removal of loam,
:k, or other material substance
o affect the surface.
Kcept for purposes that permit
said loan, and any payment or
served, or taken as an advance
1 is in the nature of, and taken
:alculation of, interest shall be
e received and shall be spread
of the loan for the purpose of
i of interest. Moreover, for the
pter, a loan shall be deemed a
*500,000 in amount or value if:
ding principal indebtedness
exceeds $500,000; or
iereto agree that the principal
:eed $500,000 at some time dur-
loan and, when the agreement
ipal indebtedness was reasona-
rceed that amount, notwith-
it less than that amount in the
ly sor later advanced.
s $500,000, then, for the pur-
interest on that loan shall not
property charged, reserved, or
e or forbearance, the value of
depends on the success of the
used the proceeds of that loan.
iterests in profits, receipts, or
samples of the type of property
wouldd be excluded from calcula-
r the preceding sentence.
; GS 3105; s. 2, ch. 5960, 1909; RGS 4851; CGL
ch. 70-331; s. 2, ch. 73-298; a. 1, ch. 74-232; sa.
ve October 1, 1976.
bstituted by the editors for the words "a bind.
CONDOMINIUMS AND COOPERATIVE
Chapter 711 was repealed by
ch. 76-222, Laws of Florida, alnd
replaced by chapters 718 and 719.
the land or water area to remain predominantly ip
its natural condition.
(0 Activities detrimental to drainage, flood con,
trol, water conservation, erosion control, soil conser-
vation, or fish and wildlife habitat preservation.
(g) Acts or uses detrimental to such retention of
land or water areas.
(2) Conservation easements are perpetual, undi-
vided interests in property and may be created or
stated in the form of a restriction, element, cove-
nant, or condition in any deed, will, or other instru-
ment executed by or on behalf of the owner of the
property, or in any order of taking. Such easements
may be acquired in the same manner as other inter-
ests in property are acquired, except by condemna-
tion or by other exercise of the power of eminent
domain, and shall not be unassignable to other gov-
ernmental bodies or agencies, charitable organiza-
tions, or trusts authorized to acquire such ease-
ments, for lack of benefit to a dominant estate.
(3) Conservation easements may be acquired by
any governmental body or agency or by a charitable
corporation or trust whose purposes include the con-
servation of land or water areas or the preservation
of buildings or sites of historical or cultural signifi-
(4) Conservation easements shall run with the
land and be binding on all subsequent owners of the
servient estate. No conservation easement shall be
unenforceable on account of lack of privity of con-
tract or lack of benefit to particular land or on ac-
count of the benefit being assignable. Conservation
easements may be enforced by injunction or proceed-
ing in equity or at law, and shall entitle the holder
to enter the land in a reasonable manner and at
reasonable times to assure compliance. A conserva-
tion easement may be released by the holder of the
easement to the holder of the fee even though the
holder of the fee may not be a governmental body or
a charitable corporation or trust.
(5) All conservation easements shall be recorded
and indexed in the same manner as any other instru-
ment affecting the title to real property.
(6) The provisions of this section shall not be con-
strued to imply that any restriction, easement, cove-
nant, or condition which does not have the benefit of
this section shall, on account of any provision hereof,
History.-e. 1, ch. 76-169.
1976 SUPPLEMENT TO FLORIDA STATUTES 1975