Lykes Bros., Inc. v. Clements

501 So. 2d 1302, 11 Fla. L. Weekly 2454, 1986 Fla. App. LEXIS 10993
CourtDistrict Court of Appeal of Florida
DecidedNovember 19, 1986
DocketNo. 85-2725
StatusPublished
Cited by1 cases

This text of 501 So. 2d 1302 (Lykes Bros., Inc. v. Clements) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lykes Bros., Inc. v. Clements, 501 So. 2d 1302, 11 Fla. L. Weekly 2454, 1986 Fla. App. LEXIS 10993 (Fla. Ct. App. 1986).

Opinion

PER CURIAM.

Plaintiffs, appellee Clements and other landowners (hereafter Clements), brought this action to establish an easement across property owned by the defendant, appellant Lykes Bros., Inc. (hereafter Lykes). The trial judge found that an implied easement of necessity, section 704.01(1), Florida Statutes (1985), did arise in plaintiffs’ favor over defendant’s land, and a permanent injunction was entered restraining defendant from interfering with plaintiffs’ use of the easement. We affirm.

[1303]*1303All parties to this action are remote sue-cessors in title to Consolidated Naval Stores Company, which in 1936 was the owner of a vast tract of land in Highlands County. The tract had two entrances from public roads — on the west, State Road 17, and on the north, State Road 66.

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Josephine Creek runs the entire width of the property in a generally northeast direction. In 1936 Consolidated Naval Stores conveyed to Clements a portion of this tract, most of which lay south of Josephine Creek. (See Clements I.) The property did not have access to either State Road 17 or State Road 66. The trial judge found that an easement by implied grant arose at that time and continued to date giving Clements access to State Road 17 over property now owned by defendant Lykes. Three months later, in 1937, Consolidated Naval Stores conveyed to Clements property contiguous to that involved in the first conveyance. (See Clements II.) This conveyance included land that abutted Elliot Road that connected to State Road 66 in the north. Lykes contends that Clements developed the property from this northern entrance and built a private road running from Elliot Road toward a ford across Josephine Creek thereby connecting, to some extent, Clements’ property on both sides of the creek. The appellees, on the other hand, dispute that any ford has been developed across [1304]*1304the creek. But Lykes argues that the second conveyance combined the two tracts north and south of the creek into one tract with access to the north by State Road 66. This combination of the parcels, Lykes contends, acted to extinguish any easement over what was to become Lykes’ property relying on this court’s opinion in Fox Investments v. Thomas, 431 So.2d 1021 (Fla. 2d DCA 1983). In Fox, we held that an easement of necessity is extinguished when the dominant estate is combined with property that has access to a public road. In 1944 Lykes purchased land to the west of Clements’ property abutting State Road 17.

For the greater part of its length, Josephine Creek is roughly forty feet from side to side. Near its mouth, however, at the eastern end of Clements’ property, the slope of the land leading to the creek becomes shallow and the creek has no true bank and can sometimes be forded by at least four wheel drive or amphibious vehicles during the dry season. For thirty to sixty days during the flood season, the creek extends up to 100 yards on each side beyond its normal width. The alleged ford is located on this spot. The testimony at trial indicated the, depth of the creek varied from three to eight feet. Testimony from a county engineer, a witness for Clements, who viewed the ford established that the water level there was approximately three feet in mid-July.

The trial judge concluded that the reason for the easement is the continuing presence of Josephine Creek, which makes egress from plaintiffs’ lands south of the creek impracticable. Section 704.01(1), Florida Statutes (1985), states that “an implied grant exists where a person has heretofore granted ... lands to which there is no accessible right of way except over his land_ Such an implied grant ... exists where there is no ... practicable way of egress_” Section 704.03, Florida Statutes (1985), defines the word “practicable” as meaning without the use of a bridge. Since a bridge is required by some vehicles to traverse Josephine Creek, the trial court concluded that a right of way exists over Lykes’ property to this date.

On appeal, Lykes argues that any easement that arose in 1936 expired in 1937, when Clements purchased an additional tract of land contiguous to the first that had access to a public road citing to Fox Investments. Lykes also argued that the successors in title to the common law easement, the plaintiffs in this action, have put their land to a more intensive and different use than that contemplated at the time the easement arose, and that it was error for this easement to be extended to this greater and different use citing, inter alia, to Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328 (Fla.1954). We agree with the trial judge that an easement does exist in favor of the plaintiffs but for the reasons stated in section II of this opinion, we do not reach appellant’s second point on appeal.

I.

Lykes contends that the principle in the Fox case bars recognition of the continuance of a way of necessity over Lykes’ property. We disagree. This court stated in the Fox case, that the “right to a way of necessity expires when the claimant acquires another practicable outlet to a highway because a right of way of necessity arises from necessity alone and continues only while a necessity exists.” Fox at 1022. The trial court found that the land south of Josephine Creek was without accessible right of way except over Lykes' property and that this necessity continues to this day. Consequently, our decision in this case is not in conflict with Fox because Clements never acquired a practicable outlet to a highway except over Lykes’ land. See sections 704.01(1) and 704.03, Florida Statutes (1985).

Lykes does not argue that the trial court’s decision is unsupported by the evidence. Rather, Lykes argues that it was error to consider Josephine Creek as an obstacle because it lies within Clements’ property, and not at the boundary of the property. Lykes cites to cases from other jurisdictions dealing with the right of prop[1305]*1305erty owners to gam access to parts of their property or to public roads over an easement on a neighbor’s lands. We submit that these cases were decided under either other states’ statutes unlike Florida’s section 704.01(1) or the common law principle that a way of necessity exists only so long as a strict necessity for the easement exists. But, in this case, section 704.03 governs whether a necessity exists, and, here the evidence clearly supports the result reached by the trial court.

Lykes additionally argues that the ford across Josephine Creek was sufficient to support all of the traffic generated by Clements’ lands in 1937, and it is Clements’ use of his property at that time that determines whether Clements has adequate access to his property or whether an easement arose across Lykes’ property. An intensified use of Clements’ property, Lykes argues, generating traffic not capable of using the ford is not a valid basis to find that a way of necessity exists for this new and greater traffic, relying on Dixon v. Feaster, 448 So.2d 554 (Fla. 5th DCA 1984).

This argument contradicts the factual finding of the trial court that an easement did arise in plaintiff’s favor in 1936 and Lykes’ acknowledgment elsewhere in its brief that such was the case. Based on our review of the record, we can find no basis to conclude that Clements had adequate access to his lands in 1936 except over what was to become Lykes’ property.

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Bluebook (online)
501 So. 2d 1302, 11 Fla. L. Weekly 2454, 1986 Fla. App. LEXIS 10993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lykes-bros-inc-v-clements-fladistctapp-1986.