MESSER v. SANDER

144 So. 3d 566, 2014 WL 3281822, 2014 Fla. App. LEXIS 10536
CourtDistrict Court of Appeal of Florida
DecidedJuly 9, 2014
DocketNo. 1D13-3084
StatusPublished
Cited by1 cases

This text of 144 So. 3d 566 (MESSER v. SANDER) 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
MESSER v. SANDER, 144 So. 3d 566, 2014 WL 3281822, 2014 Fla. App. LEXIS 10536 (Fla. Ct. App. 2014).

Opinion

PER CURIAM.

Appellants appeal the trial court’s order denying their request for a statutory easement pursuant to section 704.01(2), Florida Statutes,1 and their alternative request for a prescriptive easement. We agree that the trial court erred by denying Appellant’s request for a statutory easement; thus, the prescriptive easement issue is moot and requires no additional comment.2

Factual Background

In 1968, Appellant Paul Messer and his now-deceased brother purchased 45 acres of land straddling the Leon and Jefferson County border; approximately 20 acres are in Leon County, and the remainder is in Jefferson County.3 In the middle of the 45 acres is what can fairly be described as swamp and wetlands. The deed conveying the aggregate 45 acres included an easement via Old Tung Grove Road which provides access to U.S. Highway 90 for the land located in Jefferson County. As the court correctly found, the only vehicular access to Highway 90 (the nearest public road) for the land located in Leon County is via Still Creek Road, which is a private road, a portion of which is the subject of this appeal and is owned by Appellees. Appellees have declined to grant Appellants a formal easement, although Appel-lees’ neighbors have done so with respect to their respective portions of the road.

After a bench trial, which included expert testimony on Appellants’ behalf, the court denied Appellants’ request, finding, in relevant part:

[Appellants] presented substantial evidence regarding the nature of [their] property and the potential difficulties in creating better access to the Leon County side of [their] parcel from Jefferson County. However, there is no evidence that any steps have been taken toward permitting nor any evidence that permits have been denied.
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[569]*569... [Appellants] own one 45 acre parcel of land located partially in Leon County and partially in Jefferson County, Florida.
[Appellants] do not allege a desire to use their land for a dwelling or dwellings, or for agricultural, timber raising or cutting, or stock raising purposes. Instead, they desire to sell it. [Appellants] took title with deeds that contain an express grant of easement for ingress and egress, and a public road (Old Tung Grove Road) was developed along the eastern boundary of their property.
Section 704.01(2), Florida Statutes does not become operative in the absence of an ‘absolute necessity’ to get to and from the hemmed in lands. Tortoise Island Communities, Inc. v. Moorings Ass’n, Inc., 489 So.2d 22 (Fla.1986); Hewitt v. Menees, 100 So.2d 161, 164 (Fla.1958); Parham v. Reddick, 587 So.2d 182 (Fla. 1st DCA1988)....

For the reasons explained below, we hold that the trial court erred by denying Appellants’ request for a statutory easement.

Analysis

The trial court’s interpretation and application of the statute is a question of law that is reviewed de novo. Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 957 (Fla.2005).

In Blanton v. City of Pinellas Park, the supreme court explained that

to obtain a statutory way of necessity, the landowner must establish that the land is (1) outside of a municipality, (2) ‘being used or desired to be used’ for residential or agricultural purposes, and (3) ‘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.’

887 So.2d 1224, 1229 (Fla.2004) (quoting § 704.01(2), Fla. Stat. (2003)).

Here, only the second and third of these elements are disputed. The trial court acknowledged that Still Creek Road is the “only vehicular way of access in Leon County to U.S. Highway 90 East from [Appellants’] property.” (emphasis added). The trial court also acknowledged the difficult terrain on parts of the property and the “potential difficulties in creating better access to the Leon County side of [the] parcel from Jefferson County.” (Emphasis added.)

Despite these findings, the court denied the easement, based in part on the finding that Appellants “own one 45 acre parcel of land located partially in Leon County and partially in Jefferson County, Florida,” to which they did in fact have access from Jefferson County, and also on Appellants’ failure to take any steps toward permitting to allow them to build a road from Old Tung Grove Road over or through wetlands to the Leon County portion of the property located on the other side of the wetlands. The trial court erred in several respects.

First, to the extent that the court’s finding that Appellants’ deed conveyed a single 45-acre “parcel” of land was or was not correct, for purposes of section 704.01(2), this is irrelevant, because the statute clearly applies to “any land ... or portion thereof ....” (emphasis added).

The court also erred by applying an “absolute necessity” standard to the statute’s applicability. The statute provides that the right to an easement is “[b]ased on public policy, convenience, and necessity.” § 704.01(2), Fla. Stat. (emphasis added). The trial court’s reliance on Tortoise Island Communities, Inc. v. [570]*570Moorings Ass’n, Inc. is misplaced, because that decision concerned “an easement by implication from a preexisting use,” which is a common-law easement codified under subsection (1) of the statute entitled “Implied Grant of Way of Necessity.” 489 So.2d 22, 22 (Fla.1986). It was in addressing that inapposite subsection of the statute that the court held that the “absolute necessity” standard applied.

The trial court also misconstrued Hewitt v. Menees, because that case did not apply an “absolute necessity” standard for the statute’s applicability. Rather, it held that the “statute does not become operative in the absence of necessity to get to and from the hemmed in lands ....” 100 So.2d 161, 164 (Fla.1958) (emphasis added). Furthermore, in that case, the need for the easement was obviated by the county’s grant of an easement of ingress and egress over another street that was actually adjacent to the purportedly hemmed-in property. This was the basis for the court’s holding that the party failed to establish necessity. Id. at 163-64.

Furthermore, in the Parham case cited by the trial court, this court addressed, inter alia, two issues of interpretation of section 704.01(2), Florida Statutes. 587 So.2d 132 (Fla. 1st DCA 1988). First, it held that “a statutory way of necessity comes into existence only if no other access exists by common law implication.” Id. at 134. The court’s second holding was that the. party seeking a way of necessity, whether it be statutory or by implication, “ ‘has the burden of proof to establish that he or she has no practicable route of ingress or egress.’ Id. at 135 (emphasis added) (quoting Moran v. Brawner, 519 So.2d 1131, 1133 (Fla. 5th DCA 1988)). Nowhere in Parham did this court hold that the statute only applies when an “absolute necessity” of ingress and egress is present.

Also, as noted, the trial court itself determined that the only

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Related

Messer v. Sander
144 So. 3d 572 (District Court of Appeal of Florida, 2014)

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Bluebook (online)
144 So. 3d 566, 2014 WL 3281822, 2014 Fla. App. LEXIS 10536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messer-v-sander-fladistctapp-2014.