Roemer

*204 Opinion

Defendants James L. and Alice Pappas appeal from a judgment establishing a right-of-way by necessity across their property.

I. Facts and Procedural History

The property which is the subject of this suit consists of two adjoining parcels of land, the Highland Court parcel (Highland parcel) and the Roemer parcel. Dr. Thomas Clark recorded a deed to the Highland parcel on March 23, 1946. He acquired the Roemer parcel through an installment land sale contract entered by December 26, 1948, at the latest. (The contract could not be found, but its existence is not disputed.)

On June 30, 1950, Dr. Clark sold the Highland parcel to Evelyn and Scott Sparling; this sale left the Roemer parcel landlocked. Approximately seven months later, Dr. Clark acquired the deed (i.e., legal title) to the now landlocked Roemer parcel (on Feb. 26, 1951); on January 22, 1959, he transferred the Roemer parcel to his daughter and grandson, Georgia C. and Thomas H. Roemer, the plaintiffs herein.

The Roemers had several casual discussions with the Sparlings concerning access to public roads over the Highland parcel, and at one point they hired an attorney to assist them; his services were…

I concur in the judgment and in the holding that equitable title to the dominant parcel is sufficient for purposes of the “common ownership” requirement for an easement by necessity. I decline, however, to join in the majority’s discussion on the question of “undevelopability.” That discussion is wholly unnecessary to the resolution of this case, and I am not convinced that it makes a positive contribution to the law.

The majority declares that no easement of necessity should be recognized when the dominant parcel is undevelopable, because there is no necessity for access in such a case. This proposition was not raised by the parties, below or here. The whole issue has apparently grown out of a single sentence in defendant’s brief (i.e., “Defendants were foreclosed from offering evidence of the difficulty of developing the Roemer parcel and of the diminution in value of defendants’ parcel caused by the imposition of a right-of-way”). This sentence appears in a discussion of the trial court’s supposed error in rejecting the “defense” of “balancing of the equities.” Since the majority apparently agrees with me that no such defense was available to defendants, the exclusion of…

[Opinion certified for partial publication. [*] ]

OPINION

ANDERSON, P.J.

Defendants James L. and Alice Pappas appeal from a judgment establishing a right-of-way by necessity across their property.

The property which is the subject of this suit consists of two adjoining parcels of land, the Highland Court parcel (Highland parcel) and the Roemer parcel. Dr. Thomas Clark recorded a deed to the Highland parcel on March 23, 1946. He acquired the Roemer parcel through an installment land sale contract entered by December 26, 1948, at the latest. (The contract could not be found, but its existence is not disputed.)

On June 30, 1950, Dr. Clark sold the Highland parcel to Evelyn and Scott Sparling; this sale left the Roemer parcel landlocked. Approximately seven months later, Dr. Clark acquired the deed (i.e., legal title) to the now landlocked Roemer parcel (on Feb. 26, 1951); on January 22, 1959, he transferred the Roemer parcel to his daughter and grandson, Georgia C. and Thomas H. Roemer, the plaintiffs herein.

The Roemers had several casual discussions with the Sparlings concerning access to public roads over the Highland parcel, and at one point they hired an attorney to assist…