CopyCited 109 times | Published | Court of Appeals for the Eleventh Circuit | 20 Collier Bankr. Cas. 2d 1140, 1989 U.S. App. LEXIS 4821, 1989 WL 25699
best interests of parties in interest.” 11 U.S.C. § 704(1). As a practical matter, however, the trustee often
CopyCited 105 times | Published | Court of Appeals for the Eleventh Circuit
for which such trustee serves.” 11 U.S.C. § 704(1) (1982) (emphasis added). Section 541 defines property
CopyCited 46 times | Published | Supreme Court of Florida | 2004 WL 2359991
...Florida Bar. *1226 PARIENTE, C.J. The issue in this case is whether the Marketable Record Title to Real Property Act (MRTA), chapter 712, Florida Statutes (2003), can operate to extinguish a valid claim to a statutory way of necessity authorized by section 704.01(2), Florida Statutes (2003)....
...cked ten-acre parcel of land in Pinellas County, Florida, that Blanton purchased in 1975. [2] In his second amended complaint, Blanton asserted as one of several claims for relief that he was entitled to a statutory way of necessity as authorized by section 704.01(2)....
...in a prior case about the effect of MRTA on navigable waterbeds were non-binding dicta because there were no navigable waterbeds at issue in the prior case). Moreover, our review of the entire H & F Land opinion reveals that our discussion concerned section 704.01(1), Florida Statutes (2003), which codifies common law ways of necessity. There is no reference in the opinion to section 704.01(2), which creates the right to the statutory way of necessity at issue in this case....
...We therefore decline to apply H & F Land to this case. Rather, we take this opportunity to consider and expressly address the precise issue currently before us whether MRTA applies to statutory ways of necessity. To answer this question we must interpret the provisions of MRTA and section 704.01(2) to determine whether the Legislature intended that MRTA operate to extinguish valid claims to statutory ways of necessity....
...05(1), Fla. Stat. (2003). In sum, MRTA is a comprehensive act that contains elements of a curative act, a statute of limitations, and a recording act. See City of Miami v. St. Joe Paper Co.,
364 So.2d 439, 442 (Fla.1978). STATUTORY WAYS OF NECESSITY Section
704.01(2), Florida Statutes (2003), establishes the right to a statutory way of necessity and provides in full: STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT....
...over, under, through, and upon the lands which lie between" the landlocked parcel and the public or private road "by means of the nearest practical route." Id. No judicial determination is required for the landlocked owner to assert the right to a statutory way of necessity under section 704.01(2)....
...hed under section
712.04 if that title transaction occurred prior to the root of title. In contrast, as noted by the Real Property, Probate and Trust Law Section of the Florida Bar [7] in its amicus brief, "applying MRTA and its thirty-year clock to section
704.01(2) does not work." Amicus Curiae Brief at 9....
...ry way of necessity which existed all of the time"). We conclude, giving MRTA's language its plain and obvious meaning, that MRTA's provisions *1232 cannot act to extinguish the right to a statutory way of necessity established by the Legislature in section 704.01(2)....
...perty and except it from MRTA's recording requirements." Id. This reasoning illustrates a primary difference between a common law and statutory way of necessity. Because a common law way of necessity depends on the existence of "unity of title," see § 704.01(1), a historical examination of the chain of title is required to determine whether a landlocked property owner has a valid claim....
...nd,
736 So.2d at 1171. Although an unrecorded common law way of necessity burdens the parcel that it cuts across without clear notice and without compensation to the landowner, all landowners are on notice of statutory ways of necessity by virtue of section
704.01(2)....
...In addition, a landowner whose parcel becomes burdened by a statutory way of necessity is entitled to a judicial determination of both the "nearest practical route" and the compensation due. Finally, we recognize that we concluded in H & F Land that the "public policy concerns behind section
704.01" did not outweigh the importance "for the overall stability of property law under MRTA that claimants assert their interests in property in a reasonable and timely manner."
736 So.2d at 1176. However, we reiterate that H & F Land concerned only common law *1233 ways of necessity codified in section
704.01(1)....
...encompasses all claims to an interest in property, including ways of necessity," id. at 1172, are dicta. We recede from these statements to the extent they can be construed as holding that MRTA can act to extinguish a valid claim to a statutory way of necessity authorized under section 704.01(2). We further conclude in this case that public policy weighs in favor of holding that MRTA is inapplicable to statutory ways of necessity. In upholding the constitutionality of section 704.01(2) in 1977, the Court explained: Although state public policy may have altered with respect to the methods of land use since 1961, sensible utilization of land continues to be one of our most important goals.......
...s to believe that those enumerated uses of land in the unincorporated areas of the state still serve an important public purpose. In this case, Blanton alleges that he owns a landlocked parcel and that he is entitled to access to that property under section 704.01(2)....
...fill." §
704.03, Fla. Stat. (2003). [5] Section
704.04, Florida Statutes (2003), provides in full:
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 common-law right, objects or refuses to permit the use of such way under the conditions set forth herein or until she or he receives compensation therefor, either party or the board of county commissioners of...
...n 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 in compliance with s. 704.01(2) and shall exist so long as such easement is reasonably necessary for the purposes stated herein....
...The court, in its discretion, shall determine all questions, including the type, duration, extent, and location of the easement, the amount of compensation, and the attorney's fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2) provided that if either of said parties so requests in her or 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. [6] Section 704.01(1) expressly recognizes, adopts and clarifies the common law way of necessity: The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified....
CopyCited 31 times | Published | Florida 1st District Court of Appeal | 2001 WL 209068
...This construction of the statute finds support in the opinion in South Fla. Water Management Dist. v. Layton,
402 So.2d 597, 598 (Fla. 2d DCA 1981), where the court said, in addressing a state agency's contention that it was not a "person" within the meaning of an applicable statute: Appellant contends that section
704.01 does not apply to it because it is not a "person" within the intendment of the statute and sovereign immunity has consequently not been waived....
...icts in this state." Thus, for purposes of chapter 704, appellant concludes, a special district is not a "person." We disagree. Under the express provisions of section
1.01, the definitions contained therein apply only where the context permits. Had section
704.01 made a distinction between "persons" and "public bodies," "bodies politic," or "political subdivisions," we would agree with appellant. However, section
704.01 makes no such distinction, and we see no basis for necessarily assuming the legislature intended one here. For the reasons set forth below, we conclude that the legislature intended to include the state and its agencies within the meaning of "persons" as used in section
704.01....
CopyCited 27 times | Published | Florida 4th District Court of Appeal | 2002 WL 31557194
admissible." CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 704.1 (2002 ed.). In this case, the disputed sketch was
CopyCited 27 times | Published | Florida 4th District Court of Appeal | 1998 WL 329511
findings. This appeal follows. Pursuant to 11 U.S.C. § 704(1), a Chapter 7 trustee shall "collect and reduce
CopyCited 23 times | Published | Supreme Court of Florida
...Hampton brought suit against Fairchild-Florida Construction Co., appellee here, in connection with a parcel of real estate that had belonged to Eunice G. Hampton, and that adjoins real estate owned by the appellee. The executor sought to establish a statutory way of necessity, pursuant to Section 704.01(2), Florida Statutes (1975), [1] to allow ingress and egress over appellee's land....
...The trial court entered judgment for appellee, because the proof failed to establish that the real property belonging to the estate was "being used or [was] desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes." Section 704.01(2), supra....
...Section
73.091 directs the award of a reasonable attorney's fee in eminent domain cases brought under the provisions of Chapter 73, Florida Statutes, but does not purport to authorize the award of attorneys' fees in litigation brought under statutes in other chapters. The action in the present case was brought pursuant to Section
704.01, Florida Statutes (1975), which is silent as to attorneys' fees. Appellee argues that proceedings under Section
704.01 are in reality eminent domain proceedings, [3] relying on dicta in Stein v....
...tioner shall pay all reasonable costs of the proceeding in Circuit Court, including a reasonable attorney's fee to be assessed by the Court." In Stein v. Darby, Fla.,
126 So.2d 313, the Court specifically held that the result contemplated by Chapter
704.01(2), F.S., serves a "public purpose" in that it provides a lawful means by which to accomplish full utilization of the state's natural resources, their development in the ordinary channels of commerce and industry....
CopyCited 18 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 2199
§ 706.1 at 423-425 (2d ed. 1984). [4] Id. at § 704.1 at 411-414. [5] Celotex Corp. v. Pickett, 459
CopyCited 16 times | Published | Florida 2nd District Court of Appeal | 1989 WL 64533
(Fla. 4th DCA 1983); Ehrhardt, Florida Evidence, § 704.1 (2d ed. 1984). In this case, the expert's testimony
CopyCited 15 times | Published | Florida 4th District Court of Appeal
...1926). Basically, an easement is brought into existence by (a) an express grant or reservation, (b) by prescription (a doctrine related to adverse possession), or (c) by implication because of necessity, either by virtue of the Common Law, or statute: § 704.01, Fla....
...ffic hazard to residents on or near Francis Lane. However, an easement of necessity, provided other conditions exist *1038 permitting its creation, may be imposed only "where there is no other reasonable and practicable" means of ingress and egress. § 704.01(1), Fla....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1992 WL 385386
as to the basis for his opinion. See Ehrhardt, § 704.1, at 496 ("Whether or not the expert explains during
CopyCited 14 times | Published | Florida 1st District Court of Appeal | 56 A.L.R. 4th 1097
(Fla. 1982); accord, Ehrhardt, Florida Evidence, § 704.1 (2d Ed. 1984), at 413. As to the quality of the
CopyCited 13 times | Published | Florida 4th District Court of Appeal
...The parcel was conveyed five times thereafter, the fifth conveyance being to the Roys. Having no means of ingress and egress to their property, the Roys instituted this suit requesting the court to declare the existence of a right of way of necessity over appellee's property pursuant to the authority of Section 704.01(1), Florida Statutes (1979)....
...necessary elements for relief: 1) unity of title in a common source, and 2) reasonable necessity for such an easement for the beneficial use and enjoyment of the Roys' property. We disagree with the trial court's conclusion and reverse. By means of Section 704.01(1), Florida Statutes, the Legislature codified the common law rule of an implied grant of a way of necessity and also provided for a statutory way of necessity for landlocked property that could not qualify under the common law rule. We are here dealing with the common law way of necessity, which Section 704.01 described as follows: IMPLIED GRANT OF WAY OF NECESSITY....
CopyCited 13 times | Published | Supreme Court of Florida
...for which they expressed a willingness to pay compensation. This bill was dismissed and an appeal was taken by the Steins to the District Court of Appeal, First District. That court observed that the appellants' way of necessity was governed by Sec. 704.01(2), Florida Statutes, F.S.A., securing, under certain conditions, to an owner of land without a municipality which he used or proposed to use for agricultural or timbering purposes an easement over intervening lands....
...e land lay outside a municipality. But on the second appearance the Railroad added two specific grounds in support of the chancellor's ruling, namely (1) that an attempt was being made to take its property unlawfully for private use pursuant to Sec. 704.01(2), Florida Statutes, F.S.A., and (2) that that act was unconstitutional as applied to the facts of the case....
...was amended to comply with the district court's ruling, had not a second motion to dismiss on the ground of failure to state a cause of action become the vehicle to convey to the District Court of Appeal the question of the constitutionality of Sec. 704.01(2), supra, as it affected the petitioner-Seaboard....
...plated by the amendment. It only showed that in the mind of the chancellor the act was invalid as applied to the facts peculiar to the litigation. This is patent from the language in his decree where he expressed the "opinion that the application of Section 704.01(2), Florida Statutes to the circumstances here related to the defendant Seaboard Air Line Railroad would constitute the exercise of a power in contravention to Sections 1 and 12 of the Declaration of Rights of the Florida Constitution...
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 1999 WL 76132
...The Tiptons alleged that the right-of-way or easement had been "documented" in 1964, when the Hancocks' predecessor granted an easement to a third party. In count II Ralph and Sylvia sought a statutory way of necessity over the Hancock property under section 704.01(2), Florida Statutes (1995). Count III alleged an implied grant of a way of necessity across the properties of Harold and Polly Tipton and James and Mary Tipton pursuant to section 704.01(1)....
...Ralph and Sylvia argue, alternatively, that they are entitled either to a statutory way of necessity over the Hancocks' land or to an implied way of necessity over the two defendant Tipton properties. Ways of necessity, both implied under common law and statutory, are governed by section 704.01, Florida Statutes (1995)....
...See Bell v. Cox,
642 So.2d 1381, 1384 (Fla. 5th DCA 1994). Because we conclude that Ralph and Sylvia are entitled to an implied way of necessity over Tipton family land, they are not entitled to a statutory way of necessity over the Hancock property. Section
704.01(1), Florida Statutes (1995), states that an implied grant of a way of necessity exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of way except over her or his land, or has her...
CopyCited 13 times | Published | Court of Appeals for the Eleventh Circuit | 1993 U.S. App. LEXIS 33808, 1993 WL 503121
...It is physically impossible to enter plaintiffs’ property by land without crossing over the adjoining Eglin land. On March 15,1991 plaintiffs sued the United States pursuant to 28 U.S.C. § 2409a(a), 1 the Quiet Title Act, seeking a declaration that they had acquired an easement of necessity pursuant to Florida statute § 704.01(2)....
...g the recreation area and a nearby Navy observation site. Plaintiffs’ tract was purchased by the Wer-ner plaintiffs in 1987. They subdivided the property into three lots, retained one, and sold the other two to the other plaintiffs. As required by § 704.01(2), plaintiffs’ property is outside a municipality, and it is not disputed that they desire to use it for dwelling purposes....
...to 10:00 p.m. and then it is locked, leaving plaintiffs unable to reach their property by the access road during the remaining night hours. Discussion. Plaintiffs do not claim a common law easement or an implied easement created by Florida statute § 704.01(1). They claim a statutory easement of necessity, created by § 704.01(2)....
...§ 2409a(a): The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights (with exceptions not relevant). 2 . § 704.01(2): Statutory way of necessity exclusive of common-law right....
...ld have known of the claim of the United States. 4 . In this appeal the government does not contend that suit may not be brought under § 2409a(a) to adjudicate a claim of the existence of a statutory easement of necessity created by Florida statute § 704.01(2)....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 1989 WL 75501
...Allegedly, the opening to the basin from the public highway is 125 feet in width. Granting an easement of necessity where there is an alternative point of access is error. Matthews v. Quarles,
504 So.2d 1246 (Fla. 1st DCA 1986) (easement by necessity cannot be implied where there is other reasonable access to the property); §
704.01, Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 2006 WL 2620262
...In considering whether Escambia County is a "person" in the context of section
775.089(1), we also find persuasive the Second District's reasoning in South Florida Water Mgmt. Dist. v. Layton,
402 So.2d 597 (Fla. 2d DCA 1981). In Layton, the plaintiff sought to establish a statutory way of necessity pursuant to section
704.01(2), Florida Statutes (1979). Section
704.01(2) provided for a statutory way of necessity under certain defined circumstances where land is "shut off or hemmed in by lands, fencing, or other improvements of other persons. ..." (emphasis added). The Water Management District argued that it was not a "person" under section
704.01(2), because a body politic is not included within the definition of "person" in section
1.01(3), Florida Statutes (1979). Holding that the Water Management District was a "person" under
704.01(2), the Layton court explained: Appellant contends that section
704.01 does not apply to it because it is not a "person" within the intendment of the statute and sovereign immunity has consequently not been waived....
...icts in this state." Thus, for purposes of chapter 704, appellant concludes, a special district is not a "person." We disagree. Under the express provisions of section
1.01, the definitions contained therein apply only where the context permits. Had section
704.01 made a distinction between "persons" and "public bodies," "bodies politic," or "political subdivisions," we would agree with appellant. However, section
704.01 makes no such distinction, and we see no basis for necessarily assuming the legislature intended one here. For the reasons set forth below, we conclude that the legislature intended to include the state and its agencies within the meaning of "persons" as used in section
704.01....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal
...ich it was once a part; (3) the action of the common grantor in dividing his property created the circumstances referred to in (2); and (4) the requested means of access to a public road existed at the time of conveyance from the common grantor. See § 704.01(1), Fla....
CopyCited 10 times | Published | United States Bankruptcy Court, M.D. Florida | 1998 Bankr. LEXIS 1014, 1998 WL 477327
Chapter 7 Trustee to the Debtor under 11 U.S.C § 704(1), which provides, in relevant part: "The trustee
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...han adverse. This defeats the claim by prescription. See Daytona Beach v. Tona-Rama, Inc.,
294 So.2d 73 (Fla. 1974); Burdine v. Sewell,
92 Fla. 375,
109 So. 648 (1926). The trial judge correctly awarded the Folsoms a statutory way of necessity under Section
704.01(2), Florida Statutes (1975)....
...The trial judge could just as logically have awarded a way of necessity wide enough to include the existing utility lines. He did not, and we cannot say he erred as a matter of law in failing to do so. Rather, we think that determination of the statutory way of necessity under Section 704.01(1) is a matter where the trial judge enjoys considerable discretion....
CopyCited 9 times | Published | Florida 4th District Court of Appeal
...erty. The trial court chose the northern *495 route over the Reyes' property and the easement was defined as being ten feet wide and two hundred thirty-five feet long. Essential to a determination of this issue is an understanding and application of Section 704.01(1), (2), F.S. 1971, F.S.A.: "704.01 Common law, statutory easements defined and determined "(1) Implied grant of way of necessity....
...d from his land and that this burden should not be visited on the Reyes. We reverse and remand with respectful instructions to declare, locate, define, and adjudge a grant of way of necessity for the Perez' property through the Burches' property per Section 704.01(1), F.S....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 2459, 1988 Fla. App. LEXIS 5035, 1988 WL 117586
1985). See generally C. Ehrhardt, Florida Evidence § 704.1 at 414 (2d ed. 1984). "Where the expert's actual
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...it to this court, in the form of a brief, the facts and the law of the case. Failure to do so may result in this court's reversal through oversight of a point, and it places a burden on this court, which should be carried by counsel for the parties. Section 704.01(1) of the Florida Statutes, F.S.A....
...from the state or Federal government. The complaint here alleges that there was never any common source of title of the two parcels of property, so the complaint shows on its face that there was no justiciable issue with respect to that type of way. Section 704.01(2) of the Florida Statutes, F.S.A....
CopyCited 9 times | Published | Florida 5th District Court of Appeal
...As the title company insured the quality of the title as shown by the record and there was access of record, it was not required to aid in the suit by appellants Krause and Beane to establish a grant of necessity. AFFIRMED. ORFINGER and COBB, JJ., concur. NOTES [1] § 704.01(1), Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1988 WL 138488
...ng documents. In their second motion for summary final judgment, appellees asserted entitlement to summary judgment "because a statutory way of necessity exclusive of any common law right relieving them of trespass and damages is provided to them by Section 704.01(2) of the Florida Statutes." The trial court granted appellees' second motion for summary final judgment, reasoning that It is clear from the undisputed facts that it is absolutely necessary for the Defendant to cross property belon...
...of way across such property. This necessity precludes damages for trespass. Thereafter, the trial court denied the Parhams' motion for rehearing, and appellees' motion for attorney's fees. The provisions concerning implied easements are set forth in section 704.01, Florida Statutes, which states: 704.01 Common-law and statutory easements defined and determined....
...ty, to establish that no other express or implied easement exists. The Faison court cited Ganey v. Byrd, supra, in which this court held that a statutory way of necessity may be declared only if no other access exists by common law implication under §
704.01(1) or by express grant. Faison,
510 So.2d at 929. The court then quoted the following rationale regarding the two sections of
704.01, which is set forth in Reyes v....
...Brawner,
519 So.2d at 1133; Dixon v. Feaster,
448 So.2d 554 (Fla. 5th DCA 1984); Roy v. Euro-Holland Vastgoed,
404 So.2d 410, 413 (Fla. 4th DCA 1981). With regard to the availability of damages in a trespass action involving a way of necessity, the pertinent portion of section
704.01(2) states that an owner of a statutory way of necessity "lawfully may use and maintain an easement ...; and the use thereof, ......
...udicial determination.
472 So.2d at 547. The record in the instant case demonstrates that, as a practical matter, appellees, who are landlocked, have either a common law or a statutory way of necessity. In fact, appellees' situation meets all of the section
704.01(2) elements essential for a statutory way of necessity, save one proof of the nonexistence of a common law way of necessity....
...r proceedings. WIGGINTON and NIMMONS, JJ., concur. NOTES [1] §
704.04, Fla. Stat. (1985), provides:
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 common law right, objects or refuses to permit the use of such way under the conditions set forth herein or until he receives compensation therefor, either party or the board of county commissioners of such c...
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...the only practicable and reasonable means of ingress and egress to and from Means' land is across the common dividing line between appellants' properties over which the Means are entitled, if they choose, to a statutory way of necessity pursuant to § 704.01(2), F.S....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2004 WL 2340685
...Whispering Creek Subdivision Homeowners Association, Inc., the Kennedys, and the Cochranes. [1] Appellants, owners of landlocked property west of Port Orange, sued the adjoining property owners to establish a statutory way of necessity as defined in section 704.01(2), Florida Statutes, and lost when the trial court concluded that the Marketable Record Titles to Real Property Act (MRTA), Chapter 712, precluded their action. [2] The issue we must resolve is whether MRTA applies to statutory ways of necessity under section 704.01(2), Florida Statutes (2002)....
...n H & F Land and the differences between statutory and common law ways of necessity; 3) the public policy underlying the establishment of a statutory way of necessity; and 4) the requirements necessary to establish a statutory way of necessity under section 704.01(2), which clearly indicate that a statutory way of necessity is not the sort of claim MRTA is intended to extinguish....
...The theory of the common law easement of a way of necessity appears to emanate from the rule that he who grants a thing to someone else is understood to grant that without which the thing could not be or exist. Id. at 317 (footnotes omitted). Hence, a common law way of necessity provided for in section 704.01(1) "`arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over grantor's other land or land of a stranger.'" Reyes v....
...Because a common law way of necessity required a common source of title between the dominant and servient parcels, it became obvious that this requirement could not be met in all instances and many parcels of property would remain landlocked. Therefore, the Legislature enacted section 704.01(2) to provide relief in those instances where a common law way of necessity could not be obtained....
...A statutory way of necessity does not require a common source of title and is dependant upon the existence of numerous factors that are not necessary to the creation of a common law way of necessity. Moreover, public policy rather than legal fiction is the basic foundation for statutory ways of necessity under section 704.01(2)....
...Accordingly, we conclude that the decision in H & F Land is inapplicable to the instant case. We will next discuss the public policy upon which statutory ways of necessity are founded to explain our conclusion that MRTA does not apply to extinguish statutory ways of necessity created under section 704.01(2). Public Policy The Legislature's provision for statutory ways of necessity is rooted in public policy. Section 704.01(2), Florida Statutes (2002), provides in pertinent part: STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT....
...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. Unlike the common law way of necessity codified in section 704.01(1), Florida Statutes (2002), section 704.01(2) makes provision for the owner of the servient property to be compensated for the statutory way of necessity established across his or her property. This was not the case with the predecessor to section 704.01(2), and the courts therefore held the former version of the statute constitutionally invalid because it allowed the taking of private property without just compensation....
...The statute was subsequently amended to include the requirement that the owner of the servient property be fairly compensated for a statutory way of necessity, and this cleared the way for the court's constitutional approval of the amended statute *429 now found in section 704.01(2). The discussion of the constitutional issues raised in the decisions that analyzed the amended version of section 704.01(2) is significant because it explains that the courts considered the establishment of a statutory way of necessity to be based on public policy and the need to fulfill a public purpose rather than a legal fiction similar to that which underpins a common law way of necessity. In Stein, the court analyzed the amended version of section 704.01(2) to determine whether it violated the provisions of the Florida and federal constitutions that prohibited private property from being taken unless for a public purpose and for just compensation....
...plish full utilization of the state's natural resources, their development in the ordinary channels of commerce and industry." Stein,
126 So.2d at 316. The court explained that in order to accomplish this public purpose, the Legislature, in enacting section
704.01(2), provided for eminent domain proceedings that allowed the landlocked property owner the right to acquire a way of necessity over the servient property for just compensation: Chapter 704, F.S.A....
...e no jury is requested, in making the award of compensation. Id. at 317, 321 (emphases added). In Deseret Ranches, the court was confronted with an attempt by the plaintiff in the trial proceedings to acquire a statutory way of necessity pursuant to section 704.01(2)....
...By its application to shut-off lands to be used for housing, agriculture, timber production and stockraising, the statute is designed to fill these needs. There is then a clear public purpose in providing means of access to such lands so that they might be utilized in the enumerated ways. Id. at 156-57. Hence, section 704.01(2) serves the legitimate public purpose of allowing access to landlocked property so that it may be transformed from useless and unproductive land into valuable and productive property that provides a residence to the owner or produces valuable raw materials such as timber or agricultural products....
...the property may be condemned to being forever landlocked and useless. This would be very bad public policy because it would do nothing to promote any beneficial public purpose and it is just what the Legislature intended to prevent when it enacted section 704.01(2). The emphasis on public policy as the basis for the constitutional validity of the amended version of section 704.01(2) clearly reveals that the Legislature never intended that MRTA, whose foundational underpinning is the extinguishment of old and stale claims that adversely affect the marketability of title to the subject property, apply to extinguish the right to seek a statutory way of necessity. To hold otherwise would subvert the salutary public purpose section 704.01(2) was intended to promote....
...The deed the trial court found to be the root of title was recorded in 1956. Only interests in existence prior to 1956 could be extinguished by the MRTA. Id. at 378; see also Holland v. Hattaway,
438 So.2d 456, 466 (Fla. 5th DCA 1983). Pursuant to section
704.01(2), a statutory way of necessity comes into existence when the following are established: 1) the claimant's property is landlocked by property belonging to others; [5] 2) there is no practicable route of ingress or egress to the nearest public or private road; [6] 3) there is no right to a common law way of necessity under section
704.01(1) because there is no unity of title between the dominant (landlocked) and servient (adjoining) tracts; [7] 4) the landlocked property is situated outside a municipality; [8] 5) the landlocked property is being used or the owner desires to use the property as a dwelling or for agricultural, timber raising or cutting, *433 or stockraising purposes; [9] and 6) the statutory way of necessity sought over the adjoining parcel is the "nearest practicable route" of access. [10] Section
704.01(2) further provides that when these factors come into existence, "a statutory way of necessity exclusive of any common-law right exists...." §
704.01(2), Fla. Stat. (2003) (emphasis added). In other words, a statutory way of necessity comes into existence when these factors coalesce. §§
704.01(2), .04, Fla....
...Therefore, it is a claim or right that cannot predate the root of title to the property subject to the proceedings and it may not be extinguished by time limitations. These are the characteristics of proceedings to establish a statutory way of necessity under section 704.01(2). Because the analogous right to acquire property by eminent domain proceedings cannot be extinguished by MRTA, the right to acquire access to landlocked property via section 704.01(2) should likewise not be extinguished by MRTA....
...It should be noted that several parties named in the Second Amended Complaint, i.e., Volusia County, the St. Johns River Water Management District, and the Wheelers were not named in either partial final summary judgment. [2] There are two "ways of necessity" recognized in section 704.01: the common law way of necessity described in section 704.01(1), otherwise known as the "implied grant of way of necessity," and the statutory way of necessity described in section 704.01(2)....
...5th DCA 1987); see also Bell v. Cox,
642 So.2d 1381 (Fla. 5th DCA 1994), review denied,
654 So.2d 918 (Fla.1995). [6] Faison; see also Bell. [7] Boyd v. Walker,
776 So.2d 370, 370 (Fla. 5th DCA 2001) ("A landowner who has a common-law way of necessity under section
704.01(1) is ineligible for a statutory way of necessity under section
704.01(2).") (citing Reyes v....
...Smith,
137 So.2d 232, 233-34 (Fla. 2d DCA 1962) ("Thus, it may be seen from the language of the statute that the statutory way of necessity exists only when the lands are being used or desired to be used for the purposes specified in the statute."). [10] §
704.01(2), Fla....
CopyCited 8 times | Published | Supreme Court of Florida | 1952 Fla. LEXIS 1070
...March 11, 1952. Clyde H. Wilson, Sarasota, for appellants. Thomas W. Butler, Sarasota, for appellees. THOMAS, Justice. The appellants have posed two questions, one involving their right of passage to and from their "hemmed in" lands, secured to them by Sec. 704.01, Florida Statutes 1949, and F.S.A., and the other challenging the court's ruling excluding testimony, offered in defense of a citation for contempt, that the lands traversed in passing between their lands and a highway were not in fact owned by the appellee, Azar....
...When the order adjudging the defendant, Cleveland Guess, in contempt was entered, the chancellor added language that constituted a modification as well as an elaboration of the original injunctive decree. He then found that in view of the provisions in Section 704.01, Florida Statutes 1949, and F.S.A., the defendants had "* * * a right to a way of ingress and egress over the lands involved * * * for the purpose of home, agricultural and stock raising, but for no other purposes * * *." Stating it in...
...most limits of the State." The right to a way of necessity is founded on an implied grant, but no such implication arises from conveyances by the State. Apparently, the only relaxation of this rule ever attempted by the State was the passage of Sec. 704.01, supra....
...ich case the appellees would be compensated for the property taken. We think the chancellor was eminently correct in rejecting the testimony of ownership, so we do not disturb that ruling. No attack has been made on the constitutionality of the Sec. 704.01, supra, and of course, we make no commitment on its legality....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2001 Fla. App. LEXIS 8068, 26 Fla. L. Weekly Fed. D 1471
court." Charles W. Ehrhardt, Florida Evidence § 704.1, at 619 (2001) (footnote omitted); Bender v. State
CopyCited 8 times | Published | Supreme Court of Florida | 24 Fla. L. Weekly Supp. 264, 1999 Fla. LEXIS 1047, 24 Fla. L. Weekly Fed. S 264
...e at one time entitled to a way of necessity by reason of the 1940 transaction, which left the small parcel now owned by H & F water- and landlocked. At issue today is the effect of MRTA on this way of necessity, now codified under the provisions of section 704.01(1), Florida Statutes (1995)....
...First, whether a claim under a common law way of necessity is an interest in land subject to MRTA? And, second, if so, are there any exceptions in MRTA that apply to preserve the way of necessity despite the failure to assert a claim to this right within the time limitations provided in MRTA? BACKGROUND OF MRTA AND SECTION 704.01 In landmark legislation fundamentally revamping Florida property law, the Florida Legislature adopted MRTA in 1963 for the purpose of simplifying and facilitating land title transactions....
...ng land title transactions by allowing persons to rely on a record title as described in §
712.02 subject only to such limitations as appear in §
712.03." §
712.10, Fla. Stat. (1995). [11] While we also recognize the public policy concerns behind section
704.01, we conclude that it is important for the overall stability of property law under MRTA that claimants assert their interests in property in a reasonable and timely manner....
...We therefore answer the certified question in the affirmative and approve the decision below. It is so ordered. *1177 HARDING, C.J., SHAW, WELLS and PARIENTE, JJ., and OVERTON, Senior Justice, concur. NOTES [1] H & F's land is located in Section 18, Township 3 South, Range 14 West, Bay County, Florida. [2] Section 704.01(1) in relevant part provides: Such an implied grant [an implied grant of a way of necessity] exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over his land, or h...
CopyCited 8 times | Published | Florida 5th District Court of Appeal
...nd amended complaint was error. The trial court was apparently erroneously led to believe that an easement by implication must depend on a showing *963 of "strict necessity" such as is required to claim a common-law way of necessity, now codified in section 704.01, Florida Statutes (1983), but that standard is too rigorous in determining whether or not there exists an easement by implication as is asserted here....
...erty. On the element of "necessity," Florida courts recognize that the degree of necessity required to be alleged fluctuates with the type of implied easement. For example, the common-law implied grant of a way of necessity is codified in Fla. Stat. § 704.01 and requires that in order for such an easement to exist there must be "no other reasonable and practicable way of egress, or ingress" and the easement must be "reasonably necessary for the beneficial use or enjoyment of the part granted or...
CopyCited 8 times | Published | Supreme Court of Florida | 1977 Fla. LEXIS 3900
...In December 1975 Dorothy Bowman and other trustees of a certain trust filed a complaint in the Circuit Court, Ninth Judicial Circuit, in and for Osceola County, against Deseret Ranches of Florida, Inc. Among the types of relief sought was establishment of a way of necessity pursuant to Section 704.01(2), Florida Statutes: "(2) Statutory way of necessity exclusive of common law right....
...SUNDBERG, J., dissents with an opinion, with which ENGLAND, J., concurs. SUNDBERG, Justice, dissenting. I must respectfully dissent from the majority opinion which upholds as nonviolative of Article X, Section 6(a), Florida Constitution of 1968, the provisions of Section 704.01(2), Florida Statutes (1975)....
...mpensation therefor paid to each owner." There can be no doubt that the condition of full compensation is met by the statute in question. Section
704.04, Florida Statutes (1975), provides a judicial remedy and compensation to the servient owner when Section
704.01(2) is invoked. My colleagues and I depart on the question of whether the condition of "public purpose" is satisfied by Section
704.01(2). I am firmly convinced that it is not. It should be noted at the outset that Section
704.01, Florida Statutes (1975), recognizes two types of ways of necessity. By Section
704.01(1), the common law rule of an implied grant of a way of necessity is "recognized, specifically adopted, and clarified." As pointed out in Stein v....
...m the conveyance by the common grantor. It is a right inuring in the estate of the grantee which arises at the time of the conveyance by the common grantor. Principles of eminent domain are not applicable. However, it is clear from the very title of Section 704.01(2), Florida Statutes (1975), that the statutorily created way of necessity is exclusive of the common law right with no necessity to establish the elements essential to application of the common law rule....
...ll materially benefit, protect, and conserve the health, safety, morals and general welfare of all the citizens of the City... . Id. at 747. In the instant case there is no showing of any dominant public purpose to be served through the operation of Section 704.01(2), Florida Statutes (1975)....
...1950), as being without precedential value on the subject at hand, as does the majority in footnote 3 to the opinion. The majority categorically concludes without analysis that the absence of a requirement *159 of compensation to the servient owner was the only impediment to the predecessor of Section 704.01(2) found in South Dade Farms....
...Section 12 of the Declaration of Rights provided in pertinent part: No person [i] shall ... be deprived of life, liberty, or property without due process of law; [ii] nor shall private property be taken without just compensation. It is crystal clear to me that this Court determined that the predecessor of Section 704.01(2), Florida Statutes (1975), violated both conditions limiting exercise of the power of eminent domain, i.e., (1) the taking must be for a public purpose, and (2) just compensation must be paid for that which is taken....
...hbor regardless of the requirement that full compensation shall be paid. It is no consolation to assert that the right-of-way easement is temporary and shall exist only so long as it is reasonably necessary for the purposes stated in the statute. If Section 704.01(2), Florida Statutes, is held not to violate Article X, Section 6(a), then there can be no rational basis to restrict the power of the legislature to delegate the authority to take permanently. Mindful as I am of the presumption of validity which accompanies a solemn act of the legislature when it comes to this Court under attack, nonetheless I cannot square the operation of Section 704.01(2) with the constitutional guarantees of Article I, Section 2, and Article X, Section 6(a)....
....." Art. V, § 3(b)(3), Fla. Const. [3] Arguments that the statute works a denial of property without due process of law are without merit. Section
704.04, Florida Statutes, provides for judicial remedy if the servient owner objects to a claim under Section
704.01(2). The objections to statutory easements of Section
704.01 voiced by this Court in South Dade Farms v....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1989 WL 104487
DCA 1985). See also Ehrhardt, Florida Evidence § 704.1. Appellant's reliance on Bender v. State, 472 So
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...ingress or egress" for both aircraft and motor vehicles across express *509 easements provided for by these agreements which adopted the terms and conditions of the original 1965 lease. In Count II, appellant alternatively sought, in accordance with section 704.01(1), Florida Statutes (1979), to establish implied easements by "way of necessity" over property leased to LFS in order that he be able to beneficially use the leasehold estate (hangar # 3) conveyed to him by LFS....
...her were executed with the formalities required for the grant of an easement. 4. As a matter of law, from the facts as established by the pleadings, depositions, answers to interrogatories, and affidavits, there is no implied easement, as defined by 704.01(1), Florida Statutes, available to the plaintiff over lands leased to the defendant, LAKELAND FLYING SERVICE, INC., inasmuch as 704.01(1), Florida Statutes, does not provide for aircraft access to and from public runways. On appeal, appellant contends the trial court erred in determining the easement questions at the summary judgment stage and in ruling that (1) the 1975 purchase and sale agreement and related documents do not create any express easements and (2) section 704.01(1), Florida Statutes (1981), does not provide for a "way of necessity" for aircraft access to and from public taxiways and runways....
...y judgment stage that no express easements were created by the October 1975 Agreement and Lease, we hold the trial court also committed error in ruling that, as a matter of law, a "way of necessity" for aircraft access could not be established under section 704.01(1), Florida Statutes (1981). Neither party has directed our attention to a case specifically on point, and our independent research indicates to us the issue seems to be one of first impression. Section 704.01 provides, inter alia: The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified....
...landlord-tenant situations, especially in light of the fact that many leases are for extended periods of time and most leases contemplate a specific use. Consequently, the main issue before us is whether a "way of necessity" can be recognized under section
704.01(1) where a lessee properly receives a leasehold estate which is intended to be used for aircraft storage, maintenance, flying instruction, and flying services, but the property is so positioned that access to it from public airport taxiways and runways by aircraft is not possible except by traveling over a portion of the lessor's estate. We believe an affirmative answer to this question is in order upon a plain and ordinary construction of section
704.01(1) and upon examining the policy underlying the recognition of the "way of necessity," especially when we apply the principle to a present day problem relating to easements and the inaccessibility of property. Cf. Redman v. Kidwell,
180 So.2d 682, 684 (Fla. 2d DCA), cert. denied,
188 So.2d 806 (Fla. 1965), and appeal dismissed
189 So.2d 631 (Fla. 1966). First, section
704.01(1) does not restrict the application of the doctrine to any particular type of "lands or estates." Additionally, the statute provides no limitation on the nature or physical makeup of the "way" sought to be imposed....
...our entire transportation system and are specifically provided for the movement of people and property. Very important in our decision to recognize that a "way of necessity" might be proper in a case such as the present one is the policy underlying section 704.01(1) and its common law predecessor....
...ct the trial court on remand, if it concludes that no express easement for aircraft access exists, to determine whether the facts of this particular case require a "way of necessity" to be recognized. The trial court must look to the requirements of section
704.01(1), this opinion, and the cases construing the statutory provision when making its determination. See Star Island Associates; Dinkins v. Julian,
122 So.2d 620 (Fla. 2d DCA 1960). Furthermore, should the trial court rule that appellant is entitled to a "way of necessity," we note that section
704.01(1) "clearly contemplates that such a way of necessity be of reasonable length and width, consistent with the needs of the owners or lessees of the lands that are hemmed in." Hayes v....
...the airport facility. Accordingly, because we find genuine issues of material fact exist as to this issue as well, the trial court is further directed, if it finds an express easement does not exist with respect to this matter, to determine whether section 704.01(1) requires that a "way of necessity" be recognized and imposed over property leased to LFS....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1988 WL 48987
2d DCA 1975); 1 C. Ehrhardt, Florida Evidence § 704.1 (2d ed. 1984). Whether the pipe used in the bombs
CopyCited 7 times | Published | Florida 5th District Court of Appeal
...District Court of Appeal of Florida, Fifth District. March 29, 1984. *556 T. Allen Crouch, Gainesville, for appellants. H. Randolph Klein of Klein & Klein, Ocala, for appellees. COWART, Judge. This case involves the right to a way of necessity as that common law concept is recognized in section 704.01(1), Florida Statutes (1981)....
...Lynn Feaster conveyed 5 acres in his 40 acre tract to his son and daughter-in-law, Jerome W. and Patricia Feaster, who, desiring a shorter and better route to their 5 acres, filed an action against the children of Mrs. Dixon and their spouses to establish an easement of necessity under section *557 704.01(1), Florida Statutes, from the 5 acre tract easterly to County Road 329. The trial judge found that Jerome W. Feaster and wife were entitled to a way of necessity at the location shown as Route 3 on the above sketch and the defendants appeal. We reverse. Section 704.01(1), Florida Statutes (1981), provides: (1) IMPLIED GRANT OF WAY OF NECESSITY....
...the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise. As section 704.01(1), Florida Statutes, makes clear, in order to entitle an owner of a dominant estate to a way of necessity over the servient estate both properties must have at one time been owned by the same party....
...Feaster and wife do not want the benefit of this easement at this route. They claim, and apparently the trial judge agreed, that they have no legal easement over this route "created by prescriptive use" and, therefore, that they have no legal access and, having none, they are entitled under section 704.01(1), Florida Statutes, to have the law imply a way of necessity to them and that the route, the use of which will be most beneficial to their 5 acre tract, and the one which is most "practicable" and which they will most enjoy, is a route across appellants' lands due east from their 5 acres to the county road....
...or as was necessary for access for the grantee to use the property conveyed or that the parties intended the grantor to retain whatever easement over lands conveyed as was necessary to retain access for the grantor to continue to use lands retained. Section 704.01(1), Florida Statutes, purports to recognize, adopt and clarify this common law rule of an implied grant of a way of necessity....
...If the present or future owners of portions of the back 80 acres in this case continue to fail to consider the need for express easements of ingress and egress and continue to subdivide and upgrade the use of the land and are always successful in looking to the courts to provide their current needs under section 704.01(1), Florida Statutes, where will it all end? When J....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...The complaint, before the last amendment made in pursuance of this court's mandate, sought a decree of the Circuit Court of Duval County which would grant plaintiffs a way of necessity across the Railroad's right of way to reach a certain public highway, under authority of F.S. Section 704.01(2), F.S.A., as well as certain *315 relief against the Darbys with which we are not concerned on this appeal....
...After such amendment by plaintiffs the Railroad again moved to dismiss on the specific grounds (1) that the complaint as last amended fails to state a cause of action, (2) that the complaint seeks to take unlawfully the Railroad's private property, or an interest therein, for private use pursuant to F.S. Section 704.01(2), F.S.A., and (3) that said statute is unconstitutional in that it purports to authorize the taking of private property for private use....
...ocial order. In that process it is axiomatic that exceptions prove the rule and that bad precedents do not make good law. Applying these concepts to the statutory and constitutional provisions with which we are concerned on this appeal, we hold that Section 704.01(2), Florida Statutes, F.S.A., is clearly constitutional and that the second amended complaint, framed in accordance with the decision of this court on the prior appeal, is legally sufficient to state a cause of action against the defendant Railroad....
...a cause of action against this defendant." The identical ground, and none other, is the predicate for the motion to dismiss resulting in the order now on review, which dismissed the complaint as to only the defendant Railroad on a finding that F.S. Section 704.01(2), F.S.A....
...as distinguished from "public benefit", courts are inevitably close to the role of lawmakers. That role is less spectacular, however, when the legislature has provided an answer consistent with a proper rule of law, as is true of that part of F.S. §§
704.01(2) and
704.04 F.S.A., with which we are concerned. The statutes provide: F.S. §
704.01(2), F.S.A.: "(2) Statutory way of necessity exclusive of common law right....
...l be available therefrom to the nearest practicable public or private road. * * *" F.S. §
704.04, F.S.A.: "Judicial remedy and compensation to servient owner. When the owner or owners of such lands across which a statutory way of necessity under §
704.01(2) is claimed, exclusive of the common law right, objects or refuses *317 to permit the use of such way under the conditions set forth herein, or until he receives compensation therefor, then either party or the board of county commissioner...
...effectual. In enacting Chapter 704, F.S.A., however, the legislature recognized that the common law rule failed to meet the exigency in all cases and provided relief for those instances where it could not apply. Note that the first paragraph of F.S. § 704.01, F.S.A....
...[9] While we find no Florida precedent directly in point, the constitutionality of the subject statute has inferentially been recognized in Bradshaw v. Prasek, Fla.App.,
114 So.2d 821, affirming the denial of a summary judgment, in which the court quoted §
704.01(2), Florida Statutes, F.S.A., with approval....
...This leads to the inevitable conclusion that we cannot and must not assume that the trial judge in order to reach his decision to dismiss the original complaint, or this Court in affirming his action on the first appeal, directly passed on the validity of F.S.A. Section 704.01(2), F.S.A., as applicable to the circumstances of this case....
...cess prescribed in the legislative enactment, a private right-of-way or way of necessity over the private property of another. In this case appellants, plaintiffs below, filed this suit against the Darbys and the Railroad under the authority of F.S. Section 704.01(2), F.S.A....
...nd. They seek a decree of the Circuit Court ordering the Railroad to grant them the right-of-way, and offer to compensate the Railroad as they may be directed by the Court. They claim to have this right and remedy by virtue of the provisions of F.S. Section
704.01(2),
704.04, F.S.A....
...The Railroad contends that the statute is violative of constitutional provisions referred to in the trial court's order dismissing the suit as to the defendant Railroad. The assignment of error raises the question as to the constitutionality of the statute as applied to the defendant Railroad in this case. The statute (Sec. 704.01(2)) provides that based on public policy, convenience and necessity, a statutory way of necessity *323 (exclusive of any common law right) exists when any land outside of any municipality which is used for agricultural or for timber raising or...
...ction they may do so only through a valid exercise of either the State's police power or right of eminent domain, or both. That the appellees may not secure the easement through the exercise of the State's police power as would be authorized by F.S. Section 704.01(2), F.S.A....
..., therefore, believe that the appellees have no right through the exercise of either the police power or power of eminent domain, to acquire the claimed way of necessity over the Railroad's property without its consent, and that insofar as F.S. Sec.
704.01(2),
704.04, F.S.A....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1988 WL 8385
...cel C (Parcel A), and Parcel B-1 was acquired by the Brawners. The following diagram from the record demonstrates the locations of the pertinent parcels and roads: *1132 Moran brought an action against the Brawners and Rita L. Jones, [1] pursuant to section 704.01, Florida Statutes (1985), [2] in *1133 order to "establish a common law implied grant of way of necessity for ingress and egress over and across lands owned by [the Brawners]." Moran sought an easement along the easterly boundary of th...
...tor have had unimpeded, open, adverse use of the dirt road as access to Plaintiff's property for more than 33 years. The Plaintiff has a reasonable and practicable way of egress and ingress and the implied grant of easement sought by Plaintiff under Section 704.01(1), Florida Statutes, is not reasonably necessary for the beneficial use or enjoyment of Plaintiff's Parcel A land....
...y was *1134 reasonably necessary for the beneficial use or enjoyment of the land granted to her by Jones. [5] AFFIRMED. SHARP, C.J., and DAUKSCH, J., concur. NOTES [1] Jones was included in the complaint as the mortgagee of the subject property. [2] Section 704.01, Florida Statutes (1985), provides as follows: IMPLIED GRANT OF WAY OF NECESSITY....
...[5] If Moran should undertake an action against Spolski to establish a prescriptive easement via the existing dirt road on his property and lose in that action, she could then seek a statutory way of necessity across the Brawner property pursuant to section
704.01(2), Florida Statutes (1985), and section
704.04, Florida Statutes (1985) (dealing with compensation therefor).
CopyCited 6 times | Published | United States Bankruptcy Court, M.D. Florida | 1996 Bankr. LEXIS 1621, 1996 WL 732093
estate must be collected by the trustee, 11 U.S.C. § 704(1), and distributed as provided by law. 11 U.S.C
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22517975
...he Schomburg deed transaction relied on this survey map prior to and at the time of the closing, according to Mills. Subsequently, the court reconvened to consider Thrasher's counterclaim and ruled that she held a common law easement, as codified at section 704.01(1), Florida Statutes (2002), over Parcel Two and established two separately described easements across the strip for her use....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1655
...he grantor, the common law presumed that the parties intended for the grantee to have an access easement over the land of the grantor. Dixon v. Feaster,
448 So.2d 554 (Fla. 5th DCA 1984). This implied grant of a way of necessity has been codified as section
704.01(1), Florida Statutes (1983). The legislature also provided a statutory way of necessity to enable the owner of landlocked property to have access across his neighbor's land when title to both properties is not deraigned from a common grantor. §
704.01(2), Fla....
...Sapp then seeks to limit the quoted statement from Hanna v. Means to the case of a common law way of necessity by arguing that a person is not entitled to a statutory way of necessity until the court determines its existence. However, the statute belies his position. Section 704.01(2) provides that "a statutory way of necessity ......
...in an orderly and proper manner." In order to obtain an easement by prescription, the use must be such that the owner has a legal right to prevent it through an action for trespass or ejectment. Downing v. Bird,
100 So.2d 57 (Fla. 1958). Yet, under section
704.01(2), the servient owner cannot establish a claim of trespass against the dominant owner....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2006 WL 305433
...If they had, we wouldn't be here." [10] Because both parties have road access under the division of property recommended in the Report, we need not decide whether the trial court is authorized to establish a way of necessity in connection with an action for partition. See § 704.01-.04, Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1998 WL 890209
...ad. The Whitesides thus do not lack access to their property but they do lack convenient access to the river front portion of it where they built their home. In Florida the common law rule of an implied grant of way of necessity has been codified at section 704.01, Florida Statutes: (1) Implied grant of way of necessity.- The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified....
...Claimants such as the Whitesides seeking to establish a way of necessity have the burden of proof to establish that they have no practicable route of ingress or egress. Moran v. Brawner,
519 So.2d 1131 (Fla. 5th DCA), rev. denied,
528 So.2d 1182 (Fla.1988). The term "practicable" as used in
704.01(1) is defined to mean "without the use of bridge, ferry, turnpike road, embankment or substantial fill." §
704.03, Fla. Stat. Under section
704.01(1), no easement can be inferred from a conveyance that creates no necessity....
...or as was necessary for access for the grantee to use the property conveyed or that the parties intended the grantor to retain whatever easement over lands conveyed as was necessary to retain access for the grantor to continue to use lands retained. Section 704.01(1), Florida Statutes, purports to recognize, adopt and clarify this common law rule of an implied grant of a way of necessity....
...cessity."
549 So.2d at 1095. Subsequent to Tortoise Island, we again held that a claimant is not entitled to elect as between several adequate means of access, even though one may be more convenient than another. See Moran. The Whitesides argue that section
704.01(1) should not be construed so as to deny them an easement to the portion of the land that was contemplated by the parties to be used for their home....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal
...nd III, founded on the same facts as count I, were not frivolous. Reversed. LEHAN, A.C.J., and PARKER, J., concur. NOTES [1] Count I implied easement; count II easement by prescription; and count III a statutory way of necessity pursuant to section 704.01(2), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1989 WL 113235
...Costin, Jr., of Costin and Costin, Port St. Joe., for appellee/cross-appellant. ZEHMER, Judge. George and Bennie Hunter appeal a final judgment granting Marquardt, Inc., a twelve-foot common law easement of necessity through their property pursuant to section 704.01(1), Florida Statutes (1987)....
...erty for expansion of its marina to include additional wet slips. The evidence is undisputed that the property could not be used for any type of residential or occupancy structure. In 1987, Marquardt, Inc., sued the Hunters to establish, pursuant to section 704.01(1), a common law implied grant of an easement of necessity over the Hunters' property, and demanded an injunction restraining the Hunters from interfering with such easement and an injunction requiring the Hunters to remove any structure impeding such easement....
...We agree with Judge Cowart's reasoning and adopt it as our own. [Emphasis added.] Applying the reasoning of the dissent so adopted by the supreme court, we conclude that Marquardt failed to prove the requisite necessity of the easement for the beneficial use and enjoyment of the purchased land specified in section 704.01(1) as construed in the Tortoise Island case....
...llow the beneficial use and enjoyment of the parcels acquired from the Hunters. The judgment is reversed and the cause is remanded for entry of judgment consistent with this opinion. REVERSED AND REMANDED. ERVIN and WENTWORTH, JJ., concur. NOTES [1] Section 704.01(1), Florida Statutes (1987), states, in pertinent part: ......
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 2088
...This appeal followed. Appellants claim the trial court erred in granting the appellee an easement by way of necessity over the lands of the appellants. We disagree and affirm. Florida has specifically adopted the common law easement by way of necessity in Section 704.01(1), Florida Statutes (1983)....
...tween several adequate means of access even though one means of access may be more convenient than another.
404 So.2d at 413. Moreover, the court's position in Roy, supra, is supported by the language of the relevant statute. The relevant portion of Section
704.01(1), Florida Statutes (1983), provides that an implied easement of a way of necessity "exists where there is "no other reasonable and practicable way of egress or ingress......
CopyCited 5 times | Published | United States Bankruptcy Court, M.D. Florida | 11 Fla. L. Weekly Fed. B 131, 1997 Bankr. LEXIS 1978, 1997 WL 746980
liquidate the property of the estate. 11 U.S.C. § 704(1) (1997). Reviewing correspondence which will assist
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...retains whatever is necessary for the beneficial use of the land he still holds. 17 Am.Jur., Easements, Sections 58-65. Thompson on Real Property, Sections 390 and 392. This common-law way of necessity is specifically recognized and adopted in Sec. 704.01(1), Florida Statutes, F.S.A., as follows: "(1) Implied grant of way of necessity: The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted and clarified....
...ransferred for nonpayment of taxes either by foreclosure, reversion or otherwise." The word "practicable," as used in the above statute, is defined in Sec.
704.03, as follows: "That for the purposes of this chapter the word `practicable', as used in §
704.01, shall be held and construed to mean `without the use of bridge, ferry, turnpike road, embankment or substantial fill'." At the said final hearing the plaintiff's evidence, together with the answers to interrogatories and admissions by the...
...yone * * *" and because *895 the "said old road has been open and in use for forty-five years last past. * * *" In so finding and holding, the court apparently overlooked the effect of the words "reasonable and practicable" in the fourth sentence of Section 704.01(1), Florida Statutes, F.S.A., quoted above, which sentence reads: "Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress or ingress and same is reasonably necessar...
...or ingress" and the same is "reasonably necessary for the beneficial use or enjoyment" of the land which the plaintiff had purchased from the defendants. The evidence also satisfied the other requirements for a way of necessity as set forth in Sec. 704.01(1)....
...vidence further showed that he had to trespass upon the northwest corner of the defendants' said remaining property in order to reach the said road from his land. Compare our decision in Hayes v. Reynolds,
132 So.2d 781 (1961), in which we held that Section
704.01(1) "clearly contemplates that such a way of necessity be of a reasonable length and width, consistent with the needs of the owners of the lands that are hemmed in." The final decree appealed from is reversed and the cause is remanded w...
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1999 WL 129505
...nown as Yon's Landing, was part of Government Lot 3, appellant's property. The survey revealed that Yon's Landing is in fact part of Government Lot 4 but is separated from the rest of Government Lot 4 by Ocheessee Pond. The trial court, relying upon section 704.01(1), Florida Statutes (1995), granted appellees a common law way of necessity through appellant's property....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1507
...Smith's complaint alleged that her property was hemmed in, she had no access or reasonable way of egress or ingress, and her land was completely isolated from any county road or street. The complaint also alleged that the action was brought pursuant to section 704.01(2) Florida Statutes....
...r not she was entitled to a common law easement to a public or private road across either Faison's property or any other property. The court found that the existence vel non of a common law easement is an affirmative defense, and not an element of a section 704.01(2) complaint for a statutory way of necessity....
...ilable. Faison appeals from the judgment granting the easement. The question presented by this appeal is which party has the burden of proof in an action for a statutory way of necessity to establish that no other express or implied easement exists. Section 704.01 defines common law and statutory easements as follows: (1) IMPLIED GRANT OF WAY OF NECESSITY....
...ands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner. §
704.01, Fla. Stat. (1985). In Ganey v. Byrd,
383 So.2d 652 (Fla. 1st DCA 1980), the court held that a statutory way of necessity may be declared only if no other access exists by common law implication under section
704.01(1) or by express grant. In Reyes v. Perez,
284 So.2d 493 (Fla. 4th DCA 1973), the court discussed the two sections of
704.01 and held: It is our fundamental outset reasoning, gained from the terms of the statute, that the two sections must be considered serially and that the existence of a common law easement as described in section (1) bars the establishment of a statutory easement under section (2)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...ong defendant's western property line and upon her land. Under appeal point one, plaintiffs controvert the chancellor's holding that no right to a common law way of necessity had been established. The common law rule as to this has been clarified by section 704.01(1), Florida Statutes, F.S.A., which specifically recognizes and adopts it....
...ng separated from it wholly by the bulk of the lands of plaintiffs. It is our view that under the circumstances plaintiffs have failed to establish unity of title or implied grant to the degree which would support a common law way of necessity under section 704.01(1)....
...When the presumption of correctness of the chancellor's decision is viewed, along with the burden with which plaintiffs were charged, it is our belief that no reversible error has been shown. We are not concerned here with a statutory easement by way of necessity under section 704.01(2), which permits acquisition of an easement through the medium of compensation....
CopyCited 5 times | Published | Supreme Court of Florida | 1952 Fla. LEXIS 1905
...The facts, to summarize, seem simple. Claiming to be hemmed in, an adjoining owner claims the right to use his neighbor's private road because common-law *351 easements and dedicated road sites are not usable. Sole basis for the relief and for the final decree is Section 704.01, Florida Statutes 1951, and F.S.A....
CopyCited 5 times | Published | United States Bankruptcy Court, S.D. Florida. | 13 Fla. L. Weekly Fed. B 287, 44 Collier Bankr. Cas. 2d 1267, 2000 Bankr. LEXIS 939
of the bankruptcy estate. Pursuant to 11 U.S.C. § 704(1), a bankruptcy trustee has the duty to collect
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...blished. The said count of the complaint prayed for a determination of a common law way of necessity over defendants' property, and as a result that the plaintiff has an implied grant of way of necessity over defendants' property by reason of F.S.A. § 704.01(1). F.S.A. § 704.01(1) adopts the common law rule that when a grantor conveys part of his land which has no access to a public road, the grantor also grants a way across the land he retains....
...t compensation. The trial court in dismissing Count I held that the plaintiff was not entitled to a common law way of necessity across the land of the defendants as a means of ingress and egress to his property. With this holding we disagree. F.S.A. §
704.01(1) adopts the common law rule of an implied grant of a way of necessity "where there is no other reasonable and practicable way of egress or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved." F.S.A. §
704.01(2) provides for a statutory way of necessity where no common law right exists across the land of another where "no practicable route of egress or ingress" is available to the nearest public or private road. F.S.A. §
704.03 defines "practicable" as used in F.S.A. §
704.01 to mean "without the use of bridge, ferry, turnpike road, embankment or substantial fill." For centuries rivers, lakes, seas and oceans provided the principal means of transportation....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1991 WL 35290
Annot. at 216-17; C. Ehrhardt, Florida Evidence § 704.1. Equally misplaced is the wife's reliance on section
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...of the defendants. Appellant moved to dismiss the complaint on the grounds that (1) appellee's proposed easement crossed easements belonging to the U.S. Army Corps of Engineers, so the Corps was an indispensable party, which had not been joined; (2) section 704.01(2), Florida Statutes does not grant relief against a state agency; and (3) the facts alleged did not demonstrate that appellee's proposed route over its property was the most practical means of ingress and egress....
...We find no error on any of the points raised by appellant. However, because the question of whether a cause of action exists against the state or an agency thereof for a statutory way of necessity is an issue of first impression in Florida, we feel this question merits discussion. Section 704.01 provides for a statutory way of necessity....
...the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner. Appellant contends that section 704.01 does not apply to it because it is not a "person" within the intendment of the statute and sovereign immunity has consequently not been waived....
...icts in this state." Thus, for purposes of chapter 704, appellant concludes, a special district is not a "person." We disagree. Under the express provisions of section
1.01, the definitions contained therein apply only where the context permits. Had section
704.01 made a distinction between "persons" and "public bodies," "bodies politic," or "political subdivisions," we would agree with appellant. However, section
704.01 makes no such distinction, and we see no basis for necessarily assuming the legislature intended one here. For the reasons set forth below, we conclude that the legislature intended to include the state and its agencies within the meaning of "persons" as used in section
704.01....
...e statute is designed to fill these needs. There is then a clear public purpose in providing means of access to *599 such lands so that they might be utilized in the enumerated ways. Id. at 156-157. If no cause of action against the state lies under section 704.01(2), then the public policy purposes of providing such access to land would be totally frustrated and defeated if any private property were surrounded by state land....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...This dispute involves a configuration of separately owned land parcels as reflected in the following sketch: The appellant owns the Fox property and the appellees own the Thomas property. In this action the appellant sought a statutory easement across the Thomas property pursuant to section 704.01(2), Florida Statutes (1981)....
...The trial judge rendered a final summary judgment adverse to the appellant on the authority of Reyes v. Perez,
284 So.2d 493 (Fla. 4th DCA 1973). The Reyes decision stands for the proposition that the existence of a common law easement as described in section
704.01(1) bars the establishment of a statutory easement under section
704.01(2)....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 42 Collier Bankr. Cas. 2d 1713, 13 Fla. L. Weekly Fed. B 1, 1999 Bankr. LEXIS 1258
for which such trustee serves . . ." 11 U.S.C. § 704(1); see In re Hyman,
123 B.R. 342, 347 (9th Cir.
CopyCited 3 times | Published | United States Bankruptcy Court, N.D. Florida | 20 Fla. L. Weekly Fed. B 20, 2006 Bankr. LEXIS 2606, 2006 WL 2927430
property of the estate and reducing it to money. § 704(1). To carry out this task, the Trustee must ascertain
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 2330812
laboratories. See Charles W. Ehrhardt, Florida Evidence § 704.1 (2004). Section
90.704 enables a party to present
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 2009 Bankr. LEXIS 562, 2009 WL 712442
211 (Bankr.N.D.Ala.2000) (referencing 11 U.S.C. § 704(1)). As such, this belated agreement by the debtor's
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 6 Fla. L. Weekly Fed. B 147, 1992 Bankr. LEXIS 868, 23 Bankr. Ct. Dec. (CRR) 74
Trustee has a duty and is required pursuant to Section 704(1) of the Bankruptcy Code to collect and reduce
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 492949
...e Trammells access to their 40-acre parcel. The trial court issued a summary denial of the motion for rehearing. At the hearing of this cause, the Wards' counsel recognized the Trammells were entitled to a statutory way of necessity, as set forth in section 704.01(2), Florida Statutes....
...practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. "Practicable" is defined in section
704.03, which states: That for the purposes of this chapter the word "practicable," as used in §
704.01, shall be held and construed to mean "without the use of bridge, ferry, turnpike road, embankment or substantial fill"....
...ocked 40-acre parcel. In other words, the only evidence on this question indicates that E-1, as drawn by the Wards' counsel and adopted by the trial court, is not a "practicable" route to the 40-acre parcel, *226 within the contemplation of sections
704.01(2) and
704.03, Florida Statutes....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1980 Fla. App. LEXIS 17512
...cessary to establish a prescriptive right. [1] Guerard v. Roper,
385 So.2d 718 (Fla. 5th DCA 1980). REVERSED. DAUKSCH, C.J., and SHARP, J., concur. NOTES [1] Count II of the initial complaint was to establish a statutory way of necessity pursuant to section
704.01(2), Florida Statutes....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit
claims procedures. 42 U.S.C. § 1651(a); 20 C.F.R. § 704.001. 2 . Because DynCorp timely contested
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 20 Fla. L. Weekly Fed. B 167, 2006 Bankr. LEXIS 3609, 2006 WL 3792686
powers.[36] He has fulfilled the directives of § 704(1). The funds held by the Trustee constitute property
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 2598, 1987 Fla. App. LEXIS 10896, 1987 WL 1349
...After Hechavarria and the Department of Transportation rejected Blue Water's request for passage across their properties, Blue Water institiated suit against Hechavarria and the Department of Transportation for a statutory way of necessity pursuant to section 704.01(2), Florida Statutes (1985), which provides: Based on public policy, convenience, and necessity, a statutory way of necessity ......
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 20042
...Richardson, Tallahassee, of counsel, Roberts, Baggett, LaFace, Richard & Wiser, P.A., Tallahassee, for appellee. PER CURIAM. The Morrills contend that appellee developer, who concedes their claim to an implied right-of-way across the developer's land under section 704.01(1), Florida Statutes (1981), has a duty to keep a portion of this right-of-way usable at all times....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 6432, 2015 WL 1942920
..., we dismiss this appeal for lack of jurisdiction. The operative pleading, the sécond' amended complaint, alleged seven counts: (I) injunctive relief; (II) declaratory relief; (III) common law way of necessity; (IV) statutory way of necessity under section 704.01, Florida Statutes; (V) trespass on the case; (VI) damages for interference with easement; and (VII) slander of title....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 20 Fla. L. Weekly Fed. D 143
...The Rasberrys' 1977 conveyance to Adams' predecessor in title caused parcel B's initial "landlocking." Although parcel C was conveyed along with parcel B, neither was accessible by public road or right-of-way, while parcel D remained accessible by Antioch Road. Section 704.01(1), Florida Statutes (1993), provides: The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted and clarified....
...ed to exist upon the termination of the necessity which gave rise to it. Further, the Rasberry's have terminated their permissive use of the trial road by Enzor. Whether or not Dr. Enzor would have been entitled to a statutory way of necessity under section 704.01(2), Florida Statutes, the evidence does not indicate that he ever paid for one....
...adequate, i.e., not practicable, for the use of the easement holder. Lykes Bros., Inc. v. Clements,
501 So.2d 1302, 1304-05 (Fla. 2d DCA 1986), rev. denied,
508 So.2d 14 (Fla. 1987); F.S. §
704.03 (1993) (defining the term "practicable" as used in
704.01(1)). Furthermore, a potential future means of access to a public road by way of an express easement across lands of another does not defeat a way of necessity. Burdess v. United States,
553 F. Supp. 646, 653 (E.D.Ark. 1982). Pursuant to §
704.01(1), the burden of proof with regard to the lack of other "reasonable or practicable" access lies with the person seeking the access....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21990230
...equested by Mosk and approved by the City. Both the annexation agreement and the replat reserved an access easement for City purposes on Mosk's property. Under the other theory, Blanton claimed entitlement to a statutory way of necessity pursuant to section 704.01(2), Florida Statutes (1997), so long as he paid a reasonable fee for his use of Mosk's property....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1994 WL 151316
...Bistline of Stromire, Bistline & Miniclier, Cocoa, for appellee. THOMPSON, Judge. Appellant, Louis A. Bell, appeals a final judgment of the trial court granting the appellee, W.T. Cox, Jr., a statutory way of necessity easement pursuant to sections
704.01(2) and
704.04, Florida Statutes (1991), over a portion of property owned by Bell. We affirm the judgment. FACTS This case involves the right to a way of necessity as that common-law concept is recognized in section
704.01(1), Florida Statutes (1991)....
...Bell refused to sell a portion of his property to Cox, but offered to allow the easement in return for one acre of Cox's land on the waterfront. This was 1/3 of Cox's parcel. Cox refused. Cox filed a complaint seeking a statutory way of necessity, exclusive of common-law right, pursuant to section
704.01(2), Florida Statutes (1991). Cox alleged the property had no practical ingress and egress except through Bell's and the Messersmiths' properties, to Randon Lane, a public road. Bell filed an answer and asserted a counterclaim seeking a declaratory judgment that sections
704.01 and
704.04, Florida Statutes (1991), are unconstitutional....
...There was competent substantial evidence to support the trial court's findings and the weight of such evidence is solely in the province of the trial court. See Clegg v. Chipola Aviation, Inc.,
458 So.2d 1186 (Fla. 1st DCA 1984). There are two remaining issues that require attention. First, Bell argues that sections
704.01 and
704.04, Florida Statutes (1991), are unconstitutional and second, that the evidence does not support the determination that there was no common-law right of way to the property, which determination is essential before a statutory way of necessity can be used. Section
704.01(2) reads: (2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT....
...damages for the use thereof; provided that such easement shall be used only in an orderly and *1383 proper manner. Section
704.04, Florida Statutes (1991), reads: 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 common-law right, objects or refuses to permit the use of such way under the conditions set forth herein or until he receives compensation therefor, either party or the board of county commissioners of such c...
...n 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 in compliance with s. 704.01(2) and shall exist so long as such easement is reasonably necessary for the purposes stated herein....
...The court, in its discretion, shall determine all questions, including the type, duration, extent and location of the easement, the amount of compensation, and the attorney's fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2) provided that if either of said parties so requests in [the] original pleadings, the amount of compensation may be determined by a jury trial....
...Bell next argues that the statute is unconstitutional because it is vague. He argues that the term "unreasonable refusal" in section
704.04, Florida Statutes is constitutionally infirm because it authorizes the trial court to award attorney's fees and costs when either party "unreasonably refuses" to comply with section
704.01(2)....
...Hagan,
387 So.2d 943 (Fla. 1980). Also, the statute is clear so that it does not invite arbitrary and discriminatory enforcement. See McKenney v. State,
388 So.2d 1232 (Fla. 1980); State v. Deese,
495 So.2d 286 (Fla. 2nd DCA 1986). Finally, Bell argues that sections
704.01 and
704.04 are contrary to the public purpose clause of the Florida Constitution....
...ss and egress was through Bell's property. The trial court made no error. AFFIRMED. PETERSON, J., concurs specially, with opinion. HARRIS, C.J., dissents, with opinion. PETERSON, Judge, specially concurring. I agree with Judge Thompson that sections
704.01(2) and
704.04 are constitutional insofar as they provide a remedy to the owner of inaccessible lands to gain a way of necessity by compensation to the owner of the servient lands....
...e owner of servient lands. Assessment of fees against the servient owner was appropriate in this case, as the trial court implicitly found that the appellant was completely unreasonable in responding to appellee's request for an easement pursuant to section 704.01(2)....
...either side of an arbitrary, often changing, municipal boundary. [2] To add insult to injury, section
704.04 permits, and the trial court awarded, attorney's fees and costs against Bell for his "unreasonable refusal to comply with the provisions of section
704.01(2)." Because Bell failed to voluntarily recognize Cox's statutory way of necessity, he was assessed attorney's fees and court costs upon being ordered to provide the easement. This is wrong for two reasons. First, section
704.01(2), which establishes this statutory way of necessity contemplates that no compensation need be paid by the one acquiring this access across his neighbor's property....
...as possible. [1] I agree with the court in Franklin v. Boatright,
399 So.2d 1132 (Fla. 1st DCA), rev. denied,
411 So.2d 382 (Fla. 1981), that the dissent by Justice Sundberg in Deseret was indeed a well-reasoned analysis of the constitutionality of section
704.01(2) which is the underpinning of section
704.04....
...hbor regardless of the requirement that full compensation shall be paid. It is no consolation to assert that the right-of-way easement is temporary and shall exist only so long as it is reasonably necessary for the purposes stated in the statute. If Section 704.01(2), Florida Statutes, is held not to violate Article X, Section 6(a), then there can be no rational basis to restrict the power of the legislature to delegate the authority to take permanently....
CopyCited 1 times | Published | District Court of Appeal of Florida
...to establish a public road over lands privately owned, and no such authority is cited in any brief on this appeal. The common-law rule of an implied grant of a way of necessity has been recognized and adopted by statute in Florida. Subsection (1) of Section 704.01, Florida Statutes 1959, F.S.A., provides as follows: “Implied grant of way of necessity: The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted and clarified....
CopyCited 1 times | Published | District Court, S.D. Florida | 1991 U.S. Dist. LEXIS 19895, 1991 WL 328542
..."First in time, first in right" certainly applies to this situation. By extinguishing the easement we come upon a new problem: Ribas may have a landlocked tract, apparently with no alternative route for traveling to and from his land. Florida Statute 704.01(2) was specifically designed to address this problem....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit | 2011 WL 5555686
claims procedures. 42 U.S.C. § 1651(a); 20 C.F.R. § 704.001. [2] Because DynCorp timely contested liability
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 1998 WL 386038
payment of creditors as provided for in 11 U.S.C. § 704(1), which outlines the trustee's duty to "collect
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1998 WL 5414
...ssity, when such a claim has not been asserted within 30 years, as required by MRTA. We affirm the trial court's ruling that it does extinguish the claim. Appellant, owner of a land-locked estate, argues that MRTA has to be read in pari materia with section 704.01(1), the codification of the common law way of necessity....
...time within which to take the necessary steps to accomplish that purpose." Id. The policies underlying MRTA appear to here be in conflict with the public policy that "lands should not be rendered unfit for occupancy or cultivation," which underlies section 704.01(1)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 WL 601573
...See Clegg v. Chipola Aviation, Inc.,
458 So.2d 1186, 1187 (Fla. 1st DCA 1984) ("The resolution of factual conflicts by a trial judge in a nonjury case will not be set aside on review unless totally unsupported by competent and substantial evidence."). Section
704.01(1), Florida Statutes, codifies the common-law rule with respect to the implied grant of a way of necessity: [A]n implied grant exists where a person has heretofore granted or hereinafter grants lands to which there is no accessible rig...
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2001 WL 85510
...(the Walkers) a statutory way of necessity over Boyd's real property. We reverse because the Walkers failed to carry their burden at trial to show that they do not have a common-law way of necessity available to them. See Hancock v. Tipton,
732 So.2d 369, 373 (Fla. 2d DCA 1999) (declaring that section
704.01(1) and (2), Florida Statutes must be read sequentially). A landowner who has a common-law way of necessity under section
704.01(1) is ineligible for a statutory way of necessity under section
704.01(2)....
CopyCited 1 times | Published | District Court, S.D. Florida | 2000 WL 1809040
may be raised sua sponte). Pursuant to 11 U.S.C. § 704(1), a Chapter 7 trustee is under a duty to "collect
CopyCited 1 times | Published | Florida 5th District Court of Appeal
...duce anything in opposition. Based on the foregoing, we reverse the order granting final summary judgment and remand for further proceedings. 5 REVERSED and REMANDED. EDWARDS and HARRIS, JJ., concur. Mario Vitelli died while this appeal was pending. § 704.01(2), Fla....
...nreasonably by refusing to allow them access to the right of way across their property. See §
704.04, Fla. Stat. (2017) (providing for award of attorney's fees to either party for the "unreasonable refusal to comply with the provisions of s[ection]
704.01(2)").
CopyPublished | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 2177, 1987 Fla. App. LEXIS 10149
when not in court.” Ehrhardt, Florida Evidence, § 704.1, at 411-412 (2d ed. 1984) See Gomez v. Couvertier
CopyPublished | District Court of Appeal of Florida
...It appears that the motions are primarily predicated upon the ground that the complaint fails to state a cause of action on which the relief prayed can be granted. Plaintiffs’ right to a way of necessity from their property to the public highway is controlled by Section 704.01(2), F.S., F.S.A., which is as follows: “(2) Statutory way of necessity exclusive of common law right: Based on public policy, convenience and necessity, a statutory way of necessity exclusive of any common law right exists when any l...
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 5429585, 2013 Fla. App. LEXIS 15394
...For this contention, Village Carver and the dissent place primary reliance on Blanton v. City of Pinel-las Park,
887 So.2d 1224 (Fla.2004). Their reliance is misplaced. The estate or interest at issue in Blanton was a statutory way of necessity, governed by section
704.01(2)....
...ands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner. § 704.01(2), Fla....
CopyPublished | District Court of Appeal of Florida
...In other words, he had verbally-objected or refused to give you a right-of-way or easement to cross his property, is that correct? A. Yes, sir- ****** “Q. Now, do you have any improvements, at all on your property? A. Yes, sir; bulldozed and cleared, and getting ready to build, if we can ever get to it.” Section 704.01(2), Florida Statutes, F.S.A.», provides in part: «* * * 'j'hg owner [0f hemmed-in lands] * * * lawfully may use and maintain an easement for persons, vehicles, stock and electricity and telephone service over and upon the lands which...
...means of the nearest *823 practical route, considering the use to which said lands are being put; * Section
704.04, Florida Statutes, F.S.A., provides in part: “When the owner or owners of such lands across which a statutory way of necessity under §
704.01(2) is claimed * * * objects or refuses to permit the use of such way under the conditions set forth herein, * * * either party * * * may file suit in the circuit court of the county wherein the land is located in order to determine if the c...
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2454, 1986 Fla. App. LEXIS 10993
...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....
...t 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 ......
...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 cites to cases from other jurisdictions dealing with the right of prop *1305 erty 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....
...When plaintiffs’ counsel objected to all of this testimony on the basis of relevance, Lykes’ attorney explained that it was relevant because if the trial court found that the plaintiffs were landlocked but not qualified for an implied easement [704.01(1) ] but rather en *1306 titled to a compensable statutory easement [704.01(2)] then a route for such an easement would be set by the court on the basis of many factors....
...rsery. And so this evidence was not introduced to demonstrate a violation of the principle enunciated in Crutchfield . Rather, the evidence was introduced in the event the trial court found that plaintiffs were entitled to a statutory easement under section 704.01(2), which it did not....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 2432, 1984 Fla. App. LEXIS 15932
...pinion that the court below is in error and must be reversed. Downing v. Bird, supra. Appellee’s assertion that the result reached by the court below is correct for reason that the record establishes a statutory way of necessity as contemplated by section 704.01(2), Florida Statutes, is without merit....
CopyPublished | Florida 5th District Court of Appeal | 1977 Fla. App. LEXIS 16061
easement of ingress and egress pursuant to Section
704.01, Florida Statutes (1975), over the mortgaged
CopyPublished | United States Bankruptcy Court, M.D. Florida | 9 Fla. L. Weekly Fed. B 396, 1996 Bankr. LEXIS 596
Defendant’s Duties as Trustee Bankruptcy Code § 704(1) states that it is the duty of the bankruptcy trustee
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 7276, 2005 WL 1160198
...the trial court’s award to Celso M. Gonzalez-Falla, as trustee for the Gilman Article III Trust, of a statutory way of necessity across the Taylor property. Because the trial court did not restrict this easement to the uses which are permitted in section 704.01(2), Florida Statutes (2001), we reverse and remand....
...Gonzalez-Falla had created a nuisance on the Gilman property by leasing the Gilman property to a hunt club whose tenants are “loud and annoying at all hours- of the day and night and have used the property in an unsanitary and unhealthy manner.” Section 704.01(2) permits a statutory way of necessity on the following grounds: Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land or portion thereof outside any mu...
...private road ... Section
704.04, Florida Statutes (2001), provides for compensation to the servient owner and states in pertinent part, as follows: Where said easement is awarded to the owner of the dominant tenement, it shall be in compliance with s.
704.01(2) and shall exist so long as such easement is reasonably necessary for the purposes stated herein....
...The court, in its discretion, shall determine all questions, including the type, duration, extent, and location of the easement, the amount of compensation, and the attorney’s fees and costs to be awarded to either party for unreasonable refusal to comply with the provisions of s. 704.01(2) ... After finding that the requirements of section 704.01(2) were met and that Gonzalez-Falla desired to use the Gilman land for timber raising and cutting purposes, the court awarded Gonzalez-Falla a statutory way of necessity and ordered him to pay Staten $500 for that easement....
...After the trial court entered a further order determining the legal description of the easement, Staten brought this appeal. While the circuit court has the discretion to determine the “type, extent, duration and location of the easement,” the circuit court does not have the discretion to grant an easement under section
704.01(2) except to provide access to the landlocked property for the uses expressly provided in section
704.01(2). When section
704.01(2) and section
704.04 are read in pari materia, it is clear that the legislature has permitted a statutory way of necessity to allow the dominant tenement to be used only for those purposes which are set forth in section
704.01(2), specifically “for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes.” If the landlocked property is to be used for a purpose other than the statutory purpose, a lawful easement or access must be obtained other than through section
704.01(2). In Deseret Ranches of Florida, Inc. v. Bowman,
349 So.2d 155, 156-57 (Fla. 1977), in rejecting an argument that section
704.01(2) was unconstitutional on the ground that it permitted the taking of property for a private, rather than a public, purpose, the Florida Supreme Court explained as follows: We agree with the reasoning in [Stein v....
...s. There is then a dear public purpose in providing means of access to such lands so that they may be utilized in the enumerated ways. The statute therefore is in keeping with Article X, Section 6(a), Florida Constitution. (Emphasis supplied). Thus, section 704.01(2) survives constitutional challenge because “it provides a lawful means by which to accomplish full utilization of the state’s natural resources, [and] their development in the ordinary channel of commerce and industry.” Stein v....
...2d DCA 1962)(“[T]he statutory way of necessity exists only when the lands are being used or desired to be used for the purposes specified in the statute.”); Blue Water Corp. v. Hechavarria,
516 So.2d 17 (Fla. 3d DCA 1987)(rejecting Blue Water’s argument that section
704.01(2) could be read to allow uses other than as stated therein, and holding that a statutory way of necessity would not be allowed for a commercial fishing operation, in part, because Blue Water’s land was not being used “as a dwelling, for agricultural, timber raising or cutting, or stocktaising purposes” as required by section
704.01(2)). Accordingly, it was error for the trial court to fail to restrict the use of the easement across the Taylor property to the purposes specified in section
704.01(2)....
CopyPublished | Florida 4th District Court of Appeal | 1980 Fla. App. LEXIS 16692
ROBERT P. SMITH, Jr., Judge. Ganey appeals from an order dismissing his action with prejudice for repeated failure to state a cause of action to establish a statutory way of necessity over the lands of Byrd. Section 704.01(2), Florida Statutes (1979). A statutory way may be declared only if no other access exists by common law implication, Section 704.01(1), or by expressed grant....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 3308, 1993 WL 84473
...esumption that the original parties intended the grantor to convey to the grantee whatever easement over lands retained by the grantor as was necessary ... to use the property conveyed....” Dixon v. Feaster,
448 So.2d 554, 559 (Fla. 5th DCA 1984). Section
704.01, Florida Statutes, purports to adopt and clarify that common law rule of an implied way of necessity....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 14009
...appellees) to State Road 19. Title to both properties devolved from a common grantor. The complaint requested declaratory and injunctive relief based upon one of three alternative remedies: (1) implied grant of way of necessity pursuant to Fla.Stat. § 704.01(1) (1973); (2) statutory way of necessity pursuant to Fla.Stat. § 704.01(2) (1973); and (3) prescriptive easement....
CopyPublished | Florida 4th District Court of Appeal | 1997 Fla. App. LEXIS 2513, 1997 WL 121107
PER CURIAM. We affirm the summary final judgment finding an easement of necessity in favor of lot 69 owned by appellee Kenneth M. Dix. § 704.01(1), Florida Statutes (1991). We reverse only that portion finding a statutory way of necessity pursuant to section 704.01(2), Florida Statutes (1991)....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 1988 Bankr. LEXIS 878, 1988 WL 61230
abdicate the responsibilities of the office. Section 704(1) of the Bankruptcy Code. Based on the foregoing
CopyPublished | Florida 4th District Court of Appeal | 1997 WL 292661
(Fla. 4th DCA 1992); Ehrhardt, Florida Evidence § 704.1 (1996 ed.). Finally, we find no double jeopardy
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 20276
...rary, unreasonable and violates their constitutional right to due process and equal protection of the laws. We affirm. The evidence in the record supports the trial court’s determination that appel-lees are hemmed in within the meaning of Sections
704.01(2) and
704.03 because they are not afforded any practicable route of ingress and egress to the nearest practicable public or private road without the use of bridges, embankments, or substantial fill....
...B & L Farms,
62 So.2d 350 (Fla.1952), which considered the propriety of allowing an adjoining landowner to use his neighbor’s private roads because the dedicated sites and common-law easements were not “practicable,” not being improved, and held that Section
704.01 was unconstitutional as it violated the prohibition against taking private property without just compensation. However, we note that the constitutionality of Section
704.01 was upheld in Deseret Ranches of Florida, Inc....
...using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner. .
704.03 “Practicable” defined. — For the purposes 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, embankment, or substantial fill.”
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4521, 1990 WL 85437
...The trial court declined to establish the easement and entered final judgment for appellee, finding that appellee’s land did not provide the statutorily prescribed “nearest practical route” between appellants’ land and a “practicable public or private road.” We affirm. Section 704.01(2), Florida Statutes (1987), provides as follows: (2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF COMMON-LAW RIGHT....
...Section
704.04, Florida Statutes (1987), provides a judicial remedy for establishment of a statutory way of necessity. It provides:
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 common law right, objects or refuses to permit the use of such way under the conditions set forth herein or until he receives compensation therefor, either party or the board of county commissioners of such c...
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 3295537, 2014 Fla. App. LEXIS 10535
PER CURIAM. Appellants appeal the trial court’s “Final Judgment for Attorneys’ Fees and Costs.” That judgment was based on Appellees having a judgment entered in their favor whereby Appellants’ request for a statutory easement pursuant to section 704.01(2) was denied....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 3281822, 2014 Fla. App. LEXIS 10536
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....
...ising 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....
...t 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....
...erty 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....
...emmed-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....
...ar access to Highway 90, but is also inconsistent with the statute’s practicality standard.- In Hoffman v. Laffitte, this court held that, although the legislature incorrectly used the terms “practicable” and “practical” interchangeably in section
704.01, the statute “require[s] the establishment of the easement over the nearest route which is practical_”
564 So.2d 170, 171 (Fla....
...mmed in by lands, fencing, or other improvements by other persons so that no practicable route of egress or ingress is available therefrom to the nearest practicable public or private road in which the landlocked owner has vested easement rights.” § 704.01(2), Fla....
...Thus, the court’s finding on this element is not supported by the record; Furthermore, nothing in the statute nullifies its applicability simply because the land in question is for sale. Conclusion Based on the foregoing, we hold that the trial court erred by denying Appellants’ request for an easement pursuant to section 704.01(2), Florida Statutes....
...ial court’s determination that Appellees are entitled to attorney’s fees pursuant to section
704.04. We remand for the trial court to make all findings and take any actions required by section
704.04 when an ease *572 ment is granted pursuant to section
704.01(2)....
CopyPublished | District Court of Appeal of Florida | 1966 Fla. App. LEXIS 5191
has been recognized, adopted and clarified by § 704.-01, Fla.Stat., F.S.A. Under it, a way of necessity
CopyPublished | Florida 1st District Court of Appeal
...improperly granted the
Appellants’ motion for appellate-level attorney fees.
This appeal stems from an action for declaratory judgment filed by the
Appellants against the Appellees for a statutory easement by way of necessity
pursuant to section 704.01(2), Florida Statute (2014)....
...1st DCA 2013) (Mem.); Moore v. Hillsborough
Cty. Sch. Bd.,
987 So. 2d 1288, 1289 (Fla. 1st DCA 2008). Section
704.04 provides
that attorney’s fees and costs are owed to either party for “unreasonable refusal to
comply with the provisions of s[ection]
704.01(2).” §
704.04, Fla....
CopyPublished | Florida 4th District Court of Appeal
...A party who seeks “to establish a way of necessity, whether in regard
to an implied grant or statutory way, has the burden of proof to establish
that he or she has no practicable route of ingress or egress.” Moran v.
Brawner,
519 So. 2d 1131, 1133 (Fla. 5th DCA 1988). Section
704.01(1),
Florida Statutes (2017), codifies the requirements for obtaining an implied
easement by necessity:
Such an implied grant exists where a person has heretofore
granted or hereafter grants lands to which there is no...
...Such an implied grant or easement in
lands or estates exists where there is no other reasonable and
practicable way of egress, or ingress and same is reasonably
necessary for the beneficial use or enjoyment of the part
granted or reserved.
§ 704.01(1), Fla....
...1986), an easement by
necessity requires a showing of an “absolute necessity.” Id. at 22
(emphasis added). Given that Unit Owners live on waterfront property,
they can reach the dock by constructing their own access pier, which
would be a “reasonable and practicable way of egress, or ingress.” §
704.01(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...A party who seeks “to establish a way of necessity, whether in regard
to an implied grant or statutory way, has the burden of proof to establish
that he or she has no practicable route of ingress or egress.” Moran v.
Brawner,
519 So. 2d 1131, 1133 (Fla. 5th DCA 1988). Section
704.01(1),
Florida Statutes (2017), codifies the requirements for obtaining an implied
easement by necessity:
Such an implied grant exists where a person has heretofore
granted or hereafter grants lands to which there is no...
...Such an implied grant or easement in
lands or estates exists where there is no other reasonable and
practicable way of egress, or ingress and same is reasonably
necessary for the beneficial use or enjoyment of the part
granted or reserved.
§ 704.01(1), Fla....
...at 22
(emphasis added). Given that Unit Owners live on waterfront property,
they can find an alternate means of accessing the dock, such as by
constructing their own access pier, which would be a “reasonable and
practicable way of egress, or ingress.” § 704.01(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 449, 1991 WL 6298
...5th DCA), review denied,
528 So.2d 1182 (Fla.1988). Furthermore, as a general rule, easements for way of necessity are not *593 applicable to parking rights. In Wimberly v. Lake Weir Yacht Club Association,
480 So.2d 224 (Fla. 5th DCA 1985), the Fifth District interpreted section
704.01, Florida Statutes (1983) as limiting implied grants for way of necessity to ingress and egress....
CopyPublished | Florida 6th District Court of Appeal
constitutional and preempts Orange County Charter section 704.1. Because section
403.412(9)(a), Florida
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 17207, 2006 WL 237081
...In considering whether Escambia County is a “person” in the context of section
775.089(1), we also find persuasive the Second District’s reasoning in South Florida Water Mgmt. Dist. v. Layton,
402 So.2d 597 (Fla. 2d DCA 1981). In Layton , the plaintiff sought to establish a statutory way of necessity pursuant to section
704.01(2), Florida Statutes (1979). Section
704.01(2) provided for a statutory way of necessity under certain defined circumstances where land is “shut off or hemmed in by lands, fencing, or other improvements of other persons. ...” (emphasis added). The Water Management District argued that it was not a “person” under section
704.01(2), because a body politic is not included within the definition of “person” in section
1.01(3), Florida Statutes (1979). Holding that the Water Management District was a “person” under
704.01(2), the Layton court explained: Appellant contends that section
704.01 does not apply to it because it is not a “person” within the intendment of the statute and sovereign immunity has consequently not been waived....
...n this state.” Thus, for purposes of chapter 704, appellant concludes, a special district is not a “person.” We disagree. Under the express provisions of section
1.01, the definitions contained therein apply only where the context permits. Had section
704.01 made a distinction between “persons” and “public bodies,” “bodies politic,” or “political subdivisions,” we would agree with appellant. However, section
704.01 makes no such distinction, and we see no basis for necessarily assuming the legislature intended one here. For the reasons set forth below, we conclude that the legislature intended to include the state and its agencies within the meaning of “persons” as used in section
704.01....
CopyPublished | District Court, S.D. Florida | 1995 U.S. Dist. LEXIS 2391
the property of the estate pursuant to 11 U.S.C. § 704(1).5 The transformation of the Artwork’s character
CopyPublished | District Court of Appeal of Florida | 1970 Fla. App. LEXIS 5509
LILES, Acting Chief Judge. Appellant, plaintiff in the trial court, was granted a ten foot right of way pursuant to Fla.Stat. § 704.01(1), F.S.A....
CopyPublished | Florida 1st District Court of Appeal | 13 Fla. L. Weekly 2640, 1988 Fla. App. LEXIS 5352, 1988 WL 129156
...ough one means of access may be more convenient than another. Matthews v. Quarles,
504 So.2d 1246, 1248 (Fla. 1st DCA 1986) (citing Roy v. Euro-Holland, Vastgoed, B.V.,
404 So.2d 410 (Fla. 4th DCA 1981)). The statute upon which the plaintiff relies, section
704.01(1), Florida Statutes (1987), similarly and specifically provides that an implied easement exists only “where there is no other reasonable and practicable way of egress or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.” Roy v....
CopyPublished | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 51, 1985 Fla. App. LEXIS 5959
...1 This is a different legal entity from a prescriptive easement, not only in the way it arises, but also with regard to its termination and rights of the owner or user. Accordingly we remand to modify the judgment. AFFIRMED AS MODIFIED; REMANDED. COBB, C.J., and UPCHURCH, J., concur. . § 704.01, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 17884
...ages for trespass to realty. The count alleging slander of title was preliminarily dismissed by the trial court. The Kirchoffs’ answer raised three affirmative defenses: prescriptive easement, implied easement, and statutory way of necessity under section 704.01, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 8817, 1997 WL 429050
...In closing, we reject the appellants’ argument that the trial court erred in granting the appellees an implied easement because there exists another avenue of ingress and egress to their property. The existence or nonexistence of ingress and egress is relevant in an action for a statutory way of necessity pursuant to section 704.01(2), Florida Statutes (1995)....
CopyPublished | Florida 5th District Court of Appeal
...duce anything in opposition. Based on the foregoing, we reverse the order granting final summary judgment and remand for further proceedings. 5 REVERSED and REMANDED. EDWARDS and HARRIS, JJ., concur. Mario Vitelli died while this appeal was pending. § 704.01(2), Fla....
...nreasonably by refusing to allow them access to the right of way across their property. See §
704.04, Fla. Stat. (2017) (providing for award of attorney's fees to either party for the "unreasonable refusal to comply with the provisions of s[ection]
704.01(2)").
CopyPublished | Florida 4th District Court of Appeal | 1979 Fla. App. LEXIS 14825
...B. Martinez and Esther B. Martinez, his wife. The fundamental question presented is whether the evidence was sufficient to establish a way of necessity under the law of the State of Florida. See Reyes v. Perez,
284 So.2d 493 (Fla. 4th DCA 1973); and Section
704.01, Florida Statutes (1973)....
