The PIOGA Press
( by Megan Mariani and Nicholas Habursky)
The modern oil and gas industry is a complex and multifaceted operation involving significant upstream, midstream and downstream infrastructure. Well pads located on the surface are necessary to extract the oil and gas from the subsurface. A constantly expanding network of pipelines are required to transport the produced oil and gas from the well pad to places of market or refinement. This complexity requires a constant balance of property rights between surface owners and mineral owners and operators. One mechanism by which the parties balance property rights is through the use of easements. Easements can be created in several different ways, including through an implied easement by necessity which was recently addressed by the Supreme Court of Pennsylvania in Bartkowski v. Ramondo, No. 60 MAP 2018, 2019 Pa. LEXIS 6100 (October 31, 2019).
Implied easement by necessity
Before discussing Bartkowski, it is helpful to understand the elements of an implied easement by necessity. In Pennsylvania, for an implied easement by necessity to exist, three elements must be met:
- Title to the dominant and servient properties were once held by one person;
- This unity of title must have been severed by a conveyance of one of the tracts; and
- The easement must be necessary for the dominant owner to use the land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement. An easement by necessity is always of strict necessity and not a mere matter of convenience.
Claiming an easement by necessity involves inherent risks. By definition, there is no document of record creating the easement or defining its scope. Therefore, it is not uncommon for the servient and dominant landowners to disagree as to whether the easement exists. Further, it can be very difficult to determine whether the strict necessity requirement has been met.
Bartkowski strict necessity analysis
In its Bartkowski decision rendered on October 31, the Pennsylvania Supreme Court offered useful guidance on determining whether the need for the easement by necessity is one of strict necessity.
In Bartkowski, the Supreme Court reversed an order of the Superior Court which denied the Ramondos an easement by necessity over the Bartkowskis’ property and remanded the matter for further proceedings. The court granted allowance of appeal to consider “whether a landowner must prove impossibility of alternative access…in order to establish an easement by necessity.” The majority opinion issued by the court held that a landowner need only show that that alternative access to their property is “manifestly impracticable,” but absolute impossibility is not required.
By way of background, the pertinent facts of the case were as follows. In 1991, the Ramondos purchased approximately 5.62 acres known as a “flag lot,” named as such because the shape of the lot incudes a narrow strip of land (the “pole”) that connects the larger “flag” portion of the lot to a public road, in this case Garrett Mill Road. In 2012, the Bartkowskis purchased a neighboring lot, containing approximately 5.25 acres, which is also considered a “flag lot” due to its shape. The Bartkowski pole and the Ramondo pole run parallel to one another. At issue in this case is a portion of the Ramondos’ driveway, leading from Garrett Mill Road to their home constructed on the flag portion of the property. The Ramondos’ driveway begins on the Bartkowski pole at Garrett Mill Road and extends approximately 300 feet on the Bartkowski pole until it crosses onto the Ramondo pole and continues on the Ramondo pole the remaining distance to the flag portion of the Ramondo property.
On July 16, 2015, the Bartkowskis filed an action in ejectment and trespass because of the portion of the Ramondos’ driveway encroaching on their property. At the trial, both the Bartkowskis and the Ramondos submitted their expert reports to the lower court. According to the Ramondos’ expert, “the current location of the Ramondo driveway is the only method to reach their home.” The Ramondos’ expert concluded that constructing a new driveway was not a viable option due to various prohibitive factors, including the topography of the Ramondos’ pole and the existence of environmental and zoning regulatory issues that would be difficult to overcome. The Bartkowskis’ expert, however, concluded that constructing a new driveway was “feasible” and that it was reasonable to expect that the Ramondos “could obtain the necessary environmental and zoning relief.”
Both the trial court and the Superior Court concluded that the Ramondos did not establish an easement by necessity since they did not “demonstrate impossibility and thus necessity.” The lower courts focused on the fact that while the Ramondos demonstrated that relocating the driveway would be difficult and costly, they did not prove that it would be impossible.
The first two elements of an easement by necessity described above were not in dispute on appeal. The only issue that remained for the Supreme Court to consider was whether the third element to establish an easement by necessity requires the landowner to prove impossibility of alternative access.
The majority held that it does not, stating that “to require a party to prove utter impossibility of alternative access is to stretch ‘strict necessity’ beyond its intended meaning.” The court reasoned that in this day and age with modern technology and unlimited resources at a party’s disposal, most obstacles to alternative access could be overcome and therefore never truly impossible. As a result, requiring impossibility to prove “strict necessity” would be an “unworkable standard.”
Determining whether “strict necessity” has been established is a fact-specific inquiry. Pennsylvania courts require that a landowner demonstrate more than “mere convenience” to claim an easement by necessity. However, Pennsylvania jurisprudence does not provide any express definition or formulation of the “strict necessity” standard. The court was persuaded by other jurisdictions’ interpretations of “strict necessity” which focus on the reasonableness and practicability of the alternative access, rather than impossibility.
The court also found parallels in Pennsylvania’s Private Roads Act. The act allows a landowner to petition the court to establish a private road over a neighboring property in order to access their property and requires a finding of “strict necessity.” In examining the case law surrounding the “strict necessity” standard under the Private Roads Act, the court concluded that Pennsylvania has “rejected the proposition that necessity only exists where access to the property is literally impossible.”
Focusing on reasonableness and practicability, the court provided a non-exclusive list of factors to be considered when evaluating the necessity of the easement under the “strict necessity” standard, including, but not limited to:
- The existence of zoning restrictions and the likelihood that the party can obtain the necessary variances or exceptions;
- The existence of state or federal regulations that prohibit certain uses of the land in question, the topography of the land and the practicability of constructing alternative access;
- The environmental consequences of construction;
- The costs involved; and, of course,
- Whether and to what extent these impediments existed at the time of severance.
The court emphasized that these factors are not meant to be a bright-line rule and that the existence of these factors in any case is not a guarantee that an easement by necessity has been established, but they should be useful in navigating the gray area of “necessity” going forward.
Broad scope of Bartkowski analysis
The analysis in the Bartkowski case provides oil and gas operators with a useful framework in determining whether, in the absence of an express easement in writing, their actions are strictly necessary. The strict necessity framework set forth in Bartkowski could also be applied to other legal constructs used to determine whether an operator’s actions are appropriate and permissive. In laying out a non-exhaustive list of factors for evaluating an asserted necessity, the Bartkowski case can be applied to issues involving the prudent operator standard or accommodation doctrine, for example. Although Bartkowski does not specifically address such principles, it does provide an operator with possible guidance as to how a Pennsylvania court may attempt to balance a conflict between the rights of adverse property owners, including surface owners, mineral owners and operators.