*

The HONORABLE DONALD D. ALSOP, United States District

Judge for the District of Minnesota, sitting by 

designation.

 

No. 95-2394

 

Jerry D. Patterson and *

Mary Lou Patterson, *

*

 Appellants, *

* Appeal from the United States

 v. * District Court for the

 * Western District of Arkansas.

Buffalo National River, *

a Part of the Department of the * 

Interior, an Agency of the *

United States of America, *

*

 Appellee. *

 

Submitted: January 8, 1996

 Filed: February 12, 1996 

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP,*

District Judge. 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Jerry and Mary Lou Patterson appeal the district court's order

granting summary judgment to the Buffalo National River ("BNR").

We reverse.

I.

Between 1939 and 1976, the Hall family owned a 159.49-acre

tract of land in northern Arkansas. In 1976, they conveyed the

north 79.49 acres of the tract to the United States, and that
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acreage was incorporated into the Buffalo National River project.

The deed also purported to quitclaim all of the grantors' interest

"in any means of ingress or egress." At the time of the transfer,

a primitive roadway crossing the land ceded to the United States

connected the land that the Halls retained with a public road. The

plaintiffs contend that this roadway continues to be the only way

to gain access to the south eighty acres.

In 1986, the United States National Park Service ("Park

Service") denied the Halls access to their retained land over this

roadway on the ground that the Park Service did not grant private

road easements across park property. The Halls then sold their

retained land to the Pattersons; the deed purported to include an

easement by necessity across the adjoining 79.49 acres now owned by

the United States. In 1987, Jerry Patterson wrote the Park Service

to ask if he could use the roadway to gain access to his property,

and the Park Service again denied the request. 

In 1994, the Pattersons sued BNR, an agency of the United

States, in Arkansas state court. They sought a declaration that

they had an easement by implication or by necessity across the

government's land and asked for an order permanently enjoining BNR

from interfering with their use of that easement. The United

States removed the case to the federal court pursuant to the Quiet

Title Act, 28 U.S.C. § 2409a(a); see also 28 U.S.C. § 1346(f). The

district court held on summary judgment that the applicable statute

of limitations barred the Pattersons' claim and that, even if their

action had been timely, the Pattersons did not have an easement by

implication or by necessity, because the 1976 deed released all

such easements to the United States. 

II.

The Pattersons first argue that the district court erred in

holding that their action was barred by the 12-year statute of
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limitations of the Quiet Title Act. 28 U.S.C. § 2409a(g). They

argue that the district court erroneously found that the

Pattersons' cause of action accrued when the Halls conveyed their

property to the United States in 1976, because the statute began to

run at the earliest in 1986, when the Park Service denied the Halls

access to the roadway. We agree.

An action under the Quiet Title Act accrues "on the date the

plaintiff or his predecessor in interest knew or should have known

of the claim of the United States." 28 U.S.C. § 2409a(g). Whether

the Pattersons "should have known" about the government's claim is

subject to a test of reasonableness, State ex rel. Bd. of

University and School Lands v. Block, 789 F.2d 1308, 1312 (8th Cir.

1986); "[a]ll that is necessary is a reasonable awareness that the

Government claims some interest adverse to the plaintiff[s]," id.

at 1313. 

The district court found that "the language of the deed which

released to the United States 'any means of ingress and egress'

constitutes notice" that the Halls relinquished their right to

access their land through park property. We disagree. We have

held, it is true, that plaintiffs are deemed to be on notice for

purposes of the Quiet Title Act when they enter into a written

agreement that acknowledges the government's claim. State ex rel.

Bd., 789 F.2d at 1313; see also Vincent Murphy Chevrolet Co. v.

United States, 766 F.2d 449, 452 (10th Cir. 1985) (holding

easements in deed constituted notice of a claim under Quiet Title

Act). The rule could hardly be otherwise in such a case. But in

this case, we think that the restrictions contained in the 1976

deed were at best too ambiguous to place the Halls on notice of the

government's claims. The government argues that the Halls should

have known that they could no longer use the roadway to gain access

to their property because their deed relinquished "any means of

ingress and egress." The Pattersons contend (and we agree for
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reasons that will appear) that the deed is more plausibly read to

mean "any means of ingress and egress" to the land conveyed to the

government. As the Pattersons point out, when read this way, the

deed merely restates Arkansas law: in Arkansas, a transfer of

property automatically passes all easements appurtenant to that

property, including all means of ingress and egress to it. See

Wallner v. Johnson, 21 Ark. App. 124, 129, 730 S.W.2d 253, 256

(1987). 

Because the deed is at best ambiguous, we must construe it

against the party who prepared it (in this case the United States),

and we may consider extrinsic evidence of the parties' intent.

Wilson v. Brown, 320 Ark. 240, 244, 897 S.W.2d 546, 548 (1995).

In this case, if we interpret the deed as the government urges, we

must presume that the Halls can reasonably be charged with knowing

in 1976 that they were completely landlocked. Extrinsic evidence

from the time that the transaction occurred, however, leads us to

conclude otherwise. Immediately prior to the sale, the Department

of the Interior appraised the land and concluded that the Halls

were not entitled to severance damages. The appraiser's report

indicated that the value of the Halls' retained land would not be

diminished, in part because "access will not be lost." The

government suggests that the appraiser was not referring to the

roadway in question. Because the roadway in question was the only

means of gaining access to the retained property, however, it is

reasonable to conclude that Halls probably assumed that he was.

The only reasonable conclusion that a factfinder could come to,

therefore, is that the Halls could not have had a reasonable

awareness in 1976 that the government would claim the right to

block access to their land. Instead, we find that they learned of

this claim only when the Park Service responded to their 1985

inquiry. We therefore hold that the Pattersons' action is not

time-barred.
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III.

 The Pattersons next argue that the district court erred when

it refused to grant a declaratory judgment to the effect that they

have an implied easement by implication or by necessity across the

land deeded to the United States. The district court denied the

Pattersons' motion for summary judgment because it found that, even

if the statute of limitations had not barred their action, the

Halls' 1976 deed released any easement that they might have had

across park property. The court reasoned that "the language of the

conveyance at issue belies the existence of any intent on the part

of the parties to provide the Halls with any means of ingress and

egress to the remaining 80 acres." We disagree.

A.

Easements by implication and by necessity are appurtenant

easements. Brandenburg v. Brooks, 264 Ark. 939, 940, 576 S.W.2d

196, 197 (1979). That is, they benefit a particular parcel of land

rather than a particular individual. As the Arkansas Supreme Court

recently explained, "[a]n easement appurtenant serves a parcel of

land called the dominant tenement. The property on which the

easement is imposed is the servient tenement." Wilson v. Brown,

320 Ark. at 243-44, 897 S.W.2d at 548. In this case, the

Pattersons claim that they have an easement appurtenant to the

south 80 acres (dominant tenement) across the land purchased by the

government (servient tenement).

Because appurtenant easements are attached to a particular

parcel of land, they cannot be conveyed apart from the dominant

tenement, Carver v. Jones, 28 Ark. App. 288, 292, 773 S.W.2d 842,

845 (1989), but they can, of course, be extinguished by the

execution of a written release to the owner of the servient

tenement. See 2 A. James Casner, American Law of Property § 8.95

at 302 (1952). The government contends that the 1976 deed

extinguished any easements across the land it purchased.
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We disagree. A document releasing an easement must meet the

requirements of one creating an easement, id., including a legal

description of the interest conveyed. White v. Zini, 39 Ark. App.

83, 87-88, 838 S.W.2d 370, 372-73 (1992) (en banc). Because it is

attached to the dominant tenement, we would expect a deed

transferring an easement appurtenant to the property retained by

the Halls to describe the south 80 acres. Because it does not, we

think that the relevant portion of the deed is more plausibly read

to quitclaim the Halls' rights in "any means of ingress and egress"

to the property described in the document (i.e., the property

transferred to the government), not to the property that the Halls

retained. 

Furthermore, even if the deed had clearly purported to release

all easements appurtenant to the south 80 acres, it would have

conveyed nothing under Arkansas law. The relevant section

purported to "quit claim" all interests in "means of ingress

and egress." In Arkansas, deeds using this language are

interpreted as quitclaims, and a grantor can by quitclaim convey

only interests that he owns at the time that the deed is delivered.

Graham v. Quarles, 206 Ark. 542, 547, 176 S.W.2d 703, 706 (1944)

("a quitclaim deed does not purport to convey any title except such

as the grantor had at the time of its execution"); Chavis v. Hill,

216 Ark. 136, 138, 224 S.W.2d 808, 809 (1949) ("afteracquired

property rights do not pass under a quitclaim deed"). 

Easements by implication and by necessity are created upon

severance of ownership of a single parcel of land that was

previously held by one owner. If it is necessary for the continued

enjoyment of the dominant tenement, the dominant tenement acquires

an implied easement over the servient tenement when the two are

severed. Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330,

337, 274 S.W.2d 63, 67 (1954). In other words, if the Halls were

entitled to an easement by implication or by necessity over the
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land ceded to the government, they had no interest in the easement

before the property was divided; the right arose after severance.

See 2 Casner, American Law of Property § 8.26 at 250 (discussing

quasi-easements, "a grantor could not, of course, have had, before

his conveyance, an easement in the land conveyed"). Therefore, the

Halls could not have released their easement to the government by

quitclaim in the 1976 deed. 

 

B.

Having found that the Halls did not relinquish their rights to

any implied easements to which they might have been entitled, we

now consider whether the Pattersons are actually entitled to an

easement by implication or by necessity. The district court found,

and the government does not dispute, that the roadway crossing park

property continues to provide a way to gain access to the

Pattersons' property. The court did not determine, however,

whether the road was used continuously prior to severance or

whether another reasonable means of gaining access to the

Pattersons' property exists.

When an owner of a single parcel of land uses part of his land

to benefit a second part, courts may find that a quasi-easement

exists; the land benefited is called the "quasi-dominant tenement"

and the property used is called the "quasi-servient tenement."

Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 276, 819

S.W.2d 275, 278 (1991). When the parcel is divided, the

quasi-easement becomes an "implied easement corresponding to a

pre-existing quasi-easement" or, put more simply, an easement by

implication. Id., 307 Ark. at 277, 819 S.W.2d at 278-79. The

Arkansas Supreme Court explained this situation as follows:

"[W]here, during the unity of title, an apparently permanent and

obvious servitude is imposed on one part of an estate in favor of

another, ... then, upon a severance of such ownership, ... there

arises by implication of law a grant or reservation of the right to
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continue such use." Greasy Slough, 224 Ark. at 337, 274 S.W.2d at

67 (internal quotes omitted). The law recognizes an easement by

implication, however, only if the use of the quasi-easement prior

to severance was "apparent, continuous, and necessary" and if a

continuance of its use is essential to the further use and

enjoyment of the estate retained. Id.

Easements by necessity share many of the characteristics of

easements by implication. For instance, they arise when a parcel

of land held by a single owner is severed and the easement is

necessary for the enjoyment of the dominant tenement, both at the

time of severance and at the time the holder of the dominant

tenement asserts the right to the easement. Powell v. Miller, 30

Ark. App. 157, 162, 785 S.W.2d 37, 39 (1990). In contrast to an

easement by implication, however, "an easement by necessity ...

allows for a route of access where one previously did not exist."

Burdess v. U.S., 553 F. Supp. 646, 650 (E.D. Ark. 1982); see also

Powell, 30 Ark. App. at 162, 785 S.W.2d at 39. Therefore, the

Pattersons are entitled to an easement by necessity if crossing the

government's land is necessary for access to their property. 

We are unable to determine whether the Pattersons have an

easement over the government's land, however, because several

questions of material fact remain. For one thing, the Pattersons

are not entitled to either type of easement unless they demonstrate

that one is necessary, not simply convenient, in order to gain

access to their property through the government's land. Kennedy v.

Papp, 294 Ark. 88, 94, 741 S.W.2d 625, 628 (1987) ("[t]he degree of

necessity ... must be more than one of mere inconvenience"). The

Pattersons must show that "there could be no other reasonable mode

of enjoying the dominant tenement." Manitowoc Remanufacturing, 307

Ark. at 277, 819 S.W.2d at 279; see also Brandenburg, 264 Ark. at

940, 576 S.W.2d at 197 (requiring "reasonable necessity"). (The

degree of necessity required is the same for easements by necessity
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and by implication. Kennedy, 294 Ark. at 94, 741 S.W.2d at 628.)

Although their land is surrounded on three sides by private

landowners, the Pattersons claim that they are landlocked unless

they can use the roadway in question. They assert that the nature

of the surrounding terrain makes it virtually impossible to

construct a road across another neighbor's property. The Arkansas

Supreme Court has indicated that courts may consider terrain when

determining necessity, Brandenburg, 264 Ark. at 940, 576 S.W.2d at

197, but, of course, we leave it up to the trial court to weigh

such evidence should it become necessary. "Whether use of the

easement [is] necessary [is] a question of fact for the trial court

to determine." Carver, 28 Ark. App. at 292, 773 S.W.2d at 845.

Furthermore, in order to claim an easement by implication over

the existing roadway, the Pattersons must demonstrate that prior to

severance the roadway was permanent and obvious and that the Halls'

use of it was continuous and apparent. Greasy Slough, 224 Ark. at

337, 274 S.W.2d at 67. The government asserts that the roadway was

not used at the time of the initial sale. Again, the district

court may be called on to resolve these disputed facts on remand.

We are aware that the law of Arkansas may differ from that of

other states, in that it partially conflates easements by necessity

and easements by implication by imputing to each of them the

characteristic that they arise only if they are necessary to the

enjoyment of the land to which they are claimed to be appurtenant.

See 2 Casner, American Law of Property § 8.26 at 250-51, § 8.43 at

263 (discussing other states' laws). But that is the clear purport

of the Arkansas cases, by which, of course, we are bound in this

diversity case. Different consequences, however, could follow

depending on whether the Pattersons make out a case for an easement

by implication or an easement by necessity. For instance, if the

easement is found to be necessary to the enjoyment of the retained
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land, but the previous use of the land claimed to be servient

proves not to have been continuous or apparent, then the Pattersons

will be entitled to have an easement laid out, but not necessarily

where they assert that the quasi-easement was located.

Furthermore, the nature and extent of the previous use of a

quasi-easement will necessarily determine its scope and thus the

traffic burdens to which the servient tenement can be subjected,

but the same, of course, cannot be said of an easement by

necessity, there being no prior use capable of giving it

definition. There may well be other differences, but we leave

these difficulties to the trial court to work out as the facts may

require.

IV.

For the foregoing reasons, we reverse the order of the

district court and remand the case to determine whether the

Pattersons are entitled to an easement by implication or by

necessity.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.