Florida Bar Journal

Easements Implied from a Preexisting Use: Escape from the Rabbit Hole

Illustration by Barbara Kelley

This is the story of a rabbit hole.^[1] A rabbit hole into which Florida caselaw on implied easements based on a preexisting use descended in 1986 and has been trapped ever since. The descent was precipitated by Tortoise Island Communities, Inc. v. Moorings Ass’n, Inc., 489 So. 2d 22 (Fla. 1986), an opinion so “cryptic and enigmatic”^[2] and “unclear”^[3] that it seriously could be questioned if an easement arising by implication from a preexisting use still existed in Florida.^[4] The story commences in 1960 with a seemingly forgetful judge, then follows the journey of applicable Florida jurisprudence to its present chaotic state. The story concludes with a suggested escape from this rabbit hole that presently is the law of easements implied from a preexisting use. But first, a brief explanation of implied easements.

Implied Easements

In their definitive treatise on easements,^[5] Jon Bruce and James Ely, Jr., note that implied easements at common law are of two varieties — ways of necessity and easements implied from quasi-easements. Ways of necessity are implied to provide access to otherwise landlocked property. Easements implied from quasi-easements are based on owners’ use of part of their property for the benefit of another part. Since owners cannot grant easements to themselves over their own property, the beneficial use is initially a “quasi-easement,” which ripens into an easement when title to the benefited and burdened parts vests in different persons. For example, use of a sewer line across the front part of an owner’s property to provide sewer service to a home on the rear part is a quasi-easement in favor of the rear part. If the rear part is sold to a third party, the quasi-easement for use of the sewer line is converted to an easement in favor of the purchaser of the rear part.

Although ways of necessity and easements implied from quasi-easements both require an initial common ownership of the burdened and benefited parcels followed by a severance of the ownership, ways of necessity do not require any prior use or evidence of intent to create an easement.^[6] The mere conveyance of a parcel having no access to a public road except over another parcel owned by the same grantor creates an access easement — i.e., a way of necessity — in favor of the grantee over the grantor’s other parcel to reach the public road.

In contrast, easements implied from quasi-easements arise only where continuation of a prior use is deemed necessary for the enjoyment of the severed parcel. If continuation of a prior use is deemed necessary, then the parties are presumed to have intended the use to continue even if the conveyance documents are silent as to the use. The implication of an easement from a preexisting use “is based on what the parties probably intended or had reasonable grounds to expect.”^[7]

Entrance to the Rabbit Hole

In Dinkins v. Julian, 122 So. 2d 620 (Fla. 2d DCA 1960), Judge Shannon, writing for the Second District, observed that an implied easement from a preexisting use arises from circumstances surrounding a conveyance. “[W]hatever is obviously in use as an incident or an appurtenance passes by implication when the land is sold.”^[8] Judge Shannon noted the doctrine of implied easements from a preexisting use (what he called an implied grant) had been used considerably in other states, but “to date, has only been discussed in Florida.”^[9]

Here we encounter the rabbit hole. Judge Shannon seemingly forgot his opinion in Kirma v. Norton, 102 So. 2d 653 (Fla. 2d DCA 1958), just two years earlier in which the court upheld an implied easement for continued use of a sewer line.^[10] In Kirma, the court set forth the requirements for an implied easement based on a preexisting use: a) unity of title between the dominant and servient estate; b) a severance of the unified title; and c) circumstances existing at the time of the severance that would make an implied easement necessary for the complete enjoyment of the estate granted or reserved.

Judge Shannon did not elaborate on the meaning of “necessary” in Kirma, but in Dinkins he quoted Thompson on Real Property for a “reasonably necessary” standard.^[11] The Second District subsequently affirmed the “reasonably necessary” standard in Star Island Associates v. City of St. Petersburg Beach, 433 So. 2d 998 (Fla. 2d DCA 1983):

The doctrine of implied easement is that when a landowner conveys part of his land, he impliedly grants all apparent or visible easements upon the part retained which were at that time used by the grantor for the benefit of the land conveyed and which were reasonably necessary for use of the land conveyed.^[12]

The “reasonably necessary” standard was expressly adopted in lieu of a “strict necessity” standard by the Third District in Williams Island Country Club, Inc. v. San Simeon at the California Club, Ltd., 454 So. 2d 23 (Fla. 3d DCA 1984).

Consistent with the foregoing cases, the Fifth District in Moorings Ass’n, Inc. v. Tortoise Island Communities, Inc., 460 So. 2d 961 (Fla. 5th DCA 1984), decision quashed, 489 So. 2d 22 (Fla. 1986), ostensibly applied the “reasonably necessary” standard in deciding that subdivision lot owners stated a cause of action for an implied easement to use an adjacent canal to access a river. The owners did not require the canal to access the river, since other canals also offered access; the canal at issue simply offered more direct and convenient access. An implied easement from a preexisting use, the court ruled, does not require “an absolute, but only a reasonable, necessity, such as will contribute to the convenient enjoyment of property, other than mere temporary convenience.”^[13]

With this ruling, the Moorings court pushes us into the rabbit hole. “Convenient” and “necessary” are ordinarily regarded as antithetical terms (“convenient” implying a lack of necessity rather than a degree of necessity), but they are treated by the Moorings court as virtually synonymous. Confounding and conflating the terms, the Moorings court strips “reasonably necessary” of any element of necessity and effectively replaces the “reasonably necessary” standard with a standard of convenience or advantage.

Descent into the Rabbit Hole

In its reversal of Moorings, the Florida Supreme Court stated: “The issue of law is whether an easement by implication from a preexisting use requires an absolute necessity or only a reasonable necessity such as will contribute to the convenient enjoyment of property.”^[14] From this statement, the court signaled its disagreement with the Moorings court’s redefinition of “reasonably necessary,” but not without obscuring the Florida Supreme Court’s reasoning. If the court had framed the issue as whether circumstances merely contributing to the convenient enjoyment of property constituted a reasonable necessity, the court could have clarified that mere convenience is not the same as “reasonably necessary” and otherwise left intact prevailing caselaw. By framing the issue as it did, the court appears to have created the false choice of “absolute necessity” on the one hand and “unnecessary convenience” on the other hand, and excluded consideration of the one choice — actual, reasonable necessity — that is most consistent with the law of implied easements from preexisting uses.

The Florida Supreme Court then disposed of the issue: “The court below held that a reasonable necessity was sufficient. In a well reasoned dissent, Judge Cowart maintained that such easement required an absolute necessity. We agree with Judge Cowart’s reasoning and adopt it as our own.”^[15]

Now we plunge headlong down the rabbit hole. Contrary to the court’s assertion, nowhere in Judge Cowart’s lengthy dissent in Moorings do the words “absolute necessity,” “absolutely necessary,” or even “absolute” appear. Judge Cowart does mention “necessity” 11 times, but only in reference to a way of necessity. Judge Cowart’s dissent does not address the degree of necessity required for implication of an easement based on preexisting use or even mention easements implied from a preexisting use. The court’s attribution to Judge Cowart of a position he did not espouse — that an implied easement from a preexisting use requires an absolute necessity — is inexplicable. Nevertheless, the Florida Supreme Court justices agreed with Judge Cowart’s reasoning and adopted it “as our own.” What reasoning, then, did the court adopt, and what does Tortoise Island actually hold?

Does Tortoise Island Require Absolute Necessity?

Florida cases since Tortoise Island have uniformly interpreted Tortoise Island as requiring absolute necessity for an implied easement. According to the First District in Matthews v. Quarles, 504 So. 2d 1246 (Fla. 1st DCA 1986), the Florida Supreme Court “held that an easement by implication requires an absolute necessity, and not merely a reasonable necessity.”^[16] This statement is problematic for two reasons. First, the closest the court in Tortoise Island comes to such a “holding” is its mistaken claim that “Judge Cowart maintained that [an easement by implication from a preexisting use] required an absolute necessity.”^[17] Since the court adopted Judge Cowart’s opinion as its own, any “holding” of Judge Cowart would become the supreme court’s own holding. If Judge Cowart “held” or “maintained” that absolute necessity is required, it certainly would be fair to say that was the court’s holding. But Judge Cowart said nothing about absolute necessity in his opinion. How, then, can the court have “held” anything about absolute necessity? Second, Matthews dealt with a way of necessity as codified in F.S. §704.01(1), not an easement by implication from a preexisting use. Tortoise Island expressly concerned an easement by implication from a preexisting use, and the First District citation of Tortoise Island in support of its opinion in Matthews is misplaced.

The First District is not alone in its misapplication of Tortoise Island. Every other district court of appeal has followed its lead in applying Tortoise Island to ways of necessity.^[18] By 2007, the Fourth District could confidently assert, “The Florida Supreme Court has held that the test for an implied grant of way of necessity is ‘absolute necessity,’ not just reasonable necessity.^[19] As recently as 2018, the Fourth District pronounced, “As stated by the Florida Supreme Court in Tortoise Island…, an easement by necessity requires a showing of an ‘absolute necessity.’”^[20] In citing to Tortoise Island, not a single district court of appeal has recognized the distinction between easements implied from a preexisting use and easements of necessity.

Making matters worse and sending the rabbit hole into chaos is Messer v. Sander, 144 So. 3d 566 (Fla. 1st DCA 2014). At first, appearing to have realized its error in Matthews, the First District characterizes the trial court’s reliance on Tortoise Island as misplaced, “because that decision concerned ‘an easement by implication from a preexisting use….’”^[21] The irony of the First District’s attribution of misplaced reliance is immediately supplanted, however, by the court’s subsequent assertion that an easement by implication from a preexisting use “is a common-law easement codified under subsection (1) of the statute entitled ‘Implied Grant of Way of Necessity [F.S. §704.01].’”^[22] Further demonstrating the First District’s failure to discern the distinction between an easement implied from a preexisting use and a way of necessity, the court declares it was F.S. §704.01(1) to which Tortoise Island applied the absolute necessity standard.^[23]

Nowhere in Tortoise Island or Judge Cowart’s dissent in Moorings is there any reference to F.S. §704.01(1). The only discussion of this statute in Moorings occurs in the majority opinion. The majority opinion distinguished ways of necessity from implied easements from a preexisting use and correctly noted the statute by its own terms requires absolute necessity for a way of necessity. The majority opinion found further discussion of the statute unnecessary because the “appellants are not relying on the existence of an easement under the statute.”^[24] Considering 1) the Moorings majority opinion’s statement that the statute was inapplicable to the case; 2) Judge Cowart’s omission of reference to the statute in his dissent; and 3) the Florida Supreme Court’s framing of the issue as the degree of necessity required for an easement by implication from a preexisting use, Messer’s claim that the statute was at issue in Tortoise Island is wrong.

Reported Florida cases since Tortoise Island involving implied easements from a preexisting use are rare. In Prime W., Inc. v. Camargo, 906 So. 2d 1112, 1114 (Fla. 3d DCA 2005), the Third District upheld an implied easement from a preexisting use in favor of certain lot owners for access over a roadway since the roadway was in use when the owners acquired the lot and was “materially beneficial to the use and enjoyment of their lot.”^[25] No mention was made in the court’s opinion of “absolute necessity,” and no citation was made to Tortoise Island. Instead, the court cited Dinkins and two other cases, each of which predated Tortoise Island. If Tortoise Island required absolute necessity for an implied easement from a preexisting use, citation to Tortoise Island would be expected. Did the failure of Prime W. to cite Tortoise Island result from oversight, or did it implicitly reflect the court’s conclusion that Tortoise Island did not reject the law on implied easements from a preexisting use?^[26]

If Tortoise Island actually stands for the proposition that implied easements from a preexisting use require absolute necessity, then Prime W. should have acknowledged, and applied, that standard. Tortoise Island did not explicate the meaning of “absolutely necessary,” but in the context of the case it appears “necessary” would mean “really necessary,” not just “advantageous” or “convenient.” Because the Tortoise Island lot owners had alternative routes to access the river, use of the canal at issue was not absolutely necessary. If this test were applied to the lot owners claiming an implied easement in Prime W., the issue would not be whether the roadway was “materially beneficial,” but whether use of the roadway was actually, absolutely necessary.

Absolutely Necessary for What?

Assuming for sake of discussion that Tortoise Island does require absolute necessity for an implied easement from a preexisting use, the question arises, “Absolute necessity for what?” Although neither Tortoise Island nor Judge Cowart’s dissenting opinion in Moorings addressed that question, Kirma supplies the answer: The easement must be absolutely “necessary for the complete enjoyment of the estate granted or reserved.”^[27]

“Complete enjoyment” of the estate granted does not mean “some enjoyment” or even “substantial enjoyment.” It is not sufficient that some use may be made of a parcel. “Complete enjoyment” requires continuation of all existing uses of the parcel. If absolute necessity means no use at all can be made of a parcel unless an easement is implied, then, for example, the purchaser of a home with an electrical service line crossing the seller’s adjoining property would not be entitled to an implied easement for the service line because the home could still be occupied without electricity or with electricity supplied by a generator or a new service line.

This example is a classic case in which an implied easement from a preexisting use consistently has been granted. Even under an absolute necessity standard, an implied easement based on the preexisting use of the electrical service line in the above example should be recognized because without the easement, complete enjoyment of the estate granted is impossible (if the home includes appliances, lighting fixtures, and air conditioning equipment, complete enjoyment of the home absolutely requires the provision of electricity — otherwise the appliances, lighting fixtures, and air conditioning equipment are useless).

The illogic of an extreme view of absolute necessity — that absolute necessity means no use at all can be made of a parcel unless an easement is implied — is further illustrated by considering the facts of Kirma and Williams. Although neither Kirma nor Williams expressly applied the “absolute necessity” standard (and Williams expressly applied the “reasonable necessity” standard), the facts of both cases actually met the “absolute necessity” standard. In Kirma, an implied easement was absolutely necessary because without it the subdivision lot owners would not be entitled to continued use of the central sewer line. In Williams, an implied easement was absolutely necessary because there was no other “practical or safe alternative route for golf carts to go from the 13th to the 14th hole….”^[28] Under an extreme view of absolute necessity, both these decisions would be wrong — Kirma, because the lot owners did not absolutely need a sewer line to use their lots for houses, and Williams, because even without a cart path between two holes, golf could still be played on the property.

There is nothing in Tortoise Island itself that commands an extreme view of absolute necessity. According to the Moorings court, the lot owners were entitled to an implied easement not due to an actual necessity, but due to convenience. Because the lot owners had alternative routes to access the river, use of the short-cut canal was not even marginally necessary, much less absolutely necessary. Use of the canal was simply more convenient.^[29]

An extreme view of absolute necessity completely eviscerates the law of easements based on preexisting uses, because every parcel can be substantially enjoyed for something. Under an extreme view of absolute necessity, implied easements based on preexisting uses would be collapsed into implied easements for ways of necessity, with the result that the only absolutely necessary easement would be an easement for access.^[30] An extreme view of absolute necessity was implicitly rejected in Lakeview of California Club v. Mazel Group, LLC, 193 So. 3d 84 (Fla. 3d DCA 2016),^[31] in which the appellate court upheld an implied easement from a preexisting use based on the necessity of continuing a shared road access due to circumstances existing on the property.

Tortoise Island and the Statute of Frauds

The foregoing discussion addresses the pervasive interpretation of Tortoise Island as requiring absolute necessity for an implied easement. That interpretation, however, misconstrues Tortoise Island and Judge Cowart’s dissent in Moorings.

Judge Cowart did not view Moorings as a case involving an implied easement based on preexisting use. He viewed it as a case controlled by the statute of frauds.^[32] To Judge Cowart, the plaintiffs’ claim for an implied easement was based solely on oral representations and sales brochures.^[33] Because the plaintiffs in Moorings based their claim for an implied easement on oral promises, “which promises are unenforceable under the [s]tatute of [f]rauds,”^[34] the plaintiffs failed to state a cause of action. That is the actual holding of Tortoise Island.^[35]

This conclusion is evident from Judge Cowart’s express reliance on Canell v. Arcola Housing Corp., 65 So. 2d 849 (Fla. 1953). Canell involved a developer’s oral promise to create a bathing beach on a lake for the benefit of lot owners. The Florida Supreme Court affirmed dismissal of the lot owners’ claim for an easement because it was barred by the statute of frauds. In Judge Cowart’s view, because the plaintiffs’ claim in Moorings was similar to the lot owners’ claim in Canell, Canell required dismissal of the plaintiffs’ claim.

Further evidence of the centrality of the statute of frauds to the Tortoise Island decision appears in the opening sentence of the court’s opinion, in which the court accepts review of the case “because of direct and express conflict with Canell….”^[36] Canell did not involve an implied easement from a preexisting use. It involved an oral promise to create an easement. By accepting review of the Moorings decision based on conflict with Canell and by adopting Judge Cowart’s reasoning that disposed of the plaintiffs’ implied easement claim on statute of frauds grounds, Tortoise Island must be understood as authority for denying easements based on promises rendered unenforceable by the statute of frauds, not as authority for denying easements implied from a preexisting use.

The court could have made this understanding clear had it reworded the controlling language of Tortoise Island to read, “The issue of law for the court below was whether an easement by implication from a preexisting use requires an absolute necessity or only a reasonable necessity such as will contribute to the convenient enjoyment of property. The court below held that a reasonable necessity was sufficient. In a well-reasoned dissent, Judge Cowart maintained that the controlling issue of law was whether the statute of frauds barred enforcement of oral or implied promises of an easement. We agree with Judge Cowart’s reasoning and adopt it as our own.”

Had Tortoise Island framed the legal issue in this manner, instead of ascribing to Judge Cowart a position regarding absolute necessity about which Judge Cowart said nothing, Tortoise Island at least would not be susceptible to interpretation as mandating absolute necessity for implied easements.

Implication from a Duly Executed Writing

The difficulties attendant to Tortoise Island are not confined to the degree of necessity required for an implied easement from a preexisting use. Additional complexities emanate from Judge Cowart’s extended discussion of easements, which evinces an intention more to instruct than to adjudicate. The discussion begins with a principle established in Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (Fla. 1926): Easements may be created by express grant, by implication, or by prescription. Remarking that this statement was “often misunderstood and misinterpreted,”^[37] Judge Cowart proceeded to dispel the “legal confusion”^[38] surrounding the creation of easements by implication. One wishes he had not.

Judge Cowart reasoned as follows: 1) Because no easements “may be legally created by implication arising from facts independent of a writing,”^[39] easements will never be implied in the absence of either an express grant of an interest complying with F.S. §689.01 (instrument must be signed in the presence of two witnesses), or a promise to grant an easement complying with F.S. §725.01 (the statute of frauds). 2) Due to the statute of frauds, the general rule is no easement can be created by implication. 3) There are only two exceptions to the rule. The first exception is for easements implied from a duly executed writing. The second exception is for easements implied as a way of necessity. 4) Canell describes the first exception. Canell says implication means “inferring the grant from a construction of the terms and effect of an existing deed.”^[40] Therefore:

[I]t can be stated that a grant is created by implication when the terms and effect of some duly executed deed are ambiguous in some detail and a court in construing the ambiguous writing by inference determines that the writing creates an easement. This usually occurs when a deed describes a lot by reference to a plat which plat shows servient lands held for the use and benefit of the subdivided lots…or where there is ambiguity as to the extent of an easement validly created by a written document. In this situation the deed or other written document satisfies the statutes (§§689.01 and 725.01, Fla. Stat.) and the easement is merely created by implication from the writing and the intention of the parties to the writing is of judicial concern in construing the writing.^[41]

According to Judge Cowart, the predicate for an implied easement is ambiguity in the terms and effect of some duly executed writing. The problem for the plaintiffs in Moorings was not that no written documents existed from which an easement might be implied. Judge Cowart acknowledged written documents complying with the statutes did exist. The deficiency in the plaintiffs’ case was that the complaint was “insufficient as a cause of action” to have those documents “construed to include the easements sought.”^[42] Judge Cowart did not elaborate why that was the case, but one can surmise from his other statements that instead of alleging implication of an easement from those documents, the complaint, in his view, only alleged implication of an easement from oral promises or sales brochures. That was its fatal deficiency.

A remarkable feature of Judge Cowart’s reasoning is his failure to cite legal precedent for his two postulates that 1) easements, as a general rule, cannot be created by implication due to the statute of frauds; and 2) the only exceptions to the general rule are easements implied from an ambiguous, duly executed writing and ways of necessity. No American case, treatise, or law review article proffers a general rule of implied easements in this fashion. The general rule articulated by Judge Cowart appears to be solely of his own making.

Judge Cowart portrayed implied easements as aberrations of the statute of frauds, but legal authorities consistently maintain implied easements are simply outside the scope of the statute of frauds.^[43] More telling, Judge Cowart’s classification of implied easements as either arising from an ambiguous, duly executed writing or a way of necessity is not replicated by any legal authority. If implied easements are to be placed in just two categories, Bruce and Ely’s two categories referenced above — ways of necessity and easements implied from quasi-easements — reflect the predominate view.^[44]

A baffling aspect of Judge Cowart’s classification of implied easements is his special treatment of ways of necessity.^[45] Both ways of necessity and implied easements from a preexisting use require a duly executed writing. A way of necessity, like an implied easement from a preexisting use, cannot exist without a conveyance from a grantor owning both dominant and servient parcels. Therefore, instead of two exceptions to Judge Cowart’s general rule, why is there not a single exception for easements implied from an ambiguous, duly executed writing? Why does Judge Cowart place ways of necessity in a separate category?

Perhaps Judge Cowart viewed the factual situation of a landlocked parcel as unambiguous, so that the implication of a way of necessity as a matter of law is fundamentally different from the implication of an easement in connection with a deed whose terms and effect are ambiguous. Judge Cowart specifically mentioned easements arising from plats and easements of uncertain extent created by a written document as examples of ambiguous writings. He did not contend these were exclusive examples, but did he intend them to be? This is where the rabbit hole overflows with uncertainty.

If Tortoise Island made Judge Cowart’s reasoning the law of Florida (but see “Dicta” below), any future implied easements would have to satisfy the criteria Judge Cowart espoused — i.e., no easement may be implied without ambiguity in the terms and effect of some duly executed writing.^[46] That presents an immediate challenge — nowhere in Judge Cowart’s discussion of implied easements did he mention easements arising from a preexisting use. Did he intend to exclude such easements from the realm of easements that may be permissibly implied from an ambiguous writing? On the one hand, it seems he did, since he carved out ways of necessity for special treatment without mentioning implied easements from a preexisting use either as a third exception to his general rule or as an additional example of ambiguity in his first exception. On the other hand, is it reasonable to conclude Judge Cowart intended to eliminate a well-established common law concept from Florida jurisprudence without expressly saying so? Assuming that was not his intent, how can Judge Cowart’s words be construed to accommodate implied easements from a preexisting use?

Because implied easements from a preexisting use by their nature must arise in connection with a deed from a grantor owning both a dominant and a servient parcel, a duly executed writing will necessarily be present in any case supporting an easement by implication from a preexisting use. That element of the first exception to Judge Cowart’s general rule will always be satisfied. The second element is more elusive — the presence of ambiguity in the terms and effect of the deed.

The Florida Supreme Court defined “ambiguous” in Friedman v. Virginia Metal Prod. Corp., 56 So. 2d 515, 517 (Fla. 1952) (citations omitted):

A word or phrase in a contract is “ambiguous” only when it is of uncertain meaning, and may be fairly understood in more ways than one. The term “ambiguous” means susceptible of more than one meaning. Language is ambiguous where it is susceptible of interpretation in opposite ways. Where either general language or particular words or phrases used in insurance contracts are “ambiguous,” that is, doubtful as to meaning, or, in the light of other facts, reasonably capable of having more than one meaning so that the one applicable to the contract in question cannot be ascertained without outside aid, extrinsic evidence may be introduced to explain the ambiguity. A contract is ambiguous when it is reasonably or fairly susceptible to different constructions.

In Friedman, the Florida Supreme Court found the word “purchased” ambiguous and authorized parol testimony, “not to vary or change the terms of the contract, but to explain, clarify or elucidate the word ‘purchased’ with reference to the subject matter of the contract, the relation of the parties, and the circumstances surrounding them, when they entered into the contract and for the purpose of properly interpreting, or construing, the contract.”^[47]

Judge Cowart said ambiguity relates to the terms and effect of some duly executed writing. Under One Harbor Financial Ltd. Co. v. Hynes Properties, LLC, 884 So. 2d 1039 (Fla. 5th DCA 2004), the writing itself must be a valid legal instrument (since an owner’s agreement to grant himself an easement on his own property was void, no implied easement could arise from the agreement). One Harbor distinguished Williams, because “in implying an easement by reservation from a pre-existing use, the court interpreted ambiguous terms contained in an otherwise valid contract,” and Martin v. Kavanagh, 773 So. 2d 1250, 1254 (Fla. 5th DCA 2000), because “a valid writing sufficient to satisfy the [s]tatute of [f]rauds was present in that case.”^[48] It is noteworthy One Harbor regarded Williams as consistent with, and not overruled by, Tortoise Island.

Judge Cowart gave as an example of ambiguity a written document “where there is ambiguity as to the extent of an easement validly created….”^[49] Any conveyance of land in circumstances involving a preexisting use involves the creation of an easement of uncertain extent. An implied easement “is gathered from the circumstances surrounding the conveyance and this is taken to mean that whatever is obviously in use as an incident or an appurtenance passes by implication when the land is sold.”^[50] “The rationale supporting implied easements is the court’s conclusion that the parties must have intended to grant or reserve an easement as part of the conveyance of land based on the circumstances at the time of the conveyance.”^[51]

Ambiguity is inherent in every deed in which the circumstances surrounding the deed evidence the parties’ intent to continue a preexisting use. The ambiguity may arise from a deed’s express reference to appurtenant easements without specifying what those easements are, and it may arise even without reference to appurtenances.^[52] Because the effect of a deed given in circumstances involving a preexisting use is unclear — i.e., the intent to create an easement and the scope of the easement is not expressed in the deed — the requisite ambiguity to imply an easement will always be present, and parol evidence should be admissible to explain, clarify, and elucidate the circumstances surrounding the deed, just as parol evidence in Friedman was permitted to explain “purchased.”

If deeds given in circumstances involving a preexisting use are construed in this manner, implied easements from a preexisting use can still be recognized while respecting the criteria established by Judge Cowart. Once established, an easement by implication will pass to all subsequent grantees.^[53]

Dicta

If the Florida Supreme Court concludes deeds given in circumstances involving a preexisting use are not inherently ambiguous in the sense required by Judge Cowart, the court will be faced with a choice: Either declare implied easements from a preexisting use an impossibility in Florida because they cannot be harmonized with the reasoning of Judge Cowart previously adopted by the court or acknowledge Judge Cowart’s reasoning with respect to implied easements was pure dictum.

“The dictum of a judge is not the decision of a court. ‘There is nothing authoritative in a case, except what is required to be decided to reach the final judgment, and what, by the judgment, becomes res adjudicata between the parties as to the subject-matter of the suit.’ ‘An obiter dictum, in the language of the law, is a gratuitous opinion, — an individual impertinence, — which, whether it be wise or foolish, right or wrong, bindeth none, not even the lips that utter it.’”^[54] “No court is bound by obiter dictum, including the appellate court which expressed or uttered such collateral opinion.”^[55]

Because Judge Cowart’s formulation of a general rule with just two exceptions was unnecessary to the holding of Tortoise Island, it is not authoritative. Judge Cowart’s venturing his own theory of implied easements, though intended to elucidate, ran afoul of the admonition in Dobson v. Crews, 164 So. 2d 252, 255 (Fla. 1st DCA 1964), aff’d, 177 So. 2d 202 (Fla. 1965): “Judicial pronouncements which are obiter dicta in character more often serve to confound than to clarify the jurisprudence of the State.”^[56]

Escape from the Rabbit Hole

No single judge or case is responsible for the rabbit hole in which the law of implied easements from a preexisting use presently is ensnared. The Florida Supreme Court’s articulation in Tortoise Island of Judge Cowart’s position takes precedence in the creation of the rabbit hole, but the failure of every district court of appeal to comprehend Tortoise Island is also to blame.

The first step in escaping the rabbit hole is to recognize Tortoise Island as authority for denying easements based on promises rendered unenforceable by the statute of frauds, not as authority for denying easements implied from a preexisting use.

The second step is to understand Tortoise Island did not hold an implied easement requires absolute necessity. The holding of Tortoise Island has nothing to do with the degree of necessity required for an implied easement. The holding of Tortoise Island is that a cause of action for an implied easement cannot be based on oral promises due to the statute of frauds.

The third step is to regard Judge Cowart’s extended discussion of easements as dicta. Neither advocates nor judges should have to contend with his contrivance of the law of implied easements.

The final step is to acknowledge Tortoise Island is not precedent for precluding implied easements from a preexisting use in Florida. It would be an unusual step for the Florida Supreme Court to invalidate implied easements from a preexisting use based on Tortoise Island, since nothing in Judge Cowart’s dissent manifests such intent. As the court stated in Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002), “this Court does not intentionally overrule itself sub silentio. Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply our express holding in the former decision until such time as this Court recedes from the express holding.”^[57]

While Florida caselaw upholding implied easements from a preexisting use prior to Tortoise Island was based on district court of appeal decisions and not a Florida Supreme Court decision, it is unlikely the court intended to overrule that caselaw sub silentio. This is especially the case given the court’s framing of the issue in Tortoise Island as the degree of necessity required for implied easements from a preexisting use, not whether such easements are valid in Florida.