Facts: P, who owns a development from which many commuters use small aircraft to
travel, seeks to operate a flight school and an airplane sale center on its tract and seeks an
easement of necessity over D’s property for aircraft access to the runway and airport
facilities. P’s tract is zoned for commercial purposes and is adjacent to a highway for
motor vehicles. It is also adjacent to a taxiway leading to the main runway for the
development. By virtue of deed restrictions, use of the taxiway is limited to owners of
abutting residential properties P has been enjoined from using the taxiway. Trial court
denied the easement motion.
Issue: Is P entitled to an easement implied by necessity for access to the property by
airplane as well as by motor vehicle?
Holding: Affirmed
Rationale:
– The standard for imposing an easement of necessity is whether such an easement
is required in order to provide reasonable access to the property
– Absolute necessity is not required. The owner need not show that without an
easement there is no access whatsoever to the property. In the age of flying
vehicles, virtually all property is accessible in some manner.
– The Rest. and courts have denied easements of necessity where there was
reasonable access to the property even in situations where denial of the easement
cause considerable hardship
– In this case, there is access to P’s property by means of public highway, though
transportation by public highway has become more common, as matter of law, an
owner is not entitled to aircraft access in order to make reasonable use of his
property
AZ private way of necessity statute:
An owner of or a person entitled to the beneficial use of lands, mines, or mining claims
and structures thereon, which is so situated with respect to the land of another that is
necessary for its proper use and enjoyment to have and maintain a private way of
necessity over, across, through and on the premises, may condemn and take lands of
another, sufficient in area for the construction and maintenance of the private way of
necessity.