9 - Access to Landlocked Land

Summary

Chapter 9 studies access to landlocked land and shows that most jurisdictions aptly use a mixture of ex ante and ex post viewpoints to design their doctrines. This chapter follows American parlance and divides the doctrine into “easements of necessity” and “statutory easements.” They have intuitive appeal: for statutory easements, owners of servient land should be compensated; easements should be necessary; and the location of the passage should cause the least damage to the servient land. As for easements of necessity, the landlocked owners can only gain access to land held by the grantor at the time of the conveyance. The prevalent scheme under statutory easement to solve this legal entanglement is neither the property rule nor the liability rule, but a “hybrid rule,” an unheralded mixture of the property rule and liability rule. Chapter 9 argues that the hybrid rule stipulates that the extent of statutory easements should be set at where the marginal social benefit of prescribed passage sharply declines, and passage locations should be determined following the least damage rule. As for easements of necessity, the limited access rule and the gratuity requirement make economic sense from an ex ante viewpoint.