## Facts

- In 1959, a common grantor conveyed approximately 7,001 acres to the State of Vermont (now largely a wildlife management area) while retaining a separate roughly 38-acre parcel on the western shore of Norton Pond; the deed reserved no express access easement across the conveyed land.
- In 1961, the retained parcel was conveyed to new owners without any express easement over the State’s land; those owners later subdivided the parcel into 18 lots and created internal rights of way within the subdivision.
- In 1997, David Berge purchased two lots in the subdivision.
- Berge regularly accessed the property by vehicle via a gravel road running from a public route, crossing third-party land and then State land, to reach his lots.
- Berge also had the ability to reach the property by boat via a public launch on the opposite shore of Norton Pond, but he did not use water travel for regular access.
- The State placed a gate across the access road, blocking Berge’s overland route.
- Berge sued to enjoin the obstruction and claimed an implied easement by necessity over State land; the trial court granted summary judgment to the State on the ground that navigable-water access defeated “necessity.”

## Issues

1. Whether potential access to a parcel by navigable water defeats, as a matter of law, a claim for an implied easement by necessity for overland access across the remaining land of a common grantor.

## Decision

- The Vermont Supreme Court reversed the grant of summary judgment and remanded.
- The court held that navigable-water access does not categorically preclude an easement by necessity for overland access.
- The court concluded that the trial court applied an incorrect legal standard by treating water access as an absolute bar rather than a fact relevant to practical necessity.

## Legal Principles

- An easement by necessity may be implied when a conveyance by a common grantor leaves a parcel without reasonably practical access to a public road, supporting an inference that the parties intended access adequate for use of the property.
- “Necessity” is evaluated in functional, contemporary terms focused on reasonable enjoyment and practical access, not on merely theoretical routes.
- Navigable-water access may be considered in assessing necessity, but it is not, by itself, legally sufficient to defeat an overland easement-by-necessity claim.
- Summary judgment is improper where the moving party relies on a categorical legal rule inconsistent with the doctrine’s practical inquiry into access and reasonable use.

## Conclusion

The Vermont Supreme Court ruled that the mere existence of navigable-water access does not automatically eliminate the need for an implied overland easement by necessity, and it returned the case for further proceedings applying a practical necessity standard tied to reasonable use and access.


Berge v. State, 181 Vt. 1, 915 A.2d 189 (Vt. 2006)