When a Landlocked Tract Stays Landlocked: The Limits of Easements by Necessity in Virginia

A court once observed that "[f]ew things are as certain as death, taxes and the legal entanglement that follows [the conveyance] of landlocked real estate." Bob Daniels & Sons v. Weaver, 106 Idaho 535, 681 P.2d 1010, 1013 (Idaho Ct. App. 1984).

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That observation rings especially true in Southwest Virginia, where family land has passed through generations of deeds, conveyances, and divisions — often without careful attention to how access would be maintained for every resulting parcel.

When a landowner finds their property landlocked, Virginia courts will sometimes "imply" an easement by necessity over a neighboring tract to provide access. This doctrine is rooted in strong public policy: Virginia disfavors land that cannot be put to beneficial use. But as a recent case decided in the Tazewell County Circuit Court illustrates, that public policy has important limits — and not every landlocked parcel is entitled to relief.

What Is an Easement by Necessity?

An easement by necessity is an implied right of access over another person's land. Unlike an express easement — which is created by language in a deed — an easement by necessity is created by operation of law, based on the circumstances of how the land was divided.

Virginia law requires three elements before a court will imply an easement by necessity:

1. The landlocked parcel and the neighboring parcel must have been under common ownership at some point in the past.

   
   

2. That common ownership (unity of title) must have been severed — meaning the one tract was split into two tracts, thereby creating separate ownership.

   
   

3. Most critically: the necessity must have arisen at the time of the severance. If the property had access when common ownership was split, there is no easement by necessity — regardless of what happened to that access later.

This third requirement is the one most frequently overlooked, and it is, in my opinion, the best avenue for attacking an easement by necessity claim.

The Controlling Virginia Authority: Clifton v. Wilkinson

The Virginia Supreme Court addressed this issue directly in Clifton v. Wilkinson, 286 Va. 205 (2013), an appeal arising out of Washington County. In that case, a landowner's access to his property was cut off when the state constructed Interstate 81 — leaving him landlocked and dependent on permissive use of a neighbor's access road for over 45 years.

When the neighbor finally objected and brought suit, the trial court found an easement by necessity in the landlocked owner's favor. The Supreme Court reversed.

The Court held that easements by necessity do not arise "when a former unity of title has been severed between two tracts without impairing any right of access to either tract." Clifton, 286 Va. at 210. Even though the property eventually became landlocked, the necessity arose long after the severance of title — not at the time of the original conveyance. And of similar importance, the Court noted that the access was restricted by state action, not by any conduct of the former common owner. Those two facts together were fatal to the easement by necessity claim.

The rule emerging from Clifton is clear: the necessity must be simultaneous with the severance. If the land had access when it left common ownership, no easement by necessity can be implied later — even if circumstances later conspire to take that access away.

A Recent Application: Tazewell County Circuit Court (2026)

The principles from Clifton were recently put to the test in a case decided by the Tazewell County Circuit Court, in which Fidelis Law, PLC represented the plaintiffs. The facts presented a nearly parallel situation — and produced the same result.

The Background

The properties at issue traced their origin to a larger tract along Middle Creek in Tazewell County, originally assembled in the early twentieth century. In 1962, the common owner conveyed a small two-acre parcel fronting the main road to a family member — an act that constituted the first severance of unity of title. The remaining parcel, which included the original homeplace, stayed in the family.

At the time of that 1962 severance, access to the homeplace was accomplished through a driveway that meandered through the shallow creek bed and connected to the road on the opposite side of the creek from the two-acre parcel. This was confirmed in court by the defendants themselves. The homeplace had access — it simply used a different route than the one currently in dispute.

The access problem arose not from the 1962 severance, but from events that occurred in the 1970s, when the Virginia Department of Transportation improved the road, installed a drainage pipe for the creek, and regraded the surrounding area. Those improvements rendered the original creek-bed driveway unusable. From that point forward, the owners of the homeplace began using — on a permissive, intermittent basis — an access road that crossed the plaintiffs' two-acre parcel, immediately in front of their residence.

Eventually, as these situations often do, the permissive arrangement soured. When the plaintiffs sought to stop the encroachment, the defendants asserted an easement by necessity over the plaintiffs' land.

The Arguments

The defendants' position was straightforward: their property was landlocked, they had no other access, and Virginia's strong public policy against landlocked tracts entitled them to an implied easement.

Fidelis Law, on behalf of the plaintiffs, filed a Memorandum of Law on the issue, arguing that Clifton foreclosed the defendants' claim entirely. The critical question was not whether the property was currently landlocked — it was whether it was landlocked at the time of the 1962 severance. The answer was clearly no. When the common owner divided the land in 1962, both tracts had access. The homeplace was served by the creek-bed driveway for years after the severance. It was not until the state improved the road in the 1970s that the original access became unavailable.

As in Clifton, the access problem arose from third-party action — state road improvements — not from anything the former common owner did when dividing the land. And as in Clifton, that distinction was fatal to the easement by necessity claim.

The Court's Decision

The Tazewell County Circuit Court agreed with the plaintiffs. After careful review of Virginia law and the evidence presented, the Court made several key findings:

— At the time of the 1962 severance, both tracts had access, with the homeplace being served by the creek-bed driveway.

— The original driveway was rendered unusable not by any act of the former common owner, but by the state's road improvements in the 1970s.

— Because there was no impairment of access at the time of the severance of unity of title, no easement by necessity arose under Clifton v. Wilkinson.

— The subsequent, permissive use of the plaintiffs' access road did not ripen into a prescriptive easement because the use was permissive and intermittent — not open, hostile, and continuous as required for prescriptive easement.

The Court denied the easement by necessity claim with prejudice and entered an order permanently enjoining the defendants from using the access road across the plaintiffs' property without written consent.

What This Means for Virginia Landowners

This case is a useful reminder that Virginia's public policy against landlocked tracts — while real and well-established — is not absolute. The doctrine of easements by necessity has specific requirements, and courts will not simply imply an easement because a property currently lacks access.

If you own land that has become landlocked, or if a neighbor is claiming an easement by necessity over your property, the following questions will be critical to the outcome:

• Was there common ownership? Both the landlocked parcel and the neighboring parcel must trace back to a common owner. No common ownership — no easement by necessity.

• Was access available at the time of severance? If the parcel had access when it left common ownership, no easement by necessity arose at that time. Later events — including state road construction, natural changes, or the deterioration of an old access point — cannot create the necessity retroactively.

• Was the access impaired by the common owner or by a third party? As Clifton and the Tazewell case both demonstrate, when access is cut off by state action or other third-party conduct rather than by the former common owner, that weighs heavily against implying an easement by necessity.

Easement Disputes in Southwest Virginia

Easement by necessity claims are among the most complex and fact-intensive disputes in Virginia property law. They require careful examination of deed chains going back decades, the physical history of access to the property, and the sequence of events that led to the current situation.

Fidelis Law, PLC handles easement disputes throughout Southwest Virginia, including Tazewell, Washington, Scott, Russell, Smyth, Buchanan, Dickenson, Wise, Wythe, and surrounding counties. Attorney Taylor Corbett's background as a mineral title abstractor — researching property chains in this region's courthouses — means he approaches easement cases with a level of historical title knowledge that most litigators simply don't have.

If you are facing an easement dispute, or if a neighbor is claiming access across your land, contact Fidelis Law, PLC for a consultation.

Call: (423) 777-8247

Email: info@fidelislaw.org

www.fidelislaw.org

*The case discussed in this article was decided in the Tazewell County Circuit Court. Party names have been omitted to protect client confidentiality. This article is for informational purposes only and does not constitute legal advice. The outcome of any legal matter depends on the specific facts and circumstances involved.*