Access to landlocked real property is a universal legal entanglement, but surprisingly, no law and economics scholar has systematically analyzed this issue. The doctrines in the United States, called “easements of necessity” and “statutory easements,” are similar to those in civil law jurisdictions. 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, and the easements are gratuitous.

Using economic analysis, this Article argues that these doctrines can be understood as an application of what I call the “hybrid rule,” an unheralded mixture of the property rule and liability rule. This hybrid rule is more efficient than the two prototypical entitlement protection rules because it strikes a balance between facilitating voluntary transactions through reducing transaction costs, reducing cost externalization, and preserving property value. More specifically, the hybrid rule stipulates that the extent of statutory easements should be set 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.

 

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