theory of strict necessity when in fact the road is essential to only one tenant of a portion of the north tract would be inequitable.
The rationale for the doctrine of implied easements is the effectuation of the intention of the parties at severance, Freightways Terminal Company v. Industrial & Commercial Construction, Inc., 381 P.2d 977 (Alaska 1963). Barring necessity, no easement will be implied where none was intended. Clearly defendants did not intend such an easement. The larger transaction, of which the north tract formed only a part, was directed solely to defendants' developed properties. They retained a number of undeveloped holdings, of which the south tract was only one, for the express purpose of subsequent development. The south tract is located in a commercially valuable area, and it is unreasonable to assume that any experienced real estate dealer would knowingly preclude the development of such a tract by granting, or even intending to grant, the easement claimed.
The evidence lends further credence to this view. The road, lying partially on Government land, was completed about 1953 by the Government. It was built expressly to serve a Government tenant with defendants' permission under what defendants term a "gentlemen's agreement" as to use. Defendants did not build the road themselves to benefit their own property, and the road's location precludes its usefulness to plaintiff without that portion situated on Government land. Use of the road for trash removal and fuel supply was incidental and commenced some five years after the road's completion as the most convenient solution to then current problems. The Government never claimed an easement in the road or even mentioned it in leases for the first ten years of its occupancy. Thereafter, defendants demanded and obtained from the Government annual rental, clearly indicating that as between defendants and the road's builder and principal user no easement was contemplated. In fact, testimony that defendants' attorneys informed plaintiff's attorney prior to settlement that defendants intended to provide access over the road only for the period of years provided by the Government's 1961 condemnation suit was uncontradicted.
Plaintiff's intention is equally clear. Plaintiff's first view of the property revealed an open access to the front from Connecticut Avenue and access to the rear via a road over defendants' property. That property, the south tract, was not an object of negotiation.
Plaintiff in surveying the north tract became aware that the rear access was bisected by the north tract's property line but made no further inquiries and sought no easement.
The contract for the sale of Park & Shop throws further light on the intention of the parties. Paragraph 18 of the contract, an integration clause, stipulates that the contract and attachments contain the entire understanding of the parties. No mention is made in the contract of the easement claimed. It is well established that implied easements are not favored by the courts as being in derogation of the rule that written instruments speak for themselves, Freightways Terminal Company v. Industrial & Commercial Construction, Inc., supra, at 983. The intention of the parties is further clarified by a meeting held on March 5, 1963. On that date, two weeks prior to settlement, representatives of both Real Properties Corporation of America and plaintiff approved a stipulated settlement of the 1961 condemnation suit providing that the Government pay Kass Realty annual rental for the use of the road. If plaintiff claimed or intended any easement, this was certainly the time to assert it. Plaintiff's approval, prior to final settlement, of a document affirming defendants' ownership of the road rebuts his claim to an easement by implication. Consequently, the court finds that no easement was intended and that none can be implied.
Since plaintiff has failed to establish unity of title, necessity of the alleged easement to the use of the property, and any intention that an easement by implication should arise, plaintiff's claim to such an easement must fail. In view of the foregoing, the court finds it unnecessary to consider the question of apparent, continuous, and permanent use of the road.
Accordingly, the complaint to declare an easement, for an injunction and other relief is dismissed.
This memorandum shall constitute findings of fact and conclusions of law.