(concurring). I concur with the result, but write separately to express my concern over the court's statement that a request for an easement of necessity sounds in equity. I tend toward the conclusion, without, finally determining, that these cases do not turn upon equitable principles. This case may be resolved without extending the analysis to reach the majority's conclusion, and whether an action to declare a way of necessity is equitable was not squarely briefed. Because the issue was not fully addressed in the briefs, I would prefer to see this case resolved on a narrower issue.1 I would simply decide section three of the majority opinion on the basis that Richards failed to prove unity of title with the railroad2 and Peterson properties. Alternatively, I specifically join in the majority's determination that the railroad was a necessary party and that failure to join it prevented *853Richards from proving that the river front property is truly landlocked, assuming access from the bluff.3
By characterizing an action to establish an easement of necessity as equitable, the majority provides trial courts with discretion to deny the easement even when the elements necessary to establish the way have been met. Thus, if the trial court finds both unity of title to the parcels and that the subject property is landlocked, it then weighs the benefit of conferring a way to the dominant estate against the burden such an easement would impose on the servient estate. If the benefit does not overcome the burden, the property may remain landlocked.
In my view, the flaw in the majority's analysis is its reliance upon Ludke for the proposition that easements are established in equity.4 See Ludke v. Egan, 87 Wis. 2d 221, 274 N.W.2d 641 (179). Ludke does not say this.5 No Wisconsin case does. What they do say is: "an easement of necessity is created by the sale of a landlocked parcel over the seller's land." Ruchti v. Monroe, *85483 Wis. 2d 551, 556, 266 N.W.2d 309, 312 (1978) (emphasis added); "[a] way of necessity typically arises where an owner [severs] a landlocked portion of his property by conveying such parcel to another. Backhausen v. Mayer, 204 Wis. 286, 234 N.W. 904 (1931). The way is implied over the land retained by the grantor." Ludke, 87 Wis. 2d at 229-30, 274 N.W.2d at 645. "The Ludke property was originally part of the Micke farm and when it was sold as a landlocked parcel of real estate, a way of necessity thereby came into being." Id. at 231, 274 N.W.2d at 646 (emphasis added).
These authorities, along with others, suggest that the easement, assuming no evidence of a contrary intent,6 arises by operation of law at the moment a common owner isolates a parcel through a sale.
A way of necessity is an easement founded on an implied grant or implied reservation. [Citing, inter alia, Miller v. Hoeschler, 126 Wis. 263, 105 N.W. 790 (1892), overruled in part on other grounds by Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1905).] It arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road ....
25 Am. Jur. 2d Easements and Licenses § 36, at 606-07 (1996).
A way of necessity results from the application of the presumption that whenever a party conveys *855property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Such a way is of common-law origin, and is presumed to have been intended by the parties.
25 Am. Jur. 2d, supra § 37, at 607-08 (emphasis added); see also 25 Am. Jur. 2d, supra § 2, at 571: "An easement is not a lien or an equity."
Certainly, the trial court has discretion to declare the location and scope of an easement of necessity once the elements for its existence have been proven. But once proven, there is a compelling argument to be made that the court's discretion is limited to location and scope. It cannot deny what exists in the land. It seems likely that the court's authority merely defines, but does not weigh, the burden that the grantor placed upon the retained parcel by landlocking property. As indicated, however, because the briefs did not fully and specifically explore the matter, I am not prepared to make this pronouncement any more than I can embrace the majority's conflicting conclusion.
An appellate court should decide cases on the narrowest possible grounds. State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44, 46 (1997).
Bear in mind that it is the railroad's property, owned in fee simple, that immediately landlocks Richards' property.
Richards asserted at oral argument that the area between the bluff and the railroad's property cannot be traversed. While this may be a matter of fact, it is not a fact of record. I also note that the issue of access from the Mississippi River was not raised in the trial court.
In response to this concurrence, the majority has withdrawn its express reliance on Ludke for the proposition that an easement of necessity sounds in equity. See Ludke v. Egan, 87 Wis. 2d 221, 274 N.W.2d 641 (1979). Because the proposition itself has not been withdrawn, one might infer that the majority continues to rely on that decision, albeit tacitly. While not necessarily a satisfying inference, it would seem preferable to concluding that the majority makes this pronouncement of new law without any supporting evaluation whatsoever.
Indeed, neither the word "equity" nor "equitable" appears in Ludke.
In some jurisdictions, a way of necessity is implied regardless of the grantor's true intent, whereas in others the implication will not be made where it is shown that it was not intended. See 25 Am. Jur. 2d Easements and Licenses § 37 (1996). This issue does not appear to have been addressed in Wisconsin.