While owners can generally get an easement by necessity to obtain access to landlocked land over remaining lands of the grantor, most states also recognize easements implied from visible, continuous prior use before the parcels were separated if the access is helpful (“reasonably necessary”) to the dominant estate. The prior use doctrine rests on the right to reform a deed because of mutual mistake.
Such easements can arise by grant (giving an easement to the grantee/buyer) or reserved by the grantor/seller. However, the Vermont Supreme Court has held in the case of Greenfield v. Luce, 2022 WL 16848175, 2022 Vt. Unpub. LEXIS 97 (Vt. Nov. 10, 2022) that it will find an easement to be reserved unless it is necessary to access a landlocked estate.
Most states have a stricter test for easements by reservation because they “derogate from the grant” and the buyer should not be surprised to find that the parcel they are buying is encumbered by an easement not mentioned in the deed. In Vermont, however, no easement can be implied from prior use if there is another way to access to land even if that alternative access is much less convenient.