Selvia v. Reitmeyer

• Decision Date: 14 May 1973
• Docket Number: No. 1--672A13,1--672A13
• Citation: 295 N.E.2d 869,156 Ind.App. 203
• Parties: Ed SELVIA and Elizabeth Selvia, Individuals and as husband and wife, Defendants-Appellants, v. John F. REITEYER et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 869

295 N.E.2d 869

156 Ind.App. 203

Ed SELVIA and Elizabeth Selvia, Individuals and as husband and wife, Defendants-Appellants, v. John F. REITEYER et al., Plaintiffs-Appellees.

No. 1--672A13.

Court of Appeals of Indiana, Third District.

May 14, 1973.

Rehearing Denied June 25, 1973.

Norman L. Lowery and Eric A. Frey, Rosenfeld Wolfe & Frey, Terre Haute, for defendants-appellants.

Robert H. Duffy, Terre Haute, for plaintiffs-appellees.

HOFFMAN, Chief Judge.

The issue presented by this appeal is whether the judgment of the trial court enjoining defendants Ed Selvia and Elizabeth Selvia (both referred to herein as Selvia) from using an access road which was located upon property owned by plaintiffs John F. Reitmeyer, Fern E. Reitmeyer, James Pollitt, Christina Pollitt, Louise Pounds, Herbert Beasley, Ann Beasley, Lavere Miller and Mary Miller (collectively referred to herein as Reitmeyer), was contrary to law.

On and prior to August 7, 1958, Walter B. French (French) and the Maumee Collieries Company (Maumee) were the owners of two adjoining tracts of land upon which was located a strip mine lake. On August 7, 1958, Maumie and French entered into an agreement to effectuate their mutual desire to develop the recreational potential of the strip mine lake.

Appellees (Reitmeyer) are now the owners of a portion of the French property. Another portion of the French property passed by warranty deed from French to Lewis Stine and Frances Stine.

Selvia is the successor in interest of a portion of the Maumee property. Also, Selvia now owns a 40-foot strip of the Stine property which abuts the remainder of the Stine property on one side and the Selvia-Maumee property on the other side.

Upon appellees' property is located an access road, the use of which is here in controversy. With reference to the location of the access road, the trial court made the following finding of fact:

'4. That the access road has been extended from the lands of the plaintiffs (Reitmeyer) generally to the east onto lands of the defendants (Selvia) and/or their assigns.'

Under the foregoing facts the cause of action as is here pertinent evolved as follows: Appellees (Reitmeyer) filed their complaint on May 8, 1969, to enjoin the use by appellants (Selvia) of the access road. An answer denying the material allegations of the complaint was filed on January 29, 1970, by Selvia. Discovery via admissions and interrogatories was completed on August 20, 1971. The issues for trial were established at the pretrial conference on September 7, 1971, and trial of the cause was set for Monday, November 1, 1971. On Friday, October 29, 1971, the last day before trial, Selvia filed 'Motion to Amend Answer's to plead the defense of laches. Such motion was overruled by the trial court. Trial was to the court which entered judgment in favor of appellees (Reitmeyer) on their complaint for an injunction and restraining and enjoining appellants (Selvia) from trespassing on or using the access road across the property of appellees. The motion to correct errors filed by Selvia was overruled and this appeal followed.

On appeal, appellants first contend that the trial court erred in overruling the motion to amend their answer. Such contention is controlled by the following portion of TR. 15(A), Ind.Rules of Procedure:

'Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires.'

The grant or denial of leave to amend under the above quoted portion of TR. 15(A), supra, is a matter within the sound discretion of the trial court and reviewable only for an abuse thereof. 6 Wright and Miller, Fed.Pract. & Proc., § 1484, at 418 (1971); 1A Barron and Holtzoff, Fed. Pract. & Proc., § 445, at 722 (1960). Delay alone is insufficient reason to deny leave to amend, prejudice must be shown. Hanson v. Hunt Oil Company (8 Cir., 1968), 398 F.2d 578; but compare Nevels v. Ford Motor Company (5 Cir., 1971), 439 F.2d 251, holding that amendments should be tendered no later than pretrial unless compelling justification is shown. In Foman v. Davis (1962), 371 U.S. 178, at 182, 83 S.Ct. 227, at 230, 9 L.Ed.2d 222, the following were listed as some of the factors to be considered in granting or denying leave to amend:

'If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given."

In the instant case, because of the length of time this cause of action had been pending before trial, because the proposed amendment sought to add an entirely new issue which would probably have necessitated a continuance, because a thorough pretrial conference had been conducted wherein leave to amend could have been sought without prejudice to the opposing party and because leave to amend was not sought until the Friday before trial on Monday, there was no abuse of discretion by the trial court in denying appellants' motion to amend their answer.

Appellants contend that the trial court erred in concluding that they did not acquire 'an easement by necessity, an implied easement, or a license to use the access road.'

A license in real property is a personal, revocable, and unassignable privilege to do one or more acts on the land of another without possessing an interest therein. 25 Am.Jur.2d, Easements and Licenses, § 123, at 525. There is 'no such right as a license not subject to revocation and falling short of an easement.' Shirley, et al. v. Crabb (1894), 138 Ind. 200, at 204, 37 N.E. 130, at 132. However, under certain situations a license can take the form of a servitude upon the land of another.

'Where a license has been executed by an expenditure of money, or has been given upon a consideration paid, it is either irrevocable altogether, or cannot be revoked without remuneration, the reason being that to permit a revocation without placing the other party in statu quo would be fraudulent and unconscionable. * * *

'Where a license is coupled with an interest, or the licensee has done acts in pursuance of the license which create an equity in his favor, it cannot be revoked.'

Ferguson v. Spencer (1890), 127 Ind. 66, at 68, 25 N.E. 1035, at 1036.

A right, given in perpetuity, to do an act on the land of another is an easement, but the same must be in writing. Snowden and Others v. Wilas and Others (1862), 19 Ind. 10.

Here, appellants (Selvia) contend that they acquired a license to use the access road to reach the Selvia-Maumee property from the following provision contained in the 1958 French-Maumee agreement:

'The cost of maintenance of the various roadways shall be shared equally between the various owners of the real estate using the roadways.'

Neither the above quoted provision or the agreement when read as a whole is a grant to the successors in interest of the Maumee property of the right to extend, improve or use the access road. In the absence of an easement granted in writing between French and Maumee, any parol license granted between them is subject to the general rules set forth above. Even assuming, arguendo, such parol license was entered into between Maumee and French, Selvia has not argued the revocability, vel non, of the license. Thus, the question becomes whether an easement can be implied in favor of Selvia.

Reitmeyer argues that an easement cannot be implied over the land of a stranger, e.g., there is no unity of ownership between the property of French and the property of Maumee. Such argument is a correct statement of the law. See: 5 Restatement of Property, § 474, at 2972 (1944).

The doctrine of an implied easement by way of necessity was discussed in Ritchey et al. v. Welsh (1898), 149 Ind. 214, at 217, 48 N.E. 1031, at 1032, as follows:

'It is settled law that if one conveys a part of his land in such form as to deprive himself of access to the remainder, unless he goes across the land sold, he has a way of necessity over the portion conveyed. This is because the law presumes an understanding of the parties that the one selling a portion of his land shall have a legal right of access over the part sold to the remainder, if he cannot reach it in any other way. If the part conveyed is in such form that the grantee cannot reach the same except over the part not conveyed, such grantee has a way of necessity thereto over the land of the grantor, not conveyed, for the reason that the law presumes that one would not sell his land to another without an understanding that the grantee should have a legal right of access thereto over the part not...