Brown v. Heidersbach

• Decision Date: 08 March 1977
• Docket Number: No. 3--375A34,3--375A34
• Citation: 172 Ind.App. 434,360 N.E.2d 614
• Parties: Roscoe BROWN et al., Appellants (Defendants below), v. Thomas C. HEIDERSBACH et al., Appellees (Plaintiffs below).
• Court: Indiana Appellate Court

Page 614

360 N.E.2d 614

172 Ind.App. 434

Roscoe BROWN et al., Appellants (Defendants below), v. Thomas C. HEIDERSBACH et al., Appellees (Plaintiffs below).

No. 3--375A34.

Court of Appeals of Indiana, Third District.

March 8, 1977.

Rehearing Denied April 13, 1977.

David Peebles, Fort Wayne, for appellants.

Jerrald A. Crowell, Fort Wayne, for appellees.

STATON, Presiding Judge.

The Browns platted some of their property on Lake George. The Smiths and Heidersbachs held title to several of the platted lots and enjoyed an easement to the lake. Later, the Browns platted additional property and gave the titleholders of these lots the use of the same easement. The Smiths ¹ and the Heidersbachs brought an action which sought an exclusive use of the easement and damages. The trial court rendered a judgment for the Smiths and Heidersbachs. Later, the Browns appealed.

After reviewing the evidence, we conclude that the trial court committed reversible error, and we reverse.

I Evidence

The easement is the east twenty feet of Lot Number 48 in the First Addition (original) of Kopekanee Beach. Lewis and Pearl Brown, Browns' parents, had recorded the Plat of the Second Addition to Kopekanee Beach on March 12, 1947. The Browns were deeded Lot 48 on April 6, 1973, by Pearl Brown. ²

Lewis and Pearl Brown had conveyed Lot 50 in the Second Addition to Harold and Charlotte Worthman on September 18, 1950. Worthmans' deed contained the following clause:

'Right of way to the lake is hereby given over a 20' easement located in Kopekanee Beach, First Addition.'

Worthmans conveyed Lot 50 to Smiths on June 27, 1960; Smiths' deed did not contain any reference to the easement.

Lewis and Pearl conveyed Lot 52 in the Second Addition to Roger and Vera Kierstead on August 26, 1949; Kiersteads' deed included the following clause:

'Also, an easement to the shore of Lake George, over the east twenty (20) feet of lot Numbered 48 in the Original Plat of Kopekanee Beach, which easement is to be used in common with other lot owners.'

Kiersteads deeded Lot 52 and Lot 53 to Arnie and Jeane Heidersbach on July 27, 1953; that deed included the above clause. Heidersbachs inherited Lots 52 and 53 on September 25, 1973. The relative positions of the lots are depicted in Sketch A.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In June, 1973, the Browns erected a post on the easement. Later, in March, 1974, the Browns removed a pier which was in the lake but attached to the easement. Then, on June 6, 1973, Browns platted real estate adjacent to the Second Addition of Kopekanee Beach at Lake George, Indiana, which real estate was platted as Kopekanne Acres. The Smiths and the Heidersbachs filed a complaint against Browns on December 26, 1973, seeking an injunction to prevent Browns from expanding the number of persons authorized to use the easement. On May 29, 1974, the Smiths and the Heidersbachs filed a supplemental complaint in which they also sought damages for the removal by Browns of the pier and an injunction against Browns to prevent further removal of future piers.

The trial court found for the Smiths and the Heidersbachs, and it entered the following:

'. . . The Court further finds that the Defendants have installed a certain post with sign attached thereto in the easement which is the subject of this proceeding, being located in the East 20 feet of Lot numbered 48, in the Original Plat of Lopekanee Breach at Lake George in Steuben County, State of Indiana, which post shall be removed by the Defendants and the area where the same has been established restored to its original level and seeded within ten days from this date and failing so to do damages shall accrue against said Defendants at the rate of $1,000.00 per day thereafter. The Court further finds that a certain pier installed in connection with said easement in said lake which Defendants caused to be removed in the spring or early summer of 1974 shall be returned and replaced in the same condition as the same was before removal to the written satisfaction of the Plaintiffs within ten days or judgment shall be rendered against the Defendants in the amount of $600.00. The Court further finds that the Defendants should be enjoined and restrained from obstructing said easement or in any manner interfering with the Plaintiffs' right to the peaceful use and possession of said easement as the same has been used and enjoyed by the Plaintiffs and their predecessors in title for more than twenty years last past. The Court further finds that said Defendants should be restrained and enjoined from in any manner attempting to expand the number of persons entitled to the use of said easement or to dedicate the same to public use but that the use of the same shall be restricted to the Plaintiffs and their successors in interest to the real estate described as belonging to said Plaintiffs in the complaint filed herein.'

Brows filed a Motion to Correct Errors in which they contend that the judgment is excessive, is not supported by sufficient evidence, is contrary to the evidence, and is contrary to law; this motion was overruled, and the Browns brought this appeal.

II Easements

Easements may be created by grant or by prescription. ³ Two types of easements exist: (1) an easement is appurtenant if it passes (by conveyance or inheritance) with the dominant tenement ⁴; (2) an easement is in gross if it is personal to the owner of the dominant tenement. Sanxay v. Hunger (1873), 42 Ind. 44. Usually, easements arise to fill some need or serve some purpose. That purpose, whether expressed in the grant, implied, or acquired through prescription, is the focal point in the relationship which exists between the titleholders of the dominant and servient estates. The servient estate is burdened to the extent necessary to accomplish the end for which the dominant estate was created. The titleholder of the dominant estate cannot subject the servient estate to extra burdens, New York Cent. R. Co. v. Yarian (1942), 219 Ind. 477, 39 N.E.2d 604, any more than the holder of the servient estate can materially impair or unreasonably interfere with the use of the easement. Smith v. Holloway (1890), 124 Ind. 329, 24 N.E. 886.

In an action to establish an easement by prescription, the burden is on the dominant titleholder to show that the use was adverse. Each element of the prescriptive right must be established as a necessary, independent, and ultimate fact. A permissive use cannot be adverse so as to ripen into an easement by prescription. Monarch Real Estate Co. v. Frye (1921), 77 Ind.App. 119, 133 N.E. 156. One who has established an easement through prescription cannot assert that he is the exclusive user. Riggs v. Springfield (1939), 344 Mo. 420, 126 S.W.2d 1144. If an easement is enjoyed under a deed there can be no adverse enjoyment until the expiration of the right under the deed. 28 C.J.S. Easements § 8. All easements are limited to the purpose for which they were created, and their enjoyment cannot be extended by implication. U.S. v. Johnson (D.Wash.1933), 4 F.Supp. 77. Easements created by grant depend, for the determination of the extent of right acquired, upon the terms of the grant properly construed; general rules of construction apply. 28 C.J.S. Easements § 75.

III Lake Easement

Since the existence of the twenty foot easement is not disputed by the parties, the question raised upon appeal relates to what rights are incident to the easement. We discern three distinct issues.

A. Rights necessarily incident to an express easement 'to a lake.'

Considering first the express grant, we note the rule as cited in Lennertz v. Yohn (1948), 118 Ind.App. 443, 450, 79 N.E.2d 414, 417:

'. . . With reference to the manner of grant, the rule is that in describing an easement, all that is required is a description which identifies the land that is the subject of the easement and express the intention of the parties.' (Emphasis added).

The Heidersbach easement was created within the 1949 deed to Kiersteads by the phrase 'Also, an easement to the shore of Lake George. . . .' (Emphasis added). The Smith easement began in Owrthmans' 1950 deed with the words 'Right of way to the lake is hereby given. . . .' (Emphasis added). The description was sufficient for all parties, and by the unambiguous terms in the respective deeds an access easement was created.

The Smiths and the Heidersbachs urge this Court to include within the phrases 'to the lake' and 'to the shore' more than mere access. They contend that the easement created rights in the dominant owners to attach to the easement and use a pier. Thus, the Smiths and the Heidersbachs maintain that use of the lake for docking boats is a right incident to an access easement to the lake. Moreoever, they argue that even if the granting words do not indicate such right, the continued use by the dominant owners should be considered in defining the extent of the easement.

The easement was created within two instruments. At the time the original conveyances were made, Browns' predecessors in interest were engaged in lake real estate development. Since every lot could not front the lake, the developer provided access to the lake, by the express grant of the easement. Whether riparian rights inure to the dominant estate of a lakeside easement is a question of first impression in Indiana.

The Supreme Court of Michigan in Schofield et al. v. Dingman et al. (1933), 261 Mich. 611, 613, 247 N.W. 67, 68, held that "Riparian rights,' accorded lot owners separated from the beach by intervening lots, can be given no greater meaning than right of access to the breach and enjoyment thereof for the purposes of recreation.' (Emphasis added). That Court reaffirmed that position in Thompson v. Enz (1967), 379 Mich. 667, 683--84, 154 N.W.2d 473, 482, and added, quoting from a Minnesota decision:

""* * * There are certain interests and rights vested in the shore owner...