Fischer v. Revett

• Decision Date: 19 July 1982
• Docket Number: No. 4-681A25,4-681A25
• Citation: 438 N.E.2d 995
• Parties: Thomas E. FISCHER and Barbara E. Fischer, Plaintiffs-Appellants, v. Sam L. REVETT and Diana E. Revett, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 995

438 N.E.2d 995

Thomas E. FISCHER and Barbara E. Fischer, Plaintiffs-Appellants, v. Sam L. REVETT and Diana E. Revett, Defendants-Appellees.

No. 4-681A25.

Court of Appeals of Indiana,

Third District.

July 19, 1982.

Robert E. Ross, Donald B. Steininger, Fort Wayne, for plaintiffs-appellants.

Marvin S. Crell, Tourkow, Danehy, Crell & Rosenblatt, Steven R. Schafer, Fort Wayne, for defendants-appellees.

GARRARD, Judge.

The Fischers, owners of an alleged servient tenement, appeal the trial court's decision establishing an implied easement in favor of the Revetts, owners of the claimed dominant tenement.

Revetts and Fischers are neighbors with a common border approximately 330 feet long running from the street side of their lots to the back line of the lots. A driveway on Revetts' lot terminates in a loop, a portion of which encroaches upon Fischers' lot. This encroachment, in the shape of an arc, consisting of the eastern portion of the loop, intrudes about ten feet into Fischers' land and constitutes the basis for the suit. Except for this encroachment Revetts' driveway is within the boundaries of their lot and provides them with uninterrupted access to the street.

Both parcels were once part of a larger tract of land owned by Willis Van Alstine. He sold the Revetts their lot in 1970, and the Fischers' predecessors in title their lot in 1967. The Fischers purchased in 1978. Prior to the sale of either lot, Mr. Van Alstine farmed and used the driveway loop as a tractor turn-around because a barn was at its north end. The Revetts admit improving the driveway with gravel, but the record is ambiguous as to its surface before the Revetts' improvements.

In September 1979 the Fischers began the installation of a fence on their lot along their property line with the Revetts. However, Sam Revett removed the fence posts from their concrete bases where they intersected the encroaching driveway and parked his motor home to block further attempts to erect a fence. Thereafter the Fischers brought this action to determine the legal status of the encroaching portion of the driveway and to recover damages for trespass and for destruction of the partially completed sections of fence. ¹

The trial court held that an implied easement existed because it found that:

1. The use of the disputed area as a driveway existed for many years prior to the severance of the two estates.

2. The use was not absolutely necessary but was of a character looking to permanency.

3. Discontinuance of the use would involve an actual and substantial rearrangement of the Revetts' estate for it to be as comfortably enjoyed as before.

4. The use is reasonably necessary for the fair enjoyment of the Revetts' property.

Four issues are raised for review. However, the first three issues are derivative of the last which we shall address. Simply stated, the Fischers argue that the trial court erred in ruling that the Revetts had acquired an implied easement for driveway purposes because such a finding was contrary to law and was not supported by sufficient evidence.

The leading Indiana decision concerning implied easements is John Hancock Mutual Life Ins. Co. v. Patterson (1885), 103 Ind. 582, 2 N.E. 188, where the court found such an easement was implied for the wall of a dwelling. The general rule is that where, during the unity of title, an owner imposes an apparently permanent and obvious servitude on one part of the land in favor of another part and the servitude is in use when the parts are severed, then if the servitude is reasonably necessary for the fair enjoyment of the part benefited, the law will imply an easement for its continuance. See also Searcy v. LaGrotte (1978), Ind.App., 372 N.E.2d 755 and cases cited therein.

"A mere temporary or provisional arrangement, however, which may have been adopted by the owner for the more convenient enjoyment of the estate, can not constitute the degree of necessity or permanency which would authorize the engrafting upon a deed, by construction, of a right to the enjoyment of something not within the lines described. To justify such construction, it must appear from the disposition, arrangement and use of the several parts, that it was the owner's purpose in adopting the existing arrangement to create a permanent and common use ... and it must be reasonably inferable from the existing disposition and use that it was intended to be continuous, notwithstanding the severance of ownership."

103 Ind. at 588, 2 N.E. 188.

The court also observed that it was proper to consider whether continuance of the use is indispensable to the future enjoyment of the estate, and the practicality, effect and expense of changing the use. Such considerations are relevant not to determine "necessity" but as evidence bearing on the probability that the purchaser, as a reasonable man, took the conveyance with the expectation that the existing use would be continued. 103 Ind. at 589, 2 N.E. 188.

Considering these matters the court concluded the wall of the dwelling must have been intended to continue where it was. Upon these same considerations the court in Searcy, supra, concluded that no easement could be implied for the portion of a driveway leading to what had formerly been the barnyard of the farm.

Moreover, it must be stressed that an implied easement arises at the time of the severing conveyance because of the circumstances then existing, or it does not arise at all. State v. Innkeepers of New Castle, Inc. (1979), Ind., 392 N.E.2d 459.

The evidence before us shows that the driveway loop in question was used as a tractor turn-around in front of the barn by Mr. Van Alstine who farmed the property. When Van Alstine deeded the property on which the loop encroached, he did so only after the Fischers' predecessors in title agreed to allow him continued use of that portion of the loop and of a strawberry patch behind it. This constitutes the entire evidence as to the use and status of the loop before severance of the property.

The trial court was correct in finding that the driveway loop had been used for many years prior to severance; however, we are forced to disagree with its other findings and the legal conclusions based on them because it is apparent that they were based not upon the circumstances at the time of severance, but upon subsequent happenings. ² The trial court found that the use was of a character looking to permanency. The loop was a barnyard turn-around and Mr. Van Alstine asked only that he be allowed to continue using it when he conveyed the claimed servient tenement. This evidences no intent on his part that the use blossom into a permanent easement, especially since he intended to soon abandon farming due to his advancing age, and since the barn was destroyed when the land became a residential lot.

As for causing the Revetts to substantially rearrange their estate, the evidence of the circumstances at the time of severance again fails to support the court's finding. As in Searcy most of the driveway is on Revetts' land. The barn which the turn-around served was not a part of their use and the garage they use had not been constructed. From the photographs in evidence it appears the loop could have been relocated so as not to encroach upon Fischers.

Finally the court found that the use was reasonably necessary for the fair enjoyment of the Revetts' property. Indiana has adopted the more liberal "reasonably necessary" requirement rather than a requirement of absolute necessity. Hartwig v. Brademas (1981), Ind.App., 424 N.E.2d 122; Searcy, supra; Krueger v. Beecham (1945), 116 Ind.App. 89, 61 N.E.2d 65; John Hancock, supra. This does not, however, do away with the requirement that some necessity be shown. It must be remembered that when an implied easement is found we are engrafting upon the deed of the parties a condition not expressed therein. Here the Revetts' use of the loop for driveway purposes is clearly not necessary for their ingress or egress. Thus, the case is unlike Krueger v. Beecham, supra, where an implied easement was found reasonably necessary because the access alternatives available at the time of severance provided no practical means of ingress or egress to or from the dominant tenement's house and would be dangerous for ordinary traffic and impossible for heavy traffic. This situation was held to create a reasonable necessity, even though no absolute necessity was found, since an alternative though limited access to the property was available. Here, however, the use of the loop in no way affects access for residential purposes. The loop merely provides one means to turn around rather than back out of the driveway. This use is more akin to convenience than to necessity and places the case with the genre of Searcy.

The facts do not give rise to the necessary inference that the creation of a permanent easement was within the reasonable intendment of the parties at the time of the severance. Therefore, it was error to invoke the extreme remedy of creating by implication of law an easement in favor of the Revetts' estate to the derogation of the Fischers' estate. The trial court is reversed, and this cause is remanded for such further proceedings as may be necessary.

Reversed and remanded.

HOFFMAN, P. J., concurs.

STATON, J., dissents and files separate opinion.

STATON, Judge, dissenting.

I must respectfully dissent from the majority opinion because there is sufficient evidence to support the trial court's judgment that Revetts have an implied easement over Fischers' property.

The majority disagrees with the trial court's judgment because some of its findings do not support the conclusion of the judgment. The majority opinion states:

"The trial court was correct in finding that the driveway loop had been used for many years prior to severance; however, we are forced to disagree with its other findings and the legal conclusions based on them because it is apparent...