Kopetsky v. Crews, 55A05-0502-CV-59.

• Decision Date: 13 December 2005
• Docket Number: No. 55A05-0502-CV-59.,55A05-0502-CV-59.
• Parties: George F. KOPETSKY, Appellant-Plaintiff, v. Marjorie J. CREWS, Charles L. Kragen, Raymond Cragen, Delbert Cragen, Jane Cragen, Joe W. Creage, Jeffrey D. Bennett, and Lisa D. Bennett Appellees-Defendants.
• Court: Indiana Supreme Court

838 N.E.2d 1118

George F. KOPETSKY, Appellant-Plaintiff, v. Marjorie J. CREWS, Charles L. Kragen, Raymond Cragen, Delbert Cragen, Jane Cragen, Joe W. Creage, Jeffrey D. Bennett, and Lisa D. Bennett Appellees-Defendants.

No. 55A05-0502-CV-59.

Court of Appeals of Indiana.

December 13, 2005.

COPYRIGHT MATERIAL OMITTED

Mark R. Galliher, Craig D. Doyle, Joanne B. Friedmeyer, James L. Shoemaker, Doyle & Friedmeyer, P.C., Indianapolis, for Appellant.

John Emry, Franklin, for Appellees.

OPINION

VAIDIK, Judge.

Case Summary

George Kopetsky appeals the trial court's determination that he holds not an express access easement but only a prescriptive access easement limited to agricultural and recreational purposes over a portion of the property owned by Jeffrey and Lisa Bennett. Finding that Kopetsky holds an express easement permitting access to his property for any purpose, we reverse.

Facts and Procedural History

This case involves neighboring properties in Morgan County, Indiana. See Figure A, next page. Specifically, we are concerned with two parcels of land, the first owned by George Kopetsky and the second by Jeffrey and Lisa Bennett ("the Bennetts"). Kopetsky's property, comprising some 162 acres, is situated directly north of the Bennetts' property. New Harmony Road runs in a north-south direction along the east side of the Bennetts' property and curves to the east where the northeastern corner of the Bennetts' property meets the southeastern corner of Kopetsky's property. A thin strip at the far northeast corner of the Bennetts' land (hereinafter "Tract C") runs along the side of the road and comes between the road and Kopetsky's land. Kopetsky's land has historically been accessed by a drive across Tract C, which is now owned by the Bennetts; thus, this appeal turns on the parties' parcels of land and of the access drive to Kopetsky's land.

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

Until 1967, Kenneth and Harriett Boner ("Kenneth and Harriett") owned all of this adjoining land. Kenneth and Harriett conveyed the land now owned by the Bennetts to Gary and Mary Frances Boner ("Gary and Mary") via two deeds, respectively dated September 1967 ("the 1967 Deed") and February 1972 ("the 1972 Deed"). By the 1967 Deed, Kenneth and Harriett conveyed to Gary and Mary a tract of property measuring 343.5 feet by 750 feet, located thirty-five feet south of the present Kopetsky tract. The 1967 Deed contained the following limitation:

Subject to all legal rights-of-way and subject to a dedication out of the northeast corner of this described tract that is 50 feet square, said dedication being for the purpose of future public road entrance to a tract immediately north of this described tract.

Appellant's App. p. 100. This offer of dedication was never accepted by Morgan County or any other public authority with the power of acceptance.

Under the 1972 Deed, Kenneth and Harriett conveyed three additional small tracts to Gary and Mary, including "Tract A," a thirty-five foot strip along the north side of the 1967 tract and abutting what is now the Kopetsky tract; "Tract B," the area of fifty square feet referenced in the dedication clause from the 1967 Deed; and Tract C, detailed above. See id. at 103-04. Because this conveyance would otherwise prevent Kenneth and Harriett from accessing their remaining land, which lay just north of that which they deeded to Gary and Mary and which now belongs to Kopetsky, Kenneth and Harriett reserved an access easement partially crossing each of the three tracts, described as follows:

Tracts A.B. and C are subject to the following described Access Easement, which the Grantors herein reserve:

A part of the Northwest quarter of the Southwest quarter and a part of the Northeast quarter of the Southwest quarter of Section 1, Township 12 North, Range 2 East of the Second Principal Meridian, in Morgan County, Indiana more particularly described as follows:

[legal description of easement omitted].

Id. at 104. It is undisputed that this easement provided for the only access to Kenneth and Harriett's remaining land.

In 1974, Gary and Mary deeded all of the land they received from Kenneth and Harriett to Robert and Virginia Wolf, who deeded the land to the Bennetts in 1997.

In the meantime, Kenneth and Harriett conveyed the land now owned by Kopetsky to four couples (the "Walters Group") in April 1977. Included in this deed was a conveyance to the Walters Group of the access easement referenced in the 1972 Deed described above. Also in this deed, Kenneth and Harriett granted an additional easement of a fifty-foot square east of Tract A.¹ The Walters Group improved the easement across the property now owned by the Bennetts by laying down a gravel roadway, which they and their tenants used to access the property. Jeffrey Bennett was aware of this use of the gravel drive over the easement area. In fact, the sales disclosure form used when the Bennetts purchased their land referenced an easement "for farmer." In a deed dated December 1999 ("the 1999 Deed"), the Walters Group conveyed all of their land, including the easements across Tracts A, B, and C, to Kopetsky. Kopetsky continued to use the gravel drive to access his land. The Bennetts never objected to the use of the easement by the Walters Group or, subsequently, by Kopetsky.

Seeking to establish a new subdivision using his property, Kopetsky filed an action in August 2002 against the Bennetts.² By his complaint, Kopetsky sought a declaratory judgment against the Bennetts stating that Kopetsky holds an express access easement across Tracts A, B, and C of the Bennetts' land and onto New Harmony Road. Kopetsky intends to utilize this easement to provide access to the new subdivision. The trial court issued its judgment and findings of fact in December 2004, ruling that the 1999 Deed was insufficient to convey an access easement to New Harmony Road across the Bennetts' land. In lieu of this asserted express easement, the trial court ruled that Kopetsky holds a prescriptive easement across Tracts A, B, and C limited to agricultural and recreational uses. This appeal now ensues.

Discussion and Decision

Kopetsky raises two issues on appeal. First, he contends that the trial court erred in concluding that the 1999 Deed was insufficient to grant an express easement providing access to New Harmony Road over the Bennetts' property. Second, Kopetsky argues that, in the event he holds a prescriptive easement as opposed to an express easement, the prescriptive easement is not limited to agricultural and recreational purposes. Finding the first of these issues to be dispositive, we address only Kopetsky's claim that he holds an express access easement. We note at the outset that neither party contests the fact that each parties' deed falls within a chain of title traceable to Kenneth and Harriett.

Pursuant to Indiana Rule of Trial Procedure 52(A), the trial court issued special findings of fact and conclusions of law in this case. When reviewing a judgment based on such findings, this Court must determine first, whether the evidence supports the findings, and second, whether the findings support the judgment. Ratliff v. Ratliff, 804 N.E.2d 237, 244 (Ind.Ct.App. 2004). This Court may set aside findings of fact only if they are clearly erroneous. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. In order to determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id.

We do, however, review questions of law under a de novo standard of review and owe no deference to a trial court's legal conclusions. St. Mary's Medical Ctr., Inc. v. McCarthy, 829 N.E.2d 1068, 1072 (Ind.Ct.App.2005), reh'g denied. Thus, to the extent that the trial court interpreted facts stipulated into evidence or the legal significance of the parties' deeds, not ambiguous on their face, this Court must apply a de novo standard of review. In construing a deed, this Court must "regard the deed in its entirety, considering the parts of the deed together so that no part is rejected." Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d 970, 972 (Ind.Ct.App.2001). The court's goal must be to ascertain the parties' intent and to give some meaning to every part of the document. Id.

Here, Kopetsky contends that the 1972 Deed included a valid easement appurtenant providing for unlimited ingress and egress from New Harmony Road across Tracts A, B, and C of what is now the Bennetts' land to what is now Kopetsky's land. The Bennetts argue that the conveyance of the easement failed because either: (1) Kenneth and Harriett, as grantors, no longer owned the land over which the easement passed at the time of the 1972 conveyance; or (2) the 1972 conveyance was insufficient to describe the dominant tenement and so must fail. We address each of the Bennetts' arguments in turn.

I. The Grantors Owned the Land Subject to the 1972 Easement

The Bennetts base their assertion as to ownership of the land at issue on the dedication of the fifty square feet of land (now Tract B) for use as a public road in the 1967 Deed. The parties agree that this dedication failed because no public authority ever accepted the offer of dedication as set forth in the deed. See North Snow Bay, Inc. v. Hamilton, 657 N.E.2d 420, 422 (Ind.Ct.App.1995) ("The two essential elements of a common law dedication are (1) an intent of the land owners to dedicate, and (2) an acceptance of the dedication by the public."). The Bennetts argue that, upon failure, the land offered for dedication became the property of the Bennetts' predecessors in title — Gary and Mary. If this is the case, the Bennetts contend that the later 1972 Deed cannot convey an easement across that property because Kenneth and Harriett did not own the land they attempted...