Kwolek v. Swickard
| Decision Date | 30 March 2011 |
| Docket Number | No. 64A05–1006–PL–372.,64A05–1006–PL–372. |
| Citation | 944 N.E.2d 564 |
| Parties | Jerry KWOLEK and Mary Kwolek, Appellants,v.Rodney SWICKARD and Jennifer Swickard, Appellees. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Gregory T. Babcock, Chesterton, IN, Attorney for Appellants.Gregory A. Sobkowski, Bonnie C. Coleman, Hodges & Davis, P.C., Merrillville, IN, Attorneys for Appellees.
Jerry and Mary Kwolek appeal the trial court's declaratory judgment in favor of Rodney and Jennifer Swickard. The trial court held that the Swickards have the right to park within an ingress-egress easement in a gravel area thirty-six feet wide by twenty-two and one-half feet deep in the front of their garage (the “disputed area”). We address the following three issues on appeal:
1. Whether the trial court correctly interpreted an ingress-egress easement to include a right to park within the easement;
2. Whether improvements the Kwoleks made to the easement must be removed because they materially interfere with the Swickards' enjoyment of the easement; and
3. Whether the Kwoleks acquiesced in the Swickards' parking behavior and, therefore, may not seek a remedy from the courts.
We hold that the trial court erred as a matter of law when it concluded that the terms “ingress” and “egress” include the additional right to park within the easement. We also hold that the trial court's order that the Kwoleks remove their improvements from the easement is clearly erroneous. Finally, we hold that, on this record, the Kwoleks are not barred by the doctrine of acquiescence from raising their claims. Accordingly, we reverse the trial court's judgment for the Swickards.
In 1978, the Swickards purchased their home and property, which they accessed via a private road off of U.S. 30, now known as 560 West. The Kwoleks also used 560 West to access their home. In the mid–1980s, the Indiana Department of Transportation made improvements to U.S. 30 and 560 West. As a result of those improvements, the Swickards lost legal access from their home to U.S. 30, and their property became landlocked.
In the early 1990s, the Swickards first learned that their property was landlocked when they attempted to refinance their mortgage. As a result, the Swickards approached the Kwoleks, their neighbors and the owners of the real property underlying 560 West, to request an ingress-egress easement over 560 West. The Kwoleks agreed to grant an easement to the Swickards. On October 8, 1993, the instrument that created the easement was recorded and stated in relevant part as follows:
[The Kwoleks] ... grant ... unto [the Swickards] ... an easement for a private road and right-of-way over and across the following described real property.... Said easement shall be non-exclusive and is intended to grant to the [Swickards] an ingress and egress to their property jointly with [the Kwoleks]....
The easement is sixty feet wide, as was required by the Porter County Plan Commission. To facilitate the creation of the easement, in 1993 the Swickards conveyed (through a third-party) the eastern six feet of their real property to the Kwoleks, which became the western six feet of the easement. After that conveyance, the distance from the Swickards' east property line to the gravel surface of 560 West was twenty-two and one-half feet. The gravel surface of 560 West is another twenty-two feet wide.
Sometime in 2000, the Swickards built a three-car garage on their property. The garage is south of their house and is thirty-six feet wide and twenty-four feet deep. The garage faces east and is located nine feet from the Swickards' eastern property line. The Swickards constructed the garage pursuant to a building permit and complied with the applicable setback requirement. The Swickards added a three-foot concrete apron in front of the garage and then added twenty-eight and one-half feet of gravel from the concrete apron to 560 West. All but the western six-feet of that gravel area is within the easement. In other words, the concrete apron and the first six feet adjacent to the concrete apron are located on the Swickards' property, and the remaining twenty-two and one-half feet of gravel leading up to 560 West are located within the easement.
The Swickards own three vehicles, which they alternatively park in their garage or on the gravel area in front of their garage. When the Swickards have visitors, the visitors park their vehicles on the gravel area. The Swickards usually have visitors once a week. A vehicle parked in front of the Swickards' garage, with its front end even with the garage's concrete apron, would be parked partially on the Swickards' property and partially within the easement.
The Swickards' and Kwoleks' mailboxes are located on U.S. 30, and the Kwoleks' newspaper box is just south of U.S. 30 on the eastern edge of the easement. The Kwoleks drive from their home to get their mail and newspapers, and they use the gravel area in front of the Swickards' garage to turn around. Provided that not more than six cars are parked on the gravel area, there is room for the Kwoleks to turn around in that area.
In 2006, six years after the Swickards had built their garage and thirteen years after the Kwoleks had granted the easement, the Kwoleks called the local police to complain about cars parked within the easement in front of the Swickards' garage. In April of that year, Mr. Kwolek parked a car in the disputed gravel area in front of the Swickards' garage and left it there for six months. Later that year, he installed landscape timbers, metal posts, a no-parking sign, and numerous evergreen trees within the easement on the north side of the disputed area. On the south side, he installed metal posts, a no-parking sign, and miscellaneous evergreen trees. Mr. Kwolek also confronted the Swickards' children about parking on the disputed area within the easement. The Kwoleks made four more calls to the police in 2008.
On November 18, 2008, the Swickards filed a complaint for declaratory judgment against the Kwoleks, in which the Swickards sought to have the improvements Mr. Kwolek had placed within the easement removed. The Kwoleks timely filed their answer, asking the trial court to “reaffirm the language in the written [e]asement[,] which does not allow for any type of parking on the [e]asement area....” Id. at 18. The trial court held a bench trial on March 18, 2010.
On May 18, the court entered declaratory judgment for the Swickards. In its order, the court found, in pertinent part, the following facts:
14. [The] Swickards have parked their vehicles in the same place from the time they purchased their property in 1978 to the present.
15. [The] Swickards believed that they would be able to continue to park in the same place they had parked since 1978 after they obtained an ingress/egress easement from the Kwoleks.
* * *
48. The Kwoleks did not begin objecting to [the] Swickards['] and their visitors['] parking in the gravel area in front of [the] Swickards' garage until 2006.
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64. The Swickards, by use of the [e]asement, have not exceeded their rights or unreasonably interfered with the Kwoleks' use of 560 West.
65. [The] Kwoleks acquiesced or impliedly consented to [the] Swickards['] and their visitors['] parking in the gravel area within the west 22 1/2 of the [e]asement in front of where their garage is now located.
Id. at 6, 8–9. The court then concluded:
[The] Swickard[s] had continually parked in the same place on their property before and after the easement had been established. The area in which they wish to park is the very same spot they have parked since they first purchased the parcel.... The parking patterns of the Swickards do not interfere with the Kwoleks' use of the easement, as individuals may still freely continue to use the improved portion of the easement. Furthermore, through continual and open practice, [the] Kwolek[s] had full knowledge before the creation of the easement that [the] Swickard[s] and their guests parked within that portion of the granted easement. As such, continual parking in the driveway was fully foreseeable by the [Kwoleks] and otherwise should have been stipulated in the easement. As no obstruction of the ingress or egress to the easement is taking place with [the] Swickard[s'] parking habits, the terms of the 1993 easement are not violated.
The [e]asement should be construed in favor of the Swickards and against the Kwoleks. The installation of the improvements by [the] Kwolek[s] ... is not consistent [with] nor incidental to the terms of the easement. The terms of the easement specifically granted an easement for a private road and right of way over and across [the] Kwolek[s'] real property. As co-owners of an easement of a private road, [the] Kwolek[s] are prohibited from altering the land in any manner as to render the easement appreciably less convenient or useful for one of [the] co-owners. As [the] Swickard[s] and their guests had traditionally always parked on that portion of their driveway before and after the garage was built[, the] Swickards' use of the [e]asement for parking is reasonably necessary to their enjoyment of the [e]asement. The easement no longer remains useful with the purposefully planted trees, shrubs, timbers and “No Parking” signs around the garage. As such, the improvements to the easement are not warranted and must be removed.
Id. at 11–12. This appeal ensued.
In entering declaratory judgment for the Swickards, the trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. Our standard of review is well settled:
First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the...
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