Morehouse v. Dux N. LLC, 22A-PL-664

Case DateSeptember 27, 2022
CourtCourt of Appeals of Indiana

Jason Morehouse and Sarah Morehouse, Appellant-Defendants,

Dux North LLC, Appellee-Plaintiff.

No. 22A-PL-664

Court of Appeals of Indiana

September 27, 2022

Appeal from the Hamilton Superior Court The Honorable Gail Z. Bardach, Judge Trial Court Cause No. 29D06-2010-PL-7042



Mathias, Judge

[¶1] Dux North LLC ("Dux North") filed a complaint for a declaratory judgment seeking an implied easement over real property owned by Jason Morehouse and Sarah Morehouse (collectively, "the Morehouses"). The Hamilton Superior Court entered summary judgment for Dux North on its complaint and denied


the Morehouses' motion for partial summary judgment. The Morehouses appeal and present two issues for our review:

1. Whether the trial court erred when it denied their motion for partial summary judgment on the issue of whether Dux North has an easement of necessity over their property
2. Whether the trial court erred when it found that Dux North has an easement by prior use and entered summary judgment for Dux North

[¶2] We reverse and remand for further proceedings.

Facts and Procedural History

[¶3] In December 2018, the Morehouses bought two contiguous parcels of land in Hamilton County near Morse Reservoir (collectively, "the Morehouse property") The previous owners of the parcels were Maurice and Gwendolyn Marshall.[1] The Marshalls had also previously owned a third contiguous parcel ("Parcel 3") that they had separately sold to Shorewood Corporation ("Shorewood") in April 1991. At that time, Shorewood owned three contiguous parcels (respectively, "Parcel 4," "Parcel 5," and "the Southern Tract") adjacent to Parcel 3. The Southern Tract had access to a public road. In November 1995, Dux North, Inc. bought Parcels 3, 4, and 5, and, in February 2020, Dux North


bought those parcels from Dux North, Inc. (collectively, "the Dux North property"). The following figure depicts all but the Southern Tract:

Parcel Label on Figure 1

Hamilton County Parcel Number




Jason and Sarah Morehouse



Jason and Sarah Morehouse



Dux North, LLC



Dux North, LCC



Dux North, LCC

(Image Omitted)


[¶4] Since at least 1985, a gravel lane ("the access road") across the Morehouse property has connected Parcel 3, which is landlocked, to a public road. From 1991 until Gwendolyn Marshall's death in 2018, the owners of Parcel 3, including Dux North and its predecessors in interest, were permitted to use the access road. The Marshalls even allowed Dux North, Inc. to place a padlock on a gate located at the entrance to its property on the access road. However, in June 2020, Jerry Watson III, a member of Dux North, found that the lock had been changed, and he could not open the gate. Watson contacted Jason by email and asked about the new padlock. In response, Raymond Adler, an attorney representing the Morehouses, emailed Watson and stated: "The purple paint, no trespassing signs[,] and padlock confirm the private property nature of the real estate. Why would you wish access?" Appellants' App. Vol. 2, p. 74.

[¶5] One week later, Adler emailed Ted Butz, another member of Dux North, and stated:

The family is concerned by the increased usage and the apparent misunderstanding by Mr. Watson of his lack of legal rights to cross the property and a large number of strangers/trespassers, the calls from DNR etc. Please see if the attached license agreement doesn't set forth our understanding.

Id. at 91. The proposed license agreement acknowledged that the Marshalls had permitted Dux North to use the access road but stated that, going forward, Dux North members and a limited number of other people could use the access road only during duck hunting season.


[¶6] On October 5, 2020, Dux North filed a complaint for declaratory judgment against the Morehouses. Dux North alleged that it had an easement of necessity over the Morehouse property. The Morehouses filed an answer and counterclaim to quiet title. On August 11, 2021, Dux North filed a motion for summary judgment alleging that it is entitled to an easement of necessity over the Morehouses' property as a matter of law. The Morehouses filed a crossmotion for partial summary judgment alleging that Dux North is not entitled to an easement of necessity as a matter of law. During a hearing on the parties' motions, Dux North argued that it was entitled to either an easement of necessity or an easement by prior use. The Morehouses did not object to that argument.

[¶7] The trial court found that Dux North has an easement by prior use over the Morehouse property and entered summary judgment for Dux North. And the trial court denied the Morehouses' motion for partial summary judgment on the issue of whether Dux North had an easement of necessity. This appeal ensued.[2]


Discussion and Decision

Standard of Review

[¶8] The Morehouses appeal following the trial court's denial of their motion for partial summary judgment and the court's grant of Dux North's motion for summary judgment. Our standard of review is well settled.

We review summary judgment de novo, applying the same standard as the trial court: "Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to "demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue," at which point the burden shifts to the nonmovant to "come forward with contrary evidence" showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to Hughley). Cross motions for summary judgment do not affect our standard of review. Monroe Cnty. v. Boathouse Apartments, LLC, 177 N.E.3d 1201, 1205 (Ind.Ct.App. 2021), trans. denied.


We simply review each motion independently and construe the facts in favor of the nonmoving party in each instance. Id.

Overview of Implied Easements

[¶9] As the parties observe, Indiana case law regarding easements of necessity and easements by prior use has sometimes conflated the elements required to prove these two distinct types of easements. Both types of easements are created by implication, rather than by grant or by prescription. See William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 835 (Ind.Ct.App. 2011). In Haak Trust, we explained the difference between the two types of implied easements:

"An easement of necessity will be implied only when there has been a severance of the unity of ownership of a tract of land in such a way as to leave one part without any access to a public road. See Wolfe v. Gregory, 800 N.E.2d 237, 241 (Ind.Ct.App. 2003). On the other hand, an easement of prior use will be implied '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 . . . if the servitude is

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