Reed v. Luzny, 71A03-9302-CV-64

• Decision Date: 31 January 1994
• Docket Number: No. 71A03-9302-CV-64,71A03-9302-CV-64
• Citation: 627 N.E.2d 1362
• Parties: Thomas REED, Jr., Sandra L. Reed, and Allied Construction Co., Appellants-Defendants Below, v. Anna C. LUZNY, Joyce Pinkerton, and Judith Decraene, Appellees-Plaintiffs Below.
• Court: Indiana Appellate Court

Page 1362

627 N.E.2d 1362

Thomas REED, Jr., Sandra L. Reed, and Allied Construction

Co., Appellants-Defendants Below, v. Anna C. LUZNY, Joyce Pinkerton, and Judith Decraene,

Appellees-Plaintiffs Below.

No. 71A03-9302-CV-64.

Court of Appeals of Indiana,

Third District.

Jan. 31, 1994.

Rehearing Denied June 13, 1994.

Robert J. Palmer, May, Oberfell & Lorber, South Bend, for appellants-defendants.

William L. Wilson, Hahn, Walz, Knepp, Dvorak and Higgins, South Bend, for appellees-plaintiffs.

STATON, Judge.

Thomas Reed, Sandra Reed and Allied Construction Co. (collectively "Reed") appeal a summary judgment in favor of Anna Luzny, Joyce Pinkerton and Judith Decraene (collectively "Luzny") in a declaratory judgment action involving adjacent real estate parcels. A single issue is presented for our review: whether the trial court erroneously concluded that Luzny's property was not burdened with an implied easement for the benefit of Reed's property.

We affirm.

The material facts are undisputed. Luzny owns property located at 1108 West Western Avenue in South Bend, Indiana and Reed owns the adjacent property located at 1110 West Western Avenue. The previous owner of both properties (George Luzny) installed water and sewer pipes running from his residence at 1108 West Western Avenue to the commercial building located on the adjacent property. Since her execution of a warranty deed to Reed on September 19, 1980, Anna Luzny has paid for all water and sewer services provided to the adjacent property, without contribution from Reed.

Luzny filed a declaratory judgment complaint on January 23, 1992, seeking a declaration that she could legally discontinue the gratuitous provision of utility services to Reed's property. Luzny's motion for summary judgment was granted on October 21, 1992. The trial court issued findings and conclusions which provided, in pertinent part, that the facts and circumstances of the case did not support the recognition of an implied or prescriptive easement. The "findings and conclusions" of the trial court assist this court in determining the reasons for the trial court's decision; however, the standard of review of a summary judgment is not altered. P.M.S., Inc. v. Jakubowski (1992), Ind.App., 585 N.E.2d 1380, 1381.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter (1992), Ind., 596 N.E.2d 1369, 1371. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Collins v. Covenant Mut. Ins. Co. (1992), Ind.App., 604 N.E.2d 1190, 1194. We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).

Reed contends that he (rather than Luzny) is entitled to judgment as a matter of law because an implied easement in favor of Reed's property arose upon Luzny's conveyance of the subject property to him. Reed relies upon the general rule that an easement will be implied where, during the unity of title, an owner imposes a permanent servitude on one part of the land in favor of another part, the servitude is in use when the parts are severed and the servitude is reasonably necessary for the fair enjoyment of the benefitted property. John Hancock Mutual Life Ins. Co. v. Patterson (1885), 103 Ind. 582, 2 N.E. 188.

Luzny contends that Reed has enjoyed a "use" of free utility service rather than a "use" of land. Alternatively, she argues that Reed failed to show that his use is reasonably necessary.

We agree with Reed that the provision of amenities via underground pipes installed and maintained for that purpose constitutes a "use" of the land. See generally Ayres v. Lucas (1945), 116 Ind.App. 431, 63 N.E.2d 204, trans. denied; Rees v. Panhandle Eastern Pipe Line Co. (1978), 176 Ind.App. 597, 377 N.E.2d 640; Buckeye Pipe Line Co. v. Keating (1956), 229 F.2d 795. Clearly, Luzny's land has been "used" for the benefit of Reed's land. However, the question remains as to whether such use was reasonably necessary at the time of severance. The burden is on the party asserting the existence of an implied easement to show that the servitude is reasonably necessary for the fair enjoyment of his land. Searcy v. LaGrotte (1978), 175 Ind.App. 498, 372 N.E.2d 755, 758.

In the recent case of Whitt v. Ferris (1992), Ind.App., 596 N.E.2d 230, this court reiterated:

"Stated differently, an easement will be implied where (1) there was common ownership at the time the estate was severed; (2) the common owner's use of part of his land to benefit another part (a quasi-easement) was apparent and continuous; (3) the land was transferred; and (4) at severance it was necessary to continue the preexisting use for the benefit of the dominant estate.... Even though the owner of the dominant estate does not need to show absolute necessity, there still must be some necessity shown.... In Indiana, a landowner seeking an easement to access part of his lot, when only a portion of the land is inaccessible, faces a heavy burden.... [T]his court emphasized that a means of access will not be granted if another...