The William C. Haak Trust v. Wilusz

• Decision Date: 16 May 2011
• Docket Number: No. 64A04–1008–PL–567.,64A04–1008–PL–567.
• Citation: 949 N.E.2d 833
• Parties: The WILLIAM C. HAAK TRUST, Appellant–Plaintiff,v.William J. WILUSZ and Judith A. Wilusz, Husband and Wife; and Benjamin Luna, Appellees–Defendants.
• Court: Indiana Appellate Court

949 N.E.2d 833

The WILLIAM C. HAAK TRUST, Appellant–Plaintiff,
v.
William J. WILUSZ and Judith A. Wilusz, Husband and Wife; and Benjamin Luna, Appellees–Defendants.

No. 64A04–1008–PL–567.

Court of Appeals of Indiana.

May 16, 2011.

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Thomas K. Hoffman, Crown Point, IN, Attorney for Appellant.John M. Rhame, III, Rhame & Elwood, Portage, IN, Attorney for Appellees.

OPINION BRADFORD, Judge.

Appellant–Plaintiff the William C. Haak Trust (“the Trust”) appeals from the trial court's entry of judgment in favor of Appellees–Defendants William J. and Judith A. Wilusz and Benjamin Luna in its quiet title action, in which it sought an easement of necessity. We affirm in part, reverse in part, and remand with instructions.

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FACTS AND PROCEDURAL HISTORY

The Trust is in possession of a landlocked parcel of land in Porter County. Directly to the north of the Trust's parcel is land owned by the Wiluszes, and the land directly to the east of both parcels and sharing both parcels' entire eastern borders is owned by Luna. Both the Wiluszes' and Luna's parcels have access to Porter County Road 50 North via their northern borders, and the Trust could, at least in theory, gain access to 50 North through either or both of those parcels. At one time, John and Susan Hall owned both the Trust's parcel and the Wiluszes' parcel, until, on March 18, 1999, the Wiluszes' parcel was transferred from the Halls' ownership by Sheriff's deed. From that date, the parcel that the Halls would later sell to the Trust was landlocked, with no access to 50 North or any other public road. As for Luna's parcel, while neither the Halls nor the Trust has ever had any interest in it, at one time it was owned by John Hall's brother and sister-in-law, who allowed the Halls access to the Trust's parcel over their land.

On November 6, 2007, the Halls brought an action to quiet title and have an easement of necessity declared on either the Wiluszes' or Luna's land. The parties filed a written stipulation to vacate bench trial, and the trial court held a hearing on legal memoranda submitted by the parties on December 21, 2009. At the start of that hearing, the Halls' attorney orally moved to substitute the Trust for the Halls, because the Trust had agreed to purchase the Trust parcel from the Halls and had authorized the Halls' attorney to proceed on its behalf. The trial court granted the motion. On April 6, 2010, the trial court entered judgment in favor of the defendants, denying the Trust its easement. The trial court reasoned that the Halls were not entitled to an easement of necessity because they had had prior opportunities to grant themselves an easement across what is now the Wiluszes' land or arrange for an easement across what is now Luna's property. The Trust filed a motion to correct error, which the trial court denied on July 19, 2010.

DISCUSSION AND DECISION

Because the Trust had the burden of proving its right to an easement of necessity, it is appealing a negative judgment. See McConnell v. Satterfield, 576 N.E.2d 1300, 1301 (Ind.Ct.App.1991). On appeal, the Trust must demonstrate that the trial court's judgment is contrary to law. Id. The underlying facts are undisputed; the Trust argues only that the trial court has wrongly applied the law regarding easements of necessity to those facts. In the interest of clarity, we find it useful to provide some background on easements under Indiana law.

A. Easements in General

Indiana law recognizes that easements can be created by grant, prescription, or implication. See, e.g., Brown v. Heidersbach, 172 Ind.App. 434, 438, 360 N.E.2d 614, 618 (1977). Moreover, “[t]wo types of easements exist: (1) an easement is appurtenant if it passes (by conveyance or inheritance) with the dominant tenement; (2) an easement is in gross if it is personal to the owner of the dominant tenement.” Id., 360 N.E.2d at 618 (citing Sanxay v. Hunger, 42 Ind. 44, 48 (1873)) (footnote omitted). An easement “is never presumed to be in gross when it can be fairly construed to be appurtenant to the land.” Sanxay, 42 Ind. at 48. The Trust claims that it has the right to an implied easement that would allow it access to 50 North.

B. Implied Easements

Indiana law further subdivides implied easements into easements of necessity and

[949 N.E.2d 836]

easements by prior use. We recently explained the difference between the two types:

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 reasonably necessary for the fair enjoyment of the part benefited.” Hysell v. Kimmel, 834 N.E.2d 1111, 1114 (Ind.Ct.App.2005), trans. denied. Unlike a landowner requesting an easement by necessity, a landowner requesting an easement by prior use does not need to show absolute necessity. See id. at 1115. The focus of a claim for an easement by prior use is the intention for continuous use, while the focus of a claim for an easement by necessity is the fact of absolute necessity.

Pardue v. Smith, 875 N.E.2d 285, 291 (Ind.Ct.App.2007). Although the parties and trial court all rely, at least in part, on law relating to easements by prior use, it is clear that the Trust's claim is that it is entitled to an easement of necessity.C. Easements of Necessity

An easement of necessity will be implied 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 access to a public road.” Whitt v. Ferris, 596 N.E.2d 230, 233 (Ind.Ct.App.1992). An easement of necessity may arise, if ever, only at the time that the parcel is divided and only because of inaccessibility then existing. Ind. v. Innkeepers of New Castle, Inc., 271 Ind. 286, 392 N.E.2d 459, 464 (1979). To demonstrate that an easement of necessity should be implied, a plaintiff must establish both unity of title at the time that tracts of land were severed from one another and the necessity of the easement.

For example, if a landowner conveys a piece of real estate that is completely surrounded by...