Whitman v. Denzik

• Decision Date: 12 March 2008
• Docket Number: No. 31A05-0703-CV-166.,31A05-0703-CV-166.
• Citation: 882 N.E.2d 260
• Parties: James D. WHITMAN and Elaine L. Whitman, Appellants-Plaintiffs, v. Edward J. DENZIK and Robin L. Denzik, Appellees-Defendants.
• Court: Indiana Appellate Court

882 N.E.2d 260

James D. WHITMAN and Elaine L. Whitman, Appellants-Plaintiffs, v. Edward J. DENZIK and Robin L. Denzik, Appellees-Defendants.

No. 31A05-0703-CV-166.

Court of Appeals of Indiana.

March 12, 2008.

Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Gregory Martin Reger, Lorch & Naville, LLC, New Albany, IN, Attorneys for Appellants.

Jennifer Kraft Kuchle, Young, Lind, Endres & Kraft, New Albany, IN, Attorney for Appellees.

OPINION

CRONE, Judge.

Case Summary

James D. Whitman and Elaine L. Whitman appeal the order granting Edward J. Denzik and Robin L. Denzik's cross-motion for summary judgment, quieting title in favor of the Denziks, and granting the Denziks a prescriptive easement across the Whitmans' land for purposes of ingress and egress. We affirm.

Issue

The Whitmans raise one issue, which we restate as whether the trial court erred in granting summary judgment in favor of the Denziks.

Facts and Procedural History

The facts most favorable to the Whitmans, the non-moving party, follow.¹ On May 17, 2001, the Whitmans acquired a 20.62-acre tract of real estate in Harrison County ("the Whitman Property") from Dudley and Lora Taylor, who had owned it since the 1960s or 1970s. On the northeast border of the Whitman Property, there is a 37.92-acre tract of real estate ("the Denzik Property"). Corrine Headrick and her husband Isaac, now deceased, owned the Denzik Property from October 14, 1958, until August 13, 2004, when the Denziks acquired it.

A gravel road known as Headrick Lane, previously owned by the Headricks and currently owned by the Denziks, runs along the eastern borders of both the Denzik and Whitman Properties. The Denziks use Headrick Lane, as did the Headricks, to enter and exit the Denzik Property. A portion of Headrick Lane approximately eighteen feet wide and forty to fifty feet long crosses over the northeastern corner of the Whitman Property ("the Disputed Corner"). The Whitmans do not use Headrick Lane to access their property and, other than the Disputed Corner, have no ownership interest in Headrick Lane.

In April 2005, the first half of a modular home purchased by the Denziks was hauled up Headrick Lane and placed on the Denzik Property. When the hauler returned with the second half of the home, the Whitmans had blocked the Disputed Corner with automobiles.² The Whitmans refused to permit the second half of the home to be taken on the Disputed Corner. The Denziks eventually used a crane to lift the modular home over the Disputed Corner.

On July 6, 2005, the Whitmans filed a complaint against the Denziks to quiet title over the Disputed Corner, seeking damages resulting from the Denziks' alleged trespass, and requesting injunctive relief to maintain the status quo and a jury trial. Appellants' App. at 13-15. The Whitmans then filed a motion for summary judgment on their complaint. The Denziks filed a cross-motion for summary judgment, arguing that they had a prescriptive easement to use the Disputed Corner. On January 24, 2007, the trial court held a hearing on the summary judgment motions. On February 7, 2007, the trial court entered an order denying the Whitmans' motion for summary judgment and granting the Denziks' cross-motion for summary judgment. The order entered judgment "quieting the title of [the Denziks] and granting [the Denziks] a prescriptive easement across the land of [the Whitmans] for the purposes of ingress and egress along a currently existing roadway known as Headrick Lane." Id. at 7. This appeal ensued. Additional facts will be provided.

Discussion and Decision

The Whitmans contend that the trial court erred in granting the Denziks' cross-motion for summary judgment. Our standard of review is well settled.

Summary judgment is appropriate only where the designated evidentiary matter shows that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law. When reviewing a grant of a motion for summary judgment, we stand in the shoes of the trial court. Once the moving party demonstrates, prima facie, that there are no genuine issues of material fact as to any determinative issue, the burden falls upon the non-moving party to come forward with contrary evidence. The non-moving party may not rest upon the pleadings but must instead set forth specific facts, using supporting materials contemplated under Trial Rule 56, which show the existence of a genuine issue for trial. The party appealing the grant of summary judgment bears the burden of persuading this court that the trial court erred, but we still carefully scrutinize the entry of summary judgment to ensure that the non-prevailing party was not denied its day in court. We do not weigh the evidence but rather consider the facts in the light most favorable to the nonmoving party. We may sustain the judgment upon any theory supported by the designated evidence.

Auburn Cordage, Inc. v. Revocable Trust Agreement of Treadwell, 848 N.E.2d 738, 747 (Ind.Ct.App.2006) (citations omitted). In addition, "[t]he fact that the parties [made] cross-motions for summary judgment does not alter our standard of review. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law." Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 767 (Ind.Ct.App. 2003) (citation and quotation marks omitted) (alterations in Meyer).

Specifically, the Whitmans challenge the trial court's grant to the Denziks of a prescriptive easement over the Disputed Corner. Indiana Code Section 32-23-1-1 provides that an easement "from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years." The Denziks have not used the Disputed Corner for twenty years, and therefore the Denziks must tack their use of the Disputed Corner on to the Headricks' use to satisfy the twenty-year requirement. See Corp. for Gen'l Trade v. Sears, 780 N.E.2d 405, 410 (Ind.Ct.App.2002) (noting that twenty-year requirement may be satisfied by "tacking" present claimant's use of easement to continuous use by predecessors in title).

We further observe that once a prescriptive easement has been established, the right vests by operation of law. Downing v. Owens, 809 N.E.2d 444, 452 (Ind.Ct.App.2004), trans. denied. However, prescriptive easements generally "`are not favored in the law.'" Wilfong v. Cessna Corp., 838 N.E.2d 403, 405 (Ind.2005) (quoting Carnahan v. Moriah Prop. Owners Ass'n, Inc., 716 N.E.2d 437, 441 (Ind. 1999)). "The existence or non-existence of a prescriptive easement is a question of fact." Ballard v. Harman, 737 N.E.2d 411, 418 (Ind.Ct.App.2000). A party claiming the existence of a prescriptive easement must provide evidence showing "`an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right.'" Wilfong, 838 N.E.2d at 406 (quoting Carnahan, 716 N.E.2d at 441). However, in Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.2005), our supreme court reformulated the elements of adverse possession. These new elements apply to establishing prescriptive easements, except for those differences required by the differences between fee interests and easements. Wilfong, 838 N.E.2d at 406. Therefore, a party claiming the existence of a prescriptive easement "must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration." Id. Further, the party asserting the prescriptive title has the burden of establishing each element as a necessary, independent, ultimate fact, and the failure to find any one of the elements is fatal, for such failure to find is construed as a finding against it. Id. at 405.

The Whitmans aver that the Denziks' designated evidence fails to establish that the Headricks' use of the Disputed Corner was adverse, and even if their evidence does so establish, the Whitmans' designated evidence establishes that there is a genuine issue as to whether the Headricks' use was permissive. In addressing these arguments, we observe that the former element of adversity equates to the new element of "intent," and to some extent "notice." Id. at 406.³ In the context of adverse possession, our supreme court stated that to satisfy the element of intent, the claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner. Fraley, 829 N.E.2d at 482. Applying this principle to the element of intent in the context of establishing a prescriptive easement, the claimant must demonstrate intent to claim the right to use the tract for a specific purpose. See BLACK'S LAW DICTIONARY 548 (8th ed.1999) (defining easement as "[a]n interest in land owned by another person, consisting of the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road)"). With respect to notice, we discern no difference between establishing adverse possession and a prescriptive easement that would require modification of the Fraley reformulation. To satisfy the element of notice, the claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent to use and control the tract. Fraley, 829 N.E.2d at 482. Finally, we are guided by the following proposition upon which our supreme court relied in reformulating the elements of adverse possession:

"An entry upon land with the intention of asserting ownership to it, and continuing in the visible, exclusive possession under such claim, exercising those acts of ownership usually practiced by owners of such land, and using it for the purposes to which it is adapted, without asking permission and in disregard of all other conflicting claims, is sufficient to make the possession adverse."

Id. at 485 (quoting ...