Whitt v. Ferris

• Decision Date: 15 July 1992
• Docket Number: No. 50A04-9110-CV-353,50A04-9110-CV-353
• Citation: 596 N.E.2d 230
• Parties: Johnny P. WHITT, Sr. and Bonnie L. Whitt, Appellants-Defendants, v. Donald E. FERRIS and Nancy L. Ferris, husband and wife, Rick A. Jones and Pamela F. Jones, husband and wife, and Norman G. Stettler and Valna R. Stettler, husband and wife, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 230

596 N.E.2d 230

Johnny P. WHITT, Sr. and Bonnie L. Whitt, Appellants-Defendants, v. Donald E. FERRIS and Nancy L. Ferris, husband and wife, Rick

A. Jones and Pamela F. Jones, husband and wife,

and Norman G. Stettler and Valna R.

Stettler, husband and wife,

Appellees-Plaintiffs.

No. 50A04-9110-CV-353.

Court of Appeals of Indiana,

Fourth District.

July 15, 1992.

Keith E. White, George T. Patton, Jr., Bose, McKinney & Evans, Indianapolis, Kenneth H. Lukenbill, Stevens, Travis, Fortin, Lukenbill & Burbrink, Plymouth, for appellants-defendants.

Ralph R. Huff, Jones, Huff & Palmer, Douglas N. Hite, Plymouth, for appellees-plaintiffs.

CONOVER, Judge.

Defendants-Appellants Johnny P. Whitt, Sr. and Bonnie L. Whitt (Whitt) appeal a judgment in favor of Plaintiffs-Appellees Donald E. and Nancy L. Ferris (Ferris), Rick A. and Pamela F. Jones (Jones), and Norman G. and Valna R. Stettler (Stettler). ¹

We affirm in part and reverse in part.

Whitt raises the following restated and consolidated issue: whether the trial court erred in finding an implied easement in favor of the appellees.

In 1967, John and Mary Kumpf purchased approximately eighty-eight acres in Marshall County. In early 1968, they subdivided most of the acreage, calling the subdivision Beechwood Country Estates (Beechwood). The plat map was recorded and was approved by the Plymouth City Planning Commission.

During the summer or early fall of 1968, some of the platted roads, including a road running east to west along the southern end of the property called "Tulip Drive", were graded. However, when the Kumpfs discovered each lot as platted was individually taxable, they vacated all the platted lots and streets, except for Lots 1 through 6 abutting a public road called "King Road", by recording a document to that effect in the county recorder's office. ² No lots had been sold when the plat was vacated.

Lots 5, 6, 7, and 8 are involved in this case. Lots 5 and 6, which are located in Beechwood, as currently platted, both abut the intersection of King Road and former Tulip Drive on the northwest and southwest corners, respectively. Lot 7 abuts Lot 6 on its west boundary and Lot 8 abuts Lot 5 on its west boundary. Both Lots 7 & 8 abut Tulip Drive's former boundaries on the south and north, respectively. Neither Lot 7 nor Lot 8, however, is included in Beechwood, as currently platted. ³

Ferris owns Lot 5 in Beechwood and former Lot 8 in that part of the subdivision which was vacated by the Kumpfs (vacated Beechwood). Jones owns Lot 6 in Beechwood. Lot 7 in vacated Beechwood is owned by Stettler. Bonnie Whitt purchased the property surrounding these four parcels, including the Disputed Parcel.

The Disputed Parcel is a twenty foot wide dirt and gravel road surrounded by twenty foot wide strips of grass on each side. The road through the Disputed Parcel was used over the years to access vacated Beechwood, most of which was farmland. In 1982, Stettler began using the road through the Disputed Parcel as his only means of ingress and egress to his property, Lot 7 of vacated Beechwood. Ferris used the road to get to his back lot, Lot 8 of vacated Beechwood. Jones also used the road to access the back of his lot, Lot 6 of Beechwood. Ferris, Jones, and Stettler have all used the grassy areas on the sides of the road through the Disputed Parcel for parking.

Whitt protested the appellees' use of the Disputed Parcel, especially the use of the grassy areas for parking. She then constructed a fence alongside the south side of the Disputed Parcel to match the one on the north side erected by Ferris. However, Whitt did leave an opening in the fence for Stettler's driveway. The appellees brought suit seeking to permanently enjoin interference with their use of the Disputed Parcel. Whitt brought a counterclaim for trespass. The trial court granted each of the appellees an implied easement sixty feet in width and three hundred and eighty feet in length. The court opined the easement could be used in the same manner in which a public road is used.

Whitt appeals from the judgment in favor of Jones, Ferris, and Stettler, and the negative judgment on her counterclaim. The standard of review on appeal is whether the trial court's judgment is contrary to law. McConnell v. Satterfield (1991), Ind.App., 576 N.E.2d 1300, 1301. Because the trial court entered a general judgment, we will affirm on any theory supported by the evidence. Beck v. Mason (1991), Ind.App., 580 N.E.2d 290, 291.

The appellees claim the trial court's judgment is justified because (1) their lots were sold in reference to a plat showing the Disputed Parcel as a road; (2) an implied easement arose upon the severance of the parcels; and (3) with reference to Lot Five, a prescriptive easement has been established over the years. Stettler also claims he has a way of necessity because his property is landlocked. Except for the way of necessity theory as applied to Stettler's property, the trial court's judgment is unsupported.

I. WAY OF NECESSITY.

A way of necessity is implied by law where 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. Hunt v. Zimmerman (1966), 139 Ind.App. 242, 218 N.E.2d 709, reh. denied; 11 I.L.E. Easements Sec. 19. Where a grantor conveys a parcel of land which has no outlet to a public road except over his remaining land or over the lands of a stranger, a way of necessity over the remaining lands of the grantor is implied. Pyramid Coal Corp. v. Pratt (1951), 229 Ind. 648, 99 N.E.2d 427, 429.

In the present case, former Lot 7 was part of a larger tract originally owned by the Kumpfs. After a number of conveyances, the large tract ended up in the possession of the Browns. The Browns originally severed Lot 7 from the tract by conveying it to William Brown. Stettler acquired former Lot 7 through mesne conveyances beginning with William. The only access from former Lot 7 to a public road (King Road) is over the Disputed Parcel. The road over the Disputed Parcel has been used to access the public road since the lot was conveyed out of the larger tract by the Browns. Under the facts, the trial court was correct in finding a way of necessity over the road running through the Disputed Parcel.

However, the trial court erred in finding Stettler's way of necessity is sixty feet wide. Easements are limited to the purpose for which they are created. 11 I.L.E. Easements Sec. 31. In the present case, where the easement is necessary only as a way to access Stettler's property, access over the twenty foot wide graded roadway through the middle of the Disputed Parcel, coupled with sufficient footage over the grassy area on the south side of the road to allow access to Stettler's driveway, is all that is necessary. There is no need to burden the servient estate further by allowing use of the grassy areas on the sides of the road for parking. See, New York Central Railroad Company v. Yarian (1942), 219 Ind. 477, 39 N.E.2d 604, 606.

Whitt contends a way of necessity cannot exist because of a provision in both Brown and Stettler's deeds which provides "access to this parcel is not included in the above description." (R. 168, 176). In support of her contention, Whitt cites Hewitt v. Meaney (1986), 181 Cal.App.3d 361, 226 Cal.Rptr. 349, and 25 Am.Jur.2d Easement and Licenses Sec. 34, which conclude the grant of a way of necessity will not be made where the terms of the conveyance show the parties did not intend the grantee's estate to have access over the grantor's property.

The trial court found the language of the deeds to be ambiguous, a determination which the Whitts do not now challenge. Accordingly, the trial court allowed the drafter of William Brown's deed to testify on the meaning of the limiting language. The drafter opined the language was included in the deed "as a word of caution to a prospective recipient of this deed that there was no public access to this property that was included within this description." (R. 324). The trial court did not err in finding the limiting language to be merely cautionary. Thus, the language of the deed did not prevent the trial court from finding a way of necessity in favor of former Lot 7.

II. EASEMENT BY REFERENCE TO A PLAT MAP.

The appellees argue they have an easement over the Disputed Parcel due to the sale of their property with reference to the old plat map. They refer to cases holding that where a conveyance of land describes the property by reference to a plat upon which a street is depicted, an easement is implied over the entire street for the benefit of the lots represented in the plat. Brief of Appellees at 18 (citing Hall v. Breyfogle (1904), 162 Ind. 494, 70 N.E. 883; Wolfe v. Sullivan (1893), 133 Ind. 331, 32 N.E. 1017; City of Indianapolis v. Kingsbury (1884), 101 Ind. 200; Strunk v. Pritchett (1901), 27 Ind.App. 582, 61 N.E. 973). The appellees maintain that although the Kumpfs vacated the public easement prior to sale of any lots, a private easement exists to this day.

The cases cited by the appellees do not support the trial court's judgment in this case. The conveyances in the present case, unlike those in the cited cases, were made after the vacation of the plat.

When the Kumpfs laid out the subdivision on March 5, 1968, they conveyed to the public an easement over the Disputed Parcel and retained fee simple ownership in the land. Although the Kumpfs conveyed the easement on that date, they vacated the easement on February 26, 1969, stating "[t]hat they desire to divest all public rights in and to the streets located in said Beechwood Country Estates." (R. 161). The applicable statute on February 26, 1969, provided:

Any plat of land without the corporate limits of any city or town, or any part thereof, may be vacated by the owner or owners of said entire plat at any time before the sale of any lot therein, by a written instrument...