Wolfe v. Gregory, 51A05-0305-CV-245.

• Citation: 800 N.E.2d 237
• Decision Date: 18 December 2003
• Docket Number: No. 51A05-0305-CV-245.,51A05-0305-CV-245.
• Parties: Dustin Todd WOLFE, Appellant-Plaintiff, v. Brooke Wolfe GREGORY, Monty L. Gregory, Marvin Lagle and Margie R. Cornett f/k/a Margie R. Asbell, Appellees-Defendants.
• Court: Court of Appeals of Indiana

800 N.E.2d 237

Dustin Todd WOLFE, Appellant-Plaintiff, v. Brooke Wolfe GREGORY, Monty L. Gregory, Marvin Lagle and Margie R. Cornett f/k/a Margie R. Asbell, Appellees-Defendants.

No. 51A05-0305-CV-245.

Court of Appeals of Indiana.

December 18, 2003.

David A. Smith, McIntyre & Smith, Bedford, IN, Attorney for Appellant.

Mark J. Jones, Lett & Jones, Loogootee, IN, Attorney for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In December 2001, Dustin Todd Wolfe filed his Complaint seeking a prescriptive easement, injunctive relief and damages against Brooke Wolfe Gregory, Monty L. Gregory, Marvin L. Lagle, and Margie R. Cornett, f/k/a Margie R. Asbell (collectively "the Defendants"). In October 2002, Wolfe amended his complaint to include a claim of easement of necessity. Following a bench trial, the trial court entered a general judgment in favor of the Defendants. Wolfe filed a Motion to Correct Error, which the court denied. Wolfe now appeals and raises a single issue for review, namely, whether the trial court's judgment is contrary to law.

We affirm.

FACTS AND PROCEDURAL HISTORY

In October 1975, John and Lucille Lagle conveyed seventy acres located in Martin County to their daughter, Margie Cornett. The Lagles transferred the property to Cornett before their deaths so that Cornett could later distribute the property in parcels to her siblings. Thereafter, Cornett conveyed portions of the seventy acres as follows: ten acres to Charlene Lancaster, ten acres to Donna Wolfe, twenty acres to Brian Lagle, and ten acres to Marvin Lagle. Regarding Marvin's parcel, Cornett conveyed the ten acres by Warranty Deed on August 30, 1977.¹ Cornett retained twenty acres for herself.

At the time Cornett made the conveyances to her siblings, Marvin did not have direct access by way of a county road to his parcel. Rather, while there were county roads to the north and south of the entire seventy acres, an "old farm road" that connected to the county road to the south provided access to Marvin's parcel. Marvin used this old farm road for ingress and egress while he built a cabin on his property.

At some time during 1977, Cornett constructed a road that connected with the county road to the north of the entire seventy acres to provide access to her parcel. Cornett gave Marvin permission to use the road she had constructed for ingress and egress to his ten acres. Cornett allowed Marvin to use her road because he was her brother. After Cornett constructed her road, Marvin chose not to improve the old farm road because of the costs involved.² In January 2000, Marvin sold his parcel to his niece, Brooke Wolfe Gregory, and her husband, Monty L. Gregory. Then, in July 2001, Brooke conveyed five of the ten acres to her brother, Wolfe. Cornett denied Wolfe access to the road she had constructed for ingress and egress from the county road to the north of the seventy acres to her property. In December 2001, Wolfe filed his complaint seeking an easement, injunctive relief, and damages. In March 2003, the trial court entered judgment against Wolfe, and he now appeals.

DISCUSSION AND DECISION

Wolfe asserts that the trial court erred when it denied his request for a prescriptive easement and, in the alternative, an easement of necessity. Because Wolfe had the burden of proving his right to an easement, he is appealing a negative judgment. See Cockrell v. Hawkins, 764 N.E.2d 289, 292 (Ind.Ct.App.2002)

. Consequently, Wolfe must demonstrate that the trial court's judgment is contrary to law. See id. A judgment is contrary to law "`if the evidence is without conflict and leads to a conclusion opposite that of the trial court.'" Id. (quoting McConnell v. Satterfield, 576 N.E.2d 1300, 1301 (Ind. Ct.App.1991)). When determining whether a judgment is contrary to law, we may only consider the evidence most favorable to the judgment, and we may neither reweigh the evidence nor judge the credibility of the witnesses. Id.

A. Prescriptive Easement

Prescriptive easements are not favored in the law, and in Indiana, the party claiming one must meet stringent requirements. Corporation for General Trade v. Sears, 780 N.E.2d 405, 410 (Ind. Ct.App.2002). To establish the existence of a prescriptive easement, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right. Id. (quotation omitted). The existence of a prescriptive easement is a question of fact. Ballard v. Harman, 737 N.E.2d 411, 418 (Ind.Ct.App.2000). And "tacking," the continuous use of the easement by predecessors in title, may be added to the use of the present claimant to satisfy the twenty-year requirement. Id. at 418-19. The party asserting the prescriptive easement has the burden of showing each element "as a necessary, independent, ultimate fact, and the failure to establish any one of such elements is fatal." General Trade, 780 N.E.2d at 410.

Here, Cornett testified that her brother Marvin had her permission to use the road she had constructed for ingress and egress to his ten-acre parcel. Accordingly, Marvin's use of the road was not adverse or hostile. Rather, our review of the record shows that Marvin had, at most, a license to use Cornett's road, not an easement. See Contel of Indiana, Inc. v. Coulson, 659 N.E.2d 224, 228 (Ind.Ct.App. 1995)

("Unlike an easement or right-of-way, a license merely confers a personal privilege to do some act or acts on land without conveying an estate in the land.").

Moreover, Marvin owned the property from 1977 until he sold it to his niece in 2000. Because Wolfe relies on the period of time Marvin owned the property to establish the twenty-year requirement, he has not shown a continuous, twenty-year period of hostile or adverse use of the easement. Thus, Wolfe did not meet all of the elements for a prescriptive easement, and the trial court's judgment on this point is not contrary to law.

B. Easement of Necessity

As this court stated in Cockrell, 764 N.E.2d at 292-93:

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." An easement of necessity may arise, if ever, only at the time that the parcel is divided and only because of inaccessibility then existing. 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 the landowner's remaining property, then we imply that the conveyance includes an easement across the landowner's remaining property. In addition, if a conveyed piece of property has no outlet to a public road except by going across the grantor's remaining land or across the land of a stranger, the law implies a way of necessity over the grantor's remaining land, because an easement of "necessity cannot arise against the lands of a stranger."

To demonstrate that the easement is "of necessity," a plaintiff must demonstrate more than that the easement would be beneficial or convenient. If the plaintiff has another means of accessing his land, he may not claim a right to pass over the land of another. This rule controls even if the alternate

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