~ ~ ~IRWA – Chapter 10Annual Law Day

Indianapolis, Indiana

October 18, 2017

Presented by Gary R. Kent, PS

~ Indiana ~Easements and Rights of Way

A limited, nonpossessory interest in the land of another

EASEMENT

RIGHT-OF-WAY

Originally the term “Right of Way” indicated a Right of Easement, an easement for passage purposes (hence “right of way”) such as for a railroad, pipelines, pedestrians, vehicles, aqueducts, etc.

RIGHT-OF-WAY

• However, “Right of Way” has also come to mean the land burdened

• In the context of “the land burdened” a right of way may be owned in fee, or something less

A right-of-way is an easement and is usually the term used to describe the easement itself or the strip of land which is occupied for the easement.

25 Am. Jur. 2d Easements & Licenses, §§ 1 and 8.

RIGHT-OF-WAY

Two 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.

William C. Haak Trust v. Wilusz, 949 NE 2d 833 - Ind: Court of Appeals 2011

EASEMENTS IN GROSS and APPURTENANT EASEMENTS

EASEMENTS APPURTENANT

An easement appurtenant involves two different estates or tenements in land (a) the dominant estate, that to which the easement or right attaches or belongs; and, (b) the servientestate, that which is subject to the easement.

25 Am.Jur.2d Easements and Licenses 11 (1966).

EASEMENTS IN GROSS

The benefits of an easement in gross serve the holder only personally, not in connection with his ownership or use of any specific parcel of land. Under these circumstances, no parcel can truly be called dominant.

Consolidation Coal Co. v. Mutchman, 565 NE 2d 1074 - Ind: Court of Appeals, 1st Dist. 1990.

WRITTEN EASEMENTS

Express Easements

• Created by virtue of an instrument of conveyance or a mortgage

• Given by grant or reservation• The Dominant and Servient tenements must

be identified in the document• Dedication• By Reference• Condemnation (public or private)

WRITTEN EASEMENTS

Dedication

A dedication has been defined as the donation of land or the creation of an easement for public use. Black's Law Dictionary 442 (8th ed. 2004).

By Reference

[A]n easement arises when a purchaser’s deed refers to a plat where an easement is depicted and labeled.

Pearson v. Virginia City Ranches Ass’n, 2000 MT 12, 298 Mont. 52, 993 P.2d 688

WRITTEN EASEMENTS

Condemnation

• Public entities (agencies, utilities) generally have statutory condemnation rights

• Some states have created a statutory “private way of necessity" whereby a right of way across the land of another for means of ingress and egress may be acquired by a form of private eminent domain.

WRITTEN EASEMENTS

UNWRITTEN EASEMENTS

• Implied Easement (By Prior Use)

• [Implied] Easement by Necessity

• Prescriptive Easement

• Easement by Estoppel

• Implied Dedication

[A]n 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." …

Implied Easement (By Prior Use)

[A] landowner requesting an easement by prior use does not need to show absolute necessity.

William C. Haak Trust v. Wilusz, 949 NE 2d 833 - Ind: Court of Appeals 2011.

Implied Easement (By Prior Use)

• An easement by necessity may not be obtained over the land of a third party…

• An easement by necessity will not be implied "if the claimant can obtain a means of access to his land at reasonable expense" or…

[Implied] Easement by NecessityGenerally

… if the claimant has another mode of access to his land, however inconvenient, either by another way over his own land or by a right of way over the land of another.”

25 Am. Jur. 2d Easements and Licenses §§39, 42, 43 (1996)

[Implied] Easement by NecessityGenerally

To demonstrate that the easement is "of necessity," a plaintiff must demonstrate more than that the easement would be beneficial or convenient.

McConnell [v. Satterfield], 576 N.E.2d [1300,] 1302 [(Ind.Ct.App.1991)].

[Implied] Easement by Necessity

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 means of access would be more difficult or expensive for the plaintiff.

Cockrell v. Hawkins, 764 N.E.2d 289, 292-93 (Ind.Ct.App.2002).

[Implied] Easement by Necessity

Prescriptive Easement

[A] party claiming the existence of a prescriptive easement “must establish by clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration.

Whitman v. Denzik, Court of Appeals of Indiana (No. 31A05-0703-CV-166 citing Wilfong v. Cessna Corp.838 N.E.2d 403, 406 (Ind. 2005) .

UNWRITTEN EASEMENTS

(1) Control -- The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of "actual," and in some ways "exclusive," possession);

(2) Intent -- The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of "claim of right," "exclusive," "hostile," and "adverse");

(3) 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 and exclusive control (reflecting the former "visible," "open," "notorious," and in some ways the "hostile," elements); and,

(4) Duration -- the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former "continuous" element).

Fraley v. Minger, 829 NE 2d 476 - Ind: Supreme Court, 2005

Easement by Estoppel

"[a] person with full knowledge of the facts and aware of his rights who nevertheless stands by and acquiesces in conduct inconsistent with those rights may be estopped from subsequently asserting those rights."

Kwolek v. Swickard, 944 NE 2d 564 - Ind: Court of Appeals 2011.

UNWRITTEN EASEMENTS

Implied (Common Law) Dedication

There are two essential elements of a common-law dedication[:] (1) the intent of the owner to dedicate and (2) the acceptance by the public of the dedication."

Jackson v. BOARD OF COM'RS COUNTY OF MONROE, 916 NE 2d 696 - Ind: Court of Appeals 2009.

UNWRITTEN EASEMENTS

• Scope• Duration• Exclusivity• Reversionary rights

CHARACTERISTICS OF EASEMENTS

If the easement does not detail the manner in which the easement is to be used, it is assumed the servient estate owner and parties with rights to use the easement will “exercise their respective rights and privileges in a spirit of mutual accommodation.”

Restatement (Third) of Property: Servitudes

SCOPE OF WRITTEN EASEMENTS

The right of the easement owner and the right of the landowner are not absolute, irrelative and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both.

Hill v. Carolina Power & Light Co., 204 S.C. 83, 96, 28 S.E.2d 545, 549 (1943).

SCOPE OF WRITTEN EASEMENTS

DURATION

• Easements are an interest in real estate, they do not terminate merely by nonuse.

• They can be terminated or extinguished by the terms of the instrument that created, by an instrument having that specific purpose, or by operation of certain common law rules.

Appurtenant easements “run with the land.”

• Conveyed along with the conveyance of the dominant estate regardless of whether specifically mentioned in the instrument of conveyance

• A marketable title act may act to extinguish an easement over time

DURATION

[M]ost … types of easements, may be exclusive or nonexclusive. These are legal terms of art encompassing (1) the persons who may be excluded and (2) the uses or area from which those persons

may be excluded.

1 Restatement of the Law 3d, Property (2000) 14, Section 1.2. Hunker v. Whitacre-Greer Fireproofing Co., 155 Ohio App. 3d 325 - Ohio: Court of Appeals, 7th.

EXCLUSIVE EASEMENTS

REVERSIONARY RIGHTS

The rights held by the dominant estate revert to the servient estate when the easement is extinguished.

REVERSIONARY RIGHTS

If the dedication of right of way was not a fee dedication, but rather a grant of easement, the underlying fee remains part of the property out of which the dedication was made.

Upon vacation, the reversionary rights (being those rights represented by the easement) belong to that property.

[T]he owner of an easement must generally bear the entire cost of maintaining it, absent an express agreement to the contrary.

Adkins Investments, Inc. v. Jackson County REMC, 731 NE 2d 1024 - Ind: Court of Appeals 2000

MAINTENANCE OF AN EASEMENT

[W]hen joint regular use of the easement is made by both the dominant and servient estates, both estates have the obligation to contribute jointly to the costs of reasonable repairs unless the easement itself indicates otherwise.

Quinlan v. Stouffe, 823 NE 2d 597 - Ill: Appellate Court, 4th Dist. 2005

MAINTENANCE OF AN EASEMENT

OVERBURDENING AN EASEMENT

• The USE of the easement

• The NATURE of that use

OVERBURDENING AN EASEMENT

The holder of an easement is entitled to a use that is reasonably necessary and consistent with the purposes for which the easement was granted, and must impose the least possible burden upon the property.

Thompson on Real Property, Easements § 426.

Generally, an obstruction or disturbance of an easement is anything which wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before. To constitute an actionable wrong it must, however, be of a material character such as will interfere with the reasonable enjoyment of the easement.

Southern Star Central Gas Pipeline, Inc. v. Cunning, et al, Kansas Court of Appeals, No. 96,103.

INTERFERING WITH AN EASEMENT

TERMINATION

Easements are terminated by:

(1) Merger of Title or (2) by an instrument having that stated purpose:

• Release• Vacation• Abandonment

(3) By the terms of the document

Easements are terminated by:

(4) Cessation of purpose (5) Impossibility of Use(6) Non-User/Intent to Abandon(7) Elimination of the Necessity(8) Adverse Possession(9) In certain circumstances…

(a) Mortgage Foreclosure(b) Tax Sale

TERMINATION

…[a] land owner cannot possess an easement in his own property.

Indiana State Highway Com'n v. Amoco Oil Co., 494 NE 2d 326 - Ind: Court of Appeals, 2nd Dist. 1986.

Easements on one’s own Land“Merger of Title”

An official action by the appropriate authorities that releases the public’s interest in a dedicated public easement such that the public’s interest reverts to the underlying fee owner.

TERMINATION/EXTINGUISHMENTVacation

Unless an easement also imposes obligations upon the easement holder, the easement owner may unilaterally release or surrender his easement to the owner of the servient estate.By the release, the easement owner is effecting a merger of title.

TERMINATION/EXTINGUISHMENTRelease

Generally, easements determinable upon condition are of two types: (1) those that end upon the happening of a

condition and (2) those that can be ended if the grantee fails

to comply with conditions subsequent.

Cadwallader v. Scovanner, 178 Ohio App. 3d 26 -Ohio: Court of Appeals, 12th Appellate Dist. 2008.

TERMINATION/EXTINGUISHMENT Terms of the Document

Certain easements by their nature are inherently limited in duration. An easement that is created to serve a particular purpose terminates when the underlying purpose for the easement no longer exists.

Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land ¶ 9.03 (1988).

TERMINATION/EXTINGUISHMENT Cessation of Purpose

A way of necessity terminates when the necessity ends.

Wilson v. Glascock, 74 Ind.App. 255, 259, 126 N.E. 231, 233 (1920).

TERMINATION/EXTINGUISHMENTCessation of Purpose-Elimination of the Necessity

[A]n easement granted for a particular purpose ceases to exist if abandoned or rendered impossible of accomplishment.

McCann v. RW Dunteman Co., 609 NE 2d 1076 - Ill: Appellate Court, 2nd Dist. 1993

TERMINATION/EXTINGUISHMENTImpossibility of Use

Although an easement acquired by actual grant was not extinguished by mere nonuse, nonuse plus an act indicating an intent to abandon may have had the effect of extinguishing the easement.

Consolidated Rail Corp. v. Lewellen, 682 NE 2d 779 -Ind: Supreme Court 1997.

TERMINATION/EXTINGUISHMENTNon-Use/Intent

[A] private easement may be extinguished by adverse possession wholly inconsistent with the use of the easement.

Bower Enterprises, Inc. v. City of Elkins, 173 W. Va. 438, 317 S.E.2d 798 (1984)

TERMINATION/EXTINGUISHMENT Adverse Possession

An easement is also subject to extinction by estoppel.

See V Restatement of Property § 505

TERMINATION/EXTINGUISHMENT Estoppel

Questions?Gary R. Kent, PS

The Schneider Corporation8901 Otis Avenue

Indianapolis, IN 46216Phone - 317.826.7134

gkent@schneidercorp.com