~ Indiana ~ Easements and Rights of Way ~ ~ ~ IRWA Chapter 10 Annual Law Day. Indianapolis, Indiana. October 18, Presented by Gary R.

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1 ~ Indiana ~ Easements and Rights of Way ~ ~ ~ IRWA Chapter 10 Annual Law Day Indianapolis, Indiana October 18, 2017 Presented by Gary R. Kent, PS

2 EASEMENT A limited, nonpossessory interest in the land of another

3 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.

4 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

5 RIGHT-OF-WAY 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.

6 EASEMENTS IN GROSS and APPURTENANT EASEMENTS 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 Ind: Court of Appeals 2011

7 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 servient estate, that which is subject to the easement. 25 Am.Jur.2d Easements and Licenses 11 (1966).

8 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 Ind: Court of Appeals, 1st Dist

9 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)

10 Dedication WRITTEN EASEMENTS 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).

11 By Reference WRITTEN EASEMENTS [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

12 Condemnation WRITTEN EASEMENTS 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.

13 UNWRITTEN EASEMENTS Implied Easement (By Prior Use) [Implied] Easement by Necessity Prescriptive Easement Easement by Estoppel Implied Dedication

14 Implied Easement (By Prior Use) [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."

15 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 Ind: Court of Appeals 2011.

16 [Implied] Easement by Necessity Generally 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

17 [Implied] Easement by Necessity Generally 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)

18 [Implied] Easement by Necessity 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)].

19 [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, (Ind.Ct.App.2002).

20 UNWRITTEN EASEMENTS 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. 31A CV-166 citing Wilfong v. Cessna Corp. 838 N.E.2d 403, 406 (Ind. 2005).

21 (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);

22 (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");

23 (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,

24 (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 Ind: Supreme Court, 2005

25 UNWRITTEN EASEMENTS 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 Ind: Court of Appeals 2011.

26 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 Ind: Court of Appeals 2009.

27 CHARACTERISTICS OF EASEMENTS Scope Duration Exclusivity Reversionary rights

28 SCOPE OF WRITTEN 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

29 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).

30 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.

31 DURATION 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

32 EXCLUSIVE EASEMENTS [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 Ohio: Court of Appeals, 7th.

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

34 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.

35 MAINTENANCE OF AN EASEMENT [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 Ind: Court of Appeals 2000

36 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 Ill: Appellate Court, 4th Dist. 2005

37 OVERBURDENING AN EASEMENT The USE of the easement The NATURE of that use

38 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.

39 INTERFERING WITH AN EASEMENT 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.

40 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

41 TERMINATION 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

42 Easements on one s own Land Merger of Title [a] land owner cannot possess an easement in his own property. Indiana State Highway Com'n v. Amoco Oil Co., 494 NE 2d Ind: Court of Appeals, 2nd Dist

43 TERMINATION/EXTINGUISHMENT Vacation 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.

44 TERMINATION/EXTINGUISHMENT Release 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.

45 TERMINATION/EXTINGUISHMENT Terms of the Document 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

46 TERMINATION/EXTINGUISHMENT Cessation of Purpose 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).

47 TERMINATION/EXTINGUISHMENT Cessation of Purpose-Elimination of the Necessity A way of necessity terminates when the necessity ends. Wilson v. Glascock, 74 Ind.App. 255, 259, 126 N.E. 231, 233 (1920).

48 TERMINATION/EXTINGUISHMENT Impossibility of Use [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 Ill: Appellate Court, 2nd Dist. 1993

49 TERMINATION/EXTINGUISHMENT Non-Use/Intent 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 Ind: Supreme Court 1997.

50 TERMINATION/EXTINGUISHMENT Adverse Possession [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)

51 TERMINATION/EXTINGUISHMENT Estoppel An easement is also subject to extinction by estoppel. See V Restatement of Property 505

52 Questions? Gary R. Kent, PS The Schneider Corporation 8901 Otis Avenue Indianapolis, IN Phone gkent@schneidercorp.com