Opinion
24A-PL-334
11-25-2024
Forest Wayne Wood, LLC, and Dennis Fahlsing, Appellants-Defendants v. Leslie A. Friedel and Adam Friedel, Appellees-Plaintiffs
Attorney for Appellants Matthew J. McGovern Fishers, Indiana Attorney for Appellees Jacob D. VanderHorst Likes Law Office, LLC Auburn, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Dekalb Superior Court The Honorable Monte L. Brown, Judge Trial Court Cause No. 17D02-2302-PL-3
Attorney for Appellants Matthew J. McGovern Fishers, Indiana
Attorney for Appellees Jacob D. VanderHorst Likes Law Office, LLC Auburn, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE
Case Summary
[¶1] Leslie A. Friedel and Adam Friedel are the owners of landlocked real estate, with express ingress and egress easement rights over abutted property owned by Forest Wayne Wood, LLC and Dennis Fahlsing (collectively, "Fahlsing"). The Friedels brought a complaint for easement, injunctive relief, and damages, alleging Fahlsing impeded their use of the easement. Following an evidentiary hearing, the trial court determined Fahlsing interfered with the location of the roadway supported by the original express easement, found the Friedels were entitled to an implied easement for ingress and egress, and indicated its intent to grant a forty-foot-wide implied easement after preparation of a new survey and another hearing. Fahlsing appeals, raising one issue: Did the trial court abuse its discretion when it found the Friedels were entitled to an implied easement, which expanded the scope and purpose of their existing express easement? We reverse and remand.
Facts and Procedural History
[¶2] Forest Wayne Wood is an Indiana Limited Liability Company owned by Dennis Fahlsing and located in Garrett, Indiana. The company owns real estate in Dekalb County, a portion of which abuts property owned by the Friedels.
[¶3] In 2020, the Friedels acquired by quitclaim deed 56.82 acres in Dekalb County ("Dominant Estate"), bordered on all sides by real estate owned by other parties. On the south, the Dominant Estate abuts a set of railway tracks which do not include a crossing; on the east and west, the Dominant Estate borders land not involved in this litigation; and on the north, the Dominant Estate abuts the southern border of a portion of Fahlsing's real estate ("Servient Estate"). Because of its landlocked nature, the only ingress and egress for the Dominant Estate consists of an express easement, running north through the Servient Estate to State Road 8.
[¶4] In 1954, Louise Mountz, as surviving spouse of George Mountz, acquired a property interest in both the Servient and the Dominant Estate. Ten years later the two parcels became separated. On February 26, 1964, Mountz' estate transferred the Servient Estate to Charles Trovinger by warranty deed, which expressly reserved an easement to benefit the Dominant Estate. The easement described the west boundary as an "existing ditch." Ex. at 38. This existing ditch, currently referred to as the Frank Yarde Regulated Drain, is a regulated drain that crosses the far northwest corner of the Dominant Estate and continues to the north in a slightly northeastern direction over the entire length of the Servient Estate. For the east boundary, the legal description creates a line marked by certain definite points running generally parallel to the ditch's path and along the road at the time, "as more particularly set forth on the survey" attached and made part of the warranty deed. Id. at 39. The deed provided the easement "shall run with the land for the purpose of ingress and egress to part of" the Dominant Estate. Id. at 38. Each deed pertaining to the Servient Estate following February 26, 1964, includes the express easement. On April 24, 1964, Mountz' estate issued a deed of the Dominant Estate to Robert and Margaret Barth, which included the express easement created in the February 26 deed to Trovinger. This same express easement was included in deeds of the Dominant Estate recorded in 1973, 1996, 2019, and 2020.
Although all 1964 warranty deeds included the express easement, in June 1964, Trovinger (the new owner of the Servient Estate) also executed a grant of easement to the Barths (the new owners of the Dominant Estate). The recorded grant of easement described the same express easement as the warranty deeds, but also provided:
Said easement shall include the unlimited right in the grantees, their heirs and assigns forever to maintain and repair forever the roadway over and along said easement; to improve the said easement and to do all things necessary in regard thereto; said easement shall run with the land and shall inure not only for the benefit of the grantees herein but for the benefit of all successive and future owners or lessees of the aforesaid or any part thereof.Ex. at 53.
[¶5] Recently, Fahlsing started to impede the Friedels' use of the easement by various means. Fahlsing placed downed trees and telephone poles in or along the roadway, and he dug trenches through the easement, severely damaging the roadway within the easement. In addition to these obstructions, Fahlsing caused the roadway to be rerouted and moved to the west, creating a virtually impassable portion of roadway. He also admitted he had previously approached and questioned invitees traveling over the roadway to the Dominant Estate.
[¶6] On February 10, 2023, the Friedels filed a complaint for easement, injunctive relief, and damages against Fahlsing. On October 9, a bench trial was held. By agreement of the parties, the trial court bifurcated the issues and only addressed the existence and extent of the express easement. During the hearing, Duane A. Brown, P.E., L.S., the Friedels' expert witness in the fields of civil engineering and surveying, analyzed historical aerial photographs of both properties. Brown testified that a 1938 photograph indicated the presence of a gravel production operation on the Dominant Estate. The photograph also showed a clearly defined drive running from the northern border of the Dominant Estate across the Servient Estate in the same or substantially similar location as the roadway currently in existence. In the 1938 photograph the Regulated Drain was "clearly a dredged or dug ditch" because it was largely straight in nature, with very few meanderings to the east or west. Tr. Vol. 2 at 37.
[¶7] Aerial photography from 1951, 1957, 1964, 1972, and 2023 showed the roadway linking the Dominant Estate to State Road 8 through the Servient Estate had been in continuous use as the only ingress and egress for the Dominant Estate. The historical images also indicated the Regulated Drain had changed location over time. Brown explained the hydraulic forces of the water in the Regulated Drain resulted in erosion to its banks, which caused the location of the banks to move from their original location partially to the east and closer to the existing roadway. In some areas, the edge of the bank is as close as fifteen feet from the edge of the roadway. If left unchecked, the meandering of the Regulated Drain will persist and the water within the Regulated Drain will continue to cut eastward toward the roadway.
[¶8] With respect to the east boundary of the express easement, Brown specified there is significant uncertainty as to the exact location of the easement's eastern border because of the use of antiquated surveying measurement tools when the easement was created. He stated the line depicting the eastern boundary today may be incorrect by up to eighteen to twenty feet at points in the easement.
Each aerial photograph Brown referenced during his testimony includes a blue line delineating the east boundary of the easement. Brown testified there are three sources for today's eastern boundary line: (1) the 1964 survey referenced in the warranty deeds, (2) a survey completed for the Friedels, and (3) a survey prepared for Fahlsing. According to Brown, the 1964 surveyor "tied" the legal description of the east boundary line "into the quarter section corners," but those corner points were not marked by physical survey monuments at the time (one was monumented in 2005, the other has never been monumented). Tr. Vol. 2 at 46. Brown estimated the lack of monumentation could affect the line up to eighteen to twenty feet in some parts. Brown and the parties' surveyors also located iron survey pipes "partway down along the alignment of the easement," although there was some uncertainty about where the iron pipes are located on the 1964 survey. Id. As Brown put it, there is "not any discrepancy on best evidence today on that line. But the original legal description . . . has inherent built-in uncertainty." Id.
[¶9] On December 4, 2023, the trial court issued its Order, finding Fahlsing had "significantly interfered with and, in fact, moved the location of the roadway that was historically used to access" the Dominant Estate. Appellant's App. Vol. 2 at 12. The trial court concluded the Friedels were entitled to relief under the doctrine of implied easement by necessity and/or under the doctrine of implied easement by prior use. The trial court found, in pertinent part, that:
48.... Brown testified there is significant dispute as to the exact location of the east boundary of the granted easement. Further [Brown] testified that in order to have an ingress/egress
easement, [the Friedels] require a minimum of 40 feet to improve and maintain the ingress/egress roadway.
49. [The Friedels] have proven that there was unity of title to the two parcels when the parcels were divided in 1964.
50. Despite the grant of the ingress/egress easement, the easement as described does not allow for the improvement or maintenance of a roadway necessary for [the Friedels] to actually access a public road.
51. It is clear from the historical photographs and the testimony of [Brown] that the roadway from [the Dominant Estate] to Indiana State Road 8 has been used since at least 1938.
52. Under the theory of implied easement by prior use, [the Friedels] are entitled to an easement in a width that is reasonably necessary for the use and enjoyment of their real estate.
53. To deny [the Friedels] relief in these circumstances essentially forecloses their right to ingress/egress to their real estate creating a landlocked parcel. Creating a landlocked parcel is against public policy.
54. That [the Friedels] are entitled to relief to allow them to improve and maintain a roadway that is reasonably necessary for the use and enjoyment of their real estate.
55. That [the Friedels] shall cause to be prepared by [Brown] a new (original) survey that locates and describes an implied easement that runs from State Road 8 on the North property line of [the Servient Estate] described on Exhibit "B", on and across said real estate to the North property line of [the Dominant Estate] described on Exhibit "A". The implied easement to be
described in the new (original) survey shall be forty (40) feet in width and shall take into account the maintenance easement associated with the Frank Yarde Regulated Drain and the past erosion and reasonably anticipated future erosion of said presently located drain.
56. [The Friedels] shall file said survey with the Court within 90 days of the date of this Order unless otherwise Ordered.
57. The court further finds that [Fahlsing] [has] intentionally damaged and rerouted the roadway which will require extensive repair by [the Friedels].
58. Following the filing of [the Friedels'] new survey, the Court will reconvene to address the reasonableness of [the Friedels'] survey, the damages caused by [Fahlsing] and [the Friedels'] request for an injunction.Appellant's App. Vol. 2 at 13-14. On January 3, 2024, Fahlsing filed a motion to declare the Order final and appealable pursuant to Indiana Trial Rule 54(B) and Indiana Appellate Rule 2(H)(2). The trial court granted this motion on January 8, finding there was "no just reason for delay" and "expressly direct[ing] entry" of final judgment. Appellant's App. Vol 2 at 18.
Standard of Review
[¶10] In support of its Order, the trial court entered findings of fact and conclusions thereon. When, as here, the trial court issues special findings of fact and conclusions sua sponte under Indiana Trial Rule 52(A), we apply a "two-tiered standard of review first determining whether the evidence supports the findings and, if so, whether the findings support the judgment." Town of Linden v. Birge, 204 N.E.3d 229, 233 (Ind. 2023). "Any issue not covered by the findings is reviewed under the general judgment standard, meaning a reviewing court should affirm based on any legal theory supported by the evidence." Steele-Giri v. Steele, 51 N.E.3d 119, 123-24 (Ind. 2016).
[¶11] "We 'shall not set aside the findings or judgment unless [they are] clearly erroneous,' and we must give 'due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses.'" Wysocki v. Johnson, 18 N.E.3d 600, 603 (Ind. 2014) (quoting T.R. 52(A)). "Findings of fact are clearly erroneous only when they have no factual support in the record, and a judgment is clearly erroneous if it applies the wrong legal standard to properly found facts[.]" Id. at 603-04 (quotation and citations omitted). A finding or conclusion is clearly erroneous if we have a "firm conviction that a mistake has been made." Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005) (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).
The trial court erroneously found the Friedels were entitled to an implied easement when an express easement, covering the same purpose of ingress and egress, already existed and had not been abandoned or modified.
[¶12] Fahlsing contends the trial court erred when it ignored the express easement and instead burdened the Servient Estate with an implied easement which expanded the parameters and scope of the original express easement.
[¶13] "An easement is the right to use another's land for a specified purpose. An easement appurtenant benefits adjoining land; an easement in gross benefits a specific individual. The land benefited by an easement is the dominant estate; the land burdened by an easement is the servient estate." Town of Ellettsville v. DeSpirito, 111 N.E.3d 987, 990 (Ind. 2018). And where as here an easement was "voluntarily created by a written instrument to serve a specified purpose," the easement is known as an express easement. Easement, BLACK'S LAW DICTIONARY (11th ed. 2019). When examining the scope of easement rights in Indiana, we "hold[ ] the parties to the agreement they or their predecessors in interest made when they negotiated their easement or acquired their property concerning the easement." DeSpirito, 111 N.E.3d at 995; cf. Successor in Interest, BLACK'S LAW DICTIONARY (11th ed. 2019) (noting a successor in interest "retains the same rights as the original owner, with no change in substance"). In this way, Indiana common law "promotes certainty," and ensures "property interests and corresponding property values remain stable and predictable." DeSpirito, 111 N.E.3d at 995.
[¶14] Easements are limited to the purpose for which they are granted. McCauley v. Harris, 928 N.E.2d 309, 314 (Ind.Ct.App. 2010), trans. denied. The owner of the dominant estate possesses all rights necessarily incident to the enjoyment of the easement and may make repairs, improvements, or alterations reasonably necessary to make the grant of the easement effectual. Id. The owner of the servient estate may use his property in any manner and for any purpose consistent with the enjoyment of the easement, and the dominant estate cannot interfere with the use. Id. "All rights necessarily incident to the enjoyment of the easement are possessed by the owner of the dominant estate, and it is the duty of the servient owner to permit the dominant owner to enjoy his easement without interference." Id. The servient owner "may not so use his land as to obstruct the easement or interfere with the enjoyment thereof by the owner of the dominant estate." Id. Moreover, the owner of the dominant estate cannot subject the servient estate to extra burdens, any more than the holder of the servient estate can materially impair or unreasonably interfere with the use of the easement. Id.
[¶15] Because express easements are "granted in a deed or written contract," Indiana protects the right of the parties to clearly state the scope and future uses of an express easement. Morehouse v. Dux North LLC, 226 N.E.3d 758, 763 (Ind. 2024); Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012) ("Indiana courts recognize the freedom of parties to enter into contracts" and "presume that contracts represent the freely bargained agreement of the parties.") Given this freedom, the easement's purpose remains "the focal point in the relationship which exists between the titleholders of the dominant and servient estates." Klotz v. Horn, 558 N.E.2d 1096, 1099 (Ind. 1990) (quoting Brown v. Heidersbach, 360 N.E.2d 614, 618 (Ind.Ct.App. 1977)); see also Howard v. U.S., 964 N.E.2d 779, 781 (Ind. 2012). An easement often arises to fill some need or to serve some purpose, and its extent or scope is "determined by the purpose served by the easement." Howard, 964 N.E.2d at 781; McCauley, 928 N.E.2d at 314 (stating "easements are limited to the purpose for which they are granted"). "The servient estate is burdened to the extent necessary to accomplish the end for which the dominant estate was created." Howard, 964 N.E.2d at 781 (quoting Klotz, 558 N.E.2d at 1099-1100).
[¶16] The express easement, created by Mountz in 1964, is a fixed easement with the clearly declared purpose of establishing a manner of ingress and egress for the landlocked Dominant Estate to run over the Servient Estate. DeSpirito, 111 N.E.3d at 990 ("An easement is fixed if the instrument creating [the right-of-way] specifies its location or if the law requires it to be maintained in a specific position."). The easement's west boundary is defined by the Regulated Drain, with the east boundary delineated by certain expressly specified points on the Servient Estate. Initially, the use of antiquated surveying measurement tools created a significant uncertainty as to the exact location of the eastern boundary; however, the continuous use and particular placement of the roadway over several decades, as evidenced by the aerial photography, renders the easement fixed and certain. Id. at 991 ("Where the right to an easement is granted without giving definite location and description to it, the exercise of the easement in a particular course or manner, with the consent of both parties, renders it fixed and certain."); see also Dudgeon v. Bronson, 56564 N.E. 910, 910 (Ind. 1902) (same). The principle of common law growing from this tradition is, once fixed, "neither the servient nor dominant estate-holder can relocate or modify the easement without the other's consent." DeSpirito, 111 N.E.3d at 994; accord Henning v. Neisz, 268 N.E.2d 310, 314 (Ind.Ct.App. 1971) (the location "cannot be changed by either party without the consent of the other").
[¶17] Despite a lack of consent between the parties to relocate or modify the express easement and without any evidence the Friedels intended to abandon this existing easement, the trial court relinquished the express easement sua sponte in favor of creating an implied easement either by necessity or by prior use over the Servient Estate which benefitted the landlocked Dominant Estate. See DeSpirito, 111 N.E.3d at 994; Celebration Worship Ctr., Inc. v Tucker, 35 N.E.3d 251, 258 (Ind. 2015) ("An easement, whether acquired by prescription or created by express grant or reservation, can be abandoned."); Consol. Rail Corp., Inc. v. Lewellen, 682 N.E.2d 779, 783 (Ind. 1997) (the mere non-use of an easement right will not result in its abandonment or extinction). Because there was no consent or abandonment, the trial court essentially burdened the Servient Estate with a second easement an implied easement to accomplish what the express easement was created to achieve, i.e., securing the Friedels unfettered access to State Road 8.
[¶18] The Indiana Constitution, mirroring the United States Constitution, constrains the taking of property for purely private uses, and our Indiana Supreme Court has noted that "[p]roperty rights in Indiana are not so flimsy that they may be modified or eliminated if their exercise impedes what is thought to be a more productive or worthwhile use of land." Ind. Const., Art. 1, § 21; DeSpirito, 111 N.E.3d at 988; see also Stop the Beach Renourishment, Inc. v. Fla. Dep't of Env't Prot., 560 U.S. 702, 715 (2010) ("If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.") (emphasis in original).
[¶19] Implied easements by prior use and by necessity arise when land held by a common owner is severed such that a servitude becomes necessary to enjoy or access the dominant estate. See Morehouse, 226 N.E.3d at 765-66 (setting forth tests for implied easements). "An implied easement arises not from the parties' expressed intent in a land transaction but from circumstances inferred from their transaction." Id. at 761. Courts will "engraft" implied easements "onto a land transaction in certain circumstances to accomplish some overriding goal the parties could have expressly provided for themselves but did not." Id. at 763 (emphasis added). Because implied easements are in derogation of the rule that written instruments express the parties' intent, they are disfavored in the law. Id. Still, courts may justify implying an easement (1) because the parties to the transaction must have intended to provide ingress and egress to landlocked property, or (2) to ensure land remains productive even if the parties did not provide access. Id. at 764.
[¶20] But here, the parties to the transaction did contemplate the need for access to the Dominant Estate when the common owner first transferred the Servient Estate to a new owner in 1964. The deed to the Dominant Estate indicates the express easement granted the Dominant Estate ingress and egress over the Servient Estate. The deed to the Servient Estate reflects Fahlsing acquired the property subject to the express easement described in the deed, which allows the Dominant Estate a path for ingress and egress across the Servient Estate to State Road 8. That path is marked by the Regulated Drain on the western boundary and a defined line on the eastern boundary. Even if the eastern boundary of the express easement is now difficult to locate in accordance with the exact legal specifications in the deed because of antiquated measuring techniques used when creating the line, the easement "is fixed by practice" by the roadway leading from State Road 8 over the Servient Estate to the Dominant Estate. DeSpirito, 111 N.E.3d at 990. Because the grant of the express easement is "decisive in its description of the ingress and egress path, the trial court had no discretion to expand it or to restrict its terms." McCauley, 928 N.E.2d at 315. Rather, the trial court was "confined to give effect to the intention of the parties as evidenced by the language of the conveyance itself." Id.
Brown explained this easement "is a little unusual in that . . . typically, an easement has a specified width." Tr. Vol. 2 at 53.
[¶21] Nevertheless, the trial court found the Friedels were entitled to an implied easement on the theory that denying them the requested relief "essentially forecloses their right to ingress/egress to their real estate creating a landlocked parcel." Appellant's App. Vol. 2 at 14. Evidence does not support this finding. Absent the damage and rerouting inflicted by Fahlsing and poor condition of the road, there was no evidence the Friedels cannot access their property using the express easement and historical roadway path. Brown estimated the west side of the drive at one point comes within fifteen feet of the ditch bank but at other points may be up to sixty or seventy feet away. There was evidence the stream running through the Regulated Drain had caused erosion along its banks, and Brown was concerned the drain would move closer to the drive at points if the erosion were left "unchecked." Tr. Vol. 2 at 49. But testimony that future, uncontrolled erosion may interfere with the roadway or its maintenance does not support the trial court's finding the Friedels cannot now use or maintain the express easement and historical roadway for ingress and egress.
[¶22] Brown also testified the Friedels needed a forty-foot-wide easement to allow for two-way traffic, grading, snow removal, utilities, and maintenance, although only ten feet would allow two cars to pass simultaneously. Generally, "an easement for ingress and egress confers only the right to pass over the land rather than the more extensive right to partially control or alter the estate." McCauley, 928 N.E.2d at 314. Here, there was no specific evidence about how wide the current roadway or easement is, other than that the easement width varies. And evidence suggests the roadway historically was a simple dirt or gravel road. It is not clear on this record whether the proposed implied easement would be an expansion or narrowing of the express easement (or both). But in any case, where an express agreement defines the size and location of an easement, the express terms control and necessity is not a factor. See id. at 315 (holding that where it is clear the parties intended "to create an ingress and egress easement of a defined size in a specific location," the "express terms of the conveyance of the easement are controlling, and any consideration as to what is merely a 'necessary' use by the dominant estate for ingress and egress is unwarranted").
[¶23] However, there is credible evidence Fahlsing impeded the Friedels' right to travel over the express easement by placing downed trees and telephone poles in or along the roadway and digging trenches through the easement, which severely damaged the roadway within the easement. In addition to these obstructions, Fahlsing created a virtually impassable portion of roadway. Fahlsing cannot use his land to obstruct the easement. Because the Friedels possess all rights necessarily incident to the enjoyment of their express easement, the Friedels may make repairs, improvements, or alterations reasonably necessary to make the express easement effectual without subjecting the Servient Estate to extra burdens. See id. at 314. Accordingly, we reverse the trial court's order finding the Friedels are entitled to an implied easement and remand to the trial court to determine the extent and scope of reasonable repairs, improvements, or alterations necessary to the express easement for the Friedels to access their Dominant Estate.
Conclusion
[¶24] Because neither party consented to modify or relocate the express easement and the Friedels did not abandon their easement rights, the trial court erred by finding the Friedels were entitled to an implied easement when an express easement, covering the same purpose of ingress and egress, already existed. We reverse and remand to the trial court for further proceedings in accordance with this opinion.
[¶25] Reversed and remanded with instructions.
Felix, J., and Crone, Sr. J., concur.