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COA orders trial court to define, locate easement

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A trial court erred in denying a trust’s request for an easement of necessity relating to a certain parcel of land because the previous property owners didn’t grant themselves an easement before they transferred the land to the trust, ruled the Indiana Court of Appeals.

In The William C. Haak Trust v. William J. Wilusz and Judith A. Wilusz, Benjamin Luna, No. 64A04-1008-PL-567, John and Susan Hall brought an action to quiet title and have an easement of necessity declared on William and Judith Wiluszes’ land or on Benjamin Luna’s land. The Halls previously had owned the parcel that the Wiluszes’ owned, which they lost to foreclosure. The Halls later sold another parcel to the William C. Haak Trust.

The parcel sold to the trust was landlocked, but the Halls were able to access public roads through Luna’s land. The Halls’ relatives previously owned that land and allowed the Halls access to the parcel. Both the Wiluszes’ and Luna’s parcels next to the trust’s land have access to a road via their northern borders.

Several years after the foreclosure, the Halls brought an action seeking an easement of necessity, for which the trust was later substituted because the trust agreed to purchase the landlocked parcel from the Halls. The trial court entered judgment in favor of the Wiluszes and Luna. The trial court reasoned the Halls weren’t entitled to an easement of necessity because they had prior opportunities to grant themselves an easement across what is now the Wiluszes’ land or arrange for an easement across Luna’s property. The trial court also denied the trust’s motion to correct error.

The Court of Appeals noted the trial judge cited no authority for her decision that the Halls lost the right to assert an easement of necessity by not granting themselves an easement before transfer, and the appellate court couldn’t find any authority.

The delay in pursuing their claim is irrelevant, wrote Judge Cale Bradford, and the right to an easement of necessity doesn’t expire or attach itself to a particular owner.

“… there is no statute of limitations on easements of necessity and the right to one does not expire upon transfer of either the dominant or serviette estates,” he wrote, citing an Illinois case that relied on the Indiana Supreme Court case, Logan v. Stogdale, 123 Ind. 372, 377, 24 N.E. 135, 137 (1890), which recognized that an easement of necessity is appurtenant.

Judge Bradford also noted that it makes no difference that the land transfer between the Halls and Wiluszes occurred because of foreclosure.

The judges found the trust has the right to an easement of necessity across the Wiluszes’ parcel, but not regarding Luna’s parcel. They ordered the trial court to take evidence sufficient to allow it to locate the easement of necessity across the Wiluszes’ land and define its dimensions.

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  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

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