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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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  3. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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