ILNews

COA orders trial court to define, locate easement

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

ADVERTISEMENT