ILNews

Court: 'ingress' and 'egress' doesn't include parking

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has reversed a trial judge on a land use dispute between two sets of neighbors, finding that the clear meanings of “ingress" and "egress” do not include parking as two of the Porter County residents had argued based on past caselaw.

Deciding the case of Jerry and Mary Kwolek v. Rodney and Jennifer Swickard, No. 64A05-1006-PL-372, the three-judge appellate panel found that Porter Superior Judge Mary Harper had erred in ruling in favor of the Swickards on an easement dispute stretching back more than a decade.

The Swickards had been living near 560 West since the late 1970s, and after their private road access was cut off due to state road improvements in the 1980s, they learned they were essentially landlocked. They asked the neighboring Kwoleks for permission for an ingress-egress easement over 560 West. The two neighbors agreed and filed an official agreement with the county in 1993 allowing for the 60-foot wide easement.

But disputes arose in 2000, when the Swickards built a three-car garage on their property and added a concrete apron and gravel around it, some of it located within the easement. Parking issues arose between the neighbors and visitors, and in 2006, the Kwoleks began calling the police to complain. Jerry Kwolek installed landscaping, signs, evergreens, and parked a car on the easement and left it there for six months. He also confronted the Swickards’ kids about parking arrangements. The Swickards sued in November 2008 and sought to have the landscaping improvements removed and the written easement agreement from 1993 enforced, and to allow for parking.

The trial court ruled in the Swickards’ favor in May 2010, finding that the Swickards’ parking patterns didn’t interfere with the ingress-egress and that the improvements weren’t consistent with the 1993 written easement document.

But on appeal, the Court of Appeals panel pointed out that the definitions of “ingress” and “egress” in Black’s Law Dictionary and past caselaw do not include parking. The appellate judges found the Swickards’ citation of Wendy’s OF Ft. Wayne Inc v. Fagan, 644 N.E.2d 159, 163 (Ind. Ct. App. 1994), and McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), misplaced, because while both deal with parking issues neither creates an implied right to park. The panel also rejected other Indiana and national caselaw the Swickards relied on.

Without a cogent prescriptive claim about parking, the scope of the easement can’t be expanded to include parking, the appellate panel found.

“In sum, parking is not a right incident to the enjoyment of an ingress-egress easement,” Judge Edward Najam wrote. “Again, the nature and extent of a written agreement is first determined by the text of the instrument that created it. The trial court stated that the easement should be construed in favor of the Swickards and against the Kwoleks. But where, as here, the text is explicit, there is no ambiguity to be construed.”

The appellate court found the record doesn’t support a finding that the Kwoleks’ improvements interfered with the ingress-egress. The panel also determined the doctrine of acquiescence doesn’t apply here and doesn’t bar the Kwoleks from raising their claims.
 

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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT