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

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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.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

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