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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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