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Judges uphold family has no right of access through neighbor’s property

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A family claiming that for more than 50 years they had an easement to access portions of their land through a neighbor’s property lost before the Indiana Court of Appeals.

Earl Shields, Larry Joe Shields and Robert Shields appealed the trial court’s findings of fact, and conclusions of law and order from Dec. 9, 2011, and the subsequent denial of their motion to correct errors in favor of neighbor Rodney Taylor. The Shields said they have driven across Taylor’s property on a dirt road accessed from a public road to reach the back portion of their land for the last 40 or 50 years, before Taylor owned the land. The Shields believed they had an easement from a previous owner, but none was found recorded. They also said that the two previous owners allowed them to use the property to access their own.

Taylor never gave the Shields permission, nor did they ask, to use his property to access theirs, and a dispute arose in 2010 after the Shields had logging done on their property. The logging company cut a trail through Taylor’s property to access the Shields’ property. Taylor filed a complaint in 2011 alleging trespass and asking for a restraining order to prevent the Shields from entering his property.

The Shields filed a counterclaim asserting that Taylor gave them access to the road by his own consent or acquiescence.  The trial court found that the Shields, by asserting that Taylor consented to their use of the Taylor real estate until 2010, acknowledged the permissive nature of their past access to Taylor’s land. They also allege that Taylor consented, then at some point rescinded the entry. The judge ruled the Shields do not have a legal basis for continued entry onto Taylor’s property.

The Shields did not sufficiently plead facts claiming that their use of the dirt road over Taylor’s property connecting the public road and the back part of their property had established a prescriptive easement, the Court of Appeals ruled. The Shields must establish clear and convincing proof of control, intent, notice and duration as the party claiming the existence of a prescriptive easement.

The court focused on the duration element, pointing to Indiana Code 32-23-1-1, which establishes that a prescriptive easement must be shown to have been in existence uninterrupted for at least 20 years. The Shields in their counterclaim did not plead that they used the dirt road in an adverse manner for 20 years or more with regards to when Taylor owned the land, so the trial court did not err in finding their counterclaim alleged only consensual entry or a consensual right of access to Taylor’s property, Judge Elaine Brown wrote in Earl F. Shields, Larry J. Shields, and Robert L. Shields v. Rodney L. Taylor, 53A04-1202-PL-95.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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