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 They also allege that Taylor consented, then at some point rescinded the entry.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.