Appellate court denies rehearing, remands easement question to trial court

August 3, 2017

The Indiana Court of Appeals has denied a Washington County man’s petition for rehearing and instead remanded the case for the trial court to address the issue of whether an easement of necessity over the man’s property still exists now that he has new neighbors.

In an earlier opinion in April, the Indiana Court of Appeals unanimously determined that Luther Collins, a private property owner in Washington County, must allow part of his land to be used to give access to an adjacent tract of land owned by a business. Luther acquired the land after Joseph Howell, the former owner of the two parcels, granted an easement to himself over the servient estate so he could access the dominant estate.

Luther purchased the servient estate and Metro Real Estate purchased the dominant estate, and the Indiana Court of Appeals determined in its April opinion that Metro’s parcel was landlocked and that the easement was one of necessity. However, in a petition for rehearing in the case of Luther T. Collins v. Metro Real Estate Services, LLC, 88A05-1510-PL-1797, Collins argued the easement by necessity issue is now moot because Metro sold the dominant estate to a third party while the appeal was pending.

In a Thursday opinion, Judge Michael Barnes wrote that the sale of the property was noted in his original opinion, in which the court denied Collins’ motion to substitute the new property owner as the appellee in the case. Instead, the court noted that it made “no prediction regarding if or how the subsequent conveyance of the dominant estate affected the easement at issue,” a position Barnes said the court still holds to now.

“We acknowledge that an easement of necessity may cease to exist when the necessity out of which the easement arose ceases to exist,” Barnes wrote. “On the other hand, an easement of necessity does not attach itself to a particular owner and does not automatically expire upon transfer of either the dominant or servient estate to a new owner. Thus, Metro’s sale of the dominant estate to a third party did not automatically render the easement by necessity issue moot.”

Finally, the appellate court agreed with Collins’ rehearing petition “to the extent that whether an easement of necessity still exists here is a matter to be litigated on remand between Collins and the new property owner.” Thus, the court reaffirmed its original opinion in full and remanded the case to the Washington Circuit Court for further proceedings.


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