COA reverses for Hamilton Co. couple over duck hunters in land dispute

IL file photo

An Arcadia couple in an easement dispute with a duck hunting group has secured a pair of reversals from the Court of Appeals of Indiana.

In December 2018, Jason and Sarah Morehouse bought two contiguous parcels of land in Hamilton County near Morse Reservoir.

The previous owners of the parcels were Maurice and Gwendolyn Marshall, who had also previously owned a third contiguous parcel that they had separately sold to Shorewood Corporation in April 1991. At that time, Shorewood owned three contiguous parcels adjacent to Parcel 3. The southern tract had access to a public road.

Since at least 1985, a gravel lane access road across the Morehouse property has connected Parcel 3, which is landlocked, to a public road. In November 1995, Dux North Inc. bought Parcels 3, 4, and 5, and, in February 2020, Dux North bought those parcels from Dux North Inc.

From 1991 until Gwendolyn Marshall’s death in 2018, the owners of Parcel 3, including Dux North and its predecessors in interest, were permitted to use the access road. The Marshalls even allowed Dux North Inc. to place a padlock on a gate located at the entrance to its property on the access road.

However, in June 2020, Jerry Watson III, a member of Dux North, found the lock had been changed, so he contacted Jason Morehouse by email and asked about the new padlock.

In response, Raymond Adler, an attorney representing the Morehouses, emailed Watson and stated: “The purple paint, no trespassing signs[,] and padlock confirm the private property nature of the real estate. Why would you wish access?

One week later, Adler emailed Ted Butz, another member of Dux North, and stated:

“The family is concerned by the increased usage and the apparent misunderstanding by Mr. Watson of his lack of legal rights to cross the property and a large number of strangers/trespassers, the calls from DNR etc. Please see if the attached license agreement doesn’t set forth our understanding.”

The proposed license agreement acknowledged that the Marshalls had permitted Dux North to use the access road but stated that, going forward, Dux North members and a limited number of other people could use the access road only during duck hunting season.

Dux North filed a complaint for declaratory judgment in December 2020 against the Morehouses alleging that it had an easement of necessity over the Morehouse property.

The Morehouses filed an answer and counterclaim to quiet title.

In August 2021, Dux North filed a motion for summary judgment alleging that it is entitled to an easement of necessity over the Morehouses’ property as a matter of law. The Morehouses filed a cross-motion for partial summary judgment alleging that Dux North is not entitled to an easement of necessity as a matter of law.

During a hearing on the parties’ motions, Dux North argued that it was entitled to either an easement of necessity or an easement by prior use.

Hamilton Superior Court concluded Dux North had an easement by prior use over the Morehouse property and entered summary judgment and denied motion for partial summary judgment on the issue of whether Dux North had an easement of necessity.

On appeal in Jason Morehouse and Sarah Morehouse v. Dux North LLC, 22A-PL-664, the Court of Appeals found the trial court erred on both issues.

On the first issue, easement of necessity, judges reversed after finding that the undisputed evidence showed that there was no absolute necessity for an easement over the Morehouse property at the time of the severance in April 1991.

Looking at the second issue, easement by prior use, the Court of Appeals found the trial court also erred, as Dux North didn’t designate evidence to show that the access road is absolutely necessary to access Parcel 3.

“The Morehouses point out that, contrary to the trial court’s finding, the designated evidence does not show that the access road was ‘in use’ at the time Parcel 3 was severed from the Marshalls’ property in April 1991,” Judge Paul Mathias wrote. “In response, Dux North argues that the Morehouses, in their answer, admitted to facts sufficient to prove this element of its claim when they admitted that the access road had been in use ‘at all times from 1991’ until 2018.

“… We believe Dux North’s interpretation of that admission is too broad,” he continued. “The Morehouses’ admission that the access road had been in use ‘from 1991’ could mean any date between January 1, 1991, and December 31, 1991. But the critical date is the date of severance in April 1991, and there is no designated evidence that shows that the access road was definitively ‘in use’ at that time.

“… Indeed, Dux North did not designate any evidence to show that the access road was even passable in April 1991. Accordingly, we hold that the evidence does not support the trial court’s entry of summary judgment for Dux North on its alleged easement by prior use.”

The case has been remanded for further proceedings.

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