IN Supreme Court reverses, remands for trial court to enter judgment on implied easement of necessity claim

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The Indiana Supreme Court bench in the Indiana Statehouse (IL file photo)

The Indiana Supreme Court reversed a trial court’s grant of summary judgment for a Hamilton County property owner’s easement-by-prior-use claim in a dispute with an adjacent property holder.

The high court issued the opinion Thursday.

According to court records, Dux North LLC owns landlocked property in rural Hamilton County.

To access the property, it sought an implied easement over adjacent property owned by Jason and Sarah Morehouse.

The parcels owned by Dux were not landlocked until 1993, when Shorewood Corporation conveyed the southern tract to North Star Construction & Development Inc.

Before 2018, Dux accessed a parcel through a private road with Maurice and Gwendolyn Marshall’s permission.

After a series of conveyances, the Morehouses became owners of some of the parcels and denied Dux permission to use the private road, claiming increase usage and Dux’s lack of legal right to cross the Morehouse property.

The denial of access triggered Dux to sue the Morehouses.

Dux sought declaratory judgment that an implied easement of necessity was established in 1991 when the Marshalls conveyed a parcel to a new owner.

According to Dux, the severance created an implied easement of necessity over the private road.

Dux moved for summary judgment and argued that, in 1991, the only practical mean of accessing one of the parcels was the private road on the other parcels and thus an easement was reasonably necessary.

The Morehouses responded with their own motion for partial summary judgment.

They provided evidence that the parcel Dux accessed was part of a contiguous tract with access to a public road in 1991. They further argued that Dux does not have an easement of necessity because they had access to a different public road over a different route.

Dux didn’t challenge the evidence, but rather designated its own evidence that accessing the parcel from the public road along the southern tract was not practical.

The Hamilton Superior Court concluded that Dux had an implied easement by prior use and did not address whether it also had an implied easement of necessity.

It granted Dux’s motion for summary judgment and denied the Morehouses’ motion.

On appeal, the Morehouses challenged the grant of summary judgment for Dux and the denial of their own motion for partial summary judgment.

They also challenged the declaratory judgment creating the implied easement.

The Court of Appeals of Indiana reversed both summary judgement rulings and remanded for further proceedings.

Dux then appealed to the high court. The court agreed with the appellate court and reversed the trial court’s judgment.

“We find Dux has not shown it has an easement by prior use. And the Morehouses have shown Dux has no easement of necessity as a matter of law,” Justice Geoffery Slaughter wrote for the high court.

The court looked at two tests for the implied easements.

First, the court began with easements by prior use.

“And we note that the trial court’s finding that the servitude was in use at severance is the Morehouses’ primary basis on appeal for objecting to the judgment below as to the prior-use easement. Notably, the Morehouses do not contest that the access-road servitude across their property is necessary to Dux’s use and enjoyment of parcel 3 in substantially the same condition as before severance,” Slaughter wrote. “In addition to their primary objection, the Morehouses also argue that Dux waived its claim for a prior-use easement in the trial court. We reject the waiver argument because Dux’s complaint pleaded all facts necessary to state a claim for such an easement, and Dux raised the prior-use easement before the trial court during summary-judgment proceedings.”

Slaughter further wrote that if the trial court finds such easement exists on remand, the court will need to revisit it prior determination that the “right of way shall extend no less than ten feet in each direction from the center line of said unpaved access road.”

Next, the court considered implied easements of necessity.

“Indeed, the Morehouses’ designated evidence shows that Dux does not have an easement of necessity over their property as a matter of law. A public road abuts the southern tract, and Shorewood owned contiguous property including the southern tract at the time of parcel 3’s conveyance in 1991,” Slaughter wrote. “This evidence is enough to defeat Dux’s claim for an easement of necessity. It matters not that building a road between parcel 3 and the southern tract would be expensive, difficult, or inconvenient, as Dux argues. Nor does it matter that Dux’s property is currently landlocked. The necessity for the easement must exist at the time of severance.”

The high court found the Morehouses are entitled to judgment that Dux has no easement of necessity over their property.

The court reversed the trial court’s judgment and remanded to the trial court with instructions to enter judgment for the Morehouses on Dux’s claim for an implied easement of necessity and to decide whether Dux has an easement by prior use over the Morehouse property.

Chief Justice Loretta Rush and Justices Mark Massa, Christopher Goff and Derek Molter concurred in Jason Morehouse and Sarah Morehouse v. Dux North LLC, 23S-PL-71.

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