January-February Vol. 5, No. 1

Casenotes

Indiana

Easements

William C Haak Trust v Wilusz, 949 NE2d 833 (Ind Ct App, 2011).

Facts: John and Susan Hall owned land in Porter County, Indiana until 1999 when their land was split into parcels and part of the land was sold due to foreclosure. William and Judith Wilusz (the Wiluszes) purchased a parcel with access to a public road. The Halls's remaining land no longer had any access to the road. In 2007, the Halls brought an action to quiet title against the Wiluszes to gain an easement by necessity over the Wiluszes's parcel to gain access to the road. During the proceedings, the Halls sold the landlocked parcel to the William C. Haak Trust (the trust) and the trust continued the action seeking the easement.

The trial court found that the trust could no longer obtain an easement over the Wiluszes's land because the Halls had prior opportunities to obtain the easement but had failed to do so. The trust appealed.

Holding: Reversed. The court of appeals found that there was no legal precedent for the trial court's decision. The trial court held that because the Halls had not previously granted themselves an easement that they had somehow lost the right to ever obtain an easement. The court of appeals stated, "the trial court cited no authority for this proposition, and our research has uncovered none." According to the court of appeals, there is no statute of limitations on when an easement by necessity may be obtained.

Under Indiana law, there are two requirements to create an easement by necessity. First, there must be unity of title at the time that the parcels of land were split. If the trust's parcel never had access to a public road then there can never be an easement by necessity. However, because the land was formerly under the same ownership of the Halls, and the severing of the property caused one parcel to lose access to the road, an easement by necessity is implied. The other requirement is that the easement must actually be necessary, not merely convenient. If the trust had another way to access the road, there would be no easement by necessity. In this case, there was another parcel of land that could be crossed to access the road, but because the Halls never owned that parcel, the trust would not be able to get an easement by necessity over it. This made the easement through the Wiluszes's land necessary.

Because the trust was able to demonstrate both unity of title at the time the parcels were separated, and the necessity of the easement, the court held that the trust had an easement by necessity over the Wiluszes's land.

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