Shields v. Taylor (IN)

Summary: When alleging prescriptive easements, language in the pleading that indicates permissive use can be fatal to the claim.

Shields v. Taylor, 976 N.E.2d 1237 (Ind. 2012).


The Shields own property that is not landlocked. Taylor owns property that is adjacent to the Shields' property. The Shields have owned their land for three generations and have always accessed the northern part of their property via a dirt road on the Taylor property. In 2010, the Shields began logging on their property and used the dirt road as an access road. Taylor demanded that they either pay him or stop using the road. Taylor also filed a complaint alleging trespass and requested a restraining order to keep the Shields from using his land during the proceedings, which the court granted.

The Shields counterclaimed with a pleading that asserted their "continuous, uninterrupted access to their [land] by an easement granted by Frank Hudoff—the former owner of the Taylor property—then by John and Phyllis Chute—the subsequent owners of the Taylor property—and then, most recently, by plaintiff's own consent or acquiescence." The pleading also asserted that, "All of the owners of the Taylor real estate since the late 1950's have agreed with the Shields' right to use the easement… and all the neighbors for the past 50 years have known of this."

The trial court stated that as a matter of law, an express easement can only be created through a written document, whereas a revocable license can be orally created. The court held that the Shields' had acquired a revocable license to access the Taylor property, not an express easement, because the Shields failed to produce any written documents that would substantiate a claim for an easement. Moreover, the license was revoked when Taylor object to the Shields' entry onto Taylor's property. Therefore, the Shields did not have a legal basis for continued entry onto Taylor's property absent consent. Furthermore, the court found that the Shields' pleadings did not establish a prescriptive easement because the entry was consensual. The Shields appealed, claiming that the trial court erred in concluding that the Shields' counterclaim did not sufficiently plead facts to establish an easement by prescription.


Holding: Affirmed. A party claiming the existence of a prescriptive easement must provide evidence showing "an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right." In Fraley v. Minger, 829 N.E.2d 476, 486 (2005), the Indiana Supreme Court reformulated the elements of adverse possession, which apply to establishing prescriptive easements. Thus, a party claiming the existence of a prescriptive easement "must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration."

The Shields alleged that their pleading indicated an easement by consent or "acquiescence" and that this is at the heart of the prescriptive easement claim. First, the court determined that the term "acquiescence," was used only in connection with Taylor, and because his ownership of the property was only for the last 15 years, the duration element of twenty years was not met. Next, the court determined that, based on the Shields' pleading, the use of the dirt road was originally based upon permission granted by Taylor's predecessors in interest. Because this use was permissive in nature, it was not adverse. The court pointed out that reading the pleading as alleging a prescriptive easement would be illogical since a landowner cannot grant such an easement. Therefore, because the Shields did not plead that they used the dirt road in an adverse manner for twenty years or more, the court affirmed the lower ruling.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Thu, 02/28/2013 - 10:04am