Windgate Properties, LLC v. Chris Sanders , 93 N.E.3d 809 ( 2018 )

FILED
Mar 20 2018, 8:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Richard Wayne Greeson
Connersville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Windgate Properties, LLC, March 20, 2018
Appellant-Plaintiff, Court of Appeals Case No.
13A01-1706-PL-1453
v. Appeal from the Crawford Circuit
Court
Chris Sanders, The Honorable Sabrina R. Bell,
Appellee-Defendant Judge
Trial Court Cause No.
13C01-1505-PL-16
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018 Page 1 of 11
[1] WindGate Properties, LLC, (WindGate) and Chris Sanders each purchased
multiple tracts of land at a tax sale. These tracts all had the same owner prior to
the tax sale, and the tax sale left landlocked one tract purchased by Sanders and
two purchased by WindGate. In response to a quiet title action filed by
WindGate, Sanders asserted that he had an implied easement by necessity
across one of WindGate’s tracts. Following a bench trial, the trial court issued
an order quieting title to WindGate subject to an implied easement by necessity
for the benefit of Sanders. WindGate’s arguments on appeal are numerous, but
they all essentially boil down to a claim that easements should be established
over adjacent properties to the north rather than WindGate’s property.
[2] We affirm.
Facts & Procedural History
[3] Opportunity Options, Inc., owned a significant amount of undeveloped real
estate in Crawford County that was sold at a tax sale on September 27, 2013.
WindGate and Sanders, as well as others, purchased parcels at this sale.
Relevant to this appeal, WindGate and Sanders each purchased a parcel that
was divided into two non-adjacent tracts. The four tracts – Sanders 1 (4.45
acres), WindGate 1 (49.014 acres), Sanders 2 (28.24 acres), and WindGate 2
(34.142 acres) – were situated like puzzle pieces as follows:
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Appendix Vol. 2 at 105 (modified from original). Sanders 1 had access to a
public roadway at its northwest corner, but the other three tracts were
landlocked following the tax sale. None of these landlocked tracts had any
recorded easements for ingress or egress.
[4] The real estate to the north of Sanders’s and WindGate’s parcels (the Northern
Real Estate) was “[a]t some point in time” all owned by Opportunity Options.
Transcript at 39. The record is vague regarding the Northern Real Estate, but
the record establishes that sometime prior to the tax sale, likely at different
times, the land was divided and sold to various people. 1 Throughout the
Northern Real Estate, Opportunity Options had built dirt and gravel roads to
access the land from public roadways. Part of one of these private roads runs
1
WindGate’s repeated assertion on appeal that all of the Northern Real Estate adjacent to the parcels in
question is now owned by Turner Corn is not borne out in the record. The evidence establishes only that
Corn owns a portion of the adjacent land directly north of Sanders 1. See Exhibits Vol. 1, Plaintiff’s Exhibit B
(area designated as “Trent” is now owned by Corn). The ownership of the various parcels adjacent to and
directly north of WindGate 1 and Sanders 2 is not clearly established in the record, nor is the ownership of
the more-northern lots along the private road leading north to Tower Road, a public road (not pictured
above).
Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018 Page 3 of 11
along the northern boundary of Sanders 2 and another runs north to Tower
Road.
[5] On May 22, 2015, WindGate filed a complaint to quiet title in the parcel
comprised of WindGate 1 and WindGate 2.2 Along with Opportunity Options
and various lienholders, WindGate named as defendants the following adjacent
property owners: Larry and Deborah Lynch, Patsy and Louis Humphrey,
Turner Corn, Trent Seyeyasu (sic), Sherry Applegate, and Sanders.
[6] On July 30, 2015, Sanders filed his answer to the complaint and claimed an
easement across WindGate’s property. Sanders did not file a counterclaim. In
his answer, however, he requested that the court “enter an order declaring his
easement across the real estate of the Plaintiff to be exclusive and superior to all
claims of the Plaintiff and other Defendants”. Appendix Vol. 2 at 24. Because
the other adjacent property owners did not answer the complaint, these
defendants, as well as others, were defaulted in February 2016. Thus, Sanders
remained the only defendant property owner opposing the quiet title action.
[7] Thereafter, WindGate and Sanders both sought summary judgment, which the
trial court denied in June 2016 following a brief hearing. The trial court
determined that a genuine issue of material fact existed regarding whether an
implied easement by necessity – across Windgate 1 for the benefit of Sanders 2
2
WindGate filed a separate complaint to quiet title to another parcel purchased at the tax sale. The two
actions were consolidated below, but WindGate does not appeal the resolution of that claim.
Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018 Page 4 of 11
– resulted from the tax sale. The court made no determination with regard to
WindGate’s argument at the summary judgment hearing that Sanders needed
to “take a positive action to establish that easement by necessity, rather than
simply coming in and denying the quiet title in this case.” Transcript at 13.
[8] The matter proceeded to a bench trial on February 10, 2017. At the beginning
of the hearing, the court stated: “Counsel and the Court have spoken briefly in
chambers and counsel, correct me if I am wrong, but we have agreed to try the
issue of whether or not there is an easement by necessity across [WindGate’s
property].” Id. at 16. Accordingly, despite Sanders’s failure to file a counter
claim, the parties agreed to litigate the easement issue.
[9] WindGate’s position at trial was that Sanders had an easement by necessity but
not over WindGate’s land. According to WindGate, said easement should be
established instead over the gravel/dirt roads through parcels in the Northern
Real Estate. Reggie Timberlake, the county surveyor, testified that there were
multiple ways for Sanders to access Sanders 2 but that all would require
crossing private land. Specifically, if Sanders wanted to access Sanders 2 from
the north, “he’s going to have to gain permission from the property owners at
that point and time”. Id. at 38. Troy Tarvin, WindGate’s property manager,
explained that different individuals owned parcels in the Northern Real Estate
and that WindGate plans to negotiate easements through several of these
properties to reach Tower Road. Tarvin indicated that he had already
approached Corn to discuss an easement but had yet to approach other property
owners over which the gravel road passed.
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[10] In response, Sanders agreed that using the private road over the Northern Real
Estate to Tower Road might be the easiest path to a public road from Sanders 2.
But Sanders’s counsel argued, “we have no legal right to force these people to
give us access. The only legal right we have to force someone to give us access
to this property is Windgate, the Plaintiff.” Id. at 78.
[11] After taking the matter under advisement, the trial court issued its order, along
with findings of fact and conclusions of law, on March 24, 2017. The trial court
determined that an implied easement of necessity was created at the time
WindGate and Sanders purchased the properties at the tax sale because the sale
resulted in a severance of the unity of ownership and left Sanders 2 without
access to a public road. Further, the court rejected WindGate’s argument that
Sanders should pursue an alternate, more-reasonable easement from the
landowners to the north. The trial court, therefore, quieted title to WindGate in
fee simple absolute, subject to an easement for ingress and egress benefiting
Sanders 2.3 Following an unsuccessful motion to correct error, WindGate now
appeals.
Discussion & Decision
[12] The trial court’s judgment in this case included findings and conclusion
pursuant to Trial Rule 52(A). The findings or judgment are not to be set aside
3
The court ordered the parties to negotiate the location and width of the easement, which “shall be
reasonable by the least intrusive means.” Appendix Vol. 2 at 18.
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unless clearly erroneous, and we give due regard to the trial court’s ability to
assess the credibility of witnesses. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d
1206, 1210 (Ind. 2000). On review, we first consider whether the evidence
supports the factual findings and then consider whether the findings support the
judgment. Id. Further, “while we defer substantially to findings of fact, we do
not do so to conclusions of law.” Id.
[13] We also recognize that Sanders has not filed an appellee’s brief. As a result, we
will not undertake the burden of developing arguments on his behalf and will
reverse if WindGate establishes prima facie error. See Duty v. CIT
Group/Consumer Fin., Inc., 86 N.E.3d 214, 215 (Ind. Ct. App. 2017). Prima
facie, in this context, means at first sight, on first appearance, or on the face of
it. Id. This standard, however, “does not relieve us of our obligation to
correctly apply the law to the facts in the record in order to determine whether
reversal is required.” Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015).
[14] WindGate does not dispute that the tax sale resulted in a severance of the unity
of ownership of the four adjacent tracts now owned by WindGate and Sanders.
Nor does WindGate disagree that this severance left Sanders 2 without access
to a public road. WindGate argues, however, that no evidence was presented
regarding two (alleged) elements: (1) whether Opportunity Options’s use of part
of the land to benefit another part (a quasi-easement) was apparent and
continuous and (2) whether at severance it was necessary to continue the
preexisting use for the benefit of the dominant estate.
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[15] WindGate’s arguments represent a fundamental misunderstanding of the
elements required to establish an easement implied by necessity. It is well
established that Indiana law recognizes two types of implied easements –
easements implied by necessity and easements implied by prior use. See Indiana
Reg’l Recycling, Inc. v. Belmont Indus., Inc., 957 N.E.2d 1279, 1283 (Ind. Ct. App.
2011), trans. denied; William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 835-36
(Ind. Ct. App. 2011).
An analysis of the two theories demonstrates that a claim for an
easement by necessity and a claim for an easement by prior use,
while similar in origin, are separate and distinct claims. An
easement of necessity will be implied only when there has been a
severance of the unity of ownership of a tract of land in such a
way as to leave one part without any access to a public road. On
the other hand, an easement of prior use will be implied “where,
during the unity of title, an owner imposes an apparently
permanent and obvious servitude on one part of the land in favor
of another part and the servitude is in use when the parts are
severed ... if the servitude is reasonably necessary for the fair
enjoyment of the part benefited.” Hysell v. Kimmel, 834 N.E.2d
1111, 1114 (Ind. Ct. App. 2005), trans. denied. Unlike a
landowner requesting an easement by necessity, a landowner
requesting an easement by prior use does not need to show
absolute necessity. The focus of a claim for an easement by prior
use is the intention for continuous use, while the focus of a claim
for an easement by necessity is the fact of absolute necessity.
Pardue v. Smith, 875 N.E.2d 285, 291 (Ind. Ct. App. 2007) (some citations
omitted). Sanders asserted an easement by necessity, not an easement by prior
use. Accordingly, the trial court properly relied on the law relating to implied
easements of necessity.
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[16] “An easement of necessity will be implied when ‘there has been a severance of
the unity of ownership of a tract of land in such a way as to leave one part
without access to a public road.’” William C. Haak Trust, 949 N.E.2d at 836
(quoting Whitt v. Ferris, 596 N.E.2d 230, 233 (Ind. Ct. App. 1992)). Such an
easement may arise, if ever, only at the time that the land is divided and only
because of inaccessibility then existing. Id. “To demonstrate that an easement
of necessity should be implied, a plaintiff must establish both unity of title at the
time that tracts of land were severed from one another and the necessity of the
easement.” Id. Sanders did just that, clearly making a prima facie showing in
support of his claimed implied easement of necessity across WindGate 1 for the
benefit of Sanders 2.
[17] Acknowledging that the tax sale resulted in Sanders 2 being landlocked,
WindGate argued below that easements should be instead established over the
preexisting dirt and gravel roads running through the Northern Real Estate. In
other words, WindGate argued that Sanders 2 had an implied easement by
prior use over the properties of various other landowners. But aside from the
parcel owned by Corn, the record does not reflect the ownership of each of the
other parcels through which the private roads run or whether all of these
owners purchased the property from Opportunity Options at the same time.4
4
The trial court clarified the evidence after counsel for WindGate asserted, during closing statements, that
all of the land (the Northern Real Estate, WindGate’s property, and Sanders’s property) was purchased at the
same tax sale. Sanders objected, and the court sustained the objection, indicating that while there was
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[18] As we observed in Indiana Regional Recycling, Inc., “[i]t is not the court’s place to
require a landowner to find an alternate easement in order to avoid
inconveniencing a servient parcel burdened with an easement.” 957 N.E.2d at
1284. Moreover, the record does not support a conclusion that Sanders is
entitled to an easement by prior use over the properties in the Northern Real
Estate.5 In fact, WindGate’s property manager testified that WindGate, whose
land was also landlocked as a result of the tax sale, did not have an easement
over any of the Northern Real Estate and that he was attempting to negotiate
easements with the various landowners to be able to access Tower Road via the
gravel and dirt roads.
[19] Based on the record before us, we conclude that an easement on WindGate 1
was necessary because Sanders had no other means of accessing his land. See
id. at 1283-84. As unity of ownership is undisputed, the trial court properly
granted Sanders an easement by necessity for the benefit of Sanders 2 and
burdening WindGate 1.
[20] Judgment affirmed.
testimony that all the land was owned by Opportunity Options, there was “no testimony as to when it was
sold, how it was sold”. Transcript at 81.
5
The trial court noted in its order that these other landowners were not parties to this action. WindGate
asserts that it included all adjacent owners as defendants and that they were defaulted. Although their party
status does not control the outcome of this appeal, we observe that the parties were defaulted well before
WindGate and Sanders agreed to litigate the easement issue, which effectively allowed a counterclaim that
was never officially filed.
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[21] May, J. and Vaidik, C.J., concur.
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