ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
DAVID A. SMITH MARK J. JONES
McIntyre & Smith Lett & Jones
Bedford, Indiana Loogootee, Indiana
COURT OF APPEALS OF INDIANA
DUSTIN TODD WOLFE, )
vs. ) No. 51A05-0305-CV-245
BROOKE WOLFE GREGORY, MONTY L. )
GREGORY, MARVIN LAGLE and MARGIE R. )
CORNETT f/k/a MARGIE R. ASBELL, )
APPEAL FROM THE MARTIN CIRCUIT COURT
The Honorable R. Joseph Howell, Judge
Cause No. 51C01-0112-CP-272
December 18, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
In December 2001, Dustin Todd Wolfe filed his Complaint seeking a prescriptive easement,
injunctive relief and damages against Brooke Wolfe Gregory, Monty L. Gregory, Marvin L.
Lagle, and Margie R. Cornett, f/k/a Margie R. Asbell (collectively the Defendants).
In October 2002, Wolfe amended his complaint to include a claim of easement
of necessity. Following a bench trial, the trial court entered a general
judgment in favor of the Defendants. Wolfe filed a Motion to Correct
Error, which the court denied. Wolfe now appeals and raises a single
issue for review, namely, whether the trial courts judgment is contrary to law.
FACTS AND PROCEDURAL HISTORY
In October 1975, John and Lucille Lagle conveyed seventy acres located in Martin
County to their daughter, Margie Cornett. The Lagles transferred the property to
Cornett before their deaths so that Cornett could later distribute the property in
parcels to her siblings. Thereafter, Cornett conveyed portions of the seventy acres
as follows: ten acres to Charlene Lancaster, ten acres to Donna Wolfe,
twenty acres to Brian Lagle, and ten acres to Marvin Lagle. Regarding
Marvins parcel, Cornett conveyed the ten acres by Warranty Deed on August 30,
Cornett retained twenty acres for herself.
At the time Cornett made the conveyances to her siblings, Marvin did not
have direct access by way of a county road to his parcel.
Rather, while there were county roads to the north and south of the
entire seventy acres, an old farm road that connected to the county road
to the south provided access to Marvins parcel. Marvin used this old
farm road for ingress and egress while he built a cabin on his
At some time during 1977, Cornett constructed a road that connected with the
county road to the north of the entire seventy acres to provide access
to her parcel. Cornett gave Marvin permission to use the road she
had constructed for ingress and egress to his ten acres. Cornett allowed
Marvin to use her road because he was her brother. After Cornett
constructed her road, Marvin chose not to improve the old farm road because
of the costs involved.
In January 2000, Marvin sold his parcel to his niece, Brooke Wolfe Gregory,
and her husband, Monty L. Gregory. Then, in July 2001, Brooke conveyed
five of the ten acres to her brother, Wolfe. Cornett denied Wolfe
access to the road she had constructed for ingress and egress from the
county road to the north of the seventy acres to her property.
In December 2001, Wolfe filed his complaint seeking an easement, injunctive relief, and
damages. In March 2003, the trial court entered judgment against Wolfe, and
he now appeals.
DISCUSSION AND DECISION
Wolfe asserts that the trial court erred when it denied his request for
a prescriptive easement and, in the alternative, an easement of necessity. Because
Wolfe had the burden of proving his right to an easement, he is
appealing a negative judgment. See Cockrell v. Hawkins, 764 N.E.2d 289, 292
(Ind. Ct. App. 2002). Consequently, Wolfe must demonstrate that the trial courts
judgment is contrary to law. See id. A judgment is contrary
to law if the evidence is without conflict and leads to a conclusion
opposite that of the trial court. Id. (quoting McConnell v. Satterfield, 576
N.E.2d 1300, 1301 (Ind. Ct. App. 1991)). When determining whether a judgment
is contrary to law, we may only consider the evidence most favorable to
the judgment, and we may neither reweigh the evidence nor judge the credibility
of the witnesses. Id.
A. Prescriptive Easement
Prescriptive easements are not favored in the law, and in Indiana, the party
claiming one must meet stringent requirements. Corporation for General Trade v. Sears,
780 N.E.2d 405, 410 (Ind. Ct. App. 2002). To establish the existence
of a prescriptive easement, the evidence must show an actual, hostile, open, notorious,
continuous, uninterrupted adverse use for twenty years under a claim of right.
Id. (quotation omitted). The existence of a prescriptive easement is a question
of fact. Ballard v. Harman, 737 N.E.2d 411, 418 (Ind. Ct. App.
2000). And tacking, the continuous use of the easement by predecessors in
title, may be added to the use of the present claimant to satisfy
the twenty-year requirement. Id. at 418-19. The party asserting the prescriptive
easement has the burden of showing each element as a necessary, independent, ultimate
fact, and the failure to establish any one of such elements is fatal.
General Trade, 780 N.E.2d at 410.
Here, Cornett testified that her brother Marvin had her permission to use the
road she had constructed for ingress and egress to his ten-acre parcel.
Accordingly, Marvins use of the road was not adverse or hostile. Rather,
our review of the record shows that Marvin had, at most, a license
to use Cornetts road, not an easement. See Contel of Indiana, Inc.
v. Coulson, 659 N.E.2d 224, 228 (Ind. Ct. App. 1995) (Unlike an easement
or right-of-way, a license merely confers a personal privilege to do some act
or acts on land without conveying an estate in the land.).
Moreover, Marvin owned the property from 1977 until he sold it to his
niece in 2000. Because Wolfe relies on the period of time Marvin
owned the property to establish the twenty-year requirement, he has not shown a
continuous, twenty-year period of hostile or adverse use of the easement. Thus,
Wolfe did not meet all of the elements for a prescriptive easement, and
the trial courts judgment on this point is not contrary to law.
B. Easement of Necessity
As this court stated in Cockrell, 764 N.E.2d at 292-93:
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.
An easement of necessity may arise, if ever, only at the time that
the parcel is divided and only because of inaccessibility then existing. 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.
For example, if a landowner conveys a piece of real estate that is
completely surrounded by the landowners remaining property, then we imply that the conveyance
includes an easement across the landowners remaining property. In addition, if a
conveyed piece of property has no outlet to a public road except by
going across the grantors remaining land or across the land of a stranger,
the law implies a way of necessity over the grantors remaining land, because
an easement of necessity cannot arise against the lands of a stranger.
To demonstrate that the easement is of necessity, a plaintiff must demonstrate more
than that the easement would be beneficial or convenient. If the plaintiff
has another means of accessing his land, he may not claim a right
to pass over the land of another. This rule controls even if
the alternate means of access would be more difficult or expensive for the
In this case, at the time Cornett divided her parents seventy acres and
conveyed ten acres to Marvin, Marvin had access to his property via the
old farm road. Marvin testified that he began using the road Cornett
had constructed for ingress and egress to his ten acres, and he chose
not to improve the old farm road because it would have been too
expensive. Cornett testified that in addition to the family using the old
farm road when the property was first divided, the family continues to use
that road. When asked how the old farm road is currently being
used, Cornett stated:
Its being used by everyone. It is being used by my niece
and nephew, who inherited their dads ten (10) acres. They come up
there and camp almost every weekend that it is nice, and they have
friends out. Brooke and Monty use it. [Wolfe] comes to his
mothers ten (10) acres, the pond[;] Ive seen him come there many
times. Everyone uses it.
The evidence most favorable to the trial courts judgment shows that Wolfe has
access to his five acres via the old farm road, which connects with
the county road that runs south of the original seventy-acre plot. While
access to Wolfes property by way of Cornetts road, which connects to the
county road to the north of the seventy acres, would be more convenient
for Wolfe, Wolfes convenience is not relevant in determining whether to imply an
easement of necessity. Indeed, [a] way of necessity must be more than
convenient and beneficial, for if the owner of the land can use another
way, he cannot claim by implication the right to pass over that of
another to get to his own. McConnell, 576 N.E.2d at 1301 (citations
Still, Wolfe asserts that he is entitled to an easement of necessity
because at the time Cornett conveyed Marvin the ten acres, there was no
public road access to Marvins property. He points out that there is
no dispute that the old farm road is not a public road.
In addition, he suggests that the road Cornett constructed for access to her
property from the north is a public road. See Brief of Appellant
at 11 ([Cornett] transferred a parcel that had no access to a public
roadway at the time of conveyance. She later established one and allowed
Marvin to use it for more than twenty years.).
First, to the extent that Wolfe asserts that Cornetts road is a public
road, we find no evidence in the record, nor does Wolfe direct us
to any evidence, to support that contention. Further, even though the old
farm road is not a public road, that road provides Wolfe access to
the public road that runs south of the original seventy-acre plot. Indeed,
the critical inquiry is whether the owner has access to a public road
from his property. See Whit v. Ferris, 596 N.E.2d 230, 233 (Ind.
Ct. App. 1992) (A way of necessity is implied by law where 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.). The old farm road, which existed in 1977 when
Cornett divided the property and has been used since that date, provides Wolfe
access. Wolfe has not met his burden of demonstrating that the trial
courts judgment is contrary to law.
ROBB, J., and MATHIAS, J., concur.
For reasons not explained in the record, the deed conveying
ten acres to Marvin was not recorded until May 3, 1982.
Footnote: There is no map or plot plan in the record
which shows the location of Cornetts twenty-acre plot in relation to Marvins ten-acre
plot. From the testimony, however, we know that the old farm road,
which connected to the county road to the south, provided the only access
to Cornett and Marvins property until Cornett constructed her road, which allowed for
access from the north. In addition, Cornett testified that she lives at
the end of a dead end and that she gated her road after
Marvin moved because she didnt want strangers driving in. We infer from
that testimony that when Marvin used Cornetts road to access his property, he
would have had to continue driving along Cornetts road to reach her property.
Footnote: Because we have affirmed the trial courts judgment regarding Wolfes
right to an easement, we need no address his claims for an injunction