                                                                            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:




      Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018   Page 2 of 11
      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.

      Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018   Page 5 of 11
[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.

       Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018                        Page 6 of 11
       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.



       Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018   Page 7 of 11
[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.

       Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018   Page 8 of 11
[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

       Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018                        Page 9 of 11
[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.

       Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018                        Page 10 of 11
[21]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Opinion 13A01-1706-PL-1453 | March 20, 2018   Page 11 of 11
