Express vs. Implied

Express easements are usually created by one of two methods. The first is via reference in a deed.^[1] The second is via creation in a recorded subdivision plat, which then binds all purchasers in the subdivision, even if the grant is not referenced in an individual deed.^[2] One form of express easement which is important in modern land usage is called an “easement in gross of a commercial character,” which is defined in the Indiana Code. This easement concerns any right for a utility company (such as providing or regulating natural gas, petroleum, cable television, telephone, water, or electricity) to use land. Most of the time, these easements may be sold or otherwise transferred unless the grant provides otherwise.^[3]

Implied easements come about in two ways. First, when a single landowner transfers one parcel of land that was once a part of a greater whole, where that landowner once used that parcel in a manner as to imply an easement, even if there wasn’t actually one (remember – no easement can exist in favor of a person on their own land). And so, Indiana law has held that such an easement, called implied by prior use, can arise when:

(1) [T]here was common ownership at the time the estate was severed; (2) the common owner's use of part of his land to benefit another part was apparent and continuous; (3) the land was transferred; and (4) at severance it was necessary to continue the preexisting use for the benefit of the dominant estate.^[4]

However, there are some limitations on this use, as the same Court noted:

[A] mere temporary or provisional arrangement the owner might have adopted for more convenient enjoyment of the estate does not demonstrate the degree of necessity or permanency that would authorize the engrafting upon a deed, by construction, of a right to the enjoyment of something not within the lines described. To justify such construction it must appear from the disposition, arrangement and use of the several parts that it was the owner's purpose in adopting the existing arrangement to create a permanent and common use. It must be reasonably inferable from the existing disposition and use that it was intended to be continuous, notwithstanding the severance of ownership.^[5]

Therefore, the use of the parcel transferred by the former owner must have been consistent and of a permanent character.^[6] Another type of implied easement is that implied by necessity. Like that created by prior use, the parcel needing the easement must have been in common ownership previously:

[I]f a landowner conveys a piece of real estate that is completely surrounded by the landowner's remaining property, then we imply that the conveyance includes an easement across the landowner's remaining property. In addition, if a conveyed piece of property has no outlet to a public road except by going across the grantor's remaining land or across the land of a stranger, the law implies a way of necessity over the grantor's remaining land, because an easement of “necessity cannot arise against the lands of a stranger.^[7]

A third and final type of implied easement is an easement of prescription. Essentially, an easement of prescription arises through long use of a particular piece of land by another individual. The requirements for obtaining such an easement are strict. One requirement is set forth in the Indiana Code, namely that “[t]he right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years.^[8] Indiana cases are more explicit, stating that:

In order to establish the existence of a prescriptive easement across the land of another, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted, and adverse use for twenty (20) years under claim of right, or such continuous adverse use with the knowledge and acquiescence of the owner.^[9]

The party claiming an easement by prescription has a heavy burden of proof. Indiana cases have stated that:

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. Furthermore, each element must be established as a necessary, independent, ultimate fact, the burden of showing which is on the party asserting the prescriptive title, and the failure to find any one such element [is] fatal, for such failure to find is construed as a finding against it…..the claimant in such circumstances must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration.^[10]

Essentially, when all these elements are proven, an easement will be created (implied) by law.^[11]

[1] See Wischmeyer v. Finch, 107 N.E.2d 661, 664 (Ind. 1952).

[2] Id. at 664.

[3] I.C. § 32-23-2-1, et. seq.

[4] Hysell v. Kimmel, 834 N.E.2d 1111, 1114-1115 (Ind. App. 2005).

[5] Hysell at 1114 (internal citations omitted).

[6] It would be far better, as I have noted, to deal with this in a deed and purchase agreement. For instance, putting this in a deed would serve a farmer much better than to wake up one morning and realize that, having sold off part of the back forty to a person who wanted acreage to a house, the home is being built in the middle of the only ingress to that parcel of land, and having to run to court to ask for a new ingress across the land sold weeks before.

[7] William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 836 (Ind. App. 2011).

[8] Ind. Code § 32-23-1-1

[9] Searcy v. LaGrotte, 372 N.E.2d 755, 757 (Ind. App. 2d Dist. 1978).

[10] Wilfong v. Cessna Corp., 838 N.E.2d 403, 405-406 (Ind. 2005) (internal citations omitted).

[11] Prescriptive easements will allow for “tacking,” which is essentially means that continuity of use for the requisite twenty-year period may be established by adding on the time period which previous landowners used the same easement. Downing v. Owens, 809 N.E.2d 444, 450 (Ind. App. 2004).