our second case for this morning is robert hoyt against michael venom and others mr savage forty acres of land locked property and roll southern indiana the point of this case is to try to get access to it now i take it he didn't actually purchase those until two thousand and one and it seems to me by that time for better or for worse it was landlocked there was an existing road that his predecessor bernie burton had used and the burdens had built a cabin on the forty acres not for a warm time before the sale from several years yes that's correct there had been a gate place your pure quiet i assume got a pretty good discount on the one hand because its predecessor couldn't get to it if you got a disco why should you later be able to complete if you're able to complain because the law says that there are certain doctrines recognized in indiana they give you the right to come to court and try to establish that you have legal access to a property or you can certainly do that i mean you can buy a combination of land and a lawsuit which may be exactly what mr hoyt chose to do and as you say it's his prerogative to do that although burton who had acquired it from his aunt who's name was made a car who had acquired it from them upright right and didn't make right have to have a right of way over leading to the burma road and then m but that's exactly what he's trying to do in count five he well i thought you wanted the simple so the we have three we have three separate legal theories we used a bit of a shotgun approach and bringing this action undercount we allege that mr hoyt acquired fee simple title to a strip of land that leads to the south west corner of his property from the burma road so that part of that theory is that that little point for one acres trip becomes separate from anybody else's land it's separate from the white land it's separate from the forest service is separate from you know the bend and the properties whatever i can't even keep all these so it wasn't a freestanding strip at that point of it is that but but by that time it's been severed from the chain of title that eventually makes its way down in two thousand and one in the to the burden several reasons why you it would be preferable to acquire fee simple in the situation that mr and mrs owen found themselves they own a forty acre tract north of the spirit if they only acquired  a and easement and not be simple then if they wanted to subdivide their forty acres that could be construed as adding to the burden of the easement and they could be prevented from surviving their forty acres if they almost strip in fee simple they're free to subdivide their forty acres they are also free to acquire other adjoining what you are looking at it from the standpoint of the fossils you don't want someone owning a road that runs through their property well the thing with as it been run through their property of ran along the edge of their property so that's why i guess i think i understand your concern for that it's just over on late night or probably the road to ruin that i don't think that there's that's the right right of way doesn't all sound like ownership if you go back to england when the term right away first of elop you're right it with a big tip developed to identify the concept of an easement or use a right to use property that's where the either used the word right but over the years it came to have two mains and that's set out in the joy case from the supreme court which is ci property herbs that really are totally off the grid kind of place just to answer your question i don't think there's any evidence in the record but my understanding is that it's off the grid ok if he had fee strip all he gets to use this right angle corner well you need to he's going to need several feet of the government's parcel that's correct and the government has a procedure called a special use permit or they're actually mandated by there even i forget about the special use permit in the governments he's put your client still needs access to cross the government's land and of course the united states has said in this litigation that it's too late for that because the statute of limitations has expired so my my question to you is whether anything else in this litigation matters if you're never going to be able to cross the government's land why does anything else matter i absolutely don't understand the government's position the way you do your honor with regard to whether a special use permit is going to be available to cross their forty acres it's my understanding that we applied for such a permit he has applied i believe for a permit that would cover both the point for one acre of strips and then continue on up through the forty acres that the government owned and what is easement because all they have is an easement and then they don't think there's any point in giving him a special use permit over the part of the road that's on their forty acres because it doesn't do him any good can't get there yes to go across something and twelve which is still pending and i soon they mean the application not the date simple waiting for the outcome of this litigation if mr know that what they have said is that if he succeeds on mean if the dish report was correct and i realize this is the central point of this part of your appeal then he needs himself to acquiring eastman from whoever it is who does know the point for one acres before the government will move on its special use permit so you know if if another party i guess looking up this chain it might in out of this property leone's some other property to the north and adjacent to it all their properties connect to each other yes and they're not and he doesn't have any legal right to sue them to get an easement he thinks he has a legal right to sue the other neighbors to establish an easement which is what he's doing he has the right to sue the defendants in this case the ben and the district court thought there might be some claim again the old road bed which is referred to in the deed from clark to lee this has a status of being a public road if it's a public road then there would be an easement of necessity that oid in lee could have asserted to get across that property up to the road to the north so that will tell you to what if you mean when you said that if quite just had an easement going down to the subdividing a larger parcel for example if there's one house going to be placed on a forty acre parcel and there's an easement that goes to it and people the the gentleman that owns the forty acres buys that he's been so they can put his house or festivals predecessor there's this is where we get kind of bogged down in the details of this case because there are so many roads and so many possible easement so when you talk about the right of way i'm not sure which one i mean if you're talking about the right to use the strip i can tell you who the owners of the chain of title of this trip that's the part of the layout of this community where there's a narrow thirty foot wide strip of land that goes from litigation started so we have very little evidence about what their negotiation was very little way of determining what their intention was except for we can look at their subsequent actions and get some idea of how they interpret it what they had done for subsequent actions were that mr and mrs owen tried to sell the fee simple title to that strip to the forest service when they sold the other forty acres of the forest service  away and then the other thing is i already mentioned mr festal when he conveyed to a sunset i'm accepting out the point for one acre strip presumably because even on it so he wasn't trying to give it to us so that's what we know about strip the issue was just cited though by the district court on what interest was transferred by the term right of way in that deep from herman fassel to fred owen in one nine hundred sixty five and the indiana courts have given us a general rule for interpretation of this term so easy easy to apply transfer of a right of way means transfer of an easement a right to use the land but there's granting language in this thing that of way or the easement and it's appropriate to include that exception or exclusion in the de so that everyone understands that there's a right of way or an easement here that's been transferred to what was the property of the o so that was appropriate to exclude that include that in the later deeds so when the when the see in one nine hundred sixty eight when hermann am fassel conveys to i guess point five nine i would have to go back and look at the deed but i believe it was an eighty eight acre tract accepting the right of way i mean you'd be interesting to know because if it was seventy nine point five nine then that would certainly suggest that the point forty one isn't part of a parcel any more correct if it's eighty then it might tend toward your interpretation and if you look at the way that was already in place going to the property to the north mr wells felt that he owned all eighty eight or so including that point for moniker strap and then when mr wells transferred the property to the messed up well at the time that we did the trial of the scene like at least as far as the bands and the eubanks were concerned we the law was pretty subtle a right of way men an easement and there was no ownership interest for i know that mr white argued that the interpretation of right away being an easement only applies in railroad pieces but that's that's not correct and it's a very narrow use of that general rule and i would cite as an example to cochran be hofman which is nine seven one north east to the six seventy and indiana court of appeals case from two thousand and twelve where the indiana court had to determine the scope of a right away between two private property owners and the language in that deed was a grant of a right away of the with of sixteen put for all purposes of travel in the ending and a court of appeals found that that language clearly there may be some cases like that your honor but most of the cases i thought most of the cases said the railroads just got an easement so that if the railroad use was ever discontinued you wouldn't have these strange little strips of land o right yes so i mean i found it odd since we're talking about land law that the concept of a use of a road was somehow tied to vehicles because it seems to me roads for centuries were used by people and horses long before there were any vehicles around to use them so do you think the district court was relying too much on  use to see if there was prior use no i don't believe so i think the district court judge took consideration of the used by the horseback riders the use by the hunters but there just was a lack that they thought they were using it at shaw friends rather than under a claim of roy i would do you think the records or yes i do these horseback riders would come to a boy scout camp white property but became the white property with their trailers and there are people who need to unload and then they wander through the woods this is primarily except where the houses are just a wooded hillary area and they would something some kind of human construction in there for you to believe there's a cabin that was constructed by mr burdon before the property was transferred to mr hoyt the only way they can get there so the lease allow them to walk through their the south of mr boyd and the only road that my client has any dealings with is road number four and just a very small portion of it across their northwest part of their land if the shows that this i mean this is the government's brief that has all of these roads and they were not worrying about road to anymore which looks like it goes through your client's right hand the only thing that was tried was prescripti right the the public road by user argument supported for public road number for this purported road begins from burma road for just a few feet across the barker land  in the way they went about trying to determine their access being sued i think first brought into litigation and then from there my question is if you have this just room two hundred strip it's a very it very edge of your property whether they're worried about what plans today have for their forty acres that an occasional car driving over this little sis two hundred feet to the burma road are going to interfere with found that there wasn't twenty years of continuous use as a matter of their own writings right signs that he also sort of alternatively says well it's that was too strict a notion of use there was abandoned meant as well that's correct and it was to get that up yeah and so the gates which are acquiesced in i suppose i don't know how difficult it would be to get around them but they seem to be acquiesced and so there's a finding of burton last used the property think in eighty nine when there was a gate put up near the burma road and no use was made under claim the right or otherwise barker property after that right so it hasn't been used by vehicles since eighty eight and it probably hasn't been used at all for some thirteen years or so right prior to the litigation the barkers remaining claim against the forest service it involves what is being called road number five i would call it a throwaway claim in the complaint not much attention was paid to it in the district court or on appeal the first reason is this litigation mr hoyt and the forest service have amicably been a river reading that request especially of the granite included part of the forest service is right over the this litigation it would go away your honor the the forest service's position as to the point for one acre easement is that they cannot give mr white would he have they ever been made a ruling on the request and denied it for that reason not yet your honor well that you can't say the position is x but we haven't actually taken that position that would be a reason to deny the request and then that decision could be judicially review but the forest service seems to be of the view that it's just not ever going to act on it and then of course well other than the a p a shoot to compel the forest service to make a decision there couldn't be a review a sensible ways of approaching application he knows that the forest service knows that so they are acting reasonably and have agreement understand why distant farms servers wire them to use uses road your road road number five that lies entirely on forest service land he would like to pave a driveway you know pour concrete and blacktop and whatnot pave a driveway well i would say that the forest service says position is right now he has no way to get from burma row to the forest service property and he would still need to resolve this tiny issue with the barkers because he can't get all the way down her burma road through the strip yes so right now the forest service says look if we look at our regulation and our policies why would we give him done it could say we grant the application contingent on getting the rest of the access you need but only for an unpaved road and only if it's used no more than it actually does and otherwise change the environment or you could do something else the world is not limited to in action forever or a paper road your honor i would suggest that the forest service is acting reasonably and working with mr point in order to give him what he  negotiating over whether to be paid not mr white south location ask for a number of different alternatives to his land from the forest service they're looking at those alternatives with him they went back to him honor there's no no i know we're all calling this road number five there's no road there which there is nothing there's potentially yes i have not walked it myself but that's what i'm being told yes  why is everybody talking about road number five rather than about ten square feet of forest service land which is all you need to turn the corner into gort forty road number five is actually quite a warm road yes yes it has has he requested ten square feet just to leap over the corner yes he has and depending on the outcome of this appeal that will impact his pending application there some concept or the minimal use of solute trivia the forest service regulations say that they will consider applications for special use permits for the landowners use and enjoyment of that you need to come up to the microphone and bernie's that would solve it count as count one the other thing was solved it would be to went on count two i didn't get to talk about count two at all in all my opening presentation but there was a fundamental error that of law that the district court made under count two because he didn't understand his opinion and indicated a lack of understanding of what's meant by claim of right under indian law and judge easterbrook w asking well as his claim it was a standard claim of right that these horseback riders are riding or at sufferance and that's not the concept the concept is is there indiscriminate permission to use the road on the part of the landowner or is it a use that is permitted to just a select few if it's indiscriminate permission then that's considered a claim of right under any law and that that is what we think that the district court did not understand we think just a court confuse the public highway by using the law and the law applicable to prescriptive these mints under the law have to establish a prescripti if there's any permission at all then you can't get a prescriptive easement it has to be hostile use for twenty years it's completely different under the public highways i use ok i think you need to stop now thank you very much thanks to all councils