Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res j udicata, collateral estoppel, or the law of the case.

ATTORNEY S FOR APPELLANT S : ATTORNEY S FOR APPELLEE S : JOHN W. RICHARDS GREGORY A. BULLMAN HOLLY M. HARVEY MICHAEL L. CARMIN Bunger & Robertson Andrews, Harrell, Mann, Bloomington, Indiana Carmin & Parker, P.C. Bloomington, Indiana



## IN THE COURT OF APPEALS OF INDIANA

RONALD G. ARNOLD and ) B. CANDI ARNOLD, ) ) Appellant s - Defendant s/Counterclaimants , ) ) vs. ) No. 53A04

- 1207

- PL

- 368 ) ALLEN ROBERT LINNEMEIER and ) KATHY SUE LINNEMEIER, ) ) Appellee s - Plaintiff

s/ ) Countercla im Defendants

. )

APP EAL F ROM THE MONROE CIRCUIT COURT The Honorable Erik C. Allen , Special Judge Cau se N o . 54C06

- 0807

- PL

- 1668

March 25, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION
KIRSCH, Judge2

Following a bench trial, Ronald G. Arnold a nd B. Candi Arnold (collectively “the Arnolds”) appeal the trial court’s judgment in favor of Allen Robert Linnemeier and Kathy Sue Linnemeier (collectively “the Linnemeiers”) , which granted the Linnemeiers a n easement by prior use and an irrevocable licen se across the Arnolds’ land for purposes of ingress and egress . The Ar nolds raise three issues; however, we find the following issue to be dispositive : whether the trial court erred when it determined that the Linnemeiers possess

an easement by prior use a cross the Arnolds’ property

. We affirm. FACTS AND PROCEDURAL HISTORY Harding Development Corp. (“Harding”) owned undeveloped property in Monroe County

. The rural property included steep inclines, ravines, and ridges. I n or around 2000, Harding develop ed the property into an administrative subdivision containing four tracts (“the Tracts”) of land, each with access to Earl Young Road. Specifica lly, pursuant to local ordinance, each of the tracts included a fifty

- foot

- wide strip of land that accessed Ea rl Young Road. 1 Th e fifty

- foot

- wide strips , which are reflected on the survey and the Harding Subdivision Plat , ar e parallel and adjoining each other , running e a st ward from Earl Young
Roa d to the major portion of each of the Tract s . Prior to the time th at Harding divided the land and sold it to anyone, John Loudermilk (“Loudermilk”) , the president of Harding, constructed a gravel drive (“Gravel Drive”) on the

1 A Monroe County administrative subdivision ordinance required each lot to have at least fifty feet o f road frontage on an existing c ounty right

- of

- way. Appellant’s App . at 38

- 40; Appellant’s Supp. App. a t 54 (Arnolds’ Reply Brief in Support of Motion for Summary Judgment citing Monroe County Zoning Ordinance Section 852

- 2.1).3

property, and it was used to access the entire Harding property from Earl Young Road. It is thi s Gravel Drive that is the subject of the current dispute. The Gravel Drive meandered from Earl Young Road eastward on and along what later became the fifty

- foot

- wide strips of land on Tracts 1 and 2, using the flattest areas for the roadbed of the Gr avel Drive. The majority of the Gravel Drive was within the fifty

- foot

- wide strip on Tract 2. The Gravel Drive is not reflected o n the Harding Subdivision P lat or in the deeds to Tracts 1 and 2.
In January 2000, Harding sold Tract 3 to Richmond and Colleen W ells (collectively

“ the Wells es ”) , who in February 2004 sold the property to Terry and Sara Fischer ( collectively “ the Fischers”)

. On September 24, 2001, Harding sold Tract 1 , approximately thirty

- one acres, to the Li nnemeiers

. Loudermilk handled the tr a nsaction with the Linnemei e rs. Prior to the purchase, Allen Linnemeier (“Mr. Linnemeier”) , accompanied by Loudermilk, visited and inspected the property at least several times

. Loudermilk to ld Mr. Linnemeier that use of the Gravel Drive came with the pur chase of Tract 1, and advised Mr. Linnemeier that the Gravel Drive served as access for Tracts 2 and 3 as well. The fifty

- foot

wide strip on Tract 1 extends 2,092 feet from Earl Young Road to the main part of Tract 1.
A lso , b efore purchasing, t he Linneme iers negotiated with Loudermilk to adjust the northern border of Tract 1 to the north, in order to include a ridge on higher ground

. The Linnemeiers desire d to acquire that extra three acres of land to prevent the possibility of anyone else b uild ing a hom e there , which would then overlook the Linnemeiers’ property, on which they4

intended to build, and did build, a small lake for their personal recreational use

. 2 The change in the lot line resulted in two revisions to the original Harding Subdivision Plat. Shortly after purchasing, the Linnemeiers hired Loudermilk to build a dam and create a lake and paid Loudermilk $38,000 for that service. The Linnemeiers used the Gravel Drive during the construct ion of their lake and thereafter on those occasions when they came to the property to fish and camp

. In 2001, Loudermilk asked Mr. Linnemeier to contribute to the purchase of gravel for the Gravel Drive, and he did so. In July 2003, the Arnold Excavating Company, owned by the Arnolds, purchased
Tract s 2 and 4 from Harding

. Tr . at 119. In September 18, 2004, title was transferred from the company to the Arnolds. For reasons not clear in the record, at the time that the Arnolds were purchasing the land, Loudermilk showed Ronald Arnold (“Mr. Arnold”) the orig inal Harding Subdivision Plat , which did not reflect the Linnemeiers’ prior purchase of th e extra property north of Tract 1 that included the ridge; therefore, the Arnolds believed they were purchasing that land. The Arnolds purchased the land with the in tention of building one or

more personal residences for themselves and family members and a large building to store heavy equipment used in their excavating business

. T he Arnolds used the Gra vel Drive to access their property and were aware that the Linne meiers did so, too

. In September 2003,
Mr. Arnold asked Mr. Linnemeier to contribute to the purchase of stone for the Gravel Drive, and he did so.

2 The Linnemeiers did not build a home on the property.5

The Arnolds were aware that the Linnemeier s u sed the Gravel Drive and , for a period of time , did not objec t. A t some point, Arnold had his property surveyed and discovered that the Gravel Drive crossed into the Linnemeiers ’ fifty

- foot strip in a couple of places, but that most of it was on Tract 2. Thereafter, the Arnolds erected a gate on the entrance to th e Gravel Drive, stating that they desired security for their home and equipment building , and they gave the Linnemeiers a key . Later, however, the relationship and cooperation declined, as the parties could not agree about the future of the Gravel Drive, with the Arnolds seeking a better standard of driveway that did not require “constantly maintaining it,” and the Linnemeiers not desiring anything more than what existed. Id . at 80. The Arnolds changed the lock at the gate , and the Linnemeier s could not use the Gravel Drive. At times, Mr. Linnemeier parked his vehicle on his fifty

- foot strip by Earl Young Road and walked back approximately one

- half mile to his lake. 3 Meanwhile, in 2004, the Fischers purchased Tract 3 from the Wells es , and the Fischers began the construction of their hom e. Mr. Fischer desired a more permanent road that required less maintenance than the Gravel Drive, and he agreed with the Arnold s to contribute to the cost of paving the Gravel Drive. I n 2006 , three years after purchasi ng the Tracts, the Arnolds began to build a paved driveway, which was completed in 2007 . In the process of building the driveway, Mr. Arnold straightened some of the meanderings and relocated the drive entirely onto his fifty

- foot

- wide strip on Tract 2. The cost to the Arnold s ,

3 The record before us reflects that at or around the time that cooperati on between the parties began to fail, Mr. Arnold had asked Mr. Linnemeier to sell the three acres on the ridge to him, and Mr. Linnemeier indicated he might be willing to do so in the future, but was not willing to sell his property at that time. Appellant s ’ App . at 49

- 50.6

who owned an excavating business, was between $80,000 and $100,000 , with additional expenses for materials. After completing the paved drive, Mr. Arnold asked Mr. Linnemeier to contribute toward the pavin g costs, but Linnemeier ref used , maintaining that the Gravel Drive was adequate for his needs , which were primarily in summer and fall months, and he did not request or consent to the relocation of the drive onto Tract 2 or associated costs with paving it

. In July 2008, the Linnem eiers filed a co m p laint 4 against Ron Arnold Excavating, Inc. , and in October 2008, the Arnolds were substituted as real par ties in interest

. The complaint alleged that the Linnemeiers possessed an implied easement by prior use and an irrevocable license t o use the Gravel Drive. 5 Appellants’ Suppl. App . at 8, 15, 18. The Arnolds filed a motion for partial summary judgment, to which the Linnemeiers responded and also requested summary judgment on their complaint. T he trial court d enied the requests for

su mmary judgment without hearing. Id . at 67. The Arnolds requested and were granted permission to file an amended answer with affirmative defenses and counterclaim. Among other things, the Arnolds asserted as an affirmative defense that, if the trial cour t were to find the existence of an easement or license, additional proceedings would be required to determine the amount of contribution necessary by the Linnemeiers to the Arnolds. The

4 The record does not include a copy of the Linnemeiers’ complaint.

5 In 2009, the Arnolds, by counsel, tendered a check to the Linnemeiers in the amount of $2,507.67 as remuneration for the amount that the Linnemeiers had contributed t o the maintenance and upkeep of the Gravel Drive. The Linnemeiers, however, did not accept the check.7

Arnolds’ counterclaim asserted that the Linnemeiers’ pond leaked on to the Arnolds’ property, the Linnemeiers’ property contains culverts that are plugged with debris and brush and are not properly maintained , which constitutes a nuisance and has caused damages to the Arnolds

. T he trial court bifurcated the counterclaim , pr eserving those issues for a subsequent jury trial . Prior to trial on the Linnemeiers’ complaint , the Arnolds filed a request for the trial court to enter specific findings and conclusions

. In January 2013, the t rial court held a bench trial. T he testimon y included that of Mr. Linnemeier, who agre ed that the Harding Subdivision Plat does not reflect the Gravel Drive and that his deed to Tract 1 did not includ e an easement across Tract 2, although based upon Loudermilk’s representations, Mr. Linnemeier beli eved they did not need an easement. Mr. Linnemeier understood from Loudermilk that the existing Gravel Drive was intended to be the permanent shared driveway and used for ingress and egress into Tract 1. When questioned about the feasibility of building his own paved driveway, Mr. Linnemeier described the existence of severe topographical constraints, such as steep ravines and a sharply inclined grade, which would require significant fill material to fill the ravine and raise the ground to a suitable road bed grade. He conceded that it would not be impossible, but it would be very difficult and expensive to create a new driveway entirely on Tract 1. Although Mr. Linnemeier did not obtain a separate estimate of what the cost would be , he believed it would be at least the same or more than what Mr. Arnold expended to build a paved driveway.8

Mr. Arnold testified that, while he recognized that the Grav el Drive was shared , he believed, in contrast to Mr. Linnemeier’s understanding, that it was never intended as a permanent driveway , and a new paved driveway would eventually need to be built to access their home and equipment building. Prior to the Arnolds’ purchase, they confirmed that their deed did not contain an easement across their property, other than for utilities. Loudermilk testified that he did not recall making any promises or representations to Mr. Linnemeier other than what appeared on the Harding Subdivision Plat and deed ; however, he also acknowledged that he had “no recollection of the specifi cs” of the transactions in which he sold the Tracts. Tr. at 121

- 22. Although the Gravel Drive was not reflected on the Harding Subdivision Plat, Eric Deckard, the land surveyor who originally conducted and prepared the survey for Harding, testified that “we would not have been required to show a driveway on the plat.” Id . at 13

- 14. The parties seem to be in agree ment that, by its nature, the Gravel Drive would erode and deteriorate , and it required maintenance and application of additional gravel. Mr. A rnold testified that periodically he used his company’s excavating equipment to grade and repair the Gravel Drive. After the conclusion of trial, and with the agreement of the parties, the trial judge went to the subject property and examined the area in order to better grasp what the parties had been describing. Subsequently, the t rial court issued findings of fact and conclusions of law and judgment, which det ermined that the Linnemeiers possessed: (1) an easement by prior use of the property that was t he Gravel Drive ; and (2) an irrevocable license across Tract 2 to access9

their property. The Arnolds filed a motion to c o rrect error , which the trial court denied. The Arnolds now appeal. DISCUSSION AND DECISION I. Standard of Review In this case, the tr ial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. Our standard of review is well settled: First, we determine whether the evidence supports the findings and second, whether the findings supp ort the judgment. In deference to the trial court’ s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the tria l court’ s judgment. Challengers must establish that the trial court’ s findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly con vinced a mistake has been made. However, while we defer subst antially to findings of fact, we do n ot do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and ow e no deference to a tri al court’ s determination of such questions. McCauley v. Harris , 928 N.E.2d 309, 313 (Ind. Ct. App. 2010) (citing Johnson v. Am

. Classic Mortg. Corp. 894 N.E.2d 268, 270 (Ind. Ct. App. 2008) ) , trans. denied

. In this case, the Linnemeiers bore the burden o f proof at trial and prevailed. Therefore, the Arnolds are appealing from an adverse judgment. Id

. at 313. When the trial court enters findings in favor of the party bearing the burden of proof, the findings are clearly erroneous if they are not suppor ted by substantial evidence of probative value. Id

. We will affirm a judgment where we find substantial supporting evidence , unless we are left with a definite and firm conviction that a mistake has been made. Id.10 I I . Easement by Prior Use The trial cou rt’s finding s and conclusions thereon recognized the existence of an easement by prior use on the Arnolds’ land. Specifically, the trial court ordered:
A. There exists an easement by prior use as a permanent ingress/egress easement for the benefit of the Linnemeier Real Estate, described in Exhibit 1 and also identified as Tract 1, Harding Administrative Subdivision, which easement is appurtenant to and runs with the land.
B. The improvement to and the relocation of the ingress/egress easement benefitting Tract 1 entirely onto Tract 2 by Ron Arnold, the owner of Tract 2, does not extinguish or diminish the easement by prior use. The Arnold Real Estate ... identified as Tract 2, Harding Administrative Subdivision, is subject to the ingress/egre ss easement fo r use of the driveway on Tract 2 for the benefit of Tract 1. Appellants ’ App . at 17. Under Indiana law, a n easement in favor of a grantee may be implied from a prior use of the adjoining property when the adjoining property and the property conveyed wer e at one time owned by the same person. Fischer v. Revett , 438 N.E.2d 995, 996

- 97 (Ind. Ct. App. 1982) (citing John Hancock Mut. Life Ins. Co. v. Patterson , 103 Ind. 582, 586, 2 N.E. 188 (1885)); Eric D. Surette, J.D., 11 I. L

. E. Easements §7 Easements Imp lied from Prior Use (2013) . More specifically, it has been explained, [w] here, during 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 part s are severed, the law will imply an easement for its continuance if the servitude is reasonably necessary for the fair enjoyment of the part benefited

.11

Hysell v. Kimmel , 834 N.E.2d 1111 , 1114 (Ind. Ct. App. 2005), trans. denied (emphasis added). 6 Since an implied easement adds terms to the deed that are not expressly stated in the deed, an easement implie d from prior use will be found “‘ only where its creation was within the reasonable intention of the parties at the time of severance of the parcels. ’” Fischer , 438 N.E.2d at 997 (quoting John Hancock , 103 Ind. at 588 , 2 N.E. at 192 ). The application of the rule depends on the nature, arrangement, and use of the property, the relation of the parts to each other, and the degree of necessity of implying th e grant of an easement. Id. A mere temporary or provisional arrangement which may have been adopted by the owner for the more convenient enjoyment of the estate cannot constitute the degree of necessity or permanency which authorizes the engrafting upon a deed of a right to the enjoyment of something not described in the deed. Hysell , 834 N .E.2d at 1114

. It must be reasonably inferable from the existing disposition and use that it was intended to be continuous, notwithstanding the severance of ownership

. Id

. In determining whether an implied easement exists, courts consider “whether continuance of the use is indispensable to the future enjoyment of the estate, and the practicality, effect and expense of changing the use.” Id

.

6 We note 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. Pardue v. Smith , 875 N.E.2d 285, 291 (Ind. Ct. App. 2007 ). An easement by 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. Wolfe v. Gregory, 800 N.E.2d 237, 241 (Ind. Ct. App. 2003)

. O n the other hand, an easement by prior use will be implied “ 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

.12

The practicality and e xpense considerations are particularly relevant h ere, where the land in question is characterized by steep ravines, culverts, and inclines. In order to view the property himself, the special judge, f ollowing the conclusion of the presentati on of evidence at trial, sought and received permission to visit the property in question

. Thereafter, the trial

court issued findings, including the following : 7. There are severe topographical constraints on and along the two 50

- foot strips for Tract 1 and Tract 2 con sisting of steep ravines and sharply inclined grade. The Stone Drive was placed in that portion of Tract 1 and Tract 2, within the 50

- foot strips, that was the flattest and most usable portion for a driveway.

.... 23. The Stone Drive serving as the access road to Tract 1 and Tract 2 was an open and obvious servitude imposed on Tract 1 and Tract 2 at the time of common ownership of all of the Harding Administrative Subdivision land. The owner, Harding Development severed the unity of ownership by conveying Tract 1 to Linnemeier and Tract 2 to Arnold.

.... 25. The paved road created by Arnold used the majority of the existing Stone Drive as the roadbed. 26. The topography of the 50

- foot strip on Tract 1 adjacent to the Stone Driveway includes steep inclines and deep, steep ravines, making construction of a road within the 50

- foot strip of Tract 1 difficult and unreasonably expensive. Significant fill material would be required to fill the ra vine and ra i se the ground to suitable road bed grade. Also, Linnem eier would be required to add culverts and to excavate the ground to cut down the inclined portion of the Tract in order to create an area suitable for the placement of a new drive. Linnemeier did not obtain a specific quote for the costs to create a new drive but the cost would exceed the $100,000 Arnold incurred to prepare the Stone Drive for a paved surface.
27. The placement of the Stone Drive meandering between the 50

- foot strips of Tract 1 and Tract 2 was intentional in that it was placed in that po rtion13

of the two 50

- foot strips that was then existing as reasonably level or reasonably flat and suitable for a driveway. 28. Linnemeier relied upon the existing Stone Drive as an easement for access to Tract 1 and the express permission of John Louderm ilk on behalf of Harding Development to utilize the Stone Drive when he purchased Tract 1. Appellants ’ App . at 13

- 15. The evidence presented supports the trial court’s findings. Linnemeier examined the land four or five times before purchasing it. Th e Gravel Drive existed at that time and extended the full distance eastward from Earl Young Road to Tract 1. During the process of selling the property, Loudermilk told Mr. Linnemeier that the road served Tract 1 and would also serve the other Tract s once they were sold. Based on Loudermilk’s representations, Mr. Linnemeier did not believe he needed an easement

. After the Lin nemeiers purchased the property in 2001, they hired Loudermilk to build a dam and lake on Tract 1; the Gravel Drive was used during that process, and the Linnemeiers contributed money toward the upkeep of the Gravel Drive. After the Arnolds purchased their property in 2003 , they too used the Gravel Drive and were aware and did not object that the Linnemeiers used it as well. The Arn olds requested that the Linnemeiers contribute to the cost of gravel and maintenance at least once, and the Linnemeiers complied. The Linnemeiers and Arnolds used the Gravel Drive for years before the Arnolds mov ed the Gravel Drive and pav ed a driveway on Tract 2. The Arnolds contend that the Linnemeiers failed to satisfy their burden of proving that continued use of the Arnolds’ real estate for the benefit of the Linnemeiers’ real estate was “reasonably necessary, ” assert ing , among other things, that th e Linnemeiers had a fifty

- foot

-14

wide strip of property accessing Earl Young Road , as required by ordinance for the subdivision, and they could have built a driveway on that , just as the Arnolds did on their strip . However, our inquiry is not whether it was at all possible for the Linnemeiers to do that . R ather, at this point, we examine whether there was probative evidence to support the trial court’s decision that an implied easement over the Arnolds property wa s “reasonably necessary” for the fair enjoym ent of the Linnemeiers’ property. While some necessity must be shown, absolute necessity is not required. Hysell , 834 N.E.2d at 1115. We are satisfied that the trial court, i n reaching its decision, carefully considered the “nature, arrangement,
and use of the property,” and determined that the original G ravel Drive was situated along the most level part of Tracts 1 and 2. Under the circumstances of this case, t h e original G ravel Drive was more than merely “convenient or beneficial” ; rather, its use was reasonably
necessary , particularly considering the terrain of the property. The requirements of Hysell have been met : (1) there was unity of title in Harding/Loudermilk; (2) who imposed an apparent and obvious servitude, the Gravel Drive, on one part of the land in favor of another; (3) the Gravel Drive was in use when the parts were severed and sold to various parties; and ( 4 ) the Gravel Drive was reasonably necessary for the fair enjoyment of the Linnemeiers’ property. Further, it was reasonably infer able, based on Loudermilk’s placement, use of, and statements about the Gravel Drive, including his statements to Mr. Linnemeier that the Gravel Drive served Tract 1 and also would serve other Tracts once sold, that its use was intended to be continuous. Cf

. Searcy v. LaGrotte , 372 N.E.2d 755, 757 (Ind. Ct. App. 1978) ( finding shared dirt road between two farms was only convenient and beneficial rather15

than reasonably necessary, where purpose of road was to service barns situated on one parcel and landown er of that parcel had access to public road without passing over adjoining parcel). Based on our standard of review, we conclude that substantial evidence of probative value support s the trial court’s findings and conclusions thereon that an easement by prior use existed on and across the Arnolds’ property , and its judgment was not clearly erroneous.
F inding as we do that the trial court did not err when it determined the existence of an implied easement by prior use in favor of the Linnemeiers, we do no t reach the issue s of whether an irrevocable license in favor of the Linnemeiers also existed or the derivative issue of whether the Arnolds were bona fide purchasers without notice of that license. As a result of our decision today regarding the existenc e of an easement by prior use, t he Arnolds’ affirmative defense seeking contribution on the part of the Linnemeiers remains outstanding and appropriate for trial court determi nation, as well as the Arnolds’ bifurcated counterclaim concerning alleged draina ge from the Linnemeiers’ property.
Affirmed. MATHIAS, J., and CRONE, J., concur.