On March 30, 2011, the Indiana Court of Appeals held that an easement granted to a landlocked property for ingress and egress did not give that property owner the right to park on the easement. In
, ___ N.E.2d ___ (Ind. Ct. App. 2011), Case No. 64A05-1006-PL-372, the Court held that the fact that the property owners had parked on the easement for fifteen years did not change the outcome of the case.
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In 1978, the Swickards purchased their home and property. In the mid-1980s, the Indiana Department of Transportation made improvements to a road, which landlocked the Swickards. In the early 1990s, the Swickards first learned that their property was landlocked when they attempted to refinance their mortgage. As a result, the Swickards approached the Kwoleks, their neighbors, to request an ingress-egress easement to a neighboring road. The Kwoleks agreed to grant the easement and the easement was recorded in October 1993. The easement provided, in pertinent part, as follows:
[The Kwoleks] ... grant ... unto [the Swickards for] ... an easement for a private road and right-of-way over and across the following described real property ... . Said easement shall be non-exclusive and is intended to grant to the [Swickards] an ingress and egress to their property jointly with [the Kwoleks]... .
The distance from the Swickards' property line to neighboring road was twenty-two and one-half feet.
Sometime in 2000, the Swickards built a three-car garage on their property. The Swickards added a three-foot concrete apron in front of the garage and then added twenty-eight and one-half feet of gravel from the concrete apron to the neighboring road. The concrete apron and the first six feet adjacent to the concrete apron were located on the Swickards' property and the remaining twenty-two and one-half feet of gravel were located within the easement.
The Swickards owned three vehicles, which they alternatively park in their garage or on the gravel area in front of their garage. When the Swickards had visitors, the visitors parked their vehicles on the gravel area. A vehicle parked in front of the Swickards' garage, with its front end even with the garage's concrete apron, would be parked partially on the Swickards' property and partially within the easement.
In 2006, the Kwoleks called the local police to complain about cars parked within the easement in front of the Swickards' garage. In April of that year, Mr. Kwolek parked a car in the disputed gravel area in front of the Swickards' garage and left it there for six months. Later that year, he installed landscape timbers, metal posts, a no-parking sign, and numerous evergreen trees within the easement on the north side of the disputed area.
Eventually, Swickards filed a complaint for declaratory judgment against the Kwoleks regarding those improvements and the Kwoleks asked the trial court to conclude that the easement did not allow for parking. After a bench trial, the trial court granted declaratory judgment for the Swickards.
On appeal, the Court held that an easement for ingress and egress confers only the right to pass over the land, not the right to park on the land.
The plain meaning of the terms "ingress" and "egress" do not include parking. "Ingress" is "[t]he act of entering." And "egress" is "[t]he act of going out or leaving." Indeed, it is well settled under Indiana law that "there is no ambiguity in applying the terms 'ingress and egress.'" Thus, the easement does not confer upon the Swickards the additional right to park vehicles within the easement.
Mr. Kwolek's improvements, even though within the easement, did not interfere with the Swickards' rights of ingress and egress because "there is no evidence ... that the Swickards ever used any part of the easement that is not spread with gravel for ingress and egress."
Finally, the Court addressed whether the Kwoleks had acquiesced to the Swickards' right to park on the easement. The Court noted that the doctrine of acquiescence is limited in Indiana case law dealing with an interest in real property only to boundary-line disputes or the location of an easement. This case involved neither a boundary-line dispute or a dispute over the location of an easement. Instead, what the Swickards were seeking was adverse possession or a prescriptive easement. "It is well settled that the doctrine of acquiescence 'does not stand with the doctrine of adverse possession' or the doctrine of easement-by-prescription." On appeal, the Swickards admitted that their argument for a prescriptive easement "is not developed as it relates to these facts."
The outcome of this case is striking. The Swickards had been parking on the easement for fifteen years before its action was commenced, but they can do so no longer. That outcome should remind litigators to develop and prove alternate theories at trial to protect their clients. We cannot know whether the facts existed to support a claim for a prescriptive easement, but such a claim may have obtained a better result for the Swickards.
