Indiana easement laws are derived from a 2. Rights-of-Way Kopetsky v. Crews, 838 N.E.2d 1118, 1125 convincing proof of (1) control, (2) intent, (3) combination of common law and statutory A right-of-way is a type of easement. Rights-of- (Ind.Ct.App. 2005). notice, and (4) duration.1 Id. at 486. authority. Easement theories are complex and way create “[t]he right to pass through property 4. Easement Creation - Implication IC § 32-23-1-1 provides that an easement may heavily dependent upon specific facts. Therefore, a owned by another.” BLACK’S LAW DICTIONARY Easements may be implied by necessity or prior not be acquired by adverse use unless the use is landowner’s rights are often initially unclear and (8th ed. 2004). Rights-of-way may exist as private use. An implied easement will only arise at the uninterrupted for at least twenty (20) years. The require an intensive investigation into an or public easements. Public rights-of-way grant the time a conveyance severs a single parcel of land. Indiana Court of Appeals has reasoned that the easement’s creation and intended purpose. right of passage to the general public for the use of Hysell v. Kimmel, 834 N.E.2d 1111, 1114 twenty -year period of adverse use will not begin to If a landowner’s easement problems concern the highways, roads or other thoroughfares. Private (Ind.Ct.App. 2005). run against a title owner until the property is rights and responsibilities of other neighboring rights-of-way give rights to a specific individual or Easements of necessity are created when a conveyed to the title owner. See Downing v. landowners, the landowner should discuss the entity. Private rights-of-way may be used for conveyance of land requires an easement for the Owens, 809 N.E.2d 444, 450 (Ind.Ct.App. 2004). problem with his neighbor. Both parties may want ingress and egress or for installation of utilities and beneficial use and enjoyment of the land conveyed However, “[t]he continuous use of the easement by to consult with attorneys to make sure their rights services across another’s property. or retained. An easement of necessity will arise predecessors in title may be added to the use of the are adequately represented. 3. Easement Creation - Grant or Reservation when a tract of land is severed in such a way as to present claimant in order to satisfy the twenty-year The purpose of this brochure is to provide a Easements may be created by express grant or leave one part without access to a public road. requirement.” Romine v. Gagle, 782 N.E.2d 369, checklist of legal theories that you and your reservation. A fee simple owner may directly Cockrell v. Hawkins, 764 N.E.2d 289, 292 385 (Ind.Ct.App. 2003). attorney may want to consider when creating convey an easement by grant. A fee owner may (Ind.Ct.App. 2002). Such an easement may arise 6. Easement Creation – Condemnation easements or dealing with existing easement also expressly reserve an easement by conveying a “only at the time the parcel is divided and only The government or an authorized entity may problems. Please share this information with your fee estate to another while retaining an easement in because of inaccessibility then existing.” Id. at 293. create an easement using the power of eminent attorney, who will have access to the statutes and the parcel sold. The grant or reservation of an An easement of necessity “cannot arise against the domain. State, county, and municipal governments court cases listed herein. easement is subject to the requirements for granting lands of a stranger.” Id. (quoting Moore v. Ind. & may acquire easements in personal property for

1. Types of Easements - Appurtenant & In Gross any property interest in land and must therefore be Mich. Elec. Co., 95 N.E.2d 210, 212 (Ind. 1950)). public uses such as transportation and public Easements may burden a specific property or evidenced by written instrument and properly An easement may also be implied by the use of a works. Privately held utilities and other simply exist as a land use agreement between two recorded. See IC 32-21. portion of land prior to severance. “Where, during corporations authorized to deliver utility services specific individuals or entities. Appurtenant rights Care should be taken to limit the conveyance to the unity of title, an owner imposes an apparently may also acquire a right-of-way by condemning are those which are inseparable from the burdened the nature, extent and duration desired because permanent and obvious servitude on one part of the and appropriating an easement. IC § 32-24-4-2. and benefited properties. Consolidation Coal Co. v. “[t]he nature, extent and duration of an easement land in favor of another part and the servitude is in Railroad companies are also authorized to Mutchman, 565 N.E.2d 1074, 1083 (Ind.Ct.App. created by an express agreement or grant must be use when the parts are severed, the law will imply condemn private property for the use of operating a 1990). “[A] servient estate is burdened to the extent determined by the provisions of the instrument an easement for its continuance if the servitude is railroad right-of-way. IC § 8-4-1-15. A landowner necessary to accomplish the end for which [a] creating the easement.” Larry Mayes Sales, 744 reasonably necessary for the fair enjoyment of the will be due just compensation for any taking by the dominant estate [is] created.” Brown v. N.E.2d at 972 (quoting Erie-Haven, Inc. v. First part benefited.” Hysell, 834 N.E.2d at 1114. In this government or authorized entity. Heidersbach, 360 N.E.2d 614, 618 (Ind.Ct.App. Church of Christ, 292 N.E.2d 837, 841 situation, “the owner of the dominant estate does 7. Easement Location (Ind.Ct.App. 1973)). not need to show absolute necessity, but there still Easements created by grant or reservation must 1977). A right-of-way easement across a parcel of land which gives ingress and egress to a landlocked No particular words are necessary in creating the must be some necessity shown.” Id. at 1115. include a description of the granted easement, parcel of land is the most common type of easement; any words that clearly show the 5. Easement Creation - Prescription which will control its location. Location of appurtenant easement. intention to give an easement are sufficient. Tanton Prescriptive easements, created by adverse use, easements created by implication or prescription “An easement is in gross if it is a mere personal v. Grochow, 707 N.E.2d 1010, 1013 (Ind.Ct.App. may be created by private or public use. will be established by their prior use. If an implied right which cannot be granted to another person or 1999). The instrument, however, must include a Prescriptive easements generally “are not favored easement’s location has not been previously transmitted by descent.” Larry Mayes Sales, Inc. v. description of the land conveyed so as to furnish a in the law.” Carnahan v. Moriah Prop. Owners established, its location may be determined by the HSI, LLC., 744 N.E.2d 970, 973 (Ind.Ct.App. means by which the land can be identified. Stevens Ass'n., Inc., 716 N.E.2d 437, 441 (Ind. 1999). In owner of the burdened estate. Shedd v. Am. Maize 2001) (quoting Jeffers v. Toschlog, 383 N.E.2d v. Flannagen, 30 N.E. 898, 899 (Ind. 1892). Fraley v. Minger, 829 N.E.2d 476 (Ind.2005) The Products Co., 108 N.E. 610, 614 (Ind.Ct.App. 457, 458 (Ind.Ct.App. 1978)). Easements in gross “Although Indiana law prefers that an instrument Indiana Supreme Court reformulated the elements 1915). So long as the location is reasonable, it may are not supported by a dominant estate and only creating an express easement describe the for establishing adverse possession, which may not be altered without the agreement of the servient attach to an entity’s personal interests. Road, dominant and servient [estates] with reasonable apply for establishing prescriptive easements. and dominant estate holders. Ritchey v. Welsh, 48 railroad, and utility rights-of-way are common certainty, an easement may be valid even though it Specifically, the Court held that the claimant in N.E. 1031, 1033 (Ind. 1898). examples of easements in gross. does not use the particular terms ‘dominant’ and such circumstances must establish clear and ‘servient’ in referring to the relevant estates.” 8. Scope of Use – Private Easement Inc., 829 N.E.2d 7, 11 (Ind. 2005) (citing Fox v. Mitchell, 451 N.E.2d 366, 369 (Ind.Ct.App. 1983). “Easements are limited to the purpose for which Ohio Valley Gas Corp., 235 N.E.2d 168, 172-73 “[W]here there are several owners in common of they are created.” North Snow Bay, Inc. v. (Ind. 1968)). an easement, each owner has a right to make a publication of Hamilton, 657 N.E.2d 420, 423 (Ind.Ct.App. 1995) Additionally, statute permits public and reasonable repairs, alterations, and improvements (citing Whitt v. Ferris, 596 N.E.2d 230, 233 municipal utilities to install amenities, “along, to the easement so long as such do not injuriously (Ind.Ct.App. 1992)). The extent to which an under, and across any of the public roads, affect his co-owner.” Id. easement may be used, however, is dependent upon highways, and waters outside of municipalities….” 12. Abandonment how it was created. IC § 8-20-1-28. Common law states that no Under Indiana common law, an easement “The nature of an easement created by an compensation will be due for installation under and acquired by either actual grant or prescription may express agreement or grant must be determined by upon public ways, but it remains unclear to what not be extinguished by mere nonuse. See the provisions of the instrument creating the extent compensation will be due for installation Consolidated Rail Corp., Inc. v. Lewellen, 682 easement.” Adkins Investments, Inc. v. Jackson “along” public ways. N.E.2d 779, 783 (Ind. 1997). Legal Considerations for County REMC, 731 N.E.2d 1024, 1033 10. Scope of Use - Railroad Easement Extinguishing an express or prescriptive (Ind.Ct.App. 2000) (citing Indiana Broadcasting Historically, railroad easements were interpreted easement requires nonuse plus an act indicating Right-of-Way Easements Corp. v. Star Stations of Indiana, 388 N.E.2d 568, to only include the right to operate trains and intent to abandon. Id. “An easement of necessity 571 (Ind.Ct.App. 1979)). Specific wording may conduct business consistent with such operations. ceases to exist, however, when the necessity out of limit the allowed use of an easement, but if the Railroad rights-of-way, however, may now be which the easement arose ceases to exist.” language is overly broad, the reservation of a way expanded to allow for installation of utilities. Zakutansky v. Kanzler, 634 N.E.2d 75, 84 of necessity may be interpreted to grant all rights Indiana Code and Indiana common law indicate (Ind.Ct.App. 1994). Railroad right-of-way that are reasonable for the full enjoyment of the that a railroad possessing an easement may grant a abandonment was formerly dictated by Indiana dominant estate, so long as no additional burden is license to a public utility for installation of common law, but is now controlled by statute. See cast upon the servient estate. New York Cent. R. amenities along its right-of-way. See IC § 32-23- IC § 32-23-11-6. Co. v. Yarian, 39 N.E.2d 604, 606 (Ind. 1942). 11-11; Calumet National Bank v. AT&T, 682 13. Alternative to Easements Easements created by implication are typically N.E.2d 785, 791 (Ind. 1997). Further, the Indiana A license may exist in instances where an created for only those uses established prior to Court of Appeals has found that a railroad granting easement does not. Unlike an easement, a license severance, or at the time of severance. However, if such a license to a public utility creates no grants a personal privilege to do some act or acts no additional burden will be added to the servient additional burden to the fee holder, and therefore, on land and does not convey an estate in the land. estate, rights-of-way may be extended so “the way no compensation is due. See Ritz v. Indiana & Contel of Indiana, Inc. v. Coulson, 659 N.E.2d 224, 225 S. East Street may be used in any manner that is reasonably Ohio R.R. Inc., 632 N.E.2d 769, 775-76 228 (Ind.Ct.App. 1995). Further a license cannot P.O. Box 1290 required for the complete and beneficial use of the (Ind.Ct.App. 1994) (relying upon Fox, 235 N.E.2d ripen into an easement, regardless the duration of Indianapolis, IN 46206 dominant estate. . . .” Yarian, 39 N.E.2d at 606. at 172-73). While the reading of IC § 32-23-11-11 the use, and cannot be inherited or assigned. Because prescriptive easements are disfavored may indicate that such a license still requires Greenco, Inc. v. May, 506 N.E.2d 42, 46 (Ind. Ct. (317) 692-7840 they will not be extended beyond their original use. compensation, such a determination is likely case App. 1987). A license is often present when a 1-800-866-1160 ext 7840 Prescriptive easements are limited to the use by specific and the Indiana Supreme Court has yet to highway right-of-way is established by public use www.infarmbureau.org which they were created and will not be extended address the general issue. rather than a properly recorded conveyance. A by implication. Brown, 360 N.E.2d at 618. 11. Maintenance right-of-way is granted for the traveled portion of Right-of-way maintenance responsibilities may the road, and a license exists with respect to the 9. Scope of Use - Public Easement Prepared by Marcus Selig, Right-of-Way Project Specialist Public easements were originally created for the be specified in the express creation of an easement. property adjacent to the roadway allowing for the Edited by Justin Schneider, Sr. Policy Advisor and Counsel passage of the general public on highways, roads, When not specified, the responsibility is generally maintenance of these areas. Contel, 659 N.E.2d at and and other thoroughfares. Since that time, courts upon the easement holder and the owner of the 228. John Shoup, Director have extended the use of public ways to allow for servient estate has no obligations. “[T]he owner of Indiana Agricultural Law Foundation, Inc. Updated July 2015 the installation of utilities upon and under these an easement possesses all rights necessarily rights-of-way. Such a use is not viewed as an incident to the enjoyment of the easement, and . . . additional burden upon the servient estate, and no he may make such repairs, improvements, or additional compensation is due for such use. alterations as are reasonably necessary to make the Louisville & Indiana R.R. Co. v. Indiana Gas Co. grant of the easement effectual.” Litzelswope v.