The Friedels own a landlocked parcel in Dekalb County with access via an express easement created for ingress and egress reserved in a prior deed of the property they acquired in 2020 when it was separated from what is now the Fort Wayne Wood, LLC (owned by Dennis Fahlsing) property in 1964.  This easement has been included in each deed of the dominant estate since 1964, including the 2020 deed.  The Friedel property lies north of railroad tracks without a crossing.  The Fort Wayne Wood property runs from the north line of the Friedel property to State Road 8, and the easement in question runs generally from near the northwest corner of the Friedel property slightly northeasterly to SR 8.  The west line of the easement is described as an existing ditch (the Frank Yarde Regulated Drain), and the east line of the easement was marked by certain definite points running generally parallel to the ditch and along the road at the time “as more particularly set forth on the survey” attached to the deed.  The deed provided the easement “shall run with the land for the purpose of ingress and egress ….”

Recently, Fahlsing began to impede use of the easement by placing downed trees and telephone poles in or along the road; by digging trenches across the easement, severely damaging the road; and by causing the road to be rerouted and moved to the west, creating a virtually impassable portion of roadway.  In addition, Fahlsing approached and questioned invitees using the road to the dominant estate. 

On February 10, 2023, the Friedels filed a complaint for easement, injunctive relief, and damages against Fahlsing.  A bench trial was held October 9, 2023.  By agreement of the parties, the Dekalb Superior Court bifurcated the issues and only addressed the existence and extent of the express easement.

During the trial, a Professional Engineer and Surveyor found that due to erosion of the ditch, the ditch was now as close as 15 feet from the edge of the roadway, and if left unchecked, erosion will continue to cut eastward.  In addition, he found uncertainty of 18 to 20 feet in the depiction of the east line of the easement because of the use of antiquated surveying measurement tools when the easement was created. 

On December 4, 2023, the trial court found Fahlsing had “significantly interfered with and, in fact, moved the location of the roadway that was historically used to access” the dominant estate, and the Friedels were entitled to relief under the doctrine of implied easement by necessity and/or the doctrine of implied easement by prior use.  The Friedels were instructed to have the surveyor prepare a new survey from SR 8 across the servient estate that shall be forty (40) feet wide and take into account the maintenance easement of the regulated drain and the past erosion and reasonably anticipated future erosion of said drain.  The court would reconvene after the filing of the new survey to address the reasonableness of the new survey, the damages caused by Fahlsing and the request for an injunction.  On January 3, 2024, Fahlsing filed a motion to declare the court order final and appealable, which was granted on January 8.

On appeal, it was found the trial court had sua sponte, that is, of its own accord without a request from either party, relinquished an express easement, which was clearly fixed in location by use over several decades, in favor of creating an implied easement by necessity or prior use.  Because there was no consent or abandonment, the trial court essentially created a second easement, an implied easement, to accomplish what the express easement was created to achieve, the Friedels’ unfettered access to SR 8.  This was found to be a governmental taking for a purely private use, which is constrained by the Indiana Constitution.  Because the express easement and historical pathway was adequate for access, the trial court had no discretion to expand it or restrict its terms.  The trial court order was reversed and remanded to determine the extent and scope of reasonable repairs, improvements, or alterations necessary to the express easement.