Ronald Boehm and Sharon Boehm, Appellants-Plaintiffs, v. Gary Waninger, Charles Waninger, Alan Waninger, and Waninger Brothers, Appellees-Defendants. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Ronald Boehm and Sharon Boehm (the Boehms) appeal the trial court's partial denial of their motion for summary judgment. They argue the court erred in determining that: (1) Gary Waninger, Charles Waninger, Alan Waninger, and Waninger Brothers (collectively, the Waningers) could raise an affirmative defense of easement by prescription in this trespass case; and (2) there are disputes of material fact as to that defense.

[2] The Waningers have appeared in this appeal but have not filed a brief. Concluding the Boehms have demonstrated prima facie error, we reverse and remand.

Facts and Procedural History

[3] The Boehms own two contiguous parcels of farmland in Spencer County. The Waningers own several contiguous parcels of farmland that are located on the western and northern sides of the Boehms’ parcels.

[4] In 1903, the Boehms’ predecessors in interest granted a written, recorded easement to the Waningers’ predecessors in interest. The easement consists of a road that runs along the western and northern edges of the Boehms’ parcels, to be used for ingress and egress from what are now the Waningers’ parcels. The easement specified that the road was one rod wide, or sixteen-and-a-half-feet wide in modern measurements. The Waningers have other routes to access their parcels.

[5] The Waningers purchased their parcels at least fifty years ago and have regularly used the easement road since then. In 2019, they began driving much wider farm equipment on the easement road. The new equipment encroached on the Boehms’ parcels outside the easement, damaging the Boehms’ crops. The Boehms asked the Waningers to stop exceeding the easement's boundaries, but they refused. Next, the Boehms put up stakes to mark the boundary, which the Waningers ignored. Finally, the Boehms installed metal rods along the edge of the easement to prevent encroachment. The Waningers removed the rods and continued to drive their equipment outside the easement boundary.

[6] The Boehms sued the Waningers, claiming trespass. They also requested a preliminary injunction to keep the Waningers from exceeding the easement's boundaries and a declaration that the Waningers could not encroach on their land beyond the limits set by the written easement. In response, the Waningers raised several defenses: (1) prescriptive easement; (2) easement by necessity; (3) easement by prior use; and (4) laches.

[7] The Boehms moved for summary judgment. The court held oral argument and inspected the parties’ properties.

[8] In an order granting the Boehms’ motion in part and denying it in part, the court stated the Boehms are entitled to summary judgment on the Waningers’ defenses of easement by necessity, easement by prior use, and laches. But the court concluded there are disputes of material fact as to the defense of prescriptive easement. As a result, the Boehms’ claim of trespass and requests for injunctive and declaratory relief “are not yet ripe for ruling[.]” Appellant's App. Vol. 2, p. 19. This interlocutory appeal followed.

Discussion and Decision

[9] The Boehms argue the trial court should have fully granted their motion for summary judgment. The Waningers have not filed an appellees’ brief. In this circumstance, we may reverse the trial court's judgment if the Boehms demonstrate prima facie error. Autovest, LLC v. Abner, 245 N.E.3d 193, 194 (Ind. Ct. App. 2024). “[P]rima facie error is defined as ‘at first sight, on first appearance, or on the face of it.’ ” Walking With Jesus Ministries v. Alexander, 240 N.E.3d 183, 185 (Ind. Ct. App. 2024) (quoting Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006)). The purpose of the prima facie standard is “to make clear that it is not the burden of the court on appeal to rebut apparently valid arguments advanced for reversing the trial court's judgment.” Alexander, 240 N.E.3d at 185.

[10] “An easement is the right to use another's land for a specified purpose.” Town of Ellettsville v. DeSpirito, 111 N.E.3d 987, 990 (Ind. 2018). “Under Indiana law, easements may arise by grant, prescription, or implication.” Morehouse v. Dux N. LLC, 226 N.E.3d 758, 763 (Ind. 2024). An express easement is created by a written document to serve a specified purpose. Frame Station, Inc. v. Foundry at 304, LLC, 227 N.E.3d 939, 945 (Ind. Ct. App. 2024) (quotation omitted). “When assessing the rights of a party to a contract for real property, courts must enforce the parties’ intent as expressed in the written deeds.” Morehouse, 226 N.E.3d at 768. An express easement for ingress and egress confers only the right to pass over the land, not to control it. Drees Co., Inc. v. Thompson, 868 N.E.2d 32, 38 (Ind. Ct. App. 2007), trans. denied. The owner of an easement cannot place extra burdens on the owner of the property over which the easement passes. McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. Ct. App. 2010), trans. denied.

[11] In contrast to an express easement, a prescriptive easement arises when a person adversely uses another person's property without interruption “for at least twenty years.” Ind. Code § 32-23-1-1 (2002). In addition to the duration requirement, a person claiming a prescriptive easement must also prove control of the land, intent to exercise control or ownership, and actual or constructive notice to the legal owner of the land. Willfong v. Cessna Corp., 838 N.E.2d 403, 406 n.1 (Ind. 2005). “Prescriptive easements are not favored in the law.” Jones v. Van Hollow Assoc., Inc., 103 N.E.3d 667, 672 (Ind. Ct. App. 2018). “The existence or non-existence of a prescriptive easement is a question of fact.” Ballard v. Harman, 737 N.E.2d 411, 418 (Ind. Ct. App. 2000).

[12] The Boehms argue that the terms of an express easement, even one that is over one hundred years old, can never be subsequently altered by a prescriptive easement. Appellants’ Br. p. 16 (“Once an easement's location is fixed, it cannot be unilaterally relocated.”). However, we question whether the Boehms’ argument is a correct statement of the law. Indiana Code section 32-23-1-1 does not contain an exception for land that is already subject to an express easement. And none of the caselaw cited by the Boehms expressly bars a prescription by easement on land that is already subject to an express easement. See, e.g., Town of Ellettsville, 111 N.E.3d. at 991-92 (holding than an express easement may not be relocated unilaterally; prescriptive easement not at issue); Dudgeon v. Bronson, 64 N.E. 910 (Ind. 1902) (discussing easement by necessity, a separate doctrine).

[13] In any case, we need not resolve the Boehms’ contention. Assuming that it is possible for the owner of an express easement to subsequently expand the size of that easement by prescription, the Waningers failed to meet the requirements for a prescriptive easement. During summary judgment proceedings, they admitted that they began driving their new equipment outside the easement road boundary in 2019, or for no more than six years. Appellant's App. Vol. 2, p. 99 (requests for admission). That period is far short of the twenty years required by Indiana Code section 32-23-1-1. See Roberts v. Feitz, 933 N.E.2d 466, 482 (Ind. Ct. App. 2010) (affirming trial court's rejection of permissive easement; claimant failed to meet the twenty-year duration requirement). As a result, even though the existence of a prescriptive easement is generally a question of fact, in this case there is no dispute of material fact showing that an easement exists.

[14] Next, we turn to the Boehms’ trespass claim. A plaintiff claiming civil trespass must demonstrate: (1) ownership of the land when the trespass occurred; and (2) that the “defendant entered the land without a legal right to do so.” KB Home Ind. Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 308 (Ind. Ct. App. 2010). And a person commits criminal trespass when he or she “knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person's agent” while not having a contractual interest in the property.” Ind. Code § 35-43-2-2(b)(1) (2018). A person who experiences pecuniary loss through criminal trespass may seek remedies including treble damages and a “reasonable attorney's fee.” I.C. 34-24-3-1 (2019).

[15] There is no dispute that the Boehms own the land. And, having disposed of the Waningers’ claim of easement by prescription, there is no dispute that they drove upon the Boehms’ land, outside the boundaries of the easement, without a legal right or a contractual interest in the property, despite repeated notifications from the Boehms that they were not permitted to enter. The Boehms are entitled to summary judgment on civil and criminal trespass. The same undisputed evidence also entitles the Boehms to prevail on their claims for injunctive relief and declaratory judgment.

[16] The Boehms have demonstrated prima facie error. We reverse and remand with instructions to the trial court to: (1) grant the Boehms’ motion for summary judgment; (2) grant the Boehms’ requests for declaratory judgment and injunctive relief; (3) calculate the Boehms’ damages resulting from the Waningers’ trespasses; and (4) determine whether to award reasonable attorney's fees.

Conclusion

[17] For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings not inconsistent with this decision.

[18] Reversed and Remanded.

Crone, Senior Judge.

Judges Tavitas and Felix concur. Tavitas, J., and Felix, J., concur.