Kwolek v. Swickard
2011 Ind. App. LEXIS 554
| Ind. Ct. App. | 2011Background
- In 1993, the Kwoleks granted Swickards a non-exclusive ingress-egress easement over a 60-foot-wide strip of their property, to run with Swickards’ access to their own property.
- The easement area includes a gravel surface in front of Swickards’ 3-car garage (36 feet by 22.5–24 feet) and a concrete apron on Swickards’ lot, with gravel extending to 560 West.
- Swickards built a three-car garage in 2000, with a gravel path extending 28.5 feet toward 560 West; most of that gravel area lies within the easement.
- Swickards and visitors have parked in the gravel portion of the easement since 1978; parking could occur where front of the garage lies, partly on Swickards’ land and partly on the easement.
- In 2006–2008, Kwoleks placed landscape timbers, posts, no-parking signs, and trees within the easement and voiced objections to parking there.
- The trial court granted declaratory judgment in Swickards’ favor in 2010, but on appeal the court reversed, holding the easement does not permit parking, improvements do not interfere with ingress/egress, and acquiescence does not bar the Kwoleks from asserting their rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the easement | Swickards contend parking is incidental to ingress/egress. | Easement text limits use to ingress/egress only. | Parking not within scope; easement restricted to ingress/egress. |
| Impairment of ingress/egress rights by improvements | Improvements within the easement impair Swickards’ use. | Improvements do not interfere with ingress/egress; removal unnecessary. | Improvements do not impair ingress/egress; removal order erroneous. |
| Acquiescence | Kwoleks acquiesced, barring the claim. | Acquiescence not applicable to defined easement scope. | Acquiescence does not apply; no bar to Kwoleks’ claims. |
Key Cases Cited
- McCauley v. Harris, 928 N.E.2d 309 (Ind.Ct.App.2010) (easement scope and incidental rights discussed in context of ingress/egress)
- Wendy's of Ft. Wayne, Inc. v. Fagan, 644 N.E.2d 159 (Ind.Ct.App.1994) (right to incidental signs within easement; not parking rights)
- Andrews v. City of Marion, 47 N.E.2d 968 (Ind.1943) (parking not included in ingress/egress for private purposes)
- Hagist v. Washburn, 546 A.2d 947 (Conn.App.1988) (general right-of-way does not automatically include parking)
- Leposky v. Fenton, 919 A.2d 533 (Conn.App.2007) (ingress/egress rights limited; no parking absent broad grant)
- Hall v. Altomari, 562 A.2d 574 (Conn.App.1989) (ingress/egress language not general; no parking implied)
- Avery Dev. Corp. v. Village by the Sea Condo. Apartments, Inc., 567 So.2d 447 (Fla.Dist.Ct.App.1990) (right of ingress/egress does not include parking rights)
- Franco v. Piccilo, 853 N.Y.S.2d 789 (N.Y.App.Div.2008) (ingress/egress does not grant parking rights)