Monthly Archives: February 2017

An easement holder, such as a public utility, cannot sue to physically remove a “trespasser” from the easement. That’s what the Indiana Court of Appeals recently decided. 1 Without standing to sue for trespass, the easement holder can stop the adverse party from using the property only if the adverse use injures the easement holder’s own use of the property, and that injury outweighs the reasonable necessity of the adverse party’s use of the property. This case pitted a municipality against a utility, but the same principles could just as easily be applied to any individual or entity with a nonpossessory interest in land, such as an easement, license, equitable servitude restrict covenant, or profit. Duke Energy held a utility easement in an area where the City of Franklin proposed to put an intersection. Duke claimed, among other things, that the City did not have any property rights in the intersection, and therefore the City was nothing more than a trespasser and should be barred from constructing the intersection. As the Court of Appeals held, “Duke is essentially pursuing an ejectment action based on alleged trespass.” The City claimed it did have interests in the property (obtained alternatively through a Road Transfer Memorandum of Agreement, dedication, the doctrine of public usage, or prescriptive easement/adverse possession). The City argued that an easement holder cannot pursue a trespass claim or seek an ejectment and therefore even if the City did not have property rights, Duke, did not have standing to pursue an ejectment action because it was a…