Adverse Possession; Easements

Panhandle Eastern Pipe Line Company v Tishner, 699 NE2d 731 (Ind App 1998).

Facts: Panhandle owns an easement across Tishners' property. The easement provides that Panhandle has the right to lay, maintain, operate, repair, replace, change the size of, and remove a pipeline. In the 1960s Tishners built several structures and planted trees close to the pipeline. Panhandle did not at the time object to these improvements. Panhandle periodically made use of its easement through the years, without objection. In 1988, Panhandle twice did work on the portion of the pipeline on the Tishners' property. The Tishners objected both times to the work. Panhandle obtained a temporary restraining order to prevent the Tishners' intentional obstruction of the work. Some of the structures and trees were damaged or removed by Panhandle during the work. Moreover, trenches were dug that were not shorn up, presumably causing damage to land and structures around the pipeline. Three years later, Mr. Tishner planted more trees and began more construction near the pipeline.

Panhandle then sought to obtain a permanent injunction to prevent the Tishners from doing anything further that would threaten the integrity of the pipeline or prevent Panhandle from exercising its easement rights, and the Tishners filed a counterclaim for the damage to their improvements. The trial court concluded that Panhandle had lost its rights to complain about the improvements in the easement made by the Tishners prior to 1988 through adverse possession. It ordered Panhandle to pay damages to the Tishners for damage to their improvements and that the Tishners be allowed to erect and maintain improvements on their property that existed prior to 1988. The court also ruled that the Tishners could not erect any new structures within the easement. Panhandle appealed.

Holding: Reversed and remanded to determine the location of the structures with regard to the easement and to determine damages. First, the trial court erred in determining that Panhandle's easement was partially extinguished by the Tishners' adverse possession. Adverse possession is established by showing that the possession has been actual, visible, open and notorious, exclusive, under claim of ownership, hostile, and continuous for the statutory period. Clark v Auckerman, 654 NE2d 1183, 1185 (Ind Ct App 1995). The Tishners have not established that their use of Panhandle's easement was hostile, since the Tishners did not object at all to Panhandle's presence until 1988, and even then the Tishners did not attempt to exclude Panhandle from its easement once Panhandle received a temporary restraining order. Also, the Tishners have failed to establish that their use of the easement was exclusive. Possession is exclusive only if it is of such a nature that it operates as an ouster of the owner. Davis v Sponhauer, 574 NE2d 292, 298 (Ind Ct App 1991). Panhandle had repeatedly used its easement in various ways, and at no time did the Tishners "oust" Panhandle from its easement. Moreover, even if the Tishners had presented clear evidence of adverse possession, such a finding would not support the trial court's judgment. Adverse possession operates to extinguish title to land, and had the Tishners established adverse possession of Panhandle's easement, Panhandle's title to the easement would have been entirely extinguished.

There is no basis in law to conclude that the Tishners had adversely possessed the easement only with respect to the improvements they constructed near the pipeline. Finally, the Tishners' improvements prevent Panhandle from complying with federal law regarding the operation of the pipeline. Therefore, even if the common law would allow adverse possession with respect to the improvements, it would have to give way to the congressional statute. An easement that grants the right to operate a natural gas pipeline must, if the easement is not to be wholly illusory, imply the right to operate the pipeline in accordance with applicable federal law. Panhandle is not liable for damages to structures inside its easement, but it is liable for removing lateral support to the land outside of the easement. Finally, Panhandle is liable, if negligent, for damage to structures outside its easement caused by its excavation within the easement.

ILLINOIS ANALYSIS: This case would probably have a similar result in Illinois. Possession must be hostile and exclusive in order to establish adverse possession, and there is no indication that these requirements are interpreted in such a way that adverse possession could be established by these facts. Moreover, it is not likely that an Illinois court would rule that the owner of an easement would lose by adverse possession its right to complain about improvements which interfere with its easement, while retaining the easement itself. As for the liability of the easement owner, there is some indication that in Illinois there may be strict liability for removing lateral support for the structure of an adjoining landowner, if the excavation is deeper than eight feet. Behrens v W.S. Bills & Sons, Inc., 283 NE2d 1 (Ill App 3d).

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