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Exasperated Judge Posner Kills Easement Dreams for Landowner

By Jonathan R. Tung, Esq. on February 17, 2016 | Last updated on March 21, 2019

Judge Posner, clearly exasperated by the procedural muck that was made out of a relatively routine easement case, killed the landowner's dreams of establishing a prescriptive easement to a public road in the Seventh Circuit.

"The duration of this litigation," he vented, is inexplicable and inexcusable -- for it's a pretty simple case!"


The case involved a landowner and the elements for valid easement for access to a public road. The plaintiff in question owned a parcel of 40 acres in Southwestern Indiana. Unfortunately, his land was completely surrounded by other landowners, cutting him off so there was no access to his land. He only gained ingress and exgress to and from his land because his neighbor who abutted his property to the north allowed him license to cross his land and gain access.

He filed a suit in 2001 to gain access to a main road which would have required him to cut through three plots of land immediately to his west. For reasons that befuddled the court, the case slogged through the justice system for 13 years before it finally got to the circuit.

Pretty Simple Indeed

Judge Posner's frustration was justified: it is a simple case. The plaintiff sued under Indiana and federal law to establish that he had both a prescriptive easement and a claim for easement by necessity.

Experienced lawyers will see immediate issues here. First, the easement by necessity failed for the fact that it was clearly not necessary that the plaintiff have a new easement granted to the parcel in order to gain access -- because he had access owing to the neighbor to the north. Easements by necessity are granted only if it is truly necessary to gain access to one's land without breaking the law or trespass.

As for the prescriptive easement, there was a problem of title. The plaintiff contended that the heirs of the would-be burdened estates quitclaimed an easement to him. the problem is that other witnesses and owners of the other plots disputed this, and contended that the easement was actually sold to the Forest Service in 1967 -- meaning there was nothing left to transfer to the plaintiff. And since a quitclaim carries with no guarantees of title, it was game over.

"And that's it," said judge Posner. Simple -- right?

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