Slaughter, J.
Plaintiff, Dux North LLC, owns landlocked property in rural Hamilton County, Indiana. To access its property, Dux seeks an implied easement over adjacent property owned by Defendants, Jason and Sarah Morehouse. An easement is an interest in land that entitles the owner to use another’s property for a specific purpose. An implied easement arises not from the parties’ expressed intent in a land transaction but from circumstances inferred from their transaction. Here, Dux claims as alternative relief either an implied easement by prior use or an implied easement of necessity over the Morehouse property.
We clarify our precedent to hold, first, that despite their similarities, the implied easements at issue here are conceptually different. For an implied easement by prior use, the claimed servitude must predate the severance creating the separate parcels. For an implied easement of necessity, in contrast, the claimed necessity need arise only at severance and not before. Thus, Dux can seek relief under either implied easement, and the failure of one such easement does not necessarily defeat the other. And we hold, second, that an implied easement of necessity requires a showing that access to property by another means is not just impractical but impossible. We reverse and remand.
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Although implied easements are disfavored, courts have offered varying justifications for implying such easements in law. One is that courts are merely inferring what must have been the intention of the parties to the transaction—that the parties surely would have included an easement providing ingress and egress to landlocked property had they considered it. See Ritchey v. Welsh, 48 N.E. 1031, 1032 (Ind. 1898). Another justification is that landlocked property has little or no value because it is inaccessible, and courts must imply an easement to ensure that land remains productive even if the parties to the transaction did not provide for such access. See, e.g., Carroll v. Meredith, 59 S.W.3d 484, 491 (Ky. Ct. App. 2001).
The two implied easements at issue here are easements by prior use and easements of necessity. Dux’s complaint specifically sought a declaration that it has an implied easement of necessity over an existing access road on the Morehouse property. And at the summary-judgment stage, Dux argued that it also has an implied easement by prior use. As explained below, the two implied easements are distinct. We find Dux has not shown it has an easement by prior use. And the Morehouses have shown Dux has no easement of necessity as a matter of law.
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The key difference between these two implied easements turns on whether the proposed easement was previously used to access the property. In other words, an easement by prior use presupposes what its name implies—that a preexisting use of property before severance of the parcels must continue to ensure access to what becomes (upon severance) a landlocked parcel. Id. at 192–93. In contrast, an easement of necessity arises upon severing the parcels to ensure access to a landlocked parcel, whether or not the proposed route had previously been used to access the parcel. Logan, 24 N.E. at 137.
Having resolved the threshold question that the two easements are distinct claims, we turn next to whether Dux has either an easement by prior use or one of necessity. We hold that issues of fact remain on whether Dux has an easement by prior use because the parties designated conflicting evidence on whether the private road was in use at the time of severance. And we hold that Dux does not have an easement of necessity as a matter of law because parcel 3 was not legally landlocked when it was severed from parcels 1 and 2.
Based on our cases, we discern two tests for these implied easements. We begin with easements by prior use. For these easements, the owner of the dominant estate must prove that (1) the land was once commonly owned; (2) the common owner imposed a servitude (easement) on part of the land to benefit another part; (3) the servitude was permanent and obvious; (4) the land was eventually severed (meaning the common owner transferred part of the land to another owner); (5) at severance the servitude remained in use; and (6) at severance the servitude was needed to enjoy the dominant estate (the parcel that the easement benefits; in contrast to the servient estate, which is the parcel the easement burdens) in substantially the same condition. John Hancock, 2 N.E. at 191. If the claimant fails to establish any of these elements, the proposed easement by prior use fails.
To justify implying an easement upon land where the deed is silent, the owner of the dominant estate must show more than that the proposed easement is convenient or beneficial to the future use and enjoyment of the land. Id. at 191–92. It must appear both that the servitude is necessary to such future use and enjoyment and that the common owner (before severance) intended by his servitude to adopt a permanent and obvious use. Ibid. This latter showing justifies implying an easement at all despite no express easement in the deed. See generally 11 Ind. L. Encyc. Easements § 8 (2018).
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And we note that the trial court’s finding that the servitude was in use at severance is the Morehouses’ primary basis on appeal for objecting to the judgment below as to the prior-use easement. Notably, the Morehouses do not contest that the access-road servitude across their property is necessary to Dux’s use and enjoyment of parcel 3 in substantially the same condition as before severance. In addition to their primary objection, the Morehouses also argue that Dux waived its claim for a prior-use easement in the trial court. We reject the waiver argument because Dux’s complaint pleaded all facts necessary to state a claim for such an easement, and Dux raised the prior-use easement before the trial court during summary-judgment proceedings. On remand, if the trial court finds that such an easement exists, the court will need to revisit its prior determination that the “right of way shall extend no less than ten (10) feet in each direction from the center line of said unpaved access road.” We find nothing in the record to support the court’s conclusion that the purported easement is at least twenty feet wide.
Next, we consider implied easements of necessity. Unlike prior-use easements, easements of necessity do not require that a way of necessity exist before severance. Indeed, the propriety of such an easement— whether the proposed route is necessary for joining the dominant estate with a public road—is not assessed until severance.
To establish an easement of necessity, the owner of the dominant estate must prove that (1) the servient and dominant properties had a common owner (unity of ownership); (2) the unity of ownership was severed when the common owner conveyed one of the parcels (severance); (3) this severance made an easement necessary for the owner of the dominant estate to access a public road (necessity at severance); and (4) the easement’s necessity remained after severance (continuing necessity). See Dudgeon v. Bronson, 64 N.E. 910, 910 (Ind. 1902); William C. Haak Tr. v. Wilusz, 949 N.E.2d 833, 836 (Ind. Ct. App. 2011).
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The central issue here is the degree of necessity required to establish an easement of necessity. This is an issue of law we review de novo. Town of Ellettsville v. DeSpirito, 111 N.E.3d 987, 990 (Ind. 2018). The parties ask us to choose between reasonable necessity, on one hand, and strict or absolute necessity, on the other. We decline to adopt either and instead focus on the term “necessity” itself. We hold that courts will imply an easement of necessity only when the parcel is legally landlocked. In applying this standard, we find that Dux has no easement of necessity because parcel 3 had access to a public road at the time of severance.
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We find much practical wisdom in these observations. And so, to provide greater clarity to landowners and lower courts that must abide and apply our standard, we ditch adjectives like “reasonable”, “strict”, and “absolute” from our tests of necessity. Instead, we focus on the term “necessity” itself, which means essential or indispensable. Necessity, Merriam-Webster-Online Dictionary, https://perma.cc/6M2Y-M7TD (citing Necessary, Merriam-Webster-Online Dictionary, https://perma.cc/783PRUWD). In other words, an easement of necessity arises if the easement is essential (or indispensable) for the owner of the dominant estate to access a public road. An easy case is where the affected parcel is landlocked— surrounded by other properties—so there is no means of ingress and egress. Logan, 24 N.E. at 136. In such cases, courts will imply an easement of necessity to enable access between the dominant estate and a public road. Id. at 137.
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Courts have used two approaches for dealing with practically landlocked parcels—theoretically accessible to/from a public road, but not practically so. And we note that each approach has its own merits and demerits. Jon W. Bruce, James W. Ely, Jr., & Edward T. Brading, The Law of Easements & Licenses in Land § 4:10 (2023-1 ed.). One approach is to draw a clear line in the sand and hold that the law will imply an easement of necessity only for truly (legally) landlocked parcels—those that are circumscribed by others’ property—but for no other parcels. The other approach is to imply an easement of necessity even for parcels abutting a public road if it would be cost-prohibitive for the owner of the dominant estate to build an alternate route to a portion of its parcel. Because the former better realizes parties’ expressed intent by narrowing when we imply easements, and the latter results in significant costs and discourages the parties’ private, negotiated resolution, we adopt the former.
The approach we adopt today recognizes an implied easement of necessity only when land is legally landlocked with no public road abutting contiguous property. The result may seem harsh (especially to the owner of the isolated parcel), but the upside is that the rule is easy to apply, and it avoids having courts rewrite parties’ written agreements by imposing a term (guaranteeing access) they could have included themselves but did not.
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For these reasons, we reverse the trial court’s judgment granting Dux’s motion for summary judgment on the easement-by-prior-use claim and denying the Morehouses’ motion for partial summary judgment on the easement-of-necessity claim. We also reverse the declaratory judgment establishing an implied easement by prior use over the Morehouse property. And we remand to the trial court with instructions (1) to enter judgment for the Morehouses on Dux’s claim for an implied easement of necessity and (2) to decide whether Dux has an easement by prior use over the Morehouse property.
Rush, C.J., and Massa, Goff, and Molter, JJ., concur.