Hickerson v. Bender

George and Lucille Fagan owned a parcel of land known as Lot 20 in the H.R. White First Subdivision of Gull Lake Shores. In 1955, the Fagans conveyed a portion of their property known as the Ruth Lake parcel to Anna Marie and Roy Becker. The Fagans also granted the Beckers an easement over the eastern part of Lot 20 for the purpose of ingress and egress to Gull Lake. In 1961, Kenneth and Ruth Swisher acquired the Ruth Lake parcel. In 1990, the Swishers’ heirs conveyed the parcel to the Hickersons (plaintiffs). In 1958, the Fagans conveyed Lot 20 to Edgar and Virginia E. Bender (defendants). The deed of conveyance for Lot 20 did not reference the easement. Between 1958 and 1962, the Benders erected a home and garage and made other improvements on Lot 20. These improvements materially blocked access to the easement. The Hickersons brought suit, seeking a declaration that the easement was enforceable and that the Benders should no longer interfere with the Hickersons’ use of the easement. At trial, Bender and a few neighbors testified that they had never seen anyone use the easement since the Benders acquired Lot 20 in 1959. Several other witnesses, however, including the Swishers and Jack Hickerson, testified that the easement had been used on several occasions during the Swishers’ and the Hickersons’ ownership of the Gull Lake parcel. The trial court ruled that the easement had been extinguished by abandonment and adverse possession before Hickerson acquired the Gull Lake parcel.