concurring in part and dissenting in part.
I concur as to Issues II, III, IV and V. However, I respectfully dissent from the result reached in Issue I.
The majority supports its resolution of Issue I by concluding the trial court could, in-its equitable discretion, declare that the prescriptive easement in this case was in reality a general, unlimited easement. I disagree for several reasons. First, the trial court's judgment decided an issue not litigated by the parties. The Aligs sued the Sizemores seeking (1) to enjoin the Sizemores from interfering with their use of the easement established in 1984 and (2) to define by metes and bounds the right-of-way over Old Highway 52. The Sizemores counterclaimed (1) to enjoin the Aligs from any use of the easement not directly resulting from the Aligs' social activities and (2) to define the term "social activities" as set forth in the 1984 judgment. The pleadings do not purport to litigate a change in the use adjudicated in the 1984 proceeding, nor do they request that the court expand the use originally granted to the Aligs.
Second, the record does not show that the issue of expanded use of the easement was tried by the express or implied consent of the parties so that the pleadings were properly amended to conform to such evidence. See Ind.Trial Rule 15(B). Implied consent to litigation of an unpled claim or defense may not be deduced merely because there is evidence which inferentially suggests a claim or defense not within the pleadings. Apple v. Kile (1983), Ind.App., 457 N.E.2d 254, 256-57, trans. denied. The new issue must be unequivocally clear from the evidence presented at trial. Id. at 256.
Neither the Aligs nor the Sizemores clearly raised the issue of whether the Aligs' easement may be extended for other uses in either their opening statements or at trial through the presentation of evidence on that issue. This issue was not tried by express or implied consent of the parties. See Orr v. Sonmenburg (1989), Ind.App., 542 N.E.2d 201, 204 (issue tried by implied consent when opening statement indicated unpled issue would be center of case); Indiana Stream Pollution Control Bd. v. Tippecanoe Sanitory Landfill, Inc. (1987), Ind.App., 511 N.E.2d 473, 476, trans. denied (unpled issue raised in opening statement and evidence presented at some length on issue). From my review of the record, I cannot say the Aligs acquiesced in the introduction of testimony concerning the unlimited, general use of the easement because evidence was not presented in support of that theory. See Indiana Stream, 511 N.E.2d at 476. Accordingly, the trial court erred when it decided an issue neither raised by the pleadings nor tried by implied consent.
My third and final reason for dissenting on Issue I is that even had the parties impliedly consented to a reconsideration of the extent of the easement's permissible uses, the evidence could not, as a matter of law, support the trial court's judgment. Once an easement is created, it is limited to the purpose for which it was created and cannot be extended by implication. Bauer v. Harris *460(1993), Ind.App., 617 N.E.2d 923, 931. Thus, the only way in which the Aligs' easement could be extended was to establish that since 1984, they had openly, notoriously and continuously used the easement for general purposes, without interruption and under a claim of right, for a period of at least twenty years. See I.C. § 832-5-1-1. The Aligs filed their complaint in 1992, only eight years after the court had determined their easement rights. Accordingly, the judgment on this issue is clearly erroneous because the evidence was insufficient as a matter of law to disturb the 1984 judgment only eight years after it was entered. See id.
This court should not disturb a trial court's exercise of its equitable discretion where the facts and cireumstances support equitable relief. However, in this case I do not believe that the trial court's judgment on this issue can be justified by deference to the court's broad equitable powers.1 Thus, I conclude that the trial court erred when it extended the Aligs' easement for general, unlimited use. I would reverse and remand as to Issue I.
. I also question whether the trial court has any equitable discretion to extend an easement's uses after the extent of the use had been previously litigated less than 20 years ago. A prescriptive easement is a statutory remedy which arises by operation of law, not pursuant to the court's equitable powers. See IND.CODE § 32-5-1-1; Bauer, 617 N.E.2d at 931.