Luther T. Collins v. Metro Real Estate Services, LLC ( 2017 )

FILED
OPINION ON REHEARING Aug 03 2017, 9:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark D. Johnson Robert R. Thomas
Allen & Johnson, LLC Thomas Law Group, LLC
Salem, Indiana Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Luther T. Collins, August 3, 2017
Appellant-Plaintiff, Court of Appeals Case No.
88A05-1510-PL-1797
v. Appeal from the Washington
Circuit Court
Metro Real Estate Services, The Honorable Larry Medlock,
LLC, Judge
Appellee-Defendant. Trial Court Cause No.
88C01-1401-PL-50
Barnes, Judge.
[1] Luther Collins petitions for rehearing following our decision in Collins v. Metro
Real Estate Services LLC, 72 N.E.3d 1007 (Ind. Ct. App. 2017). In that opinion,
we held that there was neither an easement by grant nor an easement by prior
use in favor of Metro over property owned by Collins. Collins, 72 N.E.3d at
1015-16. However, we did hold that the evidence in the record supported the
conclusion that Metro, as successor in interest to the dominant estate, had an
Court of Appeals of Indiana | Opinion on Rehearing 88A05-1510-PL-1797 | August 3, 2017 Page 1 of 3
easement by necessity over Collins’s servient estate. Id. at 1018. Collins asserts
that the easement by necessity issue is moot because, while this appeal was
pending, Metro sold the property to a third party who now has access to a
public right of way through an adjoining property.
[2] The sale of the property by Metro was repeatedly noted by the parties and by
this court in our original opinion. We denied Collins’s motion to substitute
Metro with the new owner of the property as appellee after Metro objected to
that motion. Subsequently, we issued a rule to show cause requiring Collins to
demonstrate why we should not dismiss the appeal as moot in light of the sale
of the property. Collins requested that the appeal not be dismissed because the
new owner of the property still wanted to use the easement over Collins’s
property.
[3] In our opinion, we specifically noted that we were deciding the case strictly on
the basis of the trial court record before us and said, “we . . . make no
prediction regarding if or how the subsequent conveyance of the dominant
estate affected the easement at issue.” Id. at 1018 n.10. We continue to adhere
to that position. We acknowledge that an easement of necessity may cease to
exist when the necessity out of which the easement arose ceases to exist.
Zakutansky v. Kanzler, 634 N.E.2d 75, 84 (Ind. Ct. App. 1994). On the other
hand, an easement of necessity does not attach itself to a particular owner and
does not automatically expire upon transfer of either the dominant or servient
estate to a new owner. William C. Hakk Trust v. Wilusz, 949 N.E.2d 833, 837
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(Ind. Ct. App. 2011). Thus, Metro’s sale of the dominant estate to a third party
did not automatically render the easement by necessity issue moot.
[4] We agree with Collins’s rehearing petition to the extent that whether an
easement of necessity still exists here is a matter to be litigated on remand
between Collins and the new property owner. We did not foreclose the
possibility of such litigation in our original opinion. With these additional
observations, we reaffirm our original opinion in full and remand to the trial
court for further proceedings.
Kirsch, J., and Robb, J., concur.
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