James Van Ella v. VanHorne Properties, LLC , 2017 Ind. App. LEXIS 311 ( 2017 )

FILED
Jul 27 2017, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
John J. Schwarz, II James O. Waanders
Schwarz Law Office, PC Indianapolis, Indiana
Hudson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Van Ella, July 27, 2017
Appellant-Defendant, Court of Appeals Case No.
76A03-1607-CC-1699
v. Appeal from the Steuben Circuit
Court
VanHorne Properties, LLC, The Honorable Allen N. Wheat,
Appellee-Plaintiff Judge
Trial Court Cause No.
76C01-1507-CC-263
Barnes, Judge.
Case Summary
[1] James VanElla appeals the trial court’s grant of summary judgment in favor of
VanHorne Properties, Inc. (“VanHorne”) and the trial court’s denial of
VanElla’s cross-motion for summary judgment. We affirm.
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Issues
[2] VanElla raises several issues, which we consolidate and restate as whether the
trial court properly granted VanHorne’s motion for summary judgment and
denied VanElla’s cross-motion for summary judgment regarding the use of a
twenty-five-foot easement.
Facts
[3] In August 1950, the plat of Bod’s Beach Subdivision was recorded in the office
of the Steuben County Recorder. The plat consisted of lots 1 through 20 with
Bass Lake on the front side of the lots and a twenty-five-foot roadway easement
along the back side of the lots. The plat provided: “We also dedicate the
Platted easements to the use of lot owners in this subdivision.” Appellant’s
App. Vol. II p. 21. The owner of the subdivision then sold several lots to third
parties.
[4] In 1970, the owners of lots 3 through 14 and 18 through 20 and “tracts of land
lying between lots numbered 7 and 8 and lots numbered 12 and 13” and “the
platted easement lying to the west and contiguous to said described lots and
tracts of land” filed a petition to vacate the lots and the easement. Id. at 30.
The owners of lots 1, 2, 15, 16, and 17 were not parties to the petition. The
petition alleged that “vacating the same is not interfering with the rights of any
other property owners in said plat, and therefore, no other owners are affected
thereby.” Id. The petition also alleged:
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[I]t is the belief of the petitioners that the proposed vacation will
not leave the real estate of any other person without egress [and]
ingress by means of a public street or easement, nor will it cut off
the public’s access to any church, school or other public building
or grounds as a way of necessity to the public nor would said
vacation in the opinion of the petitioners create any great
inconvenience to the public.
Id. at 31. The trial court granted the petition and vacated those portions of
Bod’s Beach and the easement and “all of the public’s right to use and access to
the same.” Id. at 35 (“1970 Order”).
[5] Currently, Golden Eagle Mining and Recovery, Inc. (“Golden Eagle”), which
is a corporation owned and controlled by VanElla, owns lots 4 through 14, 19,
and 20. Katheleen Rodriquez owns lots 1 and 2; Rodney Rodriquez owns lot
15; and Randolph and Mary Fulkerson own lot 3. In January 2015, VanHorne
purchased lots 16, 17, and parts of 18 at a sheriff’s sale. Although VanElla
acknowledges that VanHorne, the Fulkersons, and the Rodriquezes have a right
of ingress and egress over portions of the easement, he has restricted use of the
easement. VanElla constructed a barn that extends twelve feet into the
easement, he parks a dump truck within the easement, he has previously dug
depressions in the road to serve as speed bumps, and he constructed a fence
within the easement. Although the road has large depressions, ruts, and rocks
and is in poor condition, VanElla refuses to allow the road to be maintained or
repaired. The road is currently a sixteen-foot-wide dirt and sand roadway.
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[6] VanHorne filed a complaint against Golden Eagle, VanElla, the Rodriquezes,
and the Fulkersons. VanHorne sought a declaratory judgment regarding the
usage of the easement, an injunction prohibiting the defendants from interfering
with VanHorne’s right to maintain and use the road, an order requiring VanElla
to remove obstructions from the easement and refrain from harming or
impairing the roadway, and damages and attorney fees as a result of VanElla’s
intentional actions.
[7] VanHorne then filed a motion for partial summary judgment. VanHorne
argued: (1) the 1970 Order vacating the easement is void; and (2) the 1970
Order did not terminate the private easements and other contractual rights of lot
owners that purchased their lots in reference to the plat prior to the partial
vacation. The Rodriquezes filed a response agreeing with VanHorne’s motion
for partial summary judgment.
[8] VanElla, Golden Eagle, and the Fulkersons filed a response and cross-motion
for summary judgment. They argued that they were bona fide purchasers for
value “without notice of any fraudulent act regarding [their] property or
outstanding rights of others” and that VanHorne could not prove the 1970
Order was void. Id. at 70. They also argued that VanHorne’s requested relief
was precluded by laches.
[9] After a hearing, the trial court granted VanHorne’s motion for summary
judgment and denied the cross-motion. The trial court issued the following
order:
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B. Issue/Contentions -
1. What effect, if any, did the action of the Steuben
Circuit Court in vacating the requested lots and twenty-
five (25) foot roadway easement adjacent thereto have
on Van Horne’s present right to use the entirety of the
twenty-five (25) foot roadway easement?
2. Van Horne contends it had no effect.
3. Van Ella acknowledges that Van Horne has the right to
travel across the platted twenty-five (25) foot roadway
easement in order to gain access to lots 16 and 17.
However, if and when improvements are to be made to
the twenty-five (25) foot roadway easement will be
determined exclusively by him. Further, he may take
all steps deemed appropriate to control the flow of
traffic across the roadway easement.
C. Conclusions of Law -
1. The Court will first note that it has carefully reviewed
all properly designated evidentiary materials, and
reasonable inferences to be drawn therefrom, in a light
most favorable to the non-moving party.
2. The Petition to Vacate did not seek to vacate those lots
and adjacent roadway easement rights presently owned
by Van Horne.
3. The lots presently owned by Van Horne had been sold
to third-parties prior to the filing of the Petition to
Vacate. These prior owners did not consent to the
vacation of their platted lots and their concomitant
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right to use the twenty-five (25) foot roadway
easement.
4. The Court concludes that once a subdivision has been
platted in accordance with law, along with roadway
easement rights, a subsequent purchaser of a lot in the
subdivision cannot thereafter be divested of the right to
make use of the entirety of the roadway easement as
identified on the subdivision plat at the time of
purchase.
5. The Court concludes that Van Horne, owner of the
dominant estate, has the right to make reasonable and
necessary repairs to the twenty-five (25) foot roadway
easement. The Court concludes that Van Ella, owner of
the servient estate, has the right to make reasonable and
necessary repairs to the twenty-five (25) foot roadway
easement.
6. The Court concludes that neither Van Ella, Fulkerson
nor any other person has the right to take any action
that would unreasonably impede Van Horne’s use of
the entirety of the twenty-five (25) foot roadway
easement for the purpose of gaining ingress and egress
to and from lots 16 and 17.
7. The Court concludes that the law regarding the rights
of a bona fide purchaser for value of real estate as
argued by Van Ella and Fulkerson does not change the
conclusions of this Court as set forth above.
8. The Court concludes that the equitable doctrine of
laches as argued by Van Ella and Fulkerson does not
change the conclusions reached by this Court as set
forth above.
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Appellant’s App. Vol. II. pp. 15-18. The trial court then granted VanHorne’s
motion for summary judgment, denied the cross-motion for summary
judgment, and gave VanHorne “unimpeded use of the entirety of the twenty-
five (25) foot roadway easement for the purpose of having ingress and egress
rights to and from its lots 16 and 17 without interference by the fee simple title
owner(s) of the twenty-five (25) foot roadway easement.” Id. at 18. The trial
court also gave VanHorne “the right to make reasonable and necessary repairs
to the twenty-five (25) foot roadway easement to assure safe passage to and
from its lots 16 and 17” but clarified that the repairs “cannot in any manner
interfere (except when repairs, if any, are being made) with the lawful rights of
any other person to make use of the entirety of the twenty-five (25) foot
roadway easement or alter in any manner its original configuration.” Id. at 18-
19. VanHorne filed a motion to make the partial summary judgment a final
judgment, which the trial court granted. VanElla, Golden Eagle, and the
Fulkersons filed a motion to correct error and motion for a site visit. After a
hearing, the trial court denied the motion to correct error. VanElla now
appeals.1
Analysis
[10] VanElla challenges the trial court’s grant of summary judgment to VanHorne.
Summary judgment is appropriate only when the moving party shows there are
1
Golden Eagle and the Fulkersons have not appeared in this appeal or filed briefs.
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no genuine issues of material fact for trial and the moving party is entitled to
judgment as a matter of law. Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind.
2013); see also Ind. Trial Rule 56(C). Once that showing is made, the burden
shifts to the non-moving party to rebut. Schoettmer, 992 N.E.2d at 705-06.
When ruling on the motion, the trial court construes all evidence and resolves
all doubts in favor of the non-moving party. Id. at 706. We review the trial
court’s grant of summary judgment de novo, and we take “care to ensure that
no party is denied his day in court.” Id.
[11] VanElla argues that summary judgment was improper. According to VanElla,
the 1970 Order was valid and not subject to challenge by VanHorne, the
injunction should be dismissed because VanElla is the rightful owner of the
property and VanHorne has ingress and egress, and laches and acquiescence bar
VanHorne’s action. VanElla concedes that VanHorne has a right of ingress and
egress, but he also claims that the easement was vacated. The trial court,
however, concluded that summary judgment was proper because the 1970
Order could not divest the lot owners that did not participate in the action or
consent to the vacation of the easement of their rights to the easement. We
agree.
[12] In support of its argument VanHorne relies in part on Bob Layne Contractor, Inc.
v. Buennagel, 158 Ind. App. 43, 301 N.E.2d 671 (1973). There, a developer had
a subdivision with restrictive covenants platted and sold some of the lots. Later,
the developer sought to vacate part of the plat to do commercial development
on that area. The developer filed a petition to vacate part of the plat, but it did
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not name the lot owners or give them personal notice of the petition. Further,
“[n]o attempt was made subsequent to the filing of the Vacation Suit to seek an
agreement by a majority of the lot owners to nullify the restrictions as provided
in the covenants.” Bob Layne Contractor, 158 Ind. App. at 47, 301 N.E.2d at
675. The trial court granted the petition to vacate, and the lot owners filed a
complaint to enjoin the developer from violating the restrictive covenants. The
trial court granted an injunction prohibiting the developer from violating the
restrictive covenants, “finding that the restrictive covenants ran with the land,
that they were not dissolved by [the developer’s] suit to vacate the [property],
and that they could be dissolved only by an agreement of the majority of the
owners or by legal action with notice to each owner.” Id. at 48, 301 N.E.2d at
675.
[13] On appeal, we held that the “statutory vacation alone does not effect [sic]
restrictive covenants incorporated in the plat and running with the land.” Id. at
53, 301 N.E.2d at 678. We recognized the “devastating effect of allowing one
party to a restrictive covenant to unilaterally dissolve that covenant.” Id. at 54,
301 N.E.2d at 678. “Vested contract rights in land may not be abrogated by
statutory proceedings designed to serve a specific limited purpose. Equity
would shudder were it otherwise.” Id., 301 N.E.2d at 678-79. Consequently,
the vacation suit by itself did not and could not operate to dissolve the
restrictive covenants.
[14] We reached a similar result in McIntyre v. Baker, 660 N.E.2d 348, 351 (Ind. Ct.
App. 1996), where we held: “An owner of lots within a plat cannot modify
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restrictions on the plat without the consent of all of the owners of all of the lots
in the plat.” We concluded that, because all of the owners of the land subject to
the restrictive covenant did not consent to its removal, the restrictive covenant
was not removed by merely replatting some of the lots. Id.[15] Similarly, we held in Adult Grp. Properties, Ltd. v. Imler, 505 N.E.2d 459, 464
(Ind. Ct. App. 1987), trans. denied, that “[a] restrictive covenant creates a
property right in each grantee and subsequent grantees.” When the first lot of
the subdivision was sold, the restrictive covenants became binding. The
restrictive covenants could not later “be modified or extinguished without the
consent of all the lot owners in the subdivision.” Adult Grp. Properties, 505
N.E.2d at 464.
[16] The easement here is not a restrictive covenant, but the concept is the same.
Our courts have held that “[a] right of way over land is an interest therein, and,
whether such right be acquired by adverse use or by express or implied grant, it
cannot be extinguished except in a mode recognized by law.” Thomas v. McCoy,
48 Ind. App. 403, 96 N.E. 14, 15 (1911) (internal citation omitted). Once the
easement that benefited each of the lot owners was platted, individual lot
owners could not destroy the easement by vacating the easement associated
with their lots. The easement could not be vacated without the consent of all
the lot owners or a proper legal action. There is no evidence that the prior
owners of VanHorne’s lots consented to the vacation of the easement or were
even served with notice of the petition to vacate the easement, which is used for
ingress and egress to the lots. Consequently, the 1970 Order did not affect the
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easement, and VanHorne still has the right to use the twenty-five-foot platted
easement.2
[17] Finally, we note:
The owner of an easement, known as the dominant estate,
possesses all rights necessarily incident to the enjoyment of the
easement. Panhandle E. Pipe Line Co., v. Tishner, 699 N.E.2d 731,
739 (Ind. Ct. App. 1998). The dominant estate holder may make
repairs, improvements, or alterations that are reasonably
necessary to make the grant of the easement effectual. Id. The
owner of the property over which the easement passes, known as
the servient estate, may use his property in any manner and for
any purpose consistent with the enjoyment of the easement, and
the dominant estate cannot interfere with the use. Id. “All rights
necessarily incident to the enjoyment of the easement are
possessed by the owner of the dominant estate, and it is the duty
of the servient owner to permit the dominant owner to enjoy his
easement without interference.” Id. The servient owner “may
not so use his land as to obstruct the easement or interfere with
the enjoyment thereof by the owner of the dominant estate.” Id.Moreover, the owner of the dominant estate cannot subject the
servient estate to extra burdens, any more than the holder of the
servient estate can materially impair or unreasonably interfere
with the use of the easement. Klotz v. Horn, 558 N.E.2d 1096,
1100 (Ind. 1990).
2
Because we conclude that the 1970 Order did not affect the easement, we need not address VanElla’s
arguments that the vacation proceeding complied with statutory requirements, that the statute of limitations
on challenging the order has run, that VanElla was a bona fide purchaser for value, that VanHorne
acquiesced to the condition of the roadway by purchasing the property, or that laches applies.
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McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. Ct. App. 2010), trans. denied. As
the dominant estate holder, VanHorne may make repairs, improvements, or
alterations that are reasonably necessary to make the grant of the easement
effectual. Further, the servient owner, VanElla, may not obstruct the easement
or interfere with VanHorne’s use of the easement. The trial court properly
granted VanHorne’s motion for summary judgment and properly denied
VanElla’s cross-motion for summary judgment.
Conclusion
[18] The trial court properly granted VanHorne’s motion for summary judgment and
properly denied VanElla’s cross-motion for summary judgment. We affirm.
[19] Affirmed.
Baker, J., and Crone, J., concur.
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