Hartig v. Stratman , 2000 Ind. App. LEXIS 813 ( 2000 )

ROBB, Judge,

concurring

I concur in the majority’s resolution of the issue of the driveway easement agreement. As to the issue of the trespass claim, I agree that if the Stratmans are claiming that Hartig trespassed on their property in blocking off the driveway, their claim survives. If, however, they are claiming that Hartig blocked off only that part of the driveway which is on his property but over which the Stratmans claimed an easement, I believe our resolution of the easement issue also resolves the trespass issue in Hartig’s favor.

The driveway at issue lies partially on the Stratmans property and partially on Hartig’s property. The Stratmans complaint, in two counts, alleged that there was an easement agreement allowing both property owners use of the entire driveway, and also that Hartig “blocked a driveway which had been used in common ..., part of which is on [the Stratmans’] real estate, and converted the same for his own exclusive use.... ” R. 15. I do not believe the record is clear regarding whether the Stratmans claim that Hartig blocked only that part of the driveway which is on his own property or also blocked off that part which is on their property. If they claim that Hartig blocked off that part of the driveway over which they claimed an easement, and as we have already determined that Hartig is entitled to summary judgment on the issue of the driveway easement agreement because the agreement was recorded outside his chain of title, then Hartig should also be entitled to summary judgment on the trespass issue, because he cannot be said to have trespassed on land which is solely and exclusively his. On the other hand, if they claim that Hartig blocked off the entire driveway, including that part of the driveway which is on their property, then their claim should be allowed to proceed.

As such, I concur in result with the majority’s holding that there remain issues to be resolved in the trial court regarding the trespass claim. In all other respects, I concur with the majority.