Michael O. Cain and Linda A. Raymond v. William J. Huff, II, Revocable Trust Declaration, Dated June 28, 2011, and Nicole E. Huff Revocable Trust Declaration, Dated June 28, 2011

FILED
May 29 2020, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Michael L. Carmin Sean M. Clapp
Daniel M. Cyr Sean T. White
CarminParker, P.C. Clapp Ferrucci
Bloomington, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael O. Cain and May 29, 2020
Linda A. Raymond, Court of Appeals Case No.
Appellants-Plaintiffs, 19A-PL-2176
Appeal from the Monroe Circuit
v. Court
The Honorable Holly M. Harvey,
William J. Huff, II, Revocable Judge
Trust Declaration, Dated June Trial Court Cause No.
28, 2011, and Nicole E. Huff 53C06-1804-PL-755
Revocable Trust Declaration,
Dated June 28, 2011,
Appellees-Defendants
Baker, Judge.
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 1 of 22
[1] This case has been here before. Michael Cain and Linda Raymond
(collectively, Cain) are homeowners in The Shores subdivision in Monroe
County. William and Nicole Huff (the Huffs) own over 200 acres adjacent to
The Shores. The Huffs have an easement to use a roadway in The Shores to
access their real estate. Cain sought to enjoin the Huffs from their use of the
easement to conduct logging activities on their real estate. The trial court
granted a preliminary injunction, which this Court vacated as overbroad. On
remand, Cain renewed his prior motion and filed a new one addressing a
different portion of the Huffs’ real estate. This time, the trial court denied the
requests for preliminary injunction. We affirm.
Facts
[2] In March 1990, Kenton Robinson granted an easement (the Grant of Easement)
to Terre Haute Real Estate Corporation (THR), the then-owner of property
adjacent to Robinson’s property. Subsequently, Robinson conveyed his real
estate, which became The Shores, a residential subdivision. Cain is the current
owner of Lot 9 in The Shores. The Huffs are the current owners of the real
estate adjacent to the Shores (the Huff Real Estate), including the former
property owned by THR (the THR Property), and are the successors in interest
to the Grant of Easement.
[3] The Grant of Easement contains multiple easements. Relevant here are
easements allowing the Huffs to use Shady Side Drive, the principal road
serving The Shores, and a fifty-foot wide section over Lot 1 and part of the
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Common Nature Preserve in The Shores, which connected The Shores to a part
of the Huff Real Estate. The Huffs’ use of the easements was limited to
construction, development, and use of single-family residences that would be
built on the Huff Real Estate.
[4] The Huff Real Estate totals over 200 acres, including the THR Property and
approximately 44 acres that they acquired from Chumley, LLC (the Chumley
Parcel). The only way to access the THR Property is via the easements in The
Shores. The only way to access the Chumley Parcel (by land) is via the THR
Property.
[5] The subsequent events, as described by this Court in the first appeal involving
this litigation, are as follows:
The Huff Real Estate is heavily wooded and hilly land, and
access by land to the Huff Real Estate is via the three access
easements. After the Huffs acquired their land, they . . .
developed a Stewardship Plan specifically for the Huff Real
Estate, which was finalized in July of 2017. . . . The Stewardship
Plan included certain well-delineated goals for the Huff Real
Estate, including to improve the stand of trees, improve the
wildlife habitat, control exotic and invasive species, provide an
enjoyable place to recreate, selectively harvest trees throughout
the woods in the future, develop four home sites, provide better
access throughout the property, and develop fire trails.
***
In December 2017, the Huffs entered into a contract with Tri-
State Timber (“Tri-State”) to cut and remove trees from the Huff
Real Estate. The Huffs were to receive a percentage of the
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 3 of 22
proceeds from the sale of the removed trees. . . . Around April
10, 2018, Tri-State began harvesting the timber on the Huff Real
Estate, and Tri-State expected the work to be finished in
approximately ten weeks, weather permitting. As part of its
logging activities, Tri-State drove large commercial logging
trucks and equipment over Easement No. 1, Shady Side Drive,
which is a hilly and curvy two-lane road with no sidewalks or
shoulders.
On April 18, 2018, Cain filed his complaint for declaratory
judgment and injunctive relief. In the complaint, Cain requested
declaratory judgment to determine the rights granted to the Huffs
by the Grant of Easement and for a declaration that the
easements do not authorize ingress and egress for commercial
logging activity on the Huff Real Estate. Cain also requested a
permanent injunction against the Huffs, enjoining use of the
easements for commercial logging activities or any purpose other
than specifically authorized by the general conditions in the
Grant of Easement. . . .
On May 3, 2018, a hearing was held on the issue of a preliminary
injunction. At the hearing, Cain presented evidence that he is a
member of The Shores Homeowners’ Association and owned
property in The Shores. Cain testified that he objected to the
Huffs’ use of the easements to remove logs from the Huff Real
Estate for commercial sale even if for the development of single-
family homes. Cain further testified, “I feel like these logging
trucks and this machinery are trespassing across the easements
because they don't have permission to be there.” Cain also
presented evidence that the use of logging trucks on the
easements is an annoyance and inconvenience to him, although
he only lives in his home in The Shores approximately four
months out of the year. Cain testified that he had safety concerns
regarding the logging trucks using the easements and introduced
a picture of a neighbor standing behind a mailbox as a logging
truck passed, but Cain did not have any knowledge of any
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 4 of 22
accidents occurring on Shade [sic] Side Drive in the years since
he has owned his property.
***
At the hearing, William J. Huff (“William”) testified that,
although he was clearing trees from the Huff Real Estate, he was
not in the process of building homes on the land; instead, he was
“preparing for the future use of [the] land.” The evidence
presented at the hearing included William’s statement that the
logging activity on the Huff Real Estate at the time the complaint
was filed was to remove trees in accordance with the Stewardship
Plan. In discussing what is necessary for future development, the
Huffs presented testimony from a civil engineer that the
“standard first step in a development project is clearing” the
land. After reviewing the relevant portions of the Grant of
Easement, the civil engineer testified that the development and
use of the Huff Real Estate would include “clearing and grading,
establishment of building sites for these buildings,” the extension
of utility lines, and building of homes and garages. The engineer
further testified that, as part of this process, any valuable timber
that is removed during the clearing could be sold to help offset
costs.
William testified that he understood that the process of
harvesting the timber would only continue for a period of about
eight weeks, depending on weather, and that harvesting would
not need to be done again for approximately ten years. Evidence
was presented that, once the timber was harvested, a ten to
fifteen-year rotation was expected before harvesting needed to
occur again but was dependent on the growth rate of the timber
and the presence of diseases or other outside forces.
The Huffs presented evidence that their contract for selective
harvesting with Tri-State was worth approximately $500,000, but
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 5 of 22
they did not show what percentage of that value they were to
receive from Tri-State. The Huffs also maintained that they
would incur penalties and fees associated with the cessation of
work under their contract with Tri-State and that timber worth
$20,000 had already been cut on their land and would spoil if not
removed.
On May 8, 2018, the trial court entered its order granting Cain
relief and prohibiting the Huffs from using the easements for
anything other than the construction, development, and use of
single-family structures. The trial court specifically ordered that
the Huffs were enjoined from “using the [easements] through
The Shores . . . for access to [the Huff Real Estate] except for the
construction, development and use by [the Huffs] of single-family
residential structures, which may include guest and caretaker
quarters and other buildings attendant thereto.” The trial court
further enjoined the Huffs from “use of the [easements] described
in the Grant of Easement, which encumber [the Huff Real
Estate,] for commercial logging or for hauling logs or trees, or
forestry activity.”
William J. Huff, II Revocable Tr. Declaration, Dated June 28, 2011 v. Cain [Huff I],
120 N.E.3d 1029, 1031-35 (Ind. Ct. App. 2019) (internal citations
omitted), reh’g denied, trans. denied. This Court noted that while the language in
the first paragraph of the trial court’s order closely mirrored the language of the
original Grant of Easement, the language in the second paragraph, which
enjoined the Huffs from using the easements for commercial logging, hauling
logs or trees, or any forestry activity, impermissibly encroached on the Huffs’
“ability to exercise their rights on their property.” Id. at 1037. Specifically, this
Court found and ordered as follows:
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 6 of 22
Under the language in the Grant of Easement, the Huffs’ use of
the easements was limited to the construction, development, and
use by the Huffs and their grantees and assigns of six single-
family residential structures. The evidence presented established
that the Huff Real Estate is comprised of approximately 240 acres
adjacent to The Shores, which consists of heavily wooded and
hilly land with the only access by land being the three access
easements granted in the Grant of Easement. In order for
reasonable development or use of the Huff Real Estate, it is clear
that some prudent logging and removal of trees will be necessary
and that the hauling and removal of trees would be essential in
developing the Huff Real Estate as contemplated in the Grant of
Easement. We, therefore, conclude that the preliminary
injunction ordered by the trial court was overbroad as it enjoined
the Huffs from activities on the Huff Real Estate that would be
necessary to develop the property and effectively prohibits them
from accomplishing what is explicitly granted in the Grant of
Easement. Based on this, we vacate the trial court’s order
granting the preliminary injunction.
. . . Prudent logging of the Huff Real Estate is essential for the
reasonable use and development of the property, and as the Huff
Real Estate is landlocked, the easements will need to be used to
facilitate this prudent logging. Some sort of middle ground
should be sought between the parties to accomplish this end, and
this court urges the trial court to consider on remand whether the
covenants on which a middle ground cannot be found are
contrary to law and should be vacated.
Id. at 1037-38. Sometime in March 2019, the Huffs began logging activities on
the Chumley Parcel, using the easements to access that real estate.
[6] On May 3, 2019, Cain filed a second motion for a preliminary injunction (the
Chumley Motion). In that motion, Cain stated that subsequent to the earlier
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 7 of 22
proceedings in the litigation, the Huffs “have extended their activities and are
now engaged in commercial logging and other activities on real estate adjacent
to the real estate owned by [the Huffs], but real estate which is not described in
and is not benefited by the Grant of Easements.”1 Appellants’ App. Vol. II p.
94. On May 13, 2019, this Court denied Cain’s petition for rehearing.
[7] On May 21, 2019, Cain filed a motion to issue preliminary injunction (Motion
to Reissue), asking that the trial court reissue its original preliminary injunction
order subject to the limitations described in this Court’s opinion. In other
words, Cain sought a narrowed preliminary injunction that excluded the
overbroad language of the second paragraph of the original order but included
the first paragraph as well as the trial court’s findings. Cain also included the
allegation he raised in the May 3, 2019, motion that the Huffs had extended
their logging activities to the Chumley Parcel, which is not benefited by the
Grant of Easement.
[8] On June 11, 2019, Cain filed a petition to transfer to our Supreme Court. On
June 12, 2019, the trial court held a hearing on Cain’s two pending motions. At
the outset of the hearing, the Huffs moved to dismiss because they argued that
the real estate referenced in Cain’s new motions—the Chumley Parcel—was
not included in the original complaint. The Huffs did not argue that the trial
court lacked jurisdiction based on the pending petition to transfer or the fact
1
Although not explicitly named in Cain’s motion, the real estate at issue is the Chumley Parcel.
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 8 of 22
that this Court’s opinion was not yet certified. The trial court took the motion
under advisement and held the hearing as planned.
[9] On August 19, 2019, the trial court issued an order denying both of Cain’s
motions. In pertinent part, it found and concluded as follows:
1. [Procedural] Posture
***
There is no separate treatment of the two paragraphs of the trial
court’s Order as [Cain] suggest[s]. The Court of Appeals vacated
the entire order granting the preliminary injunction.
***
2. Law of the Case
[Cain] request[s] this Court to rely upon the findings of fact
determined by the trial court in the May 7, 2018 Order, arguing
that the appellate court did not specifically reverse or find
erroneous any of the trial court’s findings. Arguably, the
Opinion does not explicitly find error in certain findings . . . .
However, as noted above, the Court of Appeals vacated the
judgment entirely. . . . Therefore, this Court is not bound by the
findings of the trial court in the May 7, 2018 order, and the
parties are returned to the legal positions they occupied prior to
the May 7, 2018 Order.
In the original Complaint, again [Cain] assert[s] that
“commercial logging activities” by [the Huffs] on the [] Huff Real
Estate breached the conditions set out in the Grant of Easement
and cause[d] damage to the easement area. . . . In the second
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 9 of 22
Motion for Preliminary Injunction, [Cain] do[es] not assert new
facts or new harm. . . . The primary difference in the two
hearings related to the work conducted on the Chumley Parcels[2]
between March 11, 2019 and the June 12, 2019 hearing, which is
substantially similar to the activity at issue in the first hearing on
the first motion for injunctive relief.
Under the law of the case doctrine, the appellate court’s
determination of a legal issue is binding upon the trial court on
remand and on the appellate court on a subsequent appeal, given
the case with substantially the same facts. . . . The Court of
Appeals has already determined that such a restriction on logging
activities as requested by [Cain] is contrary to law and that
reasonable “development” of the land owned by [the Huffs]
includes prudent logging and hauling of timber. For this reason,
the Court denies [Cain’s] second Motion for Preliminary
Injunction.
3. Chumley Property, Motions to Dismiss and Instructions
on Remand
The Court finds additional basis for denying [Cain’s] Motion.
The evidence presented at the hearing on June 12, 2019 focused
both on the prior evidence, as well as evidence concerning the
activities which followed the issuance of the Court of Appeals
opinion, during which there was no effective preliminary
injunction, on the “Chumley Parcels”. As the Court has
determined, and as the documents filed in support of [Cain’s]
Complaint show, [the Complaint does not] include[] the
Chumley Parcels as subject of the claims against the [Huffs].
2
The “Chumley Parcels” referred to by the trial court is the same real estate referred to by this Court in the
singular.
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 10 of 22
***
This Court recognizes that the Court of Appeals . . . generally
describes the Huff Real Estate as including the Chumley Parcels.
This Court finds that this general inclusion of the Chumley
Parcels is not a re-writing or interpretation of the specific Grant
of Easement as it is legally defined. Rather, it is a statement of
the current circumstances and a conclusion that the [Huffs’]
ability to develop their real estate as “contemplated by the Grant
of Easement” requires consideration of the Chumley Parcels as
well as the [THR] parcels specifically included in the Grant of
Easement.
4. General trespass as basis for injunction
. . . [Cain’s] argument at the hearing . . . focuses . . . on the
[Huffs’] use of the Access Easements to access the Chumley
[Parcels] in general. As the Court has found above, [Cain has]
not identified the Chumley [Parcels] in the Complaint, and the
Complaint has not been amended. [Cain] seem[s] to argue . . .
that the basis for the injunction is not the Grant of Easement at
all, but a simple entry on The Shores property by [the Huffs] to
get to the Chumley property. Because [Cain has] not amended
[his] Complaint to include the Chumley property as a basis for a
claim for trespass, the Court denies the Motion for Preliminary
Injunction on that basis.
5. Instructions on Remand
The Court of Appeals . . . strongly recommended that this Court
order the parties to mediation to attempt resolution. The Court
finds that the recommendation is consistent with this Court’s
practice of encouraging litigants to resolve disputes without
protracted litigation. In addition, because it is clear that the
addition of the Chumley Parcels complicates the application of
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the conditions of the Access Easements, the Court finds that the
parties should attempt reformation of the easements. In the
event that mediation is unsuccessful, both parties may proceed
with presenting their claims to the trial court for resolution.
Appealed Order p. 1-6. This Court’s opinion was certified on August 27, 2019.
Cain now appeals.
Discussion and Decision
[10] We summarize and restate Cain’s arguments on appeal as follows: (1) the trial
court should have issued a modified version of the first preliminary injunction
based on the law of the case doctrine and this Court’s first opinion; and (2) the
trial court should have issued a new preliminary injunction related to the
Chumley Parcel.3
I. Law of the Case
[11] The parties each address the law of the case doctrine. Cain argues that law of
the case means that the trial court was bound by the portions of its first
preliminary injunction order that this Court did not find problematic—
essentially, everything except for the second paragraph of the order that this
Court found overbroad. The Huffs, in turn, argue that law of the case requires
3
The Huffs argue that the trial court did not have jurisdiction to consider any of these arguments because this
Court’s opinion was not yet certified when the trial court considered the motions and issued its order. We
decline to consider this argument because the Huffs did not raise it to the trial court. See Georgetown Bd. of
Zoning Appeals v. Keele, 743 N.E.2d 301, 303 (Ind. Ct. App. 2001) (holding that a “party waives the issue of
jurisdiction over a specific case by not raising that issue in a timely manner”).
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 12 of 22
the same outcome for the Chumley Parcel as this Court implemented for the
other portions of the Huff Real Estate.
[12] Under the law of the case doctrine, an appellate court’s determination of a legal
issue is binding on the trial court on remand and the appellate court on a
subsequent appeal, given the same case with substantially the same facts. Ind.
Farm Gas Prod. Co. v. S. Ind. Gas & Elec. Co., 662 N.E.2d 977, 981 (Ind. Ct. App.
1996). All issues decided directly or implicitly in a prior decision are binding
on all subsequent portions of the case. Id.
[13] There was one issue that was squarely decided by this Court in its first opinion.
Specifically, we found that the portion of the trial court’s order that enjoined the
Huffs from using the easements for commercial logging, hauling logs or trees,
or any forestry activity impermissibly encroached on the Huffs’ “ability to
exercise their rights on their property.” Huff I, 120 N.E.3d at 1037. That
holding was clearly binding on the trial court on remand and is also binding on
this Court on appeal.
[14] The Huff I Court did not reach an explicit conclusion with respect to the rest of
the first preliminary injunction order. It did, however, state that “[p]rudent
logging of the Huff Real Estate[4] is essential for the reasonable use and
development of the property, and as the Huff Real Estate is landlocked, the
4
Significantly, the Huff I Court included the Chumley Parcel in its “Huff Real Estate” label. Id. at 1037
(noting that the Huff Real Estate is comprised of approximately 240 acres adjacent to The Shores).
Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020 Page 13 of 22
easements will need to be used to facilitate this prudent logging.” Id. at 1038.
It then vacated the entire order and remanded to the trial court without
instructions, aside from its finding that the second paragraph of the order was
overbroad.
[15] When this Court vacated the entirety of the order and remanded, it returned the
parties to the position that they occupied before the judgment was pronounced.
Eden United, Inc. v. Short, 653 N.E.2d 126, 134 (Ind. Ct. App. 1995). Nothing in
the analysis or holding of Huff I indicates that on remand, the trial court was
bound by any part of its original order. Instead, the parties and the trial court
were returned to the positions they held before the order was entered, with the
proviso that the portion of the order found to be overbroad could not be
included. Therefore, Cain is incorrect that the trial court was somehow
required to make the same findings or reach the same result when considering it
anew.
[16] With respect to the portion of the Huff Real Estate that does not include the
Chumley Parcel, the trial court was bound by this Court’s determinations that
“some prudent logging and removal of trees will be necessary” and that “the
hauling and removal of trees” is “essential” to develop the Huff Real Estate as
contemplated in the Grant of Easement. Huff I, 120 N.E.3d at 1037. Therefore,
to the extent that Cain’s Motion to Reissue requests that logging and hauling
and removal of trees from the Huff Real Estate be enjoined, the trial court was
correct to deny it based on Huff I.
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[17] With respect to the Chumley Parcel, however, we do not believe that Huff I
mandates a resolution one way or another. While the Huff I Court included the
Chumley Parcel in its definition of the Huff Real Estate, the Court did not
squarely consider the Huffs’ use of the easements for the Chumley Parcel,
which is not directly benefited by the Grant of Easement.5 Consequently, the
law of the case doctrine did not offer guidance to the trial court as it considered
Cain’s Chumley Motion.6
II. The Chumley Motion
[18] Next, we must consider whether the trial court erred by denying the Chumley
Motion. The parties spend a great deal of time arguing about whether the
Chumley Parcel is sufficiently included in Cain’s complaint to be included in
the litigation. We will assume for argument’s sake that it was, given our
predilection for judicial efficiency and addressing issues on the merits when
possible. We also note that Cain has since amended the complaint to clearly
include the Chumley Parcel; therefore, going forward, it is clear to all parties
that it is included.
5
The reason, of course, that the Huff I Court did not explicitly conduct this analysis is because the Huffs did
not begin logging activities on the Chumley Parcel until after Huff I was decided.
6
Cain does not offer much in the way of argument regarding the Reissue Motion aside from the law of the
case doctrine. Much of the analysis below regarding the Chumley Motion is equally applicable to the
Reissue Motion. Consequently, for many of those same reasons, the trial court did not err by denying the
Reissue Motion.
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[19] The grant or denial of a preliminary injunction is within the trial court’s sound
discretion. Reilly v. Daly, 666 N.E.2d 439, 443 (Ind. Ct. App. 1996). In
conducting our review, we will consider the evidence in the light most favorable
to the judgment and will construe the findings together liberally in favor of the
judgment. Barlow v. Sipes, 744 N.E.2d 1, 5 (Ind. Ct. App. 2001).
[20] The party seeking injunctive relief is required to show, by a preponderance of
the evidence, that the facts and circumstances entitle him to injunctive relief.
Id. There are four factors to consider when weighing a preliminary injunction:
1) whether the plaintiff’s remedies at law are inadequate, thus
causing irreparable harm pending the resolution of the
substantive action if the injunction does not issue; 2) whether the
plaintiff has demonstrated at least a reasonable likelihood of
success at trial by establishing a prima facie case; 3) whether the
threatened injury to the plaintiff outweighs the threatened harm
the grant of the injunction may inflict on the defendant; and 4)
whether, by the grant of the preliminary injunction, the public
interest would be disserved.
Id. Injunctive relief should only be granted in the rare instances in which the
law and the facts are clearly within the moving party’s favor. Id.
A. Adequate Remedy at Law
[21] It is well established that a purely economic, calculable, or money damages
harm is not irreparable. Barlow, 744 N.E.2d at 6. Cain admitted that any
damage done to the road as a result of the Huffs’ activity could be fixed. The
Huffs offered to issue a $50,000 bond for any damage done to the road.
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Additionally, evidence was presented that at the time of the hearing, there had
been very minimal cracking and ordinary wear and tear to the road, all of
which is readily reparable. The Huffs have agreed on multiple occasions to fix
any damage done to the road after the timber harvesting is completed.
Consequently, it is clear that any potential damage is readily calculable and
compensable.
[22] Cain essentially concedes that point and argues, instead, that when the action
seeking to be enjoined is unlawful, the plaintiff need not make a showing of
irreparable harm. Ferrell v. Dunescape Beach Club Condos. Phase I, Inc., 751
N.E.2d 702, 713 (Ind. Ct. App. 2001). He maintains that the Huffs’ use of the
easement amounts to an illegal trespass and, as such, he need not show
irreparable harm.
[23] Cain is incorrect, because under the facts of this case, the Huffs cannot have
committed a trespass even if their use of the easement exceeds their authority
thereunder. It has long been the case in Indiana “that an action for trespass to
real estate cannot be maintained for an invasion of a right of way or easement.”
Ind. Mich. Power Co. v. Runge, 717 N.E.2d 216, 227 (Ind. Ct. App. 1999)
(internal quotation marks omitted). This rule “‘is based upon the principle that
trespass actions are possessory actions and that the right interfered with is the
plaintiff’s right to the exclusive possession of a chattel or land.’” Id. (emphasis
added). In other words, because the Huffs have an easement and a
concomitant right to use the roadway, they cannot have committed a trespass
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even if their use of the roadway exceeded the terms of the easement.7
Consequently, there is no evidence that they acted unlawfully, and Cain is
required to show irreparable harm—which he has not done. Therefore, this
factor weighs in favor of the Huffs.
B. Likelihood of Success at Trial
[24] To consider Cain’s likelihood of success at trial, which will turn on whether the
Huffs have exceeded/are exceeding their authority under the easements, it is
worthwhile to recap the history of the real estate at issue.
• In 1990, Kenton Robinson owned real estate in Monroe County. He
granted easements to THR, which then owned the property adjacent to
Robinson’s (the THR Property). Those easements are the ones at issue
here.
• Robinson later conveyed his real estate to another entity, which
ultimately transformed that real estate into The Shores subdivision.
• In February 2017, the Huffs acquired the THR Property from THR. The
property they acquired included the 193 acres adjacent to The Shores, to
which the easements attach.
• At some point not revealed by the record, the Huffs acquired from
Chumley, LLC, approximately 44 acres that are adjacent to the THR
Property. Those 44 acres are the Chumley Parcel.
7
Both cases cited by Cain—Washel v. Bryant, 770 N.E.2d 902 (Ind. Ct. App. 2002), and Paul v. I.S.I. Servs.,
Inc., 726 N.E.2d 318 (Ind. Ct. App. 2000)—are inapposite, as the first centers on a covenant not to compete
and the second centers on divorce and corporate embezzlement.
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• The only access to the THR Property is through The Shores, and the
only access by land8 to the Chumley Parcel is through the THR
Property.9
• The entirety of the Huff Real Estate at issue herein is a contiguous area
of approximately 237 acres.
Cain insists that because the Huffs are using the easement on the roadway in
The Shores to access the Chumley Parcel (via the THR Property), which is not
directly benefited by the easement, they have exceeded their authority and he is
likely to succeed at trial.
[25] This argument is based on a fundamental misunderstanding of property law in
Indiana. Although we have used the labels herein for the sake of clarity, in
reality, there is no longer a separate “THR Property” or “Chumley Parcel.”
Instead, there is simply the Huff Real Estate, which includes all 237 acres. If
we were to accept Cain’s argument, we would be holding that the Huffs are
prohibited from accessing one part of their real estate from another part of their
real estate. We cannot countenance that result.
[26] Once the Huffs use the easement to cross the servient property of The Shores, as
the Grant of Easements give them the right to do for the purposes stated
therein, they have all the property rights needed to access any portion of the
Huff Real Estate for those same purposes. See Collins v. Metro Real Estate Servs.
8
The Chumley Parcel may be accessed by water, but the only land-based access is via the THR Property.
9
In other words, if the Huffs were not permitted to access the Chumley Parcel from the THR Property (via
The Shores), the Chumley Parcel would be wholly landlocked.
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LLC, 72 N.E.3d 1007, 1014 (Ind. Ct. App. 2017) (“‘During the unity of title the
owner may subject one of several tenements, or adjoining parcels of land, to
such arrangements, incidents, or uses with respect to the other as may suit his
taste or convenience, without creating an easement in favor of the one as
against the other. This is so because the owner cannot have an easement in
land of which he has the title.’”) (quoting John Hancock Mut. Life Ins. Co. v.
Patterson, 103 Ind. 582, 586, 2 N.E. 188, 190-91, (1885)). Cain argues that the
Huffs are not allowed to give themselves an easement on their own property,
but this misses the point—they do not need to give themselves an easement
because they have unity of title across the entire acreage.
[27] This Court has already found that by engaging in the activities described herein,
including prudent logging, the Huffs are not exceeding the rights provided by
the easement. That they are now using the roadway in The Shores to access
part of their real estate that was not included in the Grant of Easements does
not require a different result. Therefore, we find that Cain has not established a
likelihood of success on the merits, and this factor weighs in favor of the Huffs.
C. Harm to Cain v. Harm to Huffs
[28] As noted above, the threatened harm to Cain is primarily damage to the
roadway. There is no evidence of substantial damage, and there is plenty of
evidence that any damage will be easily repaired. There is likewise no evidence
of harm to pedestrians or local traffic. Furthermore, the logging activities will
last for only approximately eight to ten weeks once every ten to fifteen years.
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[29] On the flip side, if the injunction were granted, the Huffs would have to pay a
hefty penalty to Tri-State and would forfeit between $500,000 and $2 million in
lost revenue. They would also lose approximately $20,000 as a result of the
spoliation of already-cut timber. Additionally, a prohibition on forestry would
prevent the Huffs from caring for and enjoying their land, including removing
diseased trees and generally cleaning up and maintaining the forest. We find
that this factor weighs in favor of the Huffs.
D. Public Interest
[30] Finally, we must consider the public interest. Cain argues that the public
interest would be served by an injunction because it would protect the public’s
right to contract for specific language in easements. As noted above, however,
we do not believe that the evidence in the record shows that the Huffs have
exceeded that which the Grant of Easements permits.
[31] The Huffs, in contrast, note that they are developing their land pursuant to a
Stewardship Plan. The goals of that plan are to:
improve the stand of trees, improve the wildlife habitat, control
exotic and invasive species, provide an enjoyable place to
recreate, selectively harvest trees throughout the woods in the
future, develop four home sites, provide better access throughout
the property, and develop fire trails.
Huff I, 120 N.E.3d at 1033. Many of these goals confer a clear and direct public
benefit. Additionally, the improved access throughout the Huff Real Estate for
fire trails directly implicates the public interest, as it allows the authorities to
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better combat forest fires. We can only conclude that the public interest is more
directly and significantly served by the denial of the preliminary injunction.
[32] In sum, we find that all four factors weigh in favor of the Huffs and against the
preliminary injunction. Therefore, the trial court did not err by denying Cain’s
motions.
[33] The judgment of the trial court is affirmed and remanded for further
proceedings.
Bradford, C.J., and Pyle, J., concur.
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