                                                                             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



      Court of Appeals of Indiana | Opinion on Rehearing 88A05-1510-PL-1797 | August 3, 2017   Page 2 of 3
      (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.




      Court of Appeals of Indiana | Opinion on Rehearing 88A05-1510-PL-1797 | August 3, 2017   Page 3 of 3
