 Pursuant to Ind. Appellate Rule 65(D), this


                                                               FILED
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral                     Jan 31 2012, 9:20 am
 estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JOHN L. STEWART                                    BRUCE A. BOJE
Indianapolis, Indiana                              TIMOTHY J. HIXSON
                                                   LAURIE D. JOHNSON
                                                   Richards, Boje, Pickering, Benner & Becker
                                                   Noblesville, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DADDYS „O PUB, LLC,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 29A02-1105-PL-439
                                                   )
PURKEY ENTERPRISES, INC.,                          )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Daniel J. Pfleging, Judge
                               Cause No. 29D02-0906-PL-742



                                        January 31, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                              Case Summary

        The owners of two adjoining buildings got into a dispute about whether an 1897 deed

created an easement in a stairway in one building that can be used to access the second story

of the other building. Purkey Enterprises, Inc. (“Purkey”), filed a quiet title and declaratory

judgment action to extinguish the alleged easement in the stairway, which is located in its

building. Daddys „O Pub (“Daddys”) filed a counterclaim for declaratory judgment and

injunction. The trial court concluded that the 1897 deed did not create an easement in

Purkey‟s stairway and, alternatively, that any easement had been abandoned long ago. On

appeal, Daddys contends that the trial court erred in so concluding. We affirm.

                                    Facts and Procedural History1

        Purkey and Daddys own abutting buildings on adjacent lots on West Jackson Street in

Cicero. In June 2009, Purkey filed a quiet title and declaratory judgment action against

Daddys, seeking to extinguish an alleged easement that Daddys claimed in a stairway inside



        1
           Daddys‟ presentation of the relevant facts and procedural history is deficient in several respects.
First, Daddys did not file an appellant‟s appendix, as required by Indiana Appellate Rule 49(A) (“The
appellant shall file its Appendix with its appellant‟s brief.”). Fortunately, Purkey filed an appellee‟s appendix
with a copy of the parties‟ pleadings, which greatly assisted our review. Second, the copy of the trial court‟s
order included in Daddys‟ brief is missing several pages, so we had to rely on the copy of the order attached to
Daddys‟ appellant‟s case summary. Finally, the statement of facts in Daddys‟ brief contains the following
argumentative passage:

        The language in the 1897 Deed created an easement in favor of the property now owned by
        Daddy‟s as the dominant parcel, and burdening the parcel now owned by Purkey, as the
        servient parcel. The express reservation by the grantor of the right of ingress and egress over
        part of the property conveyed to the grantee indicates clear intent to create an easement over
        the stairs to be constructed.

Appellant‟s Br. at 5. We remind Daddys‟ counsel that a statement of facts “should be a concise narrative of
the facts stated in the light most favorable to the judgment and should not be argumentative.” Ruse v. Bleeke,
914 N.E.2d 1, 5 n.1 (Ind. Ct. App. 2009).

                                                       2
Purkey‟s building. Daddys filed a counterclaim for declaratory judgment and injunction,

asserting that the easement was created in an 1897 deed that divided the ownership of the

lots. A bench trial was held in February 2011. Purkey requested findings of fact and

conclusions thereon pursuant to Indiana Trial Rule 52(A), and the parties submitted proposed

findings and conclusions to the trial court.

       On April 20, 2011, the trial court issued an order that reads in relevant part as follows:

                                      Findings of Fact

       1.     [Purkey] is an Indiana Corporation and is the owner of real property
       commonly known as 87 West Jackson Street, Cicero, Indiana (hereinafter
       referred to as the “Purkey Property”).

       2.     [Purkey‟s] real property is improved with a building which contains a
       barbershop and apartment on the first floor, and two (2) apartments upstairs.

       3.     [Daddys] is an Indiana Limited Liability Company and is the owner of
       real property commonly known as 97 West Jackson Street, Cicero, Indiana
       (hereinafter referred to as the “Daddys „O Property”).

       4.     The Daddys „O Property is improved with a building that contains a bar
       [on] the first floor and one (1) apartment on the second floor.

       5.     The buildings on the Purkey Property and Daddys „O Property abut each
       other and the west wall of the Purkey building touches the east wall of the
       Daddys „O building.

       6.    Access is provided to the second story of both the Purkey building and
       the Daddys „O building by a set of exterior stairs that run along the Purkey
       Property‟s western border to the rear of the Purkey building.

       7.    The outside stairs are fully within the boundaries of the Purkey
       Property.

       8.     The Purkey building contains a set of enclosed stairs that run from the
       front of the building along the inside of the western wall of the Purkey


                                               3
building, and which stairs provide access to the both [sic] Purkey apartments
“A” and “B.” A door to the Daddys „O apartment was installed in 1958 or 59.

9.       This door was installed to allow the Lions Club and/or the VFW to use
the upstairs [of the Daddys „O building] for meetings during the hours that the
first floor variety store was closed. Such use continued after the public library
occupied the property.

10.    The enclosed stairway is contained completely inside the Purkey
building.

11.    Shortly after [Daddys] purchased the Daddys „O Property in 2006, a
dispute arose among the parties regarding [Daddys‟] use of the inside stairs.

12.    [Purkey] repeatedly requested that [Daddys] cease its use of the stairs.

13.    [Purkey] advised [Daddys] that the outside stairs at the rear of the
building were designated for use by both [Purkey] and [Daddys].

14.     After [Purkey‟s] requests for [Daddys] to cease its use of the inside
stairs, [Daddys] located an 1897 deed transferring ownership to the Purkey
Property. The deed contained the following language:

       “By agreement of the parties hereto a strip four (4) feet wide and
       twenty four (24) feet long on the West side of the land herein
       conveyed is to be used by both parties as a stairway to the
       second story of the brick building now owned by said grantor
       and also the second story of the building to be erected on the
       land herein conveyed. Said stairway to front on Jackson Street
       in Cicero, Indiana. The erection and maintance (sic.) of said
       stairway to be borne equally.[”]

15.     The language “Said stairway to front on Jackson Street …” is not
contained in the 2006 deed to [Daddys], and has been absent from every deed
for the Daddys „O Property since at least 1973.

16.     [Daddys] was not aware of any such “front on Jackson Street” language
at the time it purchased the Daddys „O Property.

17.     The deeds for the Purkey Property do not contain language regarding
the use or erection of a stairway, and said language did not appear in a 1989
title policy.

                                       4
18.   [Purkey] did not have actual or constructive knowledge of any
unrecorded easements.

19.    At the time of the 1897 deed, the Daddys „O Property and the Purkey
Property were held in common ownership by William Collings and Mary
Collings.

20.    At the time the properties were severed in 1897, there was no building,
or inside stairway. In fact the Purkey Building was not erected until
approximately 1905.

21.    At the time the properties were severed in 1897, the Daddys „O Property
had other means of access to its second story.

22.    Daddys „O still has another means of access to its second story other
than the inside stairway.

23.    The use of the inside stairway by Daddys „O is merely convenient.

24.  There was no access from the inside stairs to the second story of the
Daddys „O [P]roperty for a period between 1897 and 1958.

25.    Subsequent access to the second story of the Daddys „O Property by the
inside stairs was by permission of the successors in interest.

….

28.   The language regarding the future stairway in the 1897 deed did not use
language of conveyance or grant, but rather of agreement.

29.    The language regarding the future stairway in the 1897 deed did not use
irrevocable language.

30.    The language regarding the future stairway in the 1897 deed did not
identify the property or party who was to receive the burden or benefit of the
agreement.

31.    The parties and their predecessors in interest to the properties have
shared the exterior stairs at the rear of the Purkey Building for access to both
buildings. In fact the language creating the interest in the exterior stairs is as
follows:

                                        5
                       “Said Grantee is also hereby granted the use for ingress
                & egree (sp) to the land herein conveyed of the 5-foot wide
                right-of-way from Byron Street in Cicero, Indiana, across the
                South end of said grantor‟s land.”

        This language refers to an existing stairway and uses the language of
        conveyance or grant and irrevocably transfers an interest to the exterior
        stairway.

        32.    The parties and their predecessors in interest to the properties have
        shared the cost of maintenance and repair of the exterior stairs to the rear of
        the Purkey Building.

                                          Conclusions of Law

        1.     The party asserting a claim to an easement bears the burden of proving
        the existence of the easement. See Searcy v. LaGrotte, 372 N.E.2d 755 (Ind.
        Ct. App. 1978).

        2.     An easement is an interest in land and must meet the general
        requirements of a grant or conveyance. See Industrial Disposal Corp. of
        America v. City of East Chicago Dept. of Water Works, 407 N.E.2d 1203, 1205
        (Ind. Ct. App. 1980).

        3.    A license confers a privilege to do some act on the land without
        conveying an interest in the land. One Dupont Centre, LLC v. Dupont Auburn,
        LLC, 819 N.E.2d 507, 513-14 (Ind. Ct. App. 2004).

        4.     Since a license does not convey an interest in the land, a license is
        revocable at will and is unassignable. One Dupont Centre, LLC, 819 N.E.2d at
        514; Industrial Disposal Corp. of America, 407 N.E.2d at 1205[.]

        5.     To create an express easement, the grant or conveyance must identify
        the location of the easement with reasonable certainty and must identify the
        dominant or servient estate. Mackiewicz v. Metzger, 750 N.E.2d 812, 817 (Ind.
        Ct. App. 2001); Lennertz v. Yohn, 79 N.E.2d 414, 417 (Ind. Ct. App. 1948).[2]




        2
         A dominant estate is one that benefits from an easement; a servient estate is one that is burdened by
an easement. BLACK‟S LAW DICTIONARY 589 (8th ed. 2004).

                                                      6
6.      There is no express easement in the 1897 deed, as the deed failed to
provide any express words “granting, conveying, or creating an easement in
favor of any specified named person or creating either a dominant or servient
estate as to any particular described tract of land.” See Lennertz, 79 N.E.2d at
417.

7.    The 1897 deed merely expresses an agreement between the parties,
which is in the nature of a license.

8.    As in Lennertz, any rights created by the agreement of the parties to the
1897 deed were personal in character, and did not create an easement which
runs with the land. See Lennertz, 79 N.E.2d at 417.

9.     [Daddys] has failed to prove the existence of an express easement.

….

28.   In the event that the 1897 deed created an express easement, and
provided that [Purkey] had actual or constructive notice of the easement, the
easement terminated by abandonment.

29.   An easement, no matter how created, can be abandoned. Chickamauga
Properties, Inc. [v. Barnard, 853 N.E.2d 148, 154 (Ind. Ct. App. 2006)].

30.     An easement is abandoned if there is a complete discontinuance of use
of the easement with the intent to abandon it. Chickamauga Properties, Inc.,
853 N.E.2d at 154.

31.    In this instance, the alleged easement was not used for a period of sixty
years from 1897 to 1958, when the door was first cut into the Daddys „O
building.

32.    The non-use, and non-installation of a door to the stairway for sixty
years with no attempt to enforce the purported agreement shows an intent to
abandon any claim to an easement by [Daddys‟] predecessors in interest to the
Daddys „O Property, and any easement was abandoned prior to the installation
of the door.

….

40.     Once the easement terminated, … subsequent permissive use could not
give rise to a new easement. See Greenco, Inc. v. May, 506 N.E.2d 42, 45-46

                                       7
       (Ind. Ct. App. 1987); Reder v. Radtke, 177 N.E.2d 669, 672-73 (Ind. Ct. App.
       1961). Chickamauga, 809 N.E.2d at 450 [sic3].

       41.    All findings of fact are incorporated by reference as conclusions of law,
       and all conclusions of law are incorporated by reference as findings of fact.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
       judgment is entered in favor of [Purkey] and against [Daddys] as follows:

       1)      [Daddys‟] purported easement is terminated, null and void, and of no
       effect, and title in said stairway is quieted in [Purkey].

       2)      [Daddys] possesses no interest and/or right to use any part of [Purkey‟s]
       real estate by way of any purported easement.

       3)     [Daddys] and its agents, servants, employees, tenants, and successors in
       interest are hereby enjoined from entering and/or using the inside stairway and
       are prohibited and enjoined from interfering with [Purkey‟s] use and
       enjoyment of the inside stairway.

       4)    [Purkey] shall recover the costs of this action from [Daddys] and a
       judgment is entered against [Daddys] for such costs in the amount of $146.00.

Appellant‟s Notice of Appeal at 4-15 (citations to exhibits omitted). Daddys now appeals.

                                      Discussion and Decision

       “Indiana law recognizes that easements can be created by grant, prescription, or

implication.” William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 835 (Ind. Ct. App. 2011).

Daddys contends that the trial court erred in concluding that the 1897 deed did not create an

easement in the stairway in Purkey‟s building and, alternatively, that if an easement was

created, it was abandoned decades ago. Our standard of review is well settled.

       Where, as here, a party has requested specific findings of fact and conclusions
       thereon pursuant to Ind. Trial Rule 52(A), we engage in a two-tiered standard
       of review. We determine whether the evidence supports the findings and the

       3
           The citation here is that of Downing v. Owens, 809 N.E.2d 444 (Ind. Ct. App. 2004).

                                                    8
       findings support the judgment. In deference to the trial court‟s proximity to
       the issues, we disturb the judgment only where there is no evidence supporting
       the findings or the findings fail to support the judgment. We do not reweigh
       the evidence, but only consider the evidence favorable to the trial court‟s
       judgment.…

              Moreover, while we review findings of fact under the clearly erroneous
       standard, we review de novo a trial court‟s conclusions of law. Where cases
       present mixed issues of fact and law, we have described the review as applying
       an abuse of discretion standard. We will conclude a judgment is clearly
       erroneous if no evidence supports the findings, the findings fail to support the
       judgment, or if the trial court applies the incorrect legal standard. In order to
       determine that a finding or conclusion is clearly erroneous, an appellate court‟s
       review of the evidence must leave it with the firm conviction that a mistake
       has been made.

Bowyer v. Ind. Dep’t of Natural Res., 944 N.E.2d 972, 983-84 (Ind. Ct. App. 2011) (citations

and quotation marks omitted).

       Here, the trial court concluded that the interest in the future stairway that was created

in the 1897 deed was more akin to a license than an easement. This Court has distinguished

the two as follows:

       An easement … is a liberty, privilege, or advantage in land without profit
       existing distinct from the ownership of the land, and generally constitutes an
       interest in the land itself, while a license merely confers a privilege to do some
       act or acts on the land without possessing any estate therein; an easement must
       be created by deed or prescription, while a license may be by parol; an
       easement possesses the qualities of inheritability and assignability, while these
       qualities are generally inconsistent with a license; an easement, ordinarily, is a
       permanent interest in the realty with the right to enter at all times and enjoy it,
       while a license, at least so long as it is executory, may be revoked at will, and
       is terminated by a conveyance of the land by the party giving the license.

Indus. Disposal Corp. of Am. v. City of E. Chicago, Dep’t of Water Works, 407 N.E.2d 1203,

1205 (Ind. Ct. App. 1980) (quoting 28 C.J.S. Easements § 2).



                                               9
       “[I]n construing an alleged creation of an easement through grant or reservation, no

particular words are necessary; any words which clearly show the intention to give an

easement are sufficient.” Tanton v. Grochow, 707 N.E.2d 1010, 1013 (Ind. Ct. App. 1999).

Even if a document does not expressly use the terms “dominant estate” and “servient estate,”

a valid easement nevertheless exists if the document adequately describes them. Id.; see also

Indus. Disposal Corp. of Am., 407 N.E.2d at 1205 (“Of course, interests are often created and

rights may be afforded in a manner not precisely according to ideal forms.”). To address

Daddys‟ contention that the 1897 deed created an easement in the stairway, we must interpret

the deed.

               The object of deed interpretation is to identify and implement the intent
       of the parties to the transaction as expressed in the plain language of the deed.
       We read the language of real covenants in the ordinary and popular sense, and
       not in a technical or legal sense. If the terms of the deed are not ambiguous,
       we apply them according to their clear and ordinary meaning. We presume
       that the parties intended for every part of a deed to have some meaning, and we
       favor a construction that reconciles and harmonizes the entire deed.

Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App. 2005) (citations omitted), trans.

denied. The interpretation of a deed is a pure question of law. Rennaker v. Gleason, 913

N.E.2d 723, 729 (Ind. Ct. App. 2009).

       The 1897 deed reads in pertinent part as follows:

       This Indenture Witnesseth, That William Z. Collings and Mary E. Collings, his
       wife of Hamilton County, in the State of Indiana,

                                    Convey and Warrant

              To William H. Roney of Hamilton County, in the State of Indiana, for
       the sum of


                                              10
                              One Hundred and fifty – 00/100 Dollars,

       the following Real Estate, in Hamilton County, in the State of Indiana, to-wit:

                 [A description of the real estate‟s metes and bounds follows.]

              By agreement of the parties hereto a strip four (4) feet wide and twenty
       four (24) feet long on the West side of the land herein conveyed is to be used
       by both parties as a stairway to the second story of the brick building now
       owned by said grantor and also to the second story of the building to be erected
       upon the land herein conveyed. Said stairway to front on Jackson Street in
       Cicero, Indiana. The erection and maintance [sic] of said stairway to be borne
       equally.

              Said grantee is also hereby granted the use for ingress & egree [sic] to
       the land herein conveyed of the 5-foot wide right of way from Byron Street in
       Cicero, Indiana, across the South end of said grantor‟s land.

Plaintiff‟s Ex. 22.

       A plain reading of the deed indicates that the Collingses did not intend to create an

easement in the future stairway. Although not dispositive, the word “easement” is not used.

The words of conveyance relate strictly to the land itself (“the land herein conveyed”) and not

to the stairway.4 The deed merely memorializes an agreement among the parties to the

transaction that the Collingses would be allowed to use the stairway to access the second

story of their building and Roney‟s building once the stairway (and Roney‟s building) was

built and would share the cost of the stairway‟s construction and maintenance. At most, then,

the Collingses merely reserved for themselves a personal license to use the stairway. See

Indus. Disposal Corp. of Am., 407 N.E.2d at 1205 (“a license merely confers a privilege to do

some act or acts on the land without possessing any estate therein”). The 1897 deed did not


       4
           Daddys‟ misleading assertion to the contrary on page 3 of its reply brief is not well taken.

                                                      11
purport to confer this privilege to the Collingses‟ heirs or assigns, and thus, at the latest, the

license terminated with the Collingses‟ death, which apparently occurred before their

property was conveyed to third parties in 1939. See Defendant‟s Ex. A (deed from “only

surviving heirs of Mary E. Collings, deceased” to Albert and Sadie Turner); see also Indus.

Disposal Corp. of Am., 407 N.E.2d at 1205 (“an easement possesses the qualities of

inheritability and assignability, while these qualities are generally inconsistent with a

license”). To the extent that future deeds to the property now owned by Daddys purported to

convey any right or interest in the stairway inside the building now owned by Purkey, such

conveyances were ineffective because there was no right or interest to convey.5

        Because we conclude that the 1897 deed did not create an easement in the stairway,

we need not address Daddys‟ argument that the trial court erred in concluding that any

easement was abandoned long before a doorway was constructed in the 1950s to provide

access to the second story of Daddys‟ building. See Borth v. Borth, 806 N.E.2d 866, 870

(Ind. Ct. App. 2004) (“Where trial court findings on one legal theory are adequate, findings

on another legal theory amount to mere surplusage and cannot constitute a basis for reversal

even if erroneous.”).6 The trial court‟s ruling is affirmed.


        5
            The parties do not address any recording or notice requirements for easements, nor do we.
        6
           Likewise, we need not address Daddys‟ argument regarding the trial court‟s findings and conclusions
on adverse possession, which are not excerpted above. Nor need we address Purkey‟s argument regarding the
trial court‟s findings and conclusions on implied and prescriptive easements, which also are not excerpted
above. Daddys has consistently asserted that the alleged easement in the stairway was expressly created by the
1897 deed and has not asserted that it was created by implication or prescription. See, e.g., Appellant‟s Reply
Br. at 4 (“The trial court‟s decision should be reversed, establishing and preserving Daddy‟s rights to use the
stairs according to the express terms of the easement which have been preserved in a succession of deeds for
over a hundred years.”).


                                                      12
      Affirmed.

MAY, J., and BROWN, J., concur.




                                  13
