                                                                                 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.




      Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017                     Page 1 of 12
                                                      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.




      Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017    Page 3 of 12
[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:


      Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017   Page 4 of 12
        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

Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017         Page 5 of 12
                      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.

Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017       Page 6 of 12
       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.


       Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017                Page 7 of 12
       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

       Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017   Page 8 of 12
       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

       Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017    Page 9 of 12
       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

       Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017   Page 10 of 12
       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.

       Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017                        Page 11 of 12
       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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