                                                                           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


      Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020           Page 2 of 22
      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

Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020          Page 11 of 22
                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.



       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020         Page 14 of 22
[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.

       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020                                   Page 15 of 22
[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.


       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020         Page 16 of 22
       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



       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020           Page 17 of 22
       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.



       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020                                Page 18 of 22
             • 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.

       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020                               Page 19 of 22
       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.


       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020          Page 20 of 22
[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

       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020             Page 21 of 22
       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.




       Court of Appeals of Indiana | Opinion 19A-PL-2176 | May 29, 2020        Page 22 of 22
