MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                  May 27 2015, 8:47 am
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 estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
Jason M. Kuchmay                                         Stephen R. Snyder
Carson Boxberger LLP                                     Randall L. Morgan
Fort Wayne, Indiana                                      Snyder Morgan LLP
                                                         Syracuse, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

J. Richard Presser, Rachel E.                            May 27, 2015
Presser, Kevin Kelley, Richard                           Court of Appeals Cause No.
Sanderson, Rosemary Sanderson,                           43A04-1405-CP-215
Thomas Reis and Mary Reis,
Appellants                                               Appeal from the Kosciusko Circuit
                                                         Court
        v.                                               The Honorable Rex L. Reed, Judge
                                                         Case No. 43C01-9109-CP-732

North Indiana Annual
Conference of the United
Methodist Church, et al,
Appellees




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 43A04-1405-CP-215| May 27, 2015     Page 1 of 7
                                Case Summary and Issue
[1]   In 1994, following a three-week trial, the trial court issued a final order (“1994

      Judgment”) determining property rights relating to a plat of land known as

      Epworth Forest and an easement located on the plat adjacent to the edge of

      Webster Lake. In 2011, the North Indiana Conference of the United Methodist

      Church (“Conference”) filed a motion for relief from judgment, claiming that

      portions of the 1994 Judgment were no longer equitable as to the Conference.

      In an interlocutory order related to the Conference’s motion for relief from

      judgment, the trial court ruled that the easement at issue in the 1994 Judgment

      was an appurtenant easement. The Appellants, who own parcels of land

      immediately adjacent to Webster Lake, appeal the trial court’s interlocutory

      order. They raise one issue for our review: whether the easement established

      by the Conference’s 1923 plat and construed by the 1994 Judgment is an

      easement appurtenant or an easement in gross. Concluding the plat created an

      appurtenant easement, we affirm.



                            Facts and Procedural History
[2]   In 1923, the Conference laid out the plat for Epworth Forest, which adjoins

      Webster Lake. The Epworth Forest plat includes 426 lots, some of which are

      immediately adjacent to Webster Lake. The original plat depicted a strip of

      land located along the shoreline of Webster Lake and contained a legend

      providing that “[n]one of the lots extend to the low water mark, but an

      easement along all lakefrontage is held by [the Conference], and is subject to all

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      of the rules and regulations that are contained by their by-laws.” Appellant’s

      Appendix at 86. The strip of land subject to the easement was thereafter used

      by owners of land in Epworth Forest both on-shore and off-shore to install

      piers, dock boats, walk, or otherwise enjoy the lake.


[3]   After years of disputes concerning ownership and littoral rights related to the

      strip of land located along the lake, a lawsuit was filed in September 1991 by a

      group of on-shore owners, some of whom are now appellants in this case. The

      result of that lawsuit was the 1994 Judgment, in which the trial court found it

      was “necessary to construe the plat, to attempt to determine the intention of the

      proprietors thereof, and to define the relative rights and privileges of the

      respective parties created by the plat.” Appellant’s App. at 92. The 1994

      Judgment discussed the scope and purpose of the easement. It also ruled that

      the Conference oversee and regulate the installation of docks and piers on the

      easement. However, the 1994 Judgment did not specifically identify the

      easement as an easement in gross or an easement appurtenant. The 1994

      Judgment was never appealed.


[4]   On July 7, 2011, the Conference filed a motion for relief from judgment,

      claiming that it was no longer equitable for the 1994 Judgment to have

      prospective application to the Conference. During the course of litigation, the

      parties agreed the trial court should establish whether the easement is

      appurtenant or in gross. After briefing and a hearing on the matter, the trial

      court issued an interlocutory order concluding that the easement is an

      appurtenant easement. The trial court granted the Appellants’ request to certify

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      the order for interlocutory appeal, but this court denied their request to accept

      the appeal on November 5, 2012.


[5]   The parties eventually reached a settlement, and an agreed order was approved

      by the trial court on April 15, 2014. That agreed order provided that certain

      owners of property immediately along the shoreline of Webster Lake reserved

      the right to appeal the trial court’s interlocutory order deeming the easement to

      be appurtenant. For clarification, the Appellants in this case are on-shore

      owners of land adjacent to Webster Lake (herein referred to as “Appellants”),

      and the Appellees are persons who own land off-shore at Epworth Forest and

      wish to benefit from the easement (herein referred to as “Appellees”).



                                Discussion and Decision
                                     I. Standard of Review
[6]   The trial court’s interlocutory order declaring the easement to be an easement

      appurtenant was entered as a partial summary judgment, and the parties agree

      that this court’s approach to summary judgments offers the appropriate

      standard of review. When reviewing a trial court’s entry of summary judgment,

      we apply the same standard as the trial court. Manley v. Sherer, 992 N.E.2d 670,

      673 (Ind. 2013). Summary judgment is appropriate where there is no genuine

      issue of material fact and the moving party is entitled to judgment as a matter of

      law. Ind. Trial Rule 56(C). The appellant has the burden of demonstrating that

      summary judgment was erroneous. Amaya v. Brater, 981 N.E.2d 1235, 1239

      (Ind. Ct. App. 2013), trans. denied.
      Court of Appeals of Indiana | Memorandum Decision 43A04-1405-CP-215| May 27, 2015   Page 4 of 7
                                    II. Type of Easement
[7]   The parties dispute whether the easement created by the Epworth Forest plat in

      1923 and addressed by the 1994 Judgment is appurtenant or in gross. An

      appurtenant easement is one which “passes with the dominant tenement by

      conveyance or inheritance.” Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d

      970, 973 (Ind. Ct. App. 2001) (citation omitted). An appurtenant easement

      inheres in the land, concerns the premises, and is essentially necessary to its

      enjoyment. Consolidation Coal Co. v. Mutchman, 565 N.E.2d 1074, 1083 (Ind. Ct.

      App. 1990). In contrast, an easement in gross “is a mere personal right which

      cannot be granted to another person or transmitted by descent.” Larry Mayes

      Sales, Inc., 744 N.E.2d at 973 (citation omitted). “An easement is never

      presumed to be in gross when it can be fairly construed to be appurtenant to the

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

      2011) (quoting Sanxay v. Hunger, 42 Ind. 44, 48 (1873)) (internal quotation

      marks omitted).


[8]   When construing an instrument granting an easement, the trial court must give

      effect to the intent of the instrument’s creator. Rennaker v. Gleason, 913 N.E.2d

      723, 729 (Ind. Ct. App. 2009). When the provision creating the easement is

      ambiguous, the trial court may consider the circumstances surrounding the

      property, the parties, and the creation of the instrument to determine intent. Id.

      at 730. It seems that the 1994 Judgment included an attempt by the trial court




      Court of Appeals of Indiana | Memorandum Decision 43A04-1405-CP-215| May 27, 2015   Page 5 of 7
       to determine the intent of the Conference at the time the easement was created, 1

       and thus that judgment is integral to our decision here.


[9]    The trial court’s 1994 Judgment concluded that the on-shore owners had fee

       simple title to their respective portions of the shoreline “subservient in all cases

       to a littoral use in favor of the dominant right to a littoral use in favor of the

       Conference and the off-shore owners . . . .” Appellant’s App. at 94. The trial

       court later concluded

                the land vested in the parties lying between their designated lots and
                the lakeshore are each burdened, as a subservient tenement, with an
                easement reserved by the plat in favor of [the Conference], for its own
                use and the use of off-shore owners being the owners of lots in the plat
                at Epworth Forest not lying upon or adjoining the littoral or upon the
                lake.
       Id. at 96. As to the scope and purpose of the easement, the 1994 Judgment

       stated that “[t]he easement was reserved for the purpose of maintaining a

       promenade for the enjoyment of all residents of the plat, their guests, the

       Conference and its guests and attendees.” Id. at 95.


[10]   Appellants urge that the plat established an easement in gross that created only

       a personal right to the Conference. However, the trial court’s 1994 Judgment,

       which construed the plat after a three week-trial and legal argument on the

       matter, is inundated with references not only to the Conference but also to the



       1
         In reference to the easement, the 1994 Judgment stated the “[plat] language must be construed in light of
       the apparent intention of the proprietors of the plat, not only objectively, looking at the words alone, but also
       in view of the acts and practices of the parties which might give meaning to that phraseology.” Appellant’s
       App. at 92.

       Court of Appeals of Indiana | Memorandum Decision 43A04-1405-CP-215| May 27, 2015                     Page 6 of 7
       rights of off-shore owners and the benefits guaranteed to them by creation of the

       easement. All of that language is indicative of an appurtenant easement.

       Considering the trial court’s extensive findings and conclusions concerning the

       plat and the law’s preference for appurtenant easements, we conclude that the

       trial court properly determined the easement is appurtenant. Appellants have

       failed to demonstrate that the trial court’s decision was erroneous.



                                              Conclusion
[11]   Concluding the Appellants have failed to demonstrate that the trial court’s

       finding of an appurtenant easement was erroneous, we affirm.


[12]   Affirmed.


       Bailey, J., and Brown, J., concur.




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