      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                    FILED
      regarded as precedent or cited before any                                 Oct 03 2019, 7:52 am

      court except for the purpose of establishing                                  CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
      Matthew J. McGovern                                      Jason A. Lopp
      Anderson, Indiana                                        Whitney E. Wood
                                                               New Albany, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bart M. Betteau,                                         October 3, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               18A-MI-2610
              v.                                               Appeal from the Floyd Superior
                                                               Court
      Robert Headrick and Karen                                The Honorable Joseph P. Weber,
      Headrick,                                                Special Judge
      Appellees-Defendants                                     Trial Court Cause No.
                                                               22D02-1710-MI-1403



      May, Judge.


[1]   Bart M. Betteau appeals the trial court’s ruling that Robert and Karen Headrick

      are owners of an easement allowing use of a gravel driveway that runs across

      Betteau’s property. Betteau raises three issues on appeal, which we consolidate

      and restate as one: whether the trial court committed clear error when it found
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019                   Page 1 of 14
      the Headricks were owners of the easement and ordered Betteau to move the

      driveway back to the path it traveled before he relocated it. We affirm.



                                Facts and Procedural History
[2]   In 2013, Brian and Velinda Heasley conveyed to the Headricks, via separate

      deeds, real property located at 3416 Paoli Pike and 3420 Paoli Pike, Floyd

      Knobs, Indiana (“Headrick Properties”). There were two homes on the

      Headrick Properties, and the Headricks operated them as rental properties.

      They also stored personal property, including a camper and a suburban, on the

      Headrick Properties.


[3]   After selling the Headrick Properties to the Headricks, the Heasleys retained

      ownership of two tracts of real property located immediately south and

      downhill from the Headrick Properties. In 2017, the Heasleys sold these two

      tracts of land to Betteau (“Betteau Properties”). 1 For convenience and clarity,




      1
          The street address for the Betteau Properties is 3422 Paoli Pike, Floyd Knobs, Indiana.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019               Page 2 of 14
      we reproduce the diagram included in Betteau’s brief below.




      (Plaintiff’s Br. at 13.)


[4]   The deeds to the Betteau Properties provided he took the properties subject to

      the rights of others to use certain roadways and easements “both of record and

      as traveled and used[.]” (Plaintiff’s Ex. 11.) The deeds also indicated there were

      “certain easements and roadways both of record and as travelled and used at

      the present time, and subject to the legal right of others to use the same.”

      (Plaintiff’s Ex. 12.)


[5]   The deeds to the Headrick Properties included “the right to use a 10 foot strip of

      land for roadway purposes[,]” (Plaintiff’s Ex. 3), and “the right of ingress and


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 3 of 14
      egress over certain roads leading from said property to [Paoli Pike 2]. . . and

      subject to the liability of the owner of the above described real estate to pay the

      pro rata share of the upkeep and maintenance of said roadways.” (Plaintiff’s

      Ex. 4) (footnote added). The ten-foot strip of land referenced in these deeds

      runs partially along the eastern boundary of the Betteau Properties (“eastern

      easement”) and partially along the property to the east of the Betteau

      Properties.


[6]   Since at least 1980, a gravel drive ran through the Betteau Properties and

      connected the Headrick Properties to Paoli Pike, which is a public roadway.

      The gravel drive was never fully contained within the eastern easement.

      Around 2000, the path of the driveway was partially modified westward to

      accommodate a restaurant parking lot. When the Headricks bought the

      Headrick Properties, the driveway went along the eastern easement and then

      cut away from the eastern easement in a southwesterly direction towards Paoli

      Pike. This driveway served as the sole access road for anyone living on the

      Headrick Properties or the Betteau Properties. Prior to Betteau acquiring the

      Betteau Properties, the Headricks and the Heasleys jointly maintained the

      driveway up to the point where the driveway split towards the Headricks’

      Properties. This maintenance included adding gravel and inserting water




      2
        The deed itself identifies the road as “State Road #150.” (Plaintiff’s Ex. 4.) However, the Headricks
      identify the road as “Paoli Pike” in their brief. (Appellee’s Br. at 9.)

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019                  Page 4 of 14
      breaks to prevent erosion. The Headricks maintained the portion of the

      driveway located solely on their property.


[7]   When he bought the Betteau Properties, Betteau intended to tear down the

      existing house and build a new one. Thus, he sought a Special Exception from

      the Floyd County Board of Zoning Appeals to construct the new home. The

      Board granted Betteau’s request to build a new home, but the Board said that a

      Road Maintenance Agreement had to be executed between Betteau and the

      Headricks prior to the Board issuing a certificate of occupancy to Betteau.


[8]   Once Betteau finished construction of his house and prior to signing a Road

      Maintenance Agreement, he unilaterally relocated the driveway eastward. He

      parked a truck blocking the previously used driveway and erected a sign saying

      the road was closed. The relocated driveway required drivers to make a sharper

      turn to go up to the Headrick Properties and made the path up to the Headrick

      Properties steeper. This made it harder for the Headricks and their tenants to

      navigate the driveway. The local Chinese restaurant refused to deliver takeout

      up the relocated driveway, and Robert Headrick lost potential tenants because

      they did not want to have to traverse the driveway. Also, the relocated

      driveway did not include water breaks, which led to erosion of the driveway.


[9]   On October 6, 2017, Betteau filed a complaint for declaratory judgment

      asserting the gravel drive impaired his enjoyment of his property and was

      outside the deeded easement. Betteau sought an order declaring the existing

      driveway to be solely his private driveway, directing the Headricks to establish


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 5 of 14
       their own roadway inside of the deeded easement, and declaring the Headricks

       solely responsible for the cost of maintaining the easement roadway.


[10]   On November 7, 2017, the parties entered into a Road Maintenance

       Agreement. The Road Maintenance Agreement provided Betteau was to

       maintain, at his expense, the portion of the driveway that serviced the Betteau

       Properties, and Robert Headrick was to maintain, at his expense, the portion of

       the driveway that serviced the Headrick Properties. Karen Headrick did not

       sign the Road Maintenance Agreement.


[11]   On December 5, 2017, the Headricks filed an answer to Betteau’s complaint

       and asserted a counterclaim. The Headricks claimed they and their predecessors

       used the driveway continually and uninterruptedly for ingress and egress over

       the land for a period of at least twenty years, which established a prescriptive

       easement over Betteau’s land. Further, the Headricks asserted Betteau blocked

       the gravel driveway serving the Headrick Properties and unilaterally moved the

       driveway. The Headricks sought an order directing Betteau to return the path

       of the driveway to the way it was when Betteau took title.


[12]   The court held a bench trial on June 15, 2018, and issued findings of fact and

       conclusions of law on September 25, 2018. The court ordered, adjudged, and

       decreed: (1) the Headricks were owners of an easement for use of the roadway

       along its “original path” before being moved by Betteau; (2) Betteau was to

       arrange for the roadway to be returned to its “original path” at his sole expense;

       and (3) the Headricks were responsible for one-half of the cost of upkeep of the


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 6 of 14
       portion of the roadway that is used by both the Headricks and Betteau and the

       full cost of upkeep for the portion of the roadway that is used only by the

       Headricks. (App. Vol. II at 86.) The court did not reach the question of

       whether the Headricks established a prescriptive easement because it found the

       deeds granted the Headricks an easement. The court also denied the Headricks’

       request for damages and attorney fees.



                                  Discussion and Decision
[13]   When a trial court has issued findings of fact and conclusions of law pursuant

       to Indiana Trial Rule 52(A), “[t]he findings or judgment are not to be set aside

       unless clearly erroneous, and we give due regard to the trial court’s ability to

       assess the credibility of witnesses.” WindGate Props., LLC v. Sanders, 93 N.E.3d

       809, 813 (Ind. Ct. App. 2018). Consequently, “we first consider whether the

       evidence supports the factual findings and then consider whether the findings

       support the judgment.” Id. “Findings of fact are clearly erroneous when the

       record lacks any facts or reasonable inferences from the evidence to support

       them. The judgment is clearly erroneous when it is unsupported by the findings

       of fact and conclusions entered on the findings.” Mueller v. Karns, 873 N.E.2d

       652, 657 (Ind. Ct. App. 2007), reh’g denied. We defer substantially to the trial

       court’s factual determinations, and we will not reweigh the evidence or judge

       the credibility of the witnesses. Id. Nevertheless, we review the trial court’s

       conclusions of law de novo. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 7 of 14
                                                  Driveway Access

[14]   Betteau argues the Headricks and their tenants legally may access the Headrick

       Properties only by using the eastern easement over Betteau’s land. 3 He argues

       the Headricks may only use the gravel driveway to the extent the path of the

       gravel driveway is contained within the eastern easement and may not use it to

       the extent it veers from the eastern easement. Betteau cites Oakes v. Hattabaugh,

       631 N.E.2d 949 (Ind. Ct. App. 1994), reh’g denied, trans. denied, and argues the

       “as traveled and used” language in his deeds is vague and insufficient to create

       an easement because the deeds do not identify a dominant or a servient estate.


[15]   Black’s Law Dictionary defines “easement” as “[a]n interest in land owned by

       another person, consisting in the right to use or control the land, or an area

       above or below it, for a specific limited purpose (such as to cross it for access to

       a public road).” EASEMENT, Black’s Law Dictionary (11th ed. 2019). An

       easement consists of a dominant estate and a servient estate. McCauley v. Harris,

       928 N.E.2d 309, 314 (Ind. Ct. App. 2010), reh’g denied, trans. denied. The owner

       of the easement is known as the dominant estate and “possesses all rights

       necessarily incident to the enjoyment of the easement.” Id. “The owner of the




       3
         Betteau argues the trial court erred in conclusion of law 32, which states: “The ten-foot easements described
       in multiple deeds discussed herein, which are parallel with and overlap the eastern and western boundaries of
       the Betteau property, having never been utilized or developed, have been abandoned and are hereby deemed
       vacated.” (App. Vol. II at 86.) The Headricks do not challenge Betteau’s argument to the extent it does not
       implicate the existence of the driveway easement. (Appellee Br. at 5 n.1.) We do not find it necessary to
       address Betteau’s argument because it is ancillary to resolution of the existence and location of the driveway
       easement. 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.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019                   Page 8 of 14
       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.


[16]   Based on those legal standards, Betteau challenges conclusions of law 27, 28,

       and 30, which state:


               27. The Defendants have an easement, granted to them by deed,
               to use the roadway, as traveled and used for the purpose of
               ingress and egress at the time that the property was transferred by
               the Headrick [D]eeds.


               28. The uncontroverted evidence is that the roadway traveled
               and used for ingress and egress, at the time of both the Headrick
               Deeds’ execution and the Betteau Deeds’ execution, is best
               described and indicated by the annotation of a pathway labeled
               number 4 depicted on Plaintiff’s Exhibit 13 [a marking on a
               photograph identified by Robert Headrick as the location of the
               driveway when he purchased the property (Tr. Vol. II at 66.)],
               which agrees with and corresponds to the path identified as
               “original path” in the annotation to Defendant’s Exhibit C-4.


                                                     *****


               30. The Plaintiff’s reliance on [Oakes] is misplaced. Oakes makes
               clear that the dominant and servient tenements are adequately
               identified, so long as it is clear upon whose property the
               easement is placed (the servient tenement) and to whose property
               the benefit of the easement is conferred (the dominant tenement).
               See Oakes at 952. Here there is no question that the easement is
               placed upon the Plaintiff’s land (the servient tenement) and is
               conveyed to the benefit of the Defendants’ land (the dominant
               tenement).

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 9 of 14
       (App. Vol. II at 85.)


[17]   The interpretation of a deed containing an easement provision is a pure

       question of law. Rennaker v. Gleason, 913 N.E.2d 723, 729 (Ind. Ct. App. 2009).

       “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.” Id. We assume the parties intended every part of

       the deed to be meaningful, and we favor a construction that reconciles or

       harmonizes the entire deed. Kopetsky v. Crews, 838 N.E.2d 1118, 1124 (Ind. Ct.

       App. 2005). We will look to extrinsic evidence if the language of a deed is

       ambiguous, and we will consider the language of a deed ambiguous if it is

       capable of two or more reasonable interpretations. Id.


[18]   Betteau contends we cannot conclude that the “as traveled and used” language

       in Betteau’s deeds was inserted for the benefit of the Headricks. In contrast, the

       Headricks argue that it is clear from the language of the Headrick deeds and the

       Betteau deeds that an easement exists for use of the driveway by the Headricks

       over Betteau’s land along the path the driveway traveled when both the

       Headricks and Betteau took title to their respective properties. The Headricks

       argue that while the deeds do not use the terms “dominant” tenement and

       “servient” tenement, the ordinary language contained within the deeds is

       enough to identify the dominant and servient estates. Further, the Headricks

       argue extrinsic evidence indicates the Headrick Properties were meant to be the

       dominant tenement. The Headrick Properties’ sole means of access to Paoli

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 10 of 14
       Pike was by use of the driveway. Also, the Headricks presented evidence that

       Heasley walked along the driveway with the Headricks when he conveyed the

       Headrick Properties to the Headricks and discussed their use of the driveway.


[19]   In Town of Ellettsville v. Despirito, a utility easement ran across Lot 1 for the

       benefit of Lot 2. 111 N.E.3d 987, 988 (Ind. 2018). Richland became the owner

       of Lot 1 and petitioned the Town of Ellettsville Plan Commission to relocate

       the utility easement. Id. The owner of Lot 2 opposed the relocation. Id. at 989.

       The Plan Commission granted the owner of Lot 1’s petition, and the owner of

       Lot 2 appealed the decision to our Indiana Supreme Court. Id. at 989-90. Our

       Indiana Supreme Court held the utility easement was fixed. Id. The Court

       went on to hold that Indiana adheres to the common law rule prohibiting the

       unilateral relocation of a fixed easement and ruled in favor of the owner of Lot

       2. Id. at 997. One of the reasons the Court cited for retaining the common law

       rule was that it honored the bargained-for holdings of the property owners and

       ensured stability in land ownership and property value. Id. at 994.


[20]   While the Betteau deeds recite the phrase “as travelled and used” rather than

       laying out the metes and bounds location of the easement, we hold that the

       language in the deeds created an easement along the driveway as it was

       travelled when Betteau and the Headricks took ownership of the property. See

       Kopetsky, 838 N.E.2d at 1127 (holding language in conveyance sufficient to

       identify the dominant estate even though the deed did not use the particular

       terms “dominant” and “servient”). To the extent Betteau believes the “as

       travelled and used” language in the deed is ambiguous, extrinsic evidence

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 11 of 14
       indicates the language is referring to the gravel driveway that existed when the

       Heasleys owned the Betteau Properties. The Headricks used the gravel

       driveway. The gravel driveway ran through Betteau’s land and therefore the

       Betteau Properties were the servient estate. The Headricks’ sole means of

       accessing Paoli Pike was via the driveway. Therefore, while the term

       “dominant” is not used in the Deeds, the Headricks’ possessed the dominant

       estate because the easement was intended for their benefit. The location of the

       easement is the path the gravel driveway travelled as identified in the trial

       court’s order because that is the path commonly used and travelled from the

       Headrick Properties to Paoli Pike when the parties to this case took title to their

       respective properties. And, subject to a slight modification around the year

       2000, that is the path that has been used since at least 1980. Also, the presence

       of a utility pole and other obstructions make construction of a driveway that

       runs solely down the eastern easement impractical. Therefore, Betteau acted

       beyond his rights in relocating the driveway without the Headricks’ consent.

       See Town of Ellettsville, 111 N.E.3d at 988 (“We adhere to Indiana’s longstanding

       common-law rule that relocating a fixed easement requires the consent of all

       affected estate-holders.”).


                                           Driveway Maintenance

[21]   With regards to responsibility for maintenance of the driveway, the trial court

       made the following conclusion of law:


               33. The assignment of liabilities for repair and upkeep of the
               easement in question identified in the Headrick Deeds predates

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 12 of 14
               and supersedes the “Private Road Maintenance Agreement”
               made by the Parties on or about November 7, 2017. In any
               event, that agreement did not include the Defendant, Karen
               Headrick, as a party, and it is unclear that such agreement was
               supported by any valuable consideration. Therefore, the
               following language in the Headrick Deed shall control the
               allocation of expenses for maintenance and upkeep of the
               easement: “subject to the liability of the owner of the above
               described real estate to pay the pro rata share of the upkeep and
               maintenance of said roadways.”


       (App. Vol. II at 86) (emphasis in original). Based thereon, the trial court

       ordered the Headricks were responsible for half the maintenance cost of the

       portion of the driveway that services both the Betteau Properties and the

       Headrick Properties.



[22]   Betteau argues the Headricks only access through the Betteau Properties should

       be via the “eastern easement” and the Headricks should be solely responsible

       for the cost of maintaining the easement. As explained supra, the Headricks

       have a right to use the driveway at the location where it was “travelled and

       used” until moved by Betteau. Betteau argues that the dominant tenement is

       responsible for any repairs or maintenance of an easement enjoyed by the

       dominant estate alone. However, both Betteau and the Headricks enjoy use of

       the driveway. Thus, it logically follows both should share the cost of

       maintenance of the driveway because that is what the Headrick deed expressly

       provides.



       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 13 of 14
                                               Conclusion
[23]   The deeds to the Betteau Properties indicate Betteau took the properties subject

       to an easement allowing the Headricks a path for ingress and egress across his

       property to Paoli Pike. That path was marked by a gravel driveway. Therefore,

       the Headricks have a right to use the gravel driveway along the path it followed

       at the time the Headricks and Betteau took title to their respective properties.

       Further, per the language in the Headricks’ deeds, the trial court did not err in

       assessing the Headricks and Betteau each half the maintenance cost for the

       portion of the gravel driveway that is utilized by both parties. Therefore, we

       affirm the trial court.


[24]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-2610 | October 3, 2019   Page 14 of 14
