      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                        Feb 13 2015, 8:17 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 APPELLANT                                    ATTORNEY FOR APPELLEES
      Jeffry G. Price                                           William F. Berkshire
      Peru, Indiana                                             Peru, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John D. Jenkins Revocable                                 February 13, 2015
      Living Trust, John D. Jenkins,                            Court of Appeals Cause No.
      Trustee,                                                  52A01-1409-PL-387
                                                                Appeal from the Miami Superior
      Appellant-Plaintiff,
                                                                Court, The Honorable J. David
                                                                Grund, Judge
              v.                                                52D01-0512-PL-526

      Peru Utility Service Board, City
      of Peru and Peru Common
      Council,
      Appellees-Defendants




      Najam, Judge.


                                         Statement of the Case
[1]   The John D. Jenkins Revocable Living Trust (“the RLT”) appeals the trial

      court’s judgment in favor of the Peru Utility Service Board, City of Peru, and


      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015   Page 1 of 8
      the Peru Common Council (collectively “Peru Utilities”) on the RLT’s trespass

      claim. The RLT presents a single issue for our review, namely, whether the

      trial court erred when it concluded that Peru Utilities did not trespass. We

      affirm.


                                  Facts and Procedural History
[2]   In a prior memorandum decision, this court set out some of the relevant facts

      and procedural history as follows:

              The John D. Jenkins Revocable Living Trust (“the RLT”)
              contains farmland which it rents to a farmer. Adjacent to the
              RLT’s farmland at issue is a housing development, Hilltop Farms
              L.P. and Hilltop Farms Phase Two (collectively, “Hilltop”). The
              RLT agreed to allow Hilltop to construct a sewer line on the
              RLT’s farmland. The RLT then granted Hilltop a sanitary sewer
              line easement, which Hilltop then assigned to the City of Peru
              Utilities Service Board. . . . Subsequently the RLT brought suit
              against Peru Utilities, the City of Peru, and Peru Common
              Council . . . : 1) alleging a taking and seeking damages for
              inverse condemnation;[ 2) alleging trespass;] and [3)] seeking a
              declaratory judgment as to the rights and obligations of the RLT
              and [Peru Utilities] with regard to payment of fees and
              annexation to the City of Peru by anyone tapping into the sewer
              line. [The parties and the trial court agreed to bifurcate the trial
              on the RLT’s claims into two proceedings, the first of which
              addressed the takings and declaratory judgment claims and the
              second of which addressed the trespass claim.] Following [the
              first] bench trial, the trial court entered findings of fact and
              conclusions of law, concluded that a taking did not occur, and
              declined to enter a declaratory judgment order. . . .




      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015   Page 2 of 8
      John D. Jenkins Revocable Living Trust v. Peru Utility Service Board, No. 52A02-

      1106-PL-540 (Ind. Ct. App. 2012) (citations omitted) (“RLT I”). On appeal, we

      affirmed the trial court.


[3]   On May 22, 2014, the trial court held a bench trial on the RLT’s trespass claim.

      In its complaint, the RLT alleged that Peru Utilities committed trespass “[b]y

      altering the surface drainage of [the RLT]’s real estate[.]” Plaintiff’s Exh. 1 at

      46. But, both at trial and on appeal, the RLT alleges that Peru Utilities

      committed trespass when it failed to remove “manhole #8,” which is part of the

      sewer system and stands three feet above grade. The facts and procedural

      history relevant to the trespass claim are as follows:

              . . . Representatives of Hilltop negotiated with the RLT’s agent
              and both agreed to the construction of a sewer line on the real
              property owned by the RLT. . . . Both [Bruce] Carson[, a Hilltop
              employee,] and the RLT understood that Hilltop would construct
              the sewer line and turn over the impending easement to Peru
              Utilities; accordingly, Peru Utilities was heavily involved in the
              planning process. Construction of the sewer line began in late
              2003 and was completed by January 2004.


              In April 2004, the RLT granted to Hilltop the easement and
              recorded the same. . . . The easement was established as a
              covenant running with the land, binding upon grantees and
              assignees.


              In May 2004, Hilltop signed a “DEED OF DEDICATION,” in
              which it dedicated to Peru Utilities “all platted easements for
              public utilities, physical/mechanical materials relating to the
              distribution of, operation of and maintenance of a domestic
              sanitary wastewater infrastructure extension/improvements

      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015   Page 3 of 8
               serving Hilltop L.P. and Hilltop Farms Phases I and II . . . .” In
               September 2004, Hilltop assigned the easement to Peru Utilities,
               which accepted and recorded the assignment.


      Id. (citations omitted). The easement provides in relevant part that the RLT

      “may grow crops and farm over the top of the easement.” Appellant’s App. at

      43. At trial, the RLT presented evidence that several manholes, including

      manhole #8, render a portion of the easement unsuitable for crops.1 Further,

      John Jenkins testified that, during negotiations surrounding the easement, Peru

      Utilities had agreed in writing to “fix the problem” with manhole #8, but the

      RLT did not offer any such writing into evidence.2 At the conclusion of the

      trial, the court entered findings and conclusions sua sponte and entered

      judgment in favor of Peru Utilities. This appeal ensued.


                                        Discussion and Decision
[4]   The trial court entered findings and conclusions sua sponte. Sua sponte

      findings control only as to the issues they cover and a general judgment will

      control as to the issues upon which there are no findings. Tracy v. Morell, 948

      N.E.2d 855, 862 (Ind. Ct. App. 2011). A general judgment entered with

      findings will be affirmed if it can be sustained on any legal theory supported by




      1
        The RLT does not direct us to evidence regarding its claim that the surface drainage was altered on its
      property. Instead, as we discuss below, the RLT contends that Peru Utilities trespassed when it did not
      remove manhole #8 from the easement.
      2
        The RLT stated that, during the first bench trial, it offered into evidence a letter containing a promise by
      Peru Utilities to fix manhole #8. But the appendix submitted in this appeal, which includes some exhibits
      from RLT I, does not contain any such letter.

      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015               Page 4 of 8
      the evidence. Id. When a court has made special findings of fact, an appellate

      court reviews sufficiency of the evidence using a two-step process. Id. First, it

      must determine whether the evidence supports the trial court’s findings of fact;

      second, it must determine whether those findings of fact support the trial court’s

      conclusions of law. Id. Findings will only be set aside if they are clearly

      erroneous. Id. Findings are clearly erroneous only when the record contains no

      facts to support them either directly or by inference. Id. A judgment is clearly

      erroneous if it applies the wrong legal standard to properly found facts. Id. In

      order to determine that a finding or conclusion is clearly erroneous, an

      appellate court’s review of the evidence must leave it with the firm conviction

      that a mistake has been made. Id.


[5]   Again, in its complaint, the RLT alleged that Peru Utilities committed trespass

      “[b]y altering the surface drainage of [the RLT]’s real estate[.]” Plaintiff’s Exh.

      1 at 46. But at trial, the RLT’s trespass claim focused only on “the presence of

      [the] manholes on the field.” Tr. at 26. More specifically, Jenkins took issue

      with manhole #8, which protrudes three feet above grade. And on appeal, the

      RLT alleges that “a trespass occurred” when “Peru Utilities failed to remove

      manhole #8 from the land[,]” which it had allegedly agreed to do in the course

      of the easement negotiations. Appellant’s Br. at 13.


[6]   A plaintiff in a trespass action must prove that he was in possession of the land

      and that “the defendant entered the land without right.” Lever Bros. Co. v.

      Langdoc, 655 N.E.2d 577, 581-582 (Ind. Ct. App. 1995). Here, the RLT makes

      no allegation that Peru Utilities “entered the land without right.” See id.

      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015   Page 5 of 8
      Instead, the RLT cites to the Restatement (Second) of Torts § 158, which

      provides:


              One is subject to liability to another for trespass, irrespective of
              whether he thereby causes harm to any legally protected interest
              of the other, if he intentionally


              (a) enters land in the possession of the other, or causes a thing or
              a third person to do so, or


              (b) remains on the land, or


              (c) fails to remove from the land a thing which he is under a duty to
              remove.


      (Emphasis added).


[7]   The RLT alleges that Peru Utilities was “put on notice, as a part of [the RLT]’s

      tort claim notice[, filed on October 20, 2005,] that the manhole needed to be

      lowered.” Appellant’s Br. at 13-14. But the tort claim notice merely expressed

      the RLT’s subjective desire that manhole #8 be removed or altered. The RLT

      makes no contention that Peru Utilities had a legal duty to remove or alter

      manhole #8. To the extent the RLT suggests that Peru Utilities had a duty to

      remove manhole #8, the sole evidence in support of that contention presented

      at trial was Jenkins’ testimony that the RLT granted the easement on the

      condition that Peru Utilities would remove manhole #8. The trial court was

      entitled to discredit that testimony. The trial court’s conclusion that Peru



      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015   Page 6 of 8
      Utilities did not trespass when it did not remove or alter manhole #8 is not

      clearly erroneous.


      Further, comment e to § 158 states, “[c]onduct which would otherwise

      constitute a trespass is not a trespass if it is privileged. Such a privilege may be

      derived from the consent of the possessor[.]” The undisputed evidence shows

      that Peru Utilities helped design and construct the sewer system on the RLT’s

      land with the RLT’s consent. There is no evidence that Peru Utilities engaged

      in any conduct without the RLT’s consent, including the construction of

      manhole #8.


[8]   Still, the RLT maintains that “the easement does not authorize the manhole to

      remain above the surface of the field.” Id. at 14. In support of that contention,

      the RLT points out that the easement provides that the RLT “may grow crops

      and farm over the top of the easement.” Appellant’s App. at 43. But Jenkins

      testified at trial that he cannot farm over any of the manholes, so manhole #8 is

      not the only obstacle to the farming operation. To the extent Jenkins argues

      that Peru Utilities should have buried the manholes, no such requirement was

      included in the easement or any other written document admitted into evidence

      at trial. And, as the trial court found, Jenkins previously testified that

              he did not allow dirt to be brought in to level the ground around
              the manhole cover of the sewer system that now sticks up out of
              the ground, and that he does not want any dirt added to level the
              manhole cover. Jenkins further testified that he did not want any dirt
              added or changes made to the sewer system as constructed.



      Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015   Page 7 of 8
       Id. at 20 (emphasis added).


[9]    Because the RLT granted the easement without any requirement that manhole

       #8 be removed or altered, and because Jenkins testified that he did not want

       changes made to the sewer system as constructed, the RLT has not shown that

       the trial court clearly erred when it found against the RLT on its claim for

       trespass.3 See, e.g., Miller v. Geels, 643 N.E.2d 922, 930 (Ind. Ct. App. 1994)

       (holding that a person with full knowledge of the facts and aware of his rights

       who nevertheless stands by and acquiesces in conduct inconsistent with those

       rights may be estopped from subsequently asserting those rights), trans. denied.


[10]   The trial court did not err when it entered judgment in favor of Peru Utilities on

       the RLT’s trespass claim.4


[11]   Affirmed.


[12]   Mathias, J., and Bradford, J., concur.




       3
          The RLT also alleges that Peru Utilities had a duty to bury all the manholes because, “[p]rior to issuing a
       permit for the construction of the sewer line in question, the Indiana Department of Environmental
       Management (IDEM) required that the plans confirm that at least three feet of cover would be placed above
       and on top of the sanitary sewer.” Appellant’s App. at 23. But the RLT makes no cogent argument that this
       cover requirement applies to the manholes, and, again, the trial court did not err when it rejected the RLT’s
       trespass claim.
       4
          In its brief on appeal, the RLT also contends that the trial court erred when it found that an action for
       trespass cannot be maintained for invasion of an easement and that “because there was no ‘taking’ . . . there
       was no trespass by [Peru Utilities].” Appellant’s Br. at 14. But in light of our disposition above we need not
       address those contentions.

       Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015             Page 8 of 8
