                                                           FILED
                                                         Jan 11 2012, 8:56 am
FOR PUBLICATION
                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANTS:                      ATTORNEY FOR APPELLEES:

JEFFRY G. PRICE                               PATRICK J. ROBERTS
Peru, Indiana                                 Roberts Law Firm
                                              Peru, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

ANTHONY J. REHL, SR. and                      )
BESSIE A. REHL,                               )
                                              )
     Appellants,                              )
                                              )
            vs.                               )       No. 52A05-1105-PL-246
                                              )
ROBERT V. BILLETZ and                         )
JOY A. BILLETZ,                               )
                                              )
     Appellees.                               )


                    APPEAL FROM THE MIAMI SUPERIOR COURT
                     The Honorable William C. Menges, Special Judge
                             Cause No. 52D01-0801-PL-38



                                   January 11, 2012


                           OPINION - FOR PUBLICATION


BROWN, Judge
       Anthony and Bessie Rehl appeal the judgment of the trial court in favor of Robert

and Joy Billetz regarding an access easement. The Rehls raise two issues, which we

consolidate and restate as whether the court erred in entering judgment for the Billetzes.

We affirm.

       The facts most favorable to the judgment follow.         Prior to 1991, Clyde and

Margorie Allmon owned a tract of land in Miami County, Indiana, and operated a

campground on a northern portion of the property. Pursuant to an installment contract,

the Allmons executed a warranty deed on June 28, 1991, conveying to the Billetzes a

portion of their land which included the property upon which the campground was

located (the “Billetz Property”), and the Allmons retained a two-acre portion of the land

abutting County Road 200 North (the retained parcel hereinafter referred to as the “Rehl

Property”). In order to provide access to the Billetz Property from County Road 200 N.,

the Allmons also granted an easement (the “Easement”) for ingress and egress to the

Billetz Property over the Rehl Property. The language of the Easement, which was

described in the legal description attached to the deed, in terms of a carve-out to the Rehl

Property retained by the Allmons, provides:

       Subject to an easement 30 feet in width off of the entire west side of said
       2.00 acre tract. Said easement is for ingress and egress to lands to the north
       of said 2.00 acre tract, commonly known as R.R. #6, Box 583, Peru,
       Indiana.

Appellants’ Appendix at 51.

       In March 1997, the Rehls entered into a lease with an option to purchase in

connection with the Rehl Property with the estate of Marjorie Allmon (the “Marjorie

Estate”).
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       In August 1998, the Marjorie Estate and the Billetzes entered into a release

agreement to settle matters regarding the installment contract related to the Billetz

Property. The release agreement recited the language of the Easement. In connection

with the release agreement, the personal representative of the Marjorie Estate executed a

personal representative’s deed on September 15, 1998.

       In February 1999, the Rehls purchased the Rehl Property from the Marjorie Estate.

The June 28, 1991 warranty deed and the September 15, 1998 personal representative’s

deed, both of which contained the language setting forth the Easement, were recorded in

the Miami County recorder’s office on April 9, 1999.

       On January 22, 2008, the Rehls filed a complaint against the Billetzes alleging that

“the ongoing operation of [the Billetzes’s] campground business has increased, or added

to, the burden upon their real estate imposed by the original easement granted in favor of

[the Billetzes]” and that the “burden is now unreasonable.” Id. at 14. The Rehls also

stated that they “verily believe [the Billetzes] have access from their real estate to the

county road directly south of [the Rehl Property], and therefore the easement in question

is not a way of necessity.” Id. The Rehls requested “an order determining the original

easement granted for the benefit of [the Billetzes] and their real estate to be forfeited” and

“for an injunction terminating the [Billetzes] further use of the easement . . . .” Id.

       A bench trial was held on November 30, 2010, at which the Rehls requested

findings and conclusions pursuant to Ind. Trial Rule 52 and the parties presented

evidence and testimony regarding the grant of the Easement and the traffic upon and use




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of the Easement.1 On May 10, 2011, the court entered a judgment for the Billetzes and

against the Rehls which provided in part:

       FINDINGS OF FACT:

       1.      The parties own adjacent real estate located in Miami County,
               Indiana.

       2.      The common predecessor in title to the parties were Clyde and
               Margorie Allmon, who owned the combined tract.

       3.      The Allmons operated a campground on the property currently
               owned by the [Billetzes], and maintained their residence on the
               property currently owned by the [Rehls].

       4.      In 1991, the Allmons sold the campground business and real estate
               to the [Billetzes]. In addition to the fee simple title conveyed to the
               [Rehls], the Allmons also conveyed an easement for ingress and
               egress over [] thirty (30) foot in width over the property they
               retained.

       5.      Some years later, the Allmons sold the real estate, subject to the
               easement to the [Rehls].

       6.      There has been significant previous litigation between the parties
               concerning the easement, and the [Rehls] have brought the instant
               suit seeking to extinguish the easement.

       7.      While the number of vehicles using the easement may have
               increased modestly since the original granting of the easement, that
               increase, if any, does not create a greater burden on the servient
               estate than was originally anticipated, agreed upon, and created by
               the Allmons, and is the actual use originally anticipated and agreed
               upon when the easement was created.

       8.      Other than traffic using the easement for its intended purpose, the
               use of the easement by the dominant estate does not interfere with
               the [Rehls’] use of the servient estate.


       1
           According to testimony at trial, there were previous legal proceedings between the parties
related to the Easement and there were disputes regarding the dust from the Easement area, the paving of
the Easement area, and the parties’ respective shares of the costs for paving.

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9.   Any Conclusion of Law which would be more properly denominated
     a Finding of Fact is hereby incorporated herein as such.

CONCLUSIONS OF LAW:

1.   An appurtenant easement acquired by actual grant cannot be lost by
     non-use of the right by the dominant owner. Consolidation Coal Co.
     V. Mutchman, 565 N.E.2d 1074 (Ind.App.1990), trans. denied.;
     Salvia v. Reitmeyer, 156 Ind.App. 203, 295 N.E.2d 869 (1973).

2.   The axiom that the law does not favor forfeitures applies to
     easements. Schwartz v. Castleton Christian Church, Inc., 594
     N.E.2d 473, 477 (Ind.App. 1992)[, trans. denied].

3.   In Panhandle E. Pipeline Co. v. Tishner, 699 N.E.2d 731, 739
     (Ind.App. 1998), it was held:

                  The owner of an easement (the dominant estate)
           possesses all rights necessarily incident to the
           enjoyment of the easement. Litzelswope v. Mitchell,
           451 N.E.2d 366, 369 (Ind.App. 1983). He may make
           repairs, improvements, or alterations that are
           reasonably necessary to make the grant of the
           easement effectual. Id. The owner of the servient
           estate may use his property in any manner and for any
           purpose consistent with the ennjoyment [sic] of the
           easement and the dominant estate cannot interfere with
           the use. Holding v. Indiana & Michigan Elec. Co.,
           400 N.E.2d 1154, 1157 (Ind.App. 1980). All rights
           necessarily incident to the enjoyment of the easement
           are possessed by the owner of the dominant estate and
           it is the duty of the servient owner to permit the
           dominant owner to enjoy his easement without
           interference. Id. The owner of the servient estate may
           not so use his land as to obstruct the easement or
           interfere with the enjoyment thereof by the owner of
           the dominant estate. Id.

4.   A right of way over land is an interest in the servient estate,
     regardless of whether it was acquired by adverse use, or by express
     or implied grant. It cannot be extinguished except in a mode
     recognized by law. Thomas v. McCoy, 48 Ind.App. 403, 405, 96
     N.E. 14, 15 (1911).

                                  5
       5.      An easement for ingress and egress is not extinguished by the fact
               that the dominant owner has or acquires other land by which the
               dominant estate can connect to a public highway. Brock v. B&M
               Monster Farms, Inc., 481 N.E.2d 1106 (Ind.App. 1985).

       6.      “The servient estate [may only be] burdened to the extent to
               accomplish the end for which the dominant estate was created
               (Citations omitted).” Brock, supra, at 1109.

       7.      There exists no other legal reason to support extinguishing the
               easement.

       8.      Any Finding of Fact which would be more properly denominated a
               Conclusion of Law is hereby incorporated herein as such.

              IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED,
       by the Court that judgment should be, and it hereby is, entered in favor of
       the [Billetzes]. Costs to the [Rehls].

Id. at 9-12.

       The issue is whether the trial court erred in entering judgment for the Billetzes.

The trial court entered findings of fact and conclusions thereon pursuant to Ind. Trial

Rule 52(A). We may not set aside the findings or judgment unless they are clearly

erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh’g

denied.     In our review, we first consider whether the evidence supports the factual

findings. Id. Second, we consider whether the findings support the judgment. Id.

“Findings are clearly erroneous only when the record contains no facts to support them

either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A

judgment is clearly erroneous if it relies on an incorrect legal standard. Menard, 726

N.E.2d at 1210. We give due regard to the trial court’s ability to assess the credibility of

witnesses. Id. While we defer substantially to findings of fact, we do not do so to

conclusions of law. Id.      We do not reweigh the evidence; rather we consider the
                                             6
evidence most favorable to the judgment with all reasonable inferences drawn in favor of

the judgment.    Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).            We evaluate

questions of law de novo and owe no deference to a trial court’s determination of such

questions.   Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011) (citing

McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), reh’g denied, trans.

denied), trans. denied.

       The Rehls argue that “[a]s a general proposition, easements are limited to the

purpose for which they are granted” and that “the owner of the dominant estate cannot

subject the servient estate to extra burdens.” Appellants’ Brief at 8. The Rehls argue that

the Easement was “given for the sole purpose of allowing the grantees ingress and egress

to the ‘lands to the north of the two acre tract’” and that “[s]pecifically, the [Easement]

does not mention business invitees, customers or other persons who might be visiting the

grantee’s land in order to use the RV park.” Id. The Rehls further argue that “the phrase

‘non exclusive’ does not appear in the easement instrument in question” and that

therefore “one must conclude that the only persons granted the right of ingress and egress

were the grantees, namely: Mr. and Mrs. Billetz” and that the Easement does not provide

for ingress and egress for “any persons using the RV park nor anyone other than the

grantees” such as “the grantees’ servants, agents or employees.” Id. at 8-9. The Rehls

also argue that “[m]oreover, the increased traffic on the easement, caused by increased

use of the RV park, was not within the contemplation of the easement document and

constitutes an unreasonable burden on the servient estate owner, which exceeds the scope

of the original easement.” Id. at 10. The Rehls argue that the court erred in making

                                            7
findings under Paragraphs 7 and 8 of its findings of fact, asserting that there is no

evidence to support the inference drawn by the court and there was nothing in the

easement language to suggest that other persons were to be benefitted by the Easement.

The Rehls further argue that the court erred in finding that the number of vehicles using

the Easement may have increased modestly since the grant of the Easement and points to

the evidence they presented regarding the increased traffic over the Easement area,

including evidence of the number of vehicles and the size of the vehicles.

       The Billetzes argue that “[t]he traffic count and unscientific, unverified method

used by Rehl . . . is not credible evidence sufficient to sustain the modification or

forfeiture of the easement” and that “[t]he weight and sufficiency of the evidence are left

to the sound discretion of the trial court . . . .” Appellees’ Brief at 8-9. The Billetzes

argue that it can be inferred from the circumstances of the sale of the campground that

“the 30 foot drive was intended to be and was always used by the patrons, owners,

maintenance, repair, construction workers and employees necessary to operate the

campground as a going concern” and that “[i]t is against all logic to assume that the

easement use was limited to solely the grantees Billetz and not its patrons and invitees.”

Id. at 10. Further, the Billetzes argue that the Rehls’ evidence regarding the traffic on the

easement area does not prove the Rehls’ “unreasonable burdensome claim” because the

Rehls’ evidence selected fourteen non-consecutive days in August of 2006, which did not

include any weekends, and selected eight days in September 2009, which included the

campground’s busiest time, the Labor Day weekend, on its busiest year. Id. at 11. The

Billetzes essentially argue that the court’s findings in Paragraphs 7 and 8 were supported

                                             8
by the evidence and that the court was not required to reach a different result based upon

the Rehls’ evidence of increased use.

       In their reply brief, the Rehls argue that the court is not free to rewrite the

Easement to serve the intended purposes of one of the parties, that the court’s conclusions

fail to adequately address the issues presented and to disclose the theory upon which the

court decided the case, that the court’s construction of the Easement is unreasonable and

represents an unfair burden upon them, that they presented evidence that established a

substantial increase in the traffic over the Easement, that they proposed a construction of

the Easement that would avoid forfeiture of the Easement, and that there was evidence of

increased maintenance of the Easement area.

       It is well established that easements are limited to the purpose for which they are

granted. Kwolek, 944 N.E.2d at 571 (citing McCauley, 928 N.E.2d at 314). The owner

of an easement, known as the dominant estate, possesses all rights necessarily incident to

the enjoyment of the easement. Id. The owner of the property over which the easement

passes, known as the servient estate, may use his property in any manner and for any

purpose consistent with the enjoyment of the easement, and the dominant estate cannot

interfere with the use.   Id. All rights necessarily incident to the enjoyment of the

easement are possessed by the owner of the dominant estate, and it is the duty of the

servient owner to permit the dominant owner to enjoy his easement without interference.

Id. The servient owner may not so use his land as to obstruct the easement or interfere

with the enjoyment thereof by the owner of the dominant estate. Id. Moreover, the

owner of the dominant estate cannot subject the servient estate to extra burdens, any more

                                            9
than the holder of the servient estate can materially impair or unreasonably interfere with

the use of the easement. Id.

       Generally, an easement for ingress and egress confers only the right to pass over

the land rather than the more extensive right to partially control or alter the estate. Id.

However, we must look to the express language of the instrument creating the easement

itself to determine the intent of its creators. Id.

       When construing an instrument granting an easement, the trial court must
       ascertain and give effect to the intention of the parties, which is determined
       by proper construction of the language of the instrument from an
       examination of all the parts thereof. [W]e interpret the grant as a matter of
       law from the plain and ordinary meaning of the language of the grant.
       Particular words and phrases cannot be read alone, as the parties’ intention
       must be gleaned from the instrument as a whole. Any doubt or uncertainty
       as to the construction of the language of the easement will ordinarily be
       construed in favor of the grantee.

Id. (citing McCauley, 928 N.E.2d at 314-315 (emphasis added; citations omitted)).

       At trial, the evidence included the 1991 warranty deed, and the 1998 personal

representative’s deed, and the release agreement between the Marjorie Estate and the

Billetzes. In addition, the Rehls presented a traffic log of use of the Easement, which

included a number of observations in August 2006 and September 2009, DVDs

containing recorded images of traffic over the Easement area, photographs of the

Easement area and a portion of the Billetz Property, a request for admissions, a July 2009

newspaper article related to local campgrounds, a letter from Robert Billetz to the Rehls

in July 2006 related to the existence of a fence at the time, a print-out of the

campground’s website, a January 2005 court order under another cause number finding

the Billetzes in indirect contempt for failing to pay a surveyor fee, ordering them to pay

                                               10
surveyor and attorney fees, and ordering the unpaved area of the Easement area to be

paved, a June 2005 petition filed by the Rehls for an order with respect to paving of the

Easement area, and a May 2006 order regarding the parties’ duties related to the

maintenance of the Easement area.

         In addition, John Rehl and Robert Billetz testified at trial. John Rehl testified that

he and his wife purchased the Rehl Property subject to the Easement and that the

Billetzes operated a campground business on the Billetz Property since the time he and

his wife purchased the Rehl Property. On cross-examination, John indicated that he

resided at the Rehl Property since 1997, and when asked “and for two years you saw the

traffic coming and going,” testified “Yes, I saw the, what little traffic there was.”

Transcript at 36. When asked whether the Easement was the “only improved access

since 1991 and before to the campground,” John stated “[t]he key word being improved,

yes.” Id. at 38. John testified regarding his observation of the traffic pattern and use of

the Easement and the recordings he had made to document the traffic and use. John also

testified that the Billetzes would not be landlocked if the Easement were extinguished as

the Billetzes could build a road on their other property which abuts County Road 200

North.

         Robert Billetz testified that he and his wife purchased the Billetz Property in 1991,

that they had operated the campground business continuously since that time, that Clyde

Allmon had previously operated the campground business and that the current business is

“essentially [] the same kind of operation that [the Allmons] had.” Id. at 56. Robert

testified that he also purchased a franchise from the Allmons related to the campground

                                               11
business which required an entrance and exit, and that the initial campground season

starts in April and “tapers down” in October.         Id. at 62.   Robert testified that the

campground business was down in 2010 compared to 2009, that the campgrounds are

normally full for Labor Day weekend, but not in 2010, and that the campgrounds “were

not full the Fourth of July so []traffic was considerably less.” Id. Robert also testified

that after he purchased the Billetz Property there was a failed septic system, that he

installed “a water reclamation system and then [] added a wetlands portion to that for all

our sewage,” that it “was a State requirement for us to proceed to do something in lieu of

having a failed septic system on the property,” and that nothing can “[i]n reality” be built

on the area east of the Rehl Property, where the Rehls suggest they build a road, as it is

“used for an irrigation area . . . .” Id. at 58-59.

       The language which describes the Easement provides: “Subject to an easement 30

feet in width off of the entire west side of said 2.00 acre tract. Said easement is for

ingress and egress to lands to the north of said 2.00 acre tract, commonly known as R.R.

#6, Box 583, Peru, Indiana.” Appellants’ Appendix at 51. Although the grantees named

on the 1991 warranty deed (and the 1998 personal representative’s deed) were the

Billetzes, we observe that the language creating the Easement does not expressly provide

that the Easement benefits the Billetzes as the grantees only. Moreover, the language

expressly provides that the Easement “is for ingress and egress to lands to the north of

said 2 acre tract.” Id. The implication of this language is that the parties, and the

Allmons as the grantors, intended for the Easement to benefit or provide access to the

Billetz Property and the campground. This interpretation is consistent with the use of the

                                                12
Billetz Property as a campground at the time the Easement was granted. See McCauley,

928 N.E.2d at 315 (examining a grant of easement and finding that the trial court’s

conclusions as to the right to use the easement area, giving effect to the intention of the

parties as evidenced by the language of the conveyance itself, were proper).

       Furthermore, with respect to the trial court’s findings related to the use of the

Easement, we note that the parties presented evidence and testimony of the use and

changes in the use and traffic upon the Easement area.          Based upon the evidence

presented at trial, and noting that we do not reweigh the evidence and consider the

evidence most favorable to the judgment with all reasonable inferences drawn in favor of

the judgment, we cannot say that the court erred in making its findings under Paragraphs

7 and 8 of its findings of fact related to the relative use or increased use of the Easement

area and interference with the use of the Rehl Property. See id. at 315-316 (concluding

that evidence supported the trial court’s findings related to an easement).

       For the foregoing reasons, we affirm the trial court’s judgment in favor of the

Billetzes and against the Rehls.

       Affirmed.

MAY, J., and CRONE, J., concur.




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