Opinion
24A-PL-558
09-30-2024
Midwest Edge Development, LLC, Appellant-Plaintiff v. Julie D. Kercher-Updike and Jeffrey B. Updike, Appellees-Defendants
Attorney for Appellant Ryan C. Munden Reiling Teder & Schrier, LLC Lafayette, Indiana Attorney for Appellee Michael D. Dean Withered Burns, LLP Lafayette, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02-2209-PL-81
Attorney for Appellant Ryan C. Munden Reiling Teder & Schrier, LLC Lafayette, Indiana
Attorney for Appellee Michael D. Dean Withered Burns, LLP Lafayette, Indiana
MEMORANDUM DECISION
CRONE, JUDGE
Case Summary
[¶1] Julie D. Kercher-Updike and Jeffrey B. Updike (the Updikes) own a tract of land in Tippecanoe County (the Updike Tract) that is subject to an express easement that provides for access to two adjacent tracts (Tracts 1 and 2) for the contemplated purpose of constructing single-family dwellings on those tracts. Midwest Edge Development, LLC (Midwest), simultaneously purchased Tracts 1 and 2 as well as a landlocked portion of a third tract (Tract 3) that is adjacent to Tracts 1 and 2 but is not adjacent to the Updike Tract. Midwest sought a declaratory judgment as to whether it would be unlawful to use the easement to access Tract 1 and/or Tract 2 and then cross into and use Tract 3 to develop single-family dwellings. The Updikes filed a motion for summary judgment, which the trial court granted, concluding that such a use would be unlawful. On appeal, Midwest argues that the trial court's ruling is erroneous. Because it is undisputed that Midwest's proposed use of the easement would not impose a greater burden on the Updike Tract than that originally imposed on it by the purpose for which it was created, we agree with Midwest and therefore reverse and remand.
Facts and Procedural History
[¶2] The relevant facts are undisputed. In 2004, David and Rosina Hall (the Halls) owned Tracts 1, 2, and 3. Meadowgate Estates, LLC (Meadowgate), owned the Updike Tract, which is part of the Meadowgate Estates subdivision. The Updike Tract is bordered by Tract 2 on the north and east. Tract 1 borders Tract 2 on the east and shares a border with Tract 3, which is north of Tract 2.
[¶3] In June 2004, the Halls and Meadowgate executed an agreement that extinguished an existing easement over the Updike Tract. In exchange, Meadowgate granted the Halls a replacement easement for "ingress, egress, drainage, utilities and C.A.T.V. facilities for the benefit of the Benefitted Property[,]" i.e., Tracts 1 and 2. Appellant's App. Vol. 2 at 109. The easement runs across the Updike Tract and provides ingress and egress from Tract 2 to Shootingstar Lane.
Midwest's appendix does not contain a copy of the chronological case summary as required by Indiana Appellate Rule 50(A)(2)(a). Also, the table of authorities in Midwest's brief does not list the authorities alphabetically as per Appellate Rule 46(A)(2).
[¶4] The agreement provided that if the Halls or their successors in title developed "all or any portion of [Tracts 1 and 2] into one or more building sites for dwelling units," the Halls or their successors in title
shall pay [Meadowgate] the sum of Two Hundred Fifty Thousand Dollars ($250,000) divided by (20+N) per dwelling unit, where N equals the number of dwelling units on [Tracts 1 and 2], as a partial reimbursement of [Meadowgate's] costs of construction of roadways in Meadowgate Estates that will serve such dwelling units, payable upon initial occupancy of each dwelling unit built on any portion of [Tracts 1 and 2].Id. at 110. The agreement further provided that "if dwelling units are constructed" on Tracts 1 and 2 and the easement is used to access them, "such portion of [the tracts] shall be bound by" the covenants of Meadowgate Estates, which allow only single-family dwellings. Id. Finally, the agreement provided that "all of the easement granted herein, and the other obligations of the parties set forth herein, shall be covenants running with the land, shall be imposed on and be binding on" the properties at issue. Id. at 114. The agreement was recorded with the county recorder several days later.
[¶5] The Updikes acquired the Updike Tract in October 2011 and constructed a single-family dwelling on the property. In April 2022, Midwest acquired Tracts 1 and 2 and a landlocked portion of Tract 3 from the Halls. In May 2022, Midwest sent a letter to the Meadowgate Estates Homeowners Association, of which the Updikes are members, announcing its plan to develop an eight-lot residential community on Tracts 1, 2, and 3 that would be accessible via the easement. A dispute between Midwest and the Updikes arose regarding whether Midwest could use the easement to service lots on Tract 3.
[¶6] In September 2022, Midwest filed a three-count complaint against the Updikes. Count 1 requested a declaratory judgment regarding Midwest's rights as to Tract 3, count 2 requested an easement by necessity, and count 3 requested a prescriptive easement. In November 2022 and March 2023, the county's area plan commission approved parcelizations of Tracts 1, 2, and 3 into seven lots, four of which include a portion of Tract 3 that essentially makes up the backyards of those lots. A maximum of eight lots could have been platted on Tracts 1 and 2, and a maximum of twelve lots could have been platted on Tracts 1, 2, and 3.
"An easement of necessity will be implied when 'there has been a severance of the unity of ownership of a tract of land in such a way as to leave one part without access to a public road.'" William C. Haak Tr. v. Wilusz, 949 N.E.2d 833, 836 (Ind.Ct.App. 2011) (quoting Whitt v. Ferris, 596 N.E.2d 230, 233 (Ind.Ct.App. 1992)). Prescriptive easements "arise from an ongoing trespass of property for at least twenty years[.]" Morehouse v. Dux N. LLC, 226 N.E.3d 758, 763 (Ind. 2024). It is undisputed that no severance or trespass occurred here.
[¶7] In April 2023, the Updikes filed a motion for summary judgment. In August 2023, after a hearing, the trial court granted the motion as to counts 2 and 3 and denied it in part as to count 1. In February 2024, after a status conference and additional briefing, the trial court issued an order that reads in pertinent part as follows:
Following the issuance of the Court's Order on Summary Judgment on August 2, 2023, the parties presented the recent case of Cain v. William J. Huff II Revocable Trust, 216 N.E.3d 456 (Ind.Ct.App. 2023), which was decided just three days prior to the Court's order. The parties dispute whether Cain has any impact on the Court's order. They agreed to submit the following issue for further consideration:
Whether it is unlawful use of the Easement for [Midwest] to first access Tracts 1 and/or 2 and then to cross into and use
[Tract 3] for purposes of developing and building single-family dwellings?
Based upon review of the Cain case and other authorities either presented previously or with the recent briefing submitted by the parties, the short answer to the above question is - Yes, it is unlawful for Midwest to use the easement to access Tracts 1 &2 and to cross into [Tract 3] to develop and build single-family dwellings.
This is so because the easement at issue benefits Tracts 1 and 2 only, and no other properties. The easement does not refer to Tract 3... or otherwise permit unilaterally adding land to the dominant estate - and because the affected estate holders have not modified their agreement concerning the easement, Indiana law does not allow Midwest to use the easement to facilitate further development onto other tracts. See Cain 216 N.E.3d at 463, citing [Town of] Ellettsville v. DeSpirito, 111 N.E.3d 987, 995 [(Ind. 2018)] (directing courts to apply the terms of the easement instrument unless subsequently modified by the parties); Restatement (Third) of Property (Servitudes) Sec. 4.11 cmt. B (Am. L. Inst. 2023) (discussing the presumption that, when the agreement does not specifically state otherwise, an appurtenant easement does not benefit a late-acquired tract).
Midwest argues that its current plan to develop lots on Tracts 1, 2 and 3 will actually result in fewer lots than as originally contemplated by the easement agreement and thus, not intensify the use of the easement. But this is of no consequence since the clear language of the easement only contemplated the use of the easement to develop dwelling units on the benefitted property (Tracts 1 and 2). It did not contemplate the use of the easement
could be extended to develop or build single-family dwellings on property outside or adjacent to the benefitted property.Appealed Order at 1-2. The court granted summary judgment for the Updikes on count 1 and reaffirmed its prior ruling on counts 2 and 3. Midwest now appeals only the ruling on count 1.
Here, Midwest acquired all three tracts simultaneously.
Discussion and Decision
[¶8] "The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law." Lamb v. Mid Ind. Serv. Co., 19 N.E.3d 792, 793 (Ind.Ct.App. 2014). Where, as here, "no genuine issues of material fact divide the parties, we need only determine whether the trial court correctly applied the law to the undisputed facts." GEICO Ins. Co. v. Rowell, 705 N.E.2d 476, 480 (Ind.Ct.App. 1999). "We review a summary judgment ruling de novo." Pelliccia v. Anthem Ins. Cos., 90 N.E.3d 1226, 1230 (Ind.Ct.App. 2018). A trial court's findings and conclusions offer insight into the rationale for the court's judgment and facilitate appellate review but are not binding on this Court. Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind.Ct.App. 2014), trans. denied (2015). Moreover, we are not constrained to the claims and arguments presented to the trial court, and we may affirm a summary judgment ruling on any theory supported by the designated evidence. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The party that lost in the trial court has the burden of persuading us that the trial court erred. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind.Ct.App. 1999).
[¶9] "An easement is the right to use another's land for a specified purpose." DeSpirito, 111 N.E.3d at 990. "An easement appurtenant benefits adjoining land; an easement in gross benefits a specific individual. The land benefited by an easement is the dominant estate; the land burdened by an easement is the servient estate." Id. "And where-as here-an easement was 'voluntarily created by a written instrument to serve a specified purpose,' the easement is known as an express easement." Cain, 216 N.E.3d at 462 (quoting Easement, Black's Law Dictionary (11th ed. 2019)). This case deals with an express easement appurtenant, which "is a permitted use of land granted by the servient estate-holder for the benefit of the dominant estate-holder and runs with the dominant estate." DeSpirito, 111 N.E.3d at 991.
[¶10] The nature, extent, and duration of an easement created by an express agreement must be determined by the agreement's provisions. Cain, 216 N.E.3d at 462. A court must ascertain and give effect to the parties' intent, which requires proper construction of the agreement, and "general rules of construction apply." Id. (quoting Brown v. Heidersbach, 360 N.E.2d 614, 618 (Ind.Ct.App. 1977)). "As for those rules of construction, to the extent an agreement is unambiguous, we give words their 'plain and ordinary meaning in light of the whole agreement, without substitution or addition.'" Id. (quoting Hartman v. BigInch Fabricators &Constr. Holding Co., 161 N.E.3d 1218, 1233 (Ind. 2021)) (internal quotation marks omitted). "Any doubt or uncertainty as to the construction of the language of the easement will ordinarily be construed in favor of the grantee[,]" i.e., Midwest. McCauley v. Harris, 928 N.E.2d 309, 315 (Ind.Ct.App. 2010), trans. denied (2011). Generally, the construction of an agreement presents a pure question of law subject to de novo review. Id.
[¶11] The Halls owned Tracts 1, 2, and 3 when they executed the easement agreement, and nothing in the agreement indicates that they intended to relinquish their preexisting right to access Tract 3 from Tracts 1 and 2, all of which are contiguous. Accordingly, as the Halls' successor in interest to all three tracts and the agreement, Midwest enjoys the right to do the same. The question, then, is whether the agreement prohibits Midwest from using the easement to develop and build single-family dwellings on Tract 3.
[¶12] The Updikes cite Selvia v. Reitmeyer for the proposition that "a right-of-way appurtenant to one parcel of land may not be subjected to use by other premises to which the easement is not appurtenant." 295 N.E.2d 869, 874 (Ind.Ct.App. 1974). But this isolated statement is not Selvia's holding, and the Updikes disregard that the purpose of this general principle, as reflected in both Selvia and the case on which it primarily relied, Knotts v. Summit Park Co., 126 A. 280 (Md.Ct.App. 1924), is to prevent an "increased burden upon the servient estate[.]" Selvia, 295 N.E.2d at 874 (quoting Knotts, 126 A. at 283). In Selvia, the court held that the owner of one of the parcels of a subdivided dominant estate could use an implied easement of necessity to access another parcel that he owned, provided that the use did "not create an unreasonable burden on the servient estate." Id. at 875. And in Knotts, the court held that the owner of the dominant estate could not use an express easement to develop a larger adjoining tract because that development would give "easy access ... to the old right of way to all lot holders, including those outside of the dominant estate, who are many times the number of those in said estate." 126 A. at 283.
[¶13] Given that Selvia is both factually distinguishable and inscrutable in some respects, we think that the Tennessee Court of Appeals' opinion in Ogle v. Trotter, 495 S.W.2d 558, 565 (Tenn. Ct. App. 1973), offers a more straightforward means of addressing the issue presented in this case. The relevant facts of Ogle are that King conveyed to Trotter a lot fronting Prince Street to its south in Sevierville. Trotter's lot was subject to an express easement along its eastern boundary reserved by King for accessing Prince Street from his dominant estate to the north of Trotter's lot. Two years later, King conveyed to the Ogles a lot fronting Prince Street immediately to the east of Trotter's tract; this lot was known as the Ogle residence property. Four years after that, the Ogles acquired King's dominant estate from his successor in title; this lot was known as the Ogle rental property. It lay to the north of both Trotter's servient estate and the Ogle residence property and fronted Cedar Street, which ran parallel to Prince Street.
[¶14] Before the Ogles acquired the rental property, the occupants of the two rental houses on that lot "used the easement across the Trotter lot as a means of access to and from Prince Street[,] and some other persons, not having any connection with either of these houses, sometimes used this easement for the purpose of going all the way through from Prince Street to Cedar Street." Id. at 560. After the acquisition, the Ogles relocated one of the rental houses and erected a fence that "incorporat[ed] the southern 71 feet of their rental property into the backyard of their residence property." Id. at 561. This terminated "the flow of traffic to and from Prince Street over the easement[,]" and the occupants of the rental houses "were thereafter required to leave and enter said property to and from Cedar Street." Id.
[¶15] The Ogles later "pave[d] the easement with asphalt for the purpose of using it as a direct means of access from Prince Street into the rear or northern portion of their residence property." Id. "Trotter objected to the Ogles paving the easement or using it as a direct means of access from Prince Street into the rear portion of their residence property." Id. In an ensuing lawsuit, Trotter admitted that the Ogles "had a right to blacktop the easement and use it for the benefit of" the rental property, but denied that they "had a right to use the easement for access to property" other than the rental property. Id. The trial court ruled that the Ogles could "propel vehicles from their residence property onto their rental property and thence onto the easement to Prince Street and to return from Pri[n]ce Street to their residence property by the same route." Id. at 565.
[¶16] Trotter appealed this ruling. The Ogle court recited the following language from an earlier case, which is somewhat similar to the language used in Selvia:
A fundamental principle is that an easement for the benefit of a particular piece of land cannot be enlarged and extended to other parcels of land, whether adjoining or distinct tracts, to which the right is not attached. In other words, an easement appurtenant to a dominant tenement can be used only for the purposes of that tenement; it is not a personal right, and cannot be used, even by the dominant owner, for any purpose unconnected with the enjoyment of his estate. The purpose of this rule is to prevent an
increase of the burden upon the servient estate, and it applies whether the easement is created by grant, reservation, prescription, or implication.Ogle, 495 S.W.2d at 565 (emphasis added) (quoting Adams v. Winnett, 156 S.W.2d 353, 357 (Tenn. Ct. App. 1941), cert. denied).
[¶17] The Ogle court stated simply that "the reason for such rule does not exist in the instant case and therefore the rule is not applicable to it. The evidence conclusively shows that, instead of increasing the burden imposed upon said easement, the Ogles have materially decreased such burden[.]" Id. at 565-66 (emphasis added). The court then held,
so long as the Ogles own [the rental property], they may continue to use the easement in the manner authorized by the trial Court provided such use thereof does not impose any burden upon said easement which is greater than that originally imposed upon it by the purpose for which it was created, to-wit, as a means of ingress to and egress from [the rental property].Id. at 566. See also Cain, 216 N.E.3d at 464 (holding that dominant estate owners were entitled to declaration that they could use express easement to access both appurtenant tract and later-acquired adjoining tract "as long as [they] do not intensify the Easement"); Carbone v. Vigliotti, 610 A.2d 565, 569 (Conn. 1992) ("We conclude that, when no significant change has occurred in the use of the easement from that contemplated when it was created, _ the mere addition of other land to the dominant estate does not constitute an overburden or misuse of the easement.").
Section 4.11 of the Restatement (Third) of Property (Servitudes) (2000) states, "Unless the terms of the servitude . provide otherwise, an appurtenant easement .. may not be used for the benefit of property other than the dominant estate." According to comment b of Section 4.11, this "rule avoids otherwise difficult litigation over the question whether increased use [of the easement] unreasonably increases the burden on the servient estate." Where, as here and in Ogle, it is undisputed that no increased use will occur, we see no reason to blindly follow this rule.
[¶18] Here, the easement agreement between the Halls and Meadowgate specifically contemplated that the easement would be used for the construction of single-family dwellings on Tracts 1 and 2. It is undisputed that the construction of seven single-family dwellings, four of whose backyards will be located on Tract 3, will not increase the contemplated burden on the easement. As stated above, a maximum of eight lots could have been platted on Tracts 1 and 2, and the Updikes will receive a substantial payment from Midwest for each dwelling that is constructed on those tracts. Consequently, we reverse and remand with instructions to deny the Updikes' summary judgment motion as to count 1 of Midwest's complaint and to issue a judgment declaring that Midwest may access Tract 1 and/or Tract 2 and then cross into and use Tract 3 for purposes of developing and building single-family dwellings, so long as that use does not impose any burden on the easement greater than that originally imposed on it by the purpose for which it was created.
[¶19] Reversed and remanded.
Bradford, J., and Tavitas, J., concur.