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Legal Surveys

Tuesday, May 14, 2019   (0 Comments)
Posted by: Kayla Jenkins
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Article originally published in the Winter 2019 issue of the ISPLS Hoosier Surveyor

By Bryan F. Catlin, PS 

The goal of this column is to provide brief summaries of recent Indiana Court of Appeals and Supreme Court cases involving topics related to surveying practice, certainly not to provide legal advice.  Information is gathered from the courts website at  Comments or suggestions for future columns are welcome by email to:

Interestingly, there are two cases from Ellettsville this quarter.

Brenda Sue Gittings and Marc Richmond Gittings v. William H. Deal, Indiana Supreme Court Case No. 18S-TR-231, November 2, 2018

This case originating in the Spencer Circuit Court concerns two stepsiblings, Brenda Sue Gittings and William Deal.  After the death of Georgia Richmond (William’s mother) in 1997, some assets of a trust were distributed to Brenda, William, and the grandchildren.  However, William received deeds to land and minerals in Indiana and West Virginia.  In 2010, the property in West Virginia began producing hundreds of thousands of dollars annually from oil and gas leases.  After Brenda complained, William belatedly sought court approval for the property transfers and this eventually ended up in the Indiana Supreme Court.  This was sent back to the trial court because the land transfers were improperly conducted. 

This case doesn’t really concern surveying, but it is a strong reminder that property transfers must meet procedural steps to be valid.  In this case steps dealing with trust properties, even though many years had passed with the transfers not being challenged.  

Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC v. Joseph V. DeSpirito, Indiana Supreme Court Case No. 53S01-1709-PL-612, November 29, 2018

Here is a case that already made it to the Indiana Supreme Court in 2017.  As a reminder, the prior case summaries follow in italics. 

Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC v. Joseph V. DeSpirito, Indiana Supreme Court Case No. 53S01-1709-PL-612, December 12, 2017

Here, a case from last year was granted transfer to the Indiana Supreme Court.  As a reminder, the original case summary follows in italics. 

Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC v. Joseph V. DeSpirito, Indiana Court of Appeals Case No. 53A01-1611-PL-2559, May 25, 2017

Richland Convenience Store Partners (RCSP) and DeSpirito own adjoining commercial subdivision lots.  The RCSP lot has a platted 15’ utility easement running through the middle of it containing a sewer line that serves Dr. DeSpirito’s optometry practice.  RCSP petitioned the Ellettsville Plan Commission for permission to move the sewer line and amend the plat at their expense in order to have a larger portion of their lot be buildable area.  Dr. DeSpirito and two others opposed the plat amendment.  The Plan Commission approved RCSP’s plan and Dr. DeSpirito filed a petition for judicial review with the Monroe Circuit Court.  The trial court overturned the Plan Commission decision and repeatedly mentioned “Dr. DeSpirito’s easement” and his property interest in it, and claimed that the plat could not be amended without all persons who had a financial interest in the platted property, including Dr. DeSpirito as a lot owner, agreeing.  The trial court noted it is illegal for a government agency to assist one private land owner to condemn and take the property of another owner.  This appeal followed.

The Appeals Court found that the financial interest provision was based on a part of the Ellettsville Subdivision Regulations that apply to submission of a preliminary plat, not the amendment of an existing plat, as well as noting that the trial courts interpretation would require every owner in a 150 lot residential subdivision to agree to a relocation of an easement on one lot, an absurd result.  The Court of Appeals also found that the constitutional and statutory concerns are misplaced.  There were also prior court cases cited by the trial court that do not apply because neither of the two owners selected the original easement location.  The court also noted that an easement is a limited nonpossessory interest by definition and that preventing reasonable changes would amount to a possessory interest.  The trial court’s grant of summary judgment was reversed and remanded with instructions to enter summary judgment for the Plan Commission and RCSP, reinstate the Plan Commission’s decision, and conduct further proceedings.

Now the Indiana Supreme Court weighs in after a Petition to Transfer was granted.  Here they rule that, as the Court of Appeals noted, there was not a final judgment in place to appeal.  However, the Court of Appeals proceeded noting the supreme court has relaxed procedure in this regard.  The Supreme Court now finds that the circumstances cited do not apply to this case and remand the case to the trial court for a decision within the next 90 days. 

This case returned to the trial court where there was determined there was no just reason for delay and expressly directed entry of judgment for DeSpirito.

By taking up the appeal, the Indiana Supreme Court sets aside any Appeals Court decision.  Now the Indiana Supreme Court finds that the easement is in a fixed position.  This is because, even though there are not distances to the plat boundary shown, only the width of the easement, it can be scaled from the one inch equals sixty feet plat and so the easement is in a fixed location.  Indiana has historically followed a common-law precedent that a fixed easement cannot be relocated unilaterally.  Finally, the Indiana Supreme Court discussed why they believe the restatement approach to relocation agreements used by the Appeals Court is unclear and internally inconsistent and why they firmly support the current common-rule law prohibiting unilaterally relocating fixed easements.  The trial court judgment for DeSpirito was affirmed. 

Centennial Park, LLC v. Highland Park Estates, LLC, Indiana Court of Appeals Case No. 18A-PL-764, December 5, 2018 - MEMORANDUM DECISION - not regarded as precedent

This case centers on Phase 1 of Highland Park in Monroe County.  The plat includes two relevant restrictions. First, Note 1 states that “[n]o parcels shall be dedicated as parks, schools, playgrounds, or other community purposes within section 1.” Second, Paragraph G states that nothing shall be done on any lot “which may be or become an annoyance or nuisance to the neighborhood.” The final plat was recorded by Robert Crider in 1977 and showed that the subdivision runs roughly north and south along Centennial Drive, which connects to State Road 46 on the south and ends in a cul-de-sac on Lot 15 and next to Lot 16 on the north.

On December 21, 2016, Centennial Park acquired thirty acres directly north of Highland Park from Gil Mordoh. Centennial Park has only one point of ingress and egress, which is a roadway through the Woodgate subdivision, located directly to the west. Mordoh had attempted to prove that there was an easement from the cul-de-sac to the planned Centennial Park subdivision so that an access road could be built there, but a trial court found that no such easement existed. Mordoh then attempted to purchase an easement from Crider, but Crider declined. When Centennial Park acquired the real estate, it was aware of this history.

The original developer of Highland Park planned to develop real estate located directly east of Phase I. Highland Park is now in the process of developing Phase II. When Phase II is complete, it will have multiple roadways connecting to Centennial Park. Highland Park offered an easement to Centennial Park so that Centennial Park could build an access road in one of these locations sooner than Highland Park was prepared to do so.

Rather than waiting for Highland Park to build the Phase II access roadways or accepting the easement to build a roadway itself, Centennial Park purchased Lot 15 in Highland Park. Centennial Park then asked the Town of Ellettsville to annex Lot 15 and the town did so. Centennial Park then granted Ellettsville a fifty-foot-wide easement and right-of-way over the western side of Lot 15, creating a connection between the cul-de-sac at the north end of Centennial Drive and the Centennial Park subdivision.

Centennial Park installed a construction road across Lot 15, using it to access Centennial Park from the cul-de-sac. It ultimately intends to build a permanent roadway connecting Centennial Park and Centennial Drive. This process has caused damage and nuisance to the owner of Lot 16. Her mailbox has been knocked down three times, the construction traffic has blocked access to her driveway, and the construction traffic has torn up the cul-de-sac and spread mud over the roadway. The owner of Lot 16 testified that one of the reasons she purchased Lot 16 was precisely because it was located on a cul-de-sac, which is a safe area for her children to play and ride their bikes.

On August 3, 2017, Highland Park filed a complaint against Centennial Park in the Monroe Circuit Court, seeking an injunction to prevent Centennial Park from using Lot 15 as a public right-of-way or construction road. The trial court held an evidentiary hearing and ruled in favor of Highland Park, concluding that Centennial Park’s actions have negatively impacted the area around the cul-de-sac and that if Centennial Park is allowed to install a permanent roadway from its development to the cul-de-sac, the traffic from Centennial Park’s development as well as other subdivisions connected to Centennial Park, consisting of approximately two hundred residential lots, will be funneled through the cul-de-sac to connect with Centennial Drive and eventually State Road 46. Centennial Park’s actions will transform the original cul-de-sac into a major direct thoroughfare, thus dramatically altering the nature of the roadway and the neighborhood.

Centennial Park’s construction of an access road across Lot 15 to Centennial Park, its grant of an ingress-egress easement to the Town of Ellettsville, and its intention to construct a reverse “S” curve in the roadway were found to violate the restrictions contained in the plat because these acts dedicate a portion of Lot 15 to a community purpose.  These same acts also violate Covenant G insofar as they constitute an annoyance or nuisance to the neighborhood. 

The trial court enjoined Centennial Park from dedicating Lot 15 or any part thereof for a community purpose, including as a public right-of-way or thoroughfare connecting Highland Park and Centennial Park. It also ordered Centennial Park to cease using the construction road and restore Lot 15 to a use that conforms with the restrictive covenants in the Highland Park plat. Centennial Park appealed.

On Appeal the judgment of the trial court was affirmed. 

Daniel Enterprises, L.P., et al. v. City of Portage, Indiana, Indiana Court of Appeals Case No. 18A-PL-1594, December 12, 2018 - MEMORANDUM DECISION - not regarded as precedent

This case from the Porter Superior Court concerns property that the City of Portage condemned in 2017.  The owner appealed after the court entered an Order of Condemnation.

On appeal, the owners’ basic argument was that a parallel offer must have been made to the current leaseholder.  The owner had leased the property which was then apparently sublet to a different entity.  However, the Appeals Court noted that the effort to purchase property must be made with the owner or their designated representative, and Indiana Code defines an owner as the persons listed on the tax rolls as responsible for the payment of real estate taxes and the persons in whose name title to real estate is shown in the records of the recorder of the county in which the real estate is located.  The judgment of the trial court was affirmed. 

Wayne Zollman and Teresa Zollman v. James Albert Costello and Lisa Renee Costello, Indiana Court of Appeals Case No. 18A-PL-1537, December 21, 2018 - MEMORANDUM DECISION - not regarded as precedent

This case has already been before the Court of Appeals.  My prior summary follows in italics:

James Albert Costello and Lisa Renee Costello v. Wayne Zollman and Teresa Zollman, Indiana Court of Appeals Case No. 10A05-1503-PL-97, May 31, 2016 - MEMORANDUM DECISION - not regarded as precedent

The Costellos and Zollmans live on neighboring lands in Clark County.  Prior to 1957, a fence was constructed between the two properties.  In the 1960s, Zollman began leasing the parcel he would eventually purchase in 1978 for hunting and farming.  Wayne Zollman believed the fence was the boundary between the northeastern portion of the Costello property and the southwestern portion of the Zollman property.  Zollman built additional fences over time and attached them to the fence in order to contain livestock and repaired the fence from time to time.  In 1993, Lisa’s parents purchased the Costello real estate and the Costellos often resided on the property.  Lisa said she did not know if the fence was the legal boundary line but observed the Zollmans house animals up to it.  In 1997, Lisa’s parents deeded the property to her.  Lisa observed the Zollmans store piles of lime dust near the barn 100 feet east of the fence.  The Zollmans again attached additional fencing to enclose animals.  The Costellos claimed the Zollmans’ animals damaged the fence and entered the Costellos’ property and caused the Costellos to repair and replace portions of the fence.  Around this time a cluster of thirty-one trees just west of the fence began to die and rot.  Lisa had soil samples taken which were tested indicating an increased pH level. 

In 2003, Lisa had a boundary survey prepared which revealed that the entire length of the fence was on the Costello property and a strip east of their property which was unowned.  At some point, the Township Trustee removed and replaced a portion of the fence which was then assessed against the Costellos’ property taxes.  In October 2005, the Costellos filed a complaint against Wayne Zollman and several township officials.  Wayne Zollman asserted a counterclaim alleging the lawsuit was frivolous and requesting attorney’s fees.  After mediation, the claims against the township officials were dismissed in consideration of a payment, but the claim against Wayne Zollman was not settled.

In 2009, Lisa had additional soil testing done which indicated the soil pH had returned to normal and on September 10, 2010, hired the prior surveyor to perform a legal survey.  On October 13, 2010, the surveyor again adopted his 2003 findings and recorded the survey at the Clark County Surveyor’s Office.  The survey indicated the Costello boundary was 1.33 feet east of the fence and that an additional 5.88-foot-wide strip east of that (together, the disputed property) was unowned.  In May 2011, the Costellos filed a complaint amending the 2005 complaint, and in August 2011, the Costellos filed a third amended complaint for damages and request for declaratory judgment and added Teresa Zollman as a defendant.  The complaint requested the Clark Circuit Court adopt the findings of the 2010 survey and declare the Costellos the owners of the disputed property, award damages to the Costellos for common law trespass, and award treble damages and attorney’s fees. 

After discovery, a bench trial was held in August 2014.  Prior to trial, the Zollmans made a motion for specific findings of fact and conclusions, which were granted.  Also prior to trial, Lisa Costello removed the fence.  On October 28, 2014, the court held that the Zollmans held title to the disputed property, the Costellos were not entitled to damages, and the Zollmans were entitled to a personal judgment against the Costellos in the amount of $1,950.00 for damages suffered by the removal of the fence.  The trial court adopted the Zollmans’ proposed findings verbatim.  This appeal followed. 

The Costellos contended the trial court erred in concluding the Zollmans had proved adverse possession in 1988.  The Court of Appeals notes why the requirements of Fraley v. Minger were satisfied in this case for the disputed property although title to the actual fence was not determined.  The Court of Appeals affirmed that the Zollmans acquired title of the disputed property by adverse possession, but since they did not gain title to the fence, their claim of trespass due to removal of the fence and damages for removal of the fence related to trespass fail.  The Costellos also claimed that the trial court erred in finding that the Zollmans did not commit common law or criminal trespass by allowing lime to flow onto their property where the trees died.  The denial of the Costellos’ claim of trespass by lime flowing onto their property was reversed and remanded back to the trial court with instructions for further proceedings. 

The trial court now found that the Zollmans caused the loss of the Costellos’ trees appropriately valued at $41,543 and awarded that amount to the Costellos.  The Zollmans appealed.

The Appeals Court now finds that trespass had occurred as there was a direct causal link between the Zollmans’ conduct in storing lime uphill from the trees and the intrusion of that lime into the Costellos’ land.  The Zollmans also disputed expert testimony from the Costellos’ expert, a certified arborist, about the cause of the trees’ death as well as complained that individual values were not calculated even though there were individual values in the arborist’s report submitted into evidence at trial.  The judgment of the trial court was affirmed. 

Bryan F. Catlin, PS has been registered as a Land Surveyor in Indiana since 1991.  He holds B.S. Land Surveying Engineering and M.S. Engineering (Geodesy) degrees from Purdue University.

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