from the Steuben Circuit Court The Honorable Allen N. Wheat,
Judge Trial Court Cause No. 76C01-1507-CC-263
ATTORNEY FOR APPELLANT John J. Schwarz, II Schwarz Law
Office, PC Hudson, Indiana
ATTORNEY FOR APPELLEE James O. Waanders Indianapolis,
James VanElla appeals the trial court's grant of summary
judgment in favor of VanHorne Properties, Inc.
("VanHorne") and the trial court's denial of
VanElla's cross-motion for summary judgment. We affirm.
VanElla raises several issues, which we consolidate and
restate as whether the trial court properly granted
VanHorne's motion for summary judgment and denied
VanElla's cross-motion for summary judgment regarding the
use of a twenty-five-foot easement.
In August 1950, the plat of Bod's Beach Subdivision was
recorded in the office of the Steuben County Recorder. The
plat consisted of lots 1 through 20 with Bass Lake on the
front side of the lots and a twenty-five-foot roadway
easement along the back side of the lots. The plat provided:
"We also dedicate the Platted easements to the use of
lot owners in this subdivision." Appellant's App.
Vol. II p. 21. The owner of the subdivision then sold several
lots to third parties.
In 1970, the owners of lots 3 through 14 and 18 through 20
and "tracts of land lying between lots numbered 7 and 8
and lots numbered 12 and 13" and "the platted
easement lying to the west and contiguous to said described
lots and tracts of land" filed a petition to vacate the
lots and the easement. Id. at 30. The owners of lots
1, 2, 15, 16, and 17 were not parties to the petition. The
petition alleged that "vacating the same is not
interfering with the rights of any other property owners in
said plat, and therefore, no other owners are affected
thereby." Id. The petition also alleged:
[I]t is the belief of the petitioners that the proposed
vacation will not leave the real estate of any other person
without egress [and] ingress by means of a public street or
easement, nor will it cut off the public's access to any
church, school or other public building or grounds as a way
of necessity to the public nor would said vacation in the
opinion of the petitioners create any great inconvenience to
Id. at 31. The trial court granted the petition and
vacated those portions of Bod's Beach and the easement
and "all of the public's right to use and access to
the same." Id. at 35 ("1970 Order").
Currently, Golden Eagle Mining and Recovery, Inc.
("Golden Eagle"), which is a corporation owned and
controlled by VanElla, owns lots 4 through 14, 19, and 20.
Katheleen Rodriquez owns lots 1 and 2; Rodney Rodriquez owns
lot 15; and Randolph and Mary Fulkerson own lot 3. In January
2015, VanHorne purchased lots 16, 17, and parts of 18 at a
sheriff's sale. Although VanElla acknowledges that
VanHorne, the Fulkersons, and the Rodriquezes have a right of
ingress and egress over portions of the easement, he has
restricted use of the easement. VanElla constructed a barn
that extends twelve feet into the easement, he parks a dump
truck within the easement, he has previously dug depressions
in the road to serve as speed bumps, and he constructed a
fence within the easement. Although the road has large
depressions, ruts, and rocks and is in poor condition,
VanElla refuses to allow the road to be maintained or
repaired. The road is currently a sixteen-foot-wide dirt and
VanHorne filed a complaint against Golden Eagle, VanElla, the
Rodriquezes, and the Fulkersons. VanHorne sought a
declaratory judgment regarding the usage of the easement, an
injunction prohibiting the defendants from interfering with
VanHorne's right to maintain and use the road, an order
requiring VanElla to remove obstructions from the easement
and refrain from harming ...