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Van Ella v. Vanhorne Properties, LLC

Court of Appeals of Indiana

July 27, 2017

James Van Ella, Appellant-Defendant,
v.
VanHorne Properties, LLC, Appellee-Plaintiff

         Appeal 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, Indiana.

          Barnes, Judge.

         Case Summary

         [¶1] 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.

         Issues

         [¶2] 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.

         Facts

         [¶3] 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.

         [¶4] 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 the public.

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").

         [¶5] 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 sand roadway.

         [¶6] 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 ...


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