Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants,
Joseph V. DeSpirito, Appellee.
Argued: November 30, 2017
from the Monroe Circuit Court No. 53C01-1509-PL-1714 The
Honorable E. Michael Hoff, Judge
Petition to Transfer from the Indiana Court of Appeals No.
ATTORNEYS FOR APPELLANTS TOWN OF ELLETTSVILLE PLAN COMMISSION
Darla S. Brown Sturgeon & Brown, P.C. Bloomington,
RICHLAND CONVENIENCE STORE PARTNERS, LLC Andrew P. Sheff
Sheff Law Office Indianapolis, Indiana Carina M. de la Torre
The de la Torre Law Office LLC Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Michael Rabinowitch Maureen E. Ward
Wooden McLaughlin LLP Indianapolis, Indiana.
adhere to Indiana's longstanding common-law rule that
relocating a fixed easement requires the consent of all
affected estate-holders. And we reject the minority approach,
reflected in the Third Restatement of Property (Servitudes),
which permits the unilateral relocation of easements if a
court finds the proposed relocation is
"reasonable", consistent with the
"normal" use and development of the servient
estate, and does not adversely affect the dominant estate.
Property rights in Indiana are not so flimsy that they may be
modified or eliminated if their exercise impedes what is
thought to be a more productive or worthwhile use of land.
Under Indiana law, such rights may be abridged only with the
bargained-for consent of the property owner or through the
lawful exercise of eminent domain.
and Procedural History
History of the Affected Properties
issue here are two adjoining lots in Ellettsville, Indiana,
that were once a single parcel of land owned by Swifty Oil
Company. In 1996, Swifty subdivided the parcel and recorded
the subdivision by a plat filed with the Monroe County Plan
Commission. The plat delineates a utility easement across Lot
1. Swifty conveyed Lot 2 by warranty deed to Martin Hukill,
the predecessor in interest to appellee, Joseph V. DeSpirito.
2011, DeSpirito obtained Lot 2 by a special limited warranty
deed executed and recorded in the Monroe County
Recorder's Office. This deed conveyed Lot 2 "as
shown on the recorded plat thereof" and "[s]ubject
to covenants, easements and restrictions, if any, appearing
in the public records." DeSpirito's deed does not
explicitly mention a utility easement running through Lot 1.
But one of the public records to which it is subject-namely,
the subdivision plat-does show the easement.
2014, Swifty conveyed the other lot-Lot 1-to appellant
Richland Convenience Store Partners, LLC, by a limited
warranty deed executed and recorded in April 2014.
Richland's title was explicitly subject to
"encroachments, easements, rights of way, covenants,
reservations, and restrictions in the chain of title to the
Real Estate or otherwise existing thereon".
Richland's deed made clear Lot 1 was subject to various
covenants, conditions, restrictions and, relevant here,
"Utility and Drainage easements and setback lines",
along with any amendments disclosed on the subdivision's
Town of Ellettsville Plan Commission
2015, Richland asked the Town of Ellettsville Plan
Commission, also an appellant here, for permission to
relocate the utility easement on Lot 1. Richland wanted to
move the easement, along with the private sewer line running
beneath it, fifteen to twenty feet south-all at
Richland's own expense. Richland sought to relocate the
easement to increase the buildable area of Lot 1. DeSpirito,
who owned Lot 2, opposed the relocation and testified against
it at the hearing.
DeSpirito's opposition, the Plan Commission approved
Richland's request. It found that Richland's
"application [met] all of the requirements as set forth
by the Town of Ellettsville Zoning Ordinance"; and it
granted the proposed amendment to the plat. The Commission
specifically found that relocating the sewer line would cause
only minimal disruption to DeSpirito, and that Richland had
agreed to incur the cost of replacement. It also found that
relocation would increase the buildable area on Lot 1 and
represented "the best location to allow for future
development of the site and maintain the functionality of the
Trial Court Proceedings
petitioned for judicial review of the Commission's
decision in the Monroe Circuit Court. He also sought a
declaration that the Commission's ruling was null and
void, along with injunctive relief preventing construction or
other development on Lot 1 inconsistent with the utility
easement's existing location as described in the plat.
The parties agreed to the preliminary injunction. On summary
judgment the trial court found that DeSpirito, as owner of
Lot 2, had a fixed utility easement through Lot 1, the
location of which was specified in the subdivision plat.
Citing Indiana appellate caselaw, the court held that the
easement's fixed location meant it "cannot be
changed by either party without consent of the other."
The court thus granted DeSpirito's motion for summary
judgment and remanded to the Commission with instructions to
dismiss Richland's petition unless DeSpirito agreed to
it. The court also ordered the preliminary injunction to
remain in effect.
Court of Appeals Proceedings
and the Commission appealed the trial court's entry of a
purported final judgment, though the entry did not resolve
all claims as to all parties. Town of Ellettsville v.
DeSpirito, 78 N.E.3d 666 (Ind.Ct.App. 2017). Ignoring
any jurisdictional infirmity, the court of appeals agreed
with the trial court that there were no disputed material
facts. Id. at 668. But the court distinguished the
caselaw the trial court had relied upon, finding it involved
"an easement by necessity" and thus did not apply.
Id. at 676-77. The court of appeals concluded that
the "more modern" and "more equitable approach
to easement relocation" is stated in Section 4.8 of the
Third Restatement of Property (Servitudes). Id. at
677. This provision entitles the holder of the servient
estate-Richland-to "make reasonable changes in the
location or dimensions of an easement" at its own
expense, but only if they do not "(a) significantly
lessen the utility of the easement, (b) increase the burdens
on the owner of the easement in its use and enjoyment, or (c)
frustrate the purpose for which the easement was
created." Restatement (Third) of Property: Servitudes
§ 4.8(3) (2000).
adopting the Restatement, the court of appeals cited an
opinion from the Supreme Judicial Court of Massachusetts,
M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053
(Mass. 2004). The Massachusetts court rejected the common-law
approach because it "permits an easement holder to
prevent any reasonable changes in the location of an
easement" and thus renders "an access easement
virtually a possessory interest rather than what it is,
merely a right of way." Id. at 1058. Our court
of appeals found that rationale convincing and predicted we
would, too. "We find these observations persuasive and
believe that our supreme court would also recognize the
utility of adopting the Restatements approach to easement
relocation." 78 N.E.3d at 679.
Supreme Court Proceedings
sought transfer, which we granted, thus vacating the court of
appeals' opinion. After oral argument, we found appellate
jurisdiction lacking because the trial court never issued a
final judgment-one that "disposed of all claims as to
all parties". Ind. Appellate Rule 2(H)(1). Town of
Ellettsville v. DeSpirito, 87 N.E.3d 9, 11 (Ind. 2017).
In the interest of judicial economy, we did not dismiss the
case outright; rather, we stayed the appeal and remanded to
the trial court to determine whether it could enter a final
judgment. Id. at 11-12. In response to our opinion,
the trial court expressly determined that there was no just
reason for delay and expressly directed entry of judgment for
DeSpirito on his claim for judicial review and against
Richland and the Commission. This entry is sufficient to
secure appellate jurisdiction.
review the entry of summary judgment de novo, and that is no
less true when the trial court sits as a reviewing court on
judicial review from an administrative ruling. Under our
settled standard, summary judgment is proper if the
designated evidence shows there is no genuine issue as to any
fact material to a claim or issue, and the movant is entitled
to judgment as a matter of law. Ryan v. TCI
Architects/Engineers/Contractors, Inc., 72 N.E.3d 908,
912-13 (Ind. 2017). Here, the parties agree there are no
disputed issues of material fact. The only dispute is one of
law, which we also review de novo: Should we adhere to
Indiana's longstanding common-law rule, which requires
all affected estate-holders to consent to the relocation of a
fixed easement; or adopt the Restatement position, which does
not always require such consent? We continue to follow the
common-law rule as the law of Indiana and thus affirm the
Lot 2's utility easement through Lot 1 is fixed.
easement is the right to use another's land for a
specified purpose. An easement appurtenant benefits adjoining
land; an easement in gross benefits a specific individual.
The land benefited by an easement is the ...