Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newforth v. Bault

Court of Appeals of Indiana

March 6, 2019

Craig Newforth and Marcia Newforth, Appellants-Defendants,
v.
Jason Bault, Appellee-Plaintiff.

          Appeal from the Owen Circuit Court The Honorable Elizabeth Cure, Special Judge Trial Court Cause No. 60C02-1609-PL-343

          ATTORNEY FOR APPELLANT Michael L. Carmin Carminparker, PC Bloomington, Indiana

          ATTORNEYS FOR APPELLEE Ryan J. Vershay A. Richard M. Blaiklock Derek G. Raymond Lewis Wagner, LLP Indianapolis, Indiana

          Brown, Judge.

         [¶1] Craig and Marcia Newforth appeal the trial court's order determining the extent of an easement over some of their property. The Newforths raise two issues which we restate as whether the judgment is clearly erroneous. We affirm.

         Facts and Procedural History

         [¶2] Jason Bault operates a mulch business and owns approximately five acres in Owen County, Indiana (the "Bault Property"). State Road 43 is located along the eastern boundary of the Bault Property. Bault also owns several parcels (the "Northern Bault Parcels") located north of the Bault Property. Checkered Racing owns a parcel (the "Checkered Racing Parcel") west of the Bault Property. The Newforths own real property containing approximately 19.55 acres ("Newforth Property") west of the Checkered Racing Parcel from which they operate a trash service, and they own a fifty-foot-wide strip of land containing 0.88 acres (the "Easement Area") subject to an easement (the "Easement") which extends from the 19.55-acre property eastward along the southern boundary of the Checkered Racing Parcel and the Bault Property to intersect with State Road 43. A gravel industrial access road (the "Access Road") is located in the Easement Area. Bault has an agreement with Checkered Racing pursuant to which he may access the Northern Bault Parcels using the Checkered Racing Parcel. The Newforth Property, Bault Property, and Northern Bault Parcels are part of Franklin Industrial Park.

         [¶3] By way of background, Cheryl Franklin conveyed property of approximately five acres to Jim Sinders by deed dated March 5, 1998, and recorded March 10, 1998 (the "Franklin Deed"). The Franklin Deed also granted the Easement to Sinders and included a legal description of the Easement Area. A plat for Franklin Industrial Park executed by Cheryl Franklin and recorded on December 11, 2000, depicts the five-acre parcel conveyed to Sinders (which is now the Bault Property), a 19.55-acre parcel (which is now the Newforth Property), the Easement Area, and other parcels adjacent to the Easement Area. The 2000 plat in the record depicts the following:

         (Image Omitted)

         See Exhibit 3.[1] Sinders conveyed the five-acre parcel and his right to use the Easement to John and Peggy Tucker by deed dated August 16, 2006, and recorded August 18, 2006 (the "Tucker Deed"). An amended plat of Franklin Industrial Park was recorded in May 2009 depicting the five-acre parcel owned by the Tuckers (now the Bault Property), the land owned by Cheryl Franklin, and the 0.88-acre Easement Area.

         [¶4] Cheryl Franklin conveyed property to the Newforths by deed dated June 28, 2011, and recorded June 29, 2011 (the "Newforth Deed"), which included the Newforth Property of approximately 19.55 acres and the 0.88-acre Easement Area. The Newforth Deed conveyed the Easement Area "[s]ubject to an affirmative duty to maintain the easement from the 19.55 acre tract to State Road 43 for the benefit of the 19.55 acre tract and the adjacent parcels abutting the easement as shown on" the 2000 plat. Exhibit 5. The Tuckers conveyed their five-acre parcel and rights under the Easement to Bault by deed dated April 29, 2016, and recorded June 13, 2016 (the "Bault Deed"). The southern boundary of the Bault Property coincides with the northern boundary of the Easement Area.

         [¶5] At some point, Bault approached Craig Newforth about installing drives over a part of the Easement Area in order to connect the Bault Property to the Access Road, and Craig Newforth objected. On September 12, 2016, Bault filed a complaint seeking declaratory relief and an injunction. Bault alleged a shallow ditch separated his property from the Access Road, that access to and from his property by semi tractor trailer vehicles is reasonable and necessary for his mulch business, and that he desires to install at his expense a culvert pipe and two graded gravel areas within the Easement Area. He requested a permanent injunction enjoining the Newforths from interfering with his rights.

         [¶6] On December 9, 2016, at Bault's request the trial court conducted a site visit with the parties, and in September 2017, it held a bench trial. Bault presented numerous exhibits including the relevant recorded instruments, the Owen County zoning ordinance and comprehensive plan, proposed drive illustrations, traffic notes, and photographs of the Easement Area, his vehicles and mulch operation, and the access drives of other mulch businesses. Bault presented evidence related to the volume and types of vehicles which would use the access drives and proposed a design of two forty-foot-wide drives, a forty-five-foot apron on the east side of each drive, [2] and a fifteen-foot apron on the west side of each drive, and he presented evidence regarding the reasons for his proposed design.

         [¶7] On November 14, 2017, the court entered Findings of Fact, Conclusions of Law and Judgment. It found that Bault's rights under the Easement include the right to utilize the entire Easement and Access Road for vehicular access to and from the Bault Property; the right to install two one-hundred-foot-wide access areas which are reasonably necessary to Bault's use and enjoyment of the Easement; the right to install a drainage culvert under each access area; and the right to utilize the Easement and Access Road for vehicular access by Bault's heavy equipment vehicles to and from the Northern Bault Parcels via the Checkered Racing Parcel. The court found that the terms of the Easement are clear and unambiguous, permit Bault's intended installation of the access areas, and do not restrict the manner in which he can use and develop the Bault Property, the type and size of vehicles he and his customers can utilize, the type and size of drives or access areas he can install within the Easement Area, or his use of the Easement for his heavy equipment vehicles to access the Northern Bault Parcels via the Checkered Racing Parcel.

         [¶8] The court further found it was reasonably foreseeable at the time the Easement was created that it would be utilized by semi tractor trailers and heavy equipment vehicles. It found that Bault's intended use will not subject the Newforth Property to extra burdens or materially impair or unreasonably interfere with the Newforths' use and enjoyment of the Newforth Property. It found that Bault's anticipated annual volume of vehicles is reasonably foreseeable, permissible, and consistent with the historical use of the Access Road and Franklin Industrial Park, and that his rights under the Easement include the right to utilize the entire 0.88-acre, fifty-foot-wide Easement for vehicular access to and from the Bault Property. The court also found that Bault may use the Easement and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.