William J. Huff, II Revocable Trust Declaration, and Nicole E. Huff Revocable Trust Declaration, Appellants-Defendants,
Michael O. Cain and Linda A. Raymond, Appellees-Plaintiffs.
from the Monroe Circuit Court The Honorable J. David Holt,
Senior Judge Trial Court Cause No. 53C06-1804-PL-755
ATTORNEYS FOR APPELLANTS Thomas R. Malapit, Jr. Joshua A.
Brown Ryan L. Groves Barry A. Hall McKinney & Malapit Law
ATTORNEY FOR APPELLEES Michael L. Carmin Carmin Parker, PC
William J. Huff, II Revocable Trust Declaration, Dated June
28, 2011 and Nicole E. Huff Revocable Trust Declaration,
Dated June 28, 2011 (collectively, "the Huffs")
appeal from the trial court's grant of a preliminary
injunction in favor of Michael O. Cain and Linda A. Raymond
(collectively, "Cain"). The Huffs present one issue
on appeal, which we restate as: Whether the trial court
abused its discretion when it issued a preliminary injunction
enjoining the Huffs from using certain easements to cut and
remove timber from their real estate.
We vacate and remand.
and Procedural History
In 1990, Kenton L. Robinson ("Robinson") was the
owner of real estate in Monroe County, Indiana. On March 12,
1990, Robinson granted an easement ("the Grant of
Easement") to Terre Haute Real Estate Corporation
("THR"), the then owner of property adjacent to
Robinson's property. Appellants' App. Vol. 2
at 53-56. Subsequently, Robinson conveyed his real estate,
and it became The Shores subdivision ("The
Shores"). Cain is the current owner of Lot 9 in The
Shores and holds an undivided interest in certain common
areas of The Shores, including an area known as the Common
Nature Preserve. Tr. at 59-61. The Huffs are the
current owners of the real estate adjacent to The Shores
("the Huff Real Estate"), previously owned by THR,
and the successors in interest to the Grant of Easement.
The Grant of Easement contains three separate easements
through The Shores. Easement No. 1 provides "a private,
non-exclusive surface easement for ingress and egress over
and along the roadway for The Shores as depicted in the plat
thereof." Appellants' App. Vol. 2 at 29-30.
Easement No. 1 is Shady Side Drive, the principal road
serving The Shores and ending in a cul-de-sac on the south
end of the subdivision. Tr. at 33.
Easement No. 2 provides "a fifty (50) feet wide private
driveway easement over Lot 9 and the Common Nature Preserve
of [T]he Shores . . . ." Appellants' App. Vol.
2 at 30. Easement No. 2 also provides in relevant part,
"Grantee shall limit its use of the driveway easement
for the construction and development of and use by not more
than four of the six single family residences allocated to
Grantee's real estate . . . ." Id. Easement
No. 2 further provides, "Grantee covenants to maintain
the driveway easement in a sightly manner, at the expense of
Grantee or its assigns." Id.
Easement No. 3 provides "a fifty (50) feet wide private
driveway easement extending from the south end of the roadway
within The Shores . . . and over Lot 1 and the Common Nature
Preserve near the west property line of The Shores . . . and
as more particularly described in Exhibit C . . . ."
Id. at 31. Easement No. 3 is an ingress and egress
easement over Lot 1 and part of the Common Nature Preserve
and connects The Shores to a part of the Huffs Real Estate.
Id. at 12. Easement No. 3 also provides in relevant
part, "Grantee's use of this Easement No. 3 shall be
limited to construction and development of and use by not
more than three of the six single family residences allocated
to Grantee's real estate . . . ." Id. at
31. Similar to Easement No. 2, Easement No. 3 provided,
"Grantee covenants to maintain the driveway easement in
a sightly manner, at the expense of Grantee or its
The General Conditions portion of the Grant of Easement
further provides in relevant part as follows:
1. The grant of driveway easement and surface easements as
described hereinabove includes such access by Grantee, its
invitees or licensees as is necessary from time to time to
repair, restore, maintain or replace water lines or sewer
lines or other utilities located within the described
easement and to repair, maintain or improve the driveways.
2. Grantee covenants to limit use of the easements above
described, for the construction, development and use by
Grantee and its grantees and assigns of six (6) single family
residential structures, each of which may include guest and
caretaker quarters and other buildings attendant thereto, to
be located on Grantee's real estate described in Exhibit
A and as more particularly described above.
3. The Shores Homeowners Association, Inc. and its members
shall have the right to enforce the within covenants and
restrictions by court injunction ...