Court of Appeals of Indiana | Memorandum Decision 52A01-1409-PL-387 | February 13, 2015 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jeffry G. Price

Peru, Indiana

ATTORNEY FOR APPELLEES

William F. Berkshire

Peru, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

John D. Jenkins Revocable 

Living Trust, John D. Jenkins, 

Trustee,

Appellant-Plaintiff,

v.

Peru Utility Service Board, City 

of Peru and Peru Common 

Council,

Appellees-Defendants

February 13, 2015

Court of Appeals Cause No.

52A01-1409-PL-387

Appeal from the Miami Superior 

Court, The Honorable J. David 

Grund, Judge

52D01-0512-PL-526

Najam, Judge.

Statement of the Case

[1] The John D. Jenkins Revocable Living Trust (“the RLT”) appeals the trial 

court’s judgment in favor of the Peru Utility Service Board, City of Peru, and 
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the Peru Common Council (collectively “Peru Utilities”) on the RLT’s trespass 

claim. The RLT presents a single issue for our review, namely, whether the 

trial court erred when it concluded that Peru Utilities did not trespass. We 

affirm.

Facts and Procedural History

[2] In a prior memorandum decision, this court set out some of the relevant facts 

and procedural history as follows:

The John D. Jenkins Revocable Living Trust (“the RLT”) 

contains farmland which it rents to a farmer. Adjacent to the 

RLT’s farmland at issue is a housing development, Hilltop Farms 

L.P. and Hilltop Farms Phase Two (collectively, “Hilltop”). The 

RLT agreed to allow Hilltop to construct a sewer line on the 

RLT’s farmland. The RLT then granted Hilltop a sanitary sewer 

line easement, which Hilltop then assigned to the City of Peru 

Utilities Service Board. . . . Subsequently the RLT brought suit 

against Peru Utilities, the City of Peru, and Peru Common 

Council . . . : 1) alleging a taking and seeking damages for 

inverse condemnation;[ 2) alleging trespass;] and [3)] seeking a 

declaratory judgment as to the rights and obligations of the RLT 

and [Peru Utilities] with regard to payment of fees and 

annexation to the City of Peru by anyone tapping into the sewer 

line. [The parties and the trial court agreed to bifurcate the trial 

on the RLT’s claims into two proceedings, the first of which 

addressed the takings and declaratory judgment claims and the 

second of which addressed the trespass claim.] Following [the 

first] bench trial, the trial court entered findings of fact and 

conclusions of law, concluded that a taking did not occur, and 

declined to enter a declaratory judgment order. . . . 
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John D. Jenkins Revocable Living Trust v. Peru Utility Service Board, No. 52A02-

1106-PL-540 (Ind. Ct. App. 2012) (citations omitted) (“RLT I”). On appeal, we 

affirmed the trial court.

[3] On May 22, 2014, the trial court held a bench trial on the RLT’s trespass claim. 

In its complaint, the RLT alleged that Peru Utilities committed trespass “[b]y 

altering the surface drainage of [the RLT]’s real estate[.]” Plaintiff’s Exh. 1 at 

46. But, both at trial and on appeal, the RLT alleges that Peru Utilities 

committed trespass when it failed to remove “manhole #8,” which is part of the 

sewer system and stands three feet above grade. The facts and procedural 

history relevant to the trespass claim are as follows:

. . . Representatives of Hilltop negotiated with the RLT’s agent 

and both agreed to the construction of a sewer line on the real 

property owned by the RLT. . . . Both [Bruce] Carson[, a Hilltop 

employee,] and the RLT understood that Hilltop would construct 

the sewer line and turn over the impending easement to Peru 

Utilities; accordingly, Peru Utilities was heavily involved in the 

planning process. Construction of the sewer line began in late 

2003 and was completed by January 2004.

In April 2004, the RLT granted to Hilltop the easement and 

recorded the same. . . . The easement was established as a 

covenant running with the land, binding upon grantees and 

assignees.

In May 2004, Hilltop signed a “DEED OF DEDICATION,” in 

which it dedicated to Peru Utilities “all platted easements for 

public utilities, physical/mechanical materials relating to the 

distribution of, operation of and maintenance of a domestic 

sanitary wastewater infrastructure extension/improvements 
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serving Hilltop L.P. and Hilltop Farms Phases I and II . . . .” In 

September 2004, Hilltop assigned the easement to Peru Utilities, 

which accepted and recorded the assignment.

Id. (citations omitted). The easement provides in relevant part that the RLT 

“may grow crops and farm over the top of the easement.” Appellant’s App. at 

43. At trial, the RLT presented evidence that several manholes, including 

manhole #8, render a portion of the easement unsuitable for crops.1 Further, 

John Jenkins testified that, during negotiations surrounding the easement, Peru

Utilities had agreed in writing to “fix the problem” with manhole #8, but the

RLT did not offer any such writing into evidence.2 At the conclusion of the 

trial, the court entered findings and conclusions sua sponte and entered 

judgment in favor of Peru Utilities. This appeal ensued.

Discussion and Decision

[4] The trial court entered findings and conclusions sua sponte. Sua sponte

findings control only as to the issues they cover and a general judgment will 

control as to the issues upon which there are no findings. Tracy v. Morell, 948 

N.E.2d 855, 862 (Ind. Ct. App. 2011). A general judgment entered with 

findings will be affirmed if it can be sustained on any legal theory supported by 

 

1

 The RLT does not direct us to evidence regarding its claim that the surface drainage was altered on its 

property. Instead, as we discuss below, the RLT contends that Peru Utilities trespassed when it did not 

remove manhole #8 from the easement.

2

 The RLT stated that, during the first bench trial, it offered into evidence a letter containing a promise by 

Peru Utilities to fix manhole #8. But the appendix submitted in this appeal, which includes some exhibits 

from RLT I, does not contain any such letter.
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the evidence. Id. When a court has made special findings of fact, an appellate 

court reviews sufficiency of the evidence using a two-step process. Id. First, it 

must determine whether the evidence supports the trial court’s findings of fact; 

second, it must determine whether those findings of fact support the trial court’s 

conclusions of law. Id. Findings will only be set aside if they are clearly 

erroneous. Id. Findings are clearly erroneous only when the record contains no 

facts to support them either directly or by inference. Id. A judgment is clearly 

erroneous if it applies the wrong legal standard to properly found facts. Id. In 

order to determine that a finding or conclusion is clearly erroneous, an 

appellate court’s review of the evidence must leave it with the firm conviction 

that a mistake has been made. Id.

[5] Again, in its complaint, the RLT alleged that Peru Utilities committed trespass 

“[b]y altering the surface drainage of [the RLT]’s real estate[.]” Plaintiff’s Exh. 

1 at 46. But at trial, the RLT’s trespass claim focused only on “the presence of 

[the] manholes on the field.” Tr. at 26. More specifically, Jenkins took issue 

with manhole #8, which protrudes three feet above grade. And on appeal, the 

RLT alleges that “a trespass occurred” when “Peru Utilities failed to remove 

manhole #8 from the land[,]” which it had allegedly agreed to do in the course 

of the easement negotiations. Appellant’s Br. at 13.

[6] A plaintiff in a trespass action must prove that he was in possession of the land 

and that “the defendant entered the land without right.” Lever Bros. Co. v. 

Langdoc, 655 N.E.2d 577, 581-582 (Ind. Ct. App. 1995). Here, the RLT makes 

no allegation that Peru Utilities “entered the land without right.” See id. 
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Instead, the RLT cites to the Restatement (Second) of Torts § 158, which 

provides:

One is subject to liability to another for trespass, irrespective of 

whether he thereby causes harm to any legally protected interest 

of the other, if he intentionally

(a) enters land in the possession of the other, or causes a thing or 

a third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under a duty to 

remove.

(Emphasis added).

[7] The RLT alleges that Peru Utilities was “put on notice, as a part of [the RLT]’s 

tort claim notice[, filed on October 20, 2005,] that the manhole needed to be 

lowered.” Appellant’s Br. at 13-14. But the tort claim notice merely expressed 

the RLT’s subjective desire that manhole #8 be removed or altered. The RLT 

makes no contention that Peru Utilities had a legal duty to remove or alter 

manhole #8. To the extent the RLT suggests that Peru Utilities had a duty to 

remove manhole #8, the sole evidence in support of that contention presented 

at trial was Jenkins’ testimony that the RLT granted the easement on the 

condition that Peru Utilities would remove manhole #8. The trial court was 

entitled to discredit that testimony. The trial court’s conclusion that Peru 
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Utilities did not trespass when it did not remove or alter manhole #8 is not 

clearly erroneous.

Further, comment e to § 158 states, “[c]onduct which would otherwise 

constitute a trespass is not a trespass if it is privileged. Such a privilege may be 

derived from the consent of the possessor[.]” The undisputed evidence shows 

that Peru Utilities helped design and construct the sewer system on the RLT’s 

land with the RLT’s consent. There is no evidence that Peru Utilities engaged 

in any conduct without the RLT’s consent, including the construction of 

manhole #8.

[8] Still, the RLT maintains that “the easement does not authorize the manhole to 

remain above the surface of the field.” Id. at 14. In support of that contention, 

the RLT points out that the easement provides that the RLT “may grow crops 

and farm over the top of the easement.” Appellant’s App. at 43. But Jenkins 

testified at trial that he cannot farm over any of the manholes, so manhole #8 is 

not the only obstacle to the farming operation. To the extent Jenkins argues

that Peru Utilities should have buried the manholes, no such requirement was 

included in the easement or any other written document admitted into evidence 

at trial. And, as the trial court found, Jenkins previously testified that

he did not allow dirt to be brought in to level the ground around 

the manhole cover of the sewer system that now sticks up out of 

the ground, and that he does not want any dirt added to level the 

manhole cover. Jenkins further testified that he did not want any dirt 

added or changes made to the sewer system as constructed.
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Id. at 20 (emphasis added).

[9] Because the RLT granted the easement without any requirement that manhole

#8 be removed or altered, and because Jenkins testified that he did not want 

changes made to the sewer system as constructed, the RLT has not shown that 

the trial court clearly erred when it found against the RLT on its claim for 

trespass.

3 See, e.g., Miller v. Geels, 643 N.E.2d 922, 930 (Ind. Ct. App. 1994) 

(holding that a person with full knowledge of the facts and aware of his rights 

who nevertheless stands by and acquiesces in conduct inconsistent with those 

rights may be estopped from subsequently asserting those rights), trans. denied.

[10] The trial court did not err when it entered judgment in favor of Peru Utilities on 

the RLT’s trespass claim.4

[11] Affirmed.

[12] Mathias, J., and Bradford, J., concur.

 

3

 The RLT also alleges that Peru Utilities had a duty to bury all the manholes because, “[p]rior to issuing a 

permit for the construction of the sewer line in question, the Indiana Department of Environmental 

Management (IDEM) required that the plans confirm that at least three feet of cover would be placed above 

and on top of the sanitary sewer.” Appellant’s App. at 23. But the RLT makes no cogent argument that this 

cover requirement applies to the manholes, and, again, the trial court did not err when it rejected the RLT’s 

trespass claim.

4

 In its brief on appeal, the RLT also contends that the trial court erred when it found that an action for 

trespass cannot be maintained for invasion of an easement and that “because there was no ‘taking’ . . . there 

was no trespass by [Peru Utilities].” Appellant’s Br. at 14. But in light of our disposition above we need not 

address those contentions.