Court of Appeals of Indiana | Opinion 76A03-1607-CC-1699 | July 27, 2017 Page 1 of 12

ATTORNEY FOR APPELLANT

John J. Schwarz, II

Schwarz Law Office, PC

Hudson, Indiana

ATTORNEY FOR APPELLEE

James O. Waanders

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James Van Ella,

Appellant-Defendant,

v.

VanHorne Properties, LLC,

Appellee-Plaintiff

July 27, 2017

Court of Appeals Case No.

76A03-1607-CC-1699

Appeal from the Steuben Circuit 

Court

The Honorable Allen N. Wheat, 

Judge

Trial Court Cause No.

76C01-1507-CC-263

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.
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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:
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[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. 
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[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 or 

impairing the roadway, and damages and attorney fees as a result of VanElla’s 

intentional actions.

[7] VanHorne then filed a motion for partial summary judgment. VanHorne

argued: (1) the 1970 Order vacating the easement is void; and (2) the 1970 

Order did not terminate the private easements and other contractual rights of lot 

owners that purchased their lots in reference to the plat prior to the partial 

vacation. The Rodriquezes filed a response agreeing with VanHorne’s motion 

for partial summary judgment. 

[8] VanElla, Golden Eagle, and the Fulkersons filed a response and cross-motion

for summary judgment. They argued that they were bona fide purchasers for 

value “without notice of any fraudulent act regarding [their] property or 

outstanding rights of others” and that VanHorne could not prove the 1970 

Order was void. Id. at 70. They also argued that VanHorne’s requested relief 

was precluded by laches. 

[9] After a hearing, the trial court granted VanHorne’s motion for summary 

judgment and denied the cross-motion. The trial court issued the following 

order:
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B. Issue/Contentions -

1. What effect, if any, did the action of the Steuben 

Circuit Court in vacating the requested lots and twentyfive (25) foot roadway easement adjacent thereto have 

on Van Horne’s present right to use the entirety of the 

twenty-five (25) foot roadway easement?

2. Van Horne contends it had no effect.

3. Van Ella acknowledges that Van Horne has the right to

travel across the platted twenty-five (25) foot roadway 

easement in order to gain access to lots 16 and 17. 

However, if and when improvements are to be made to 

the twenty-five (25) foot roadway easement will be 

determined exclusively by him. Further, he may take 

all steps deemed appropriate to control the flow of 

traffic across the roadway easement.

C. Conclusions of Law -

1. The Court will first note that it has carefully reviewed 

all properly designated evidentiary materials, and 

reasonable inferences to be drawn therefrom, in a light 

most favorable to the non-moving party.

2. The Petition to Vacate did not seek to vacate those lots 

and adjacent roadway easement rights presently owned 

by Van Horne.

3. The lots presently owned by Van Horne had been sold 

to third-parties prior to the filing of the Petition to 

Vacate. These prior owners did not consent to the 

vacation of their platted lots and their concomitant 
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right to use the twenty-five (25) foot roadway 

easement.

4. The Court concludes that once a subdivision has been 

platted in accordance with law, along with roadway 

easement rights, a subsequent purchaser of a lot in the 

subdivision cannot thereafter be divested of the right to 

make use of the entirety of the roadway easement as 

identified on the subdivision plat at the time of 

purchase.

5. The Court concludes that Van Horne, owner of the 

dominant estate, has the right to make reasonable and 

necessary repairs to the twenty-five (25) foot roadway 

easement. The Court concludes that Van Ella, owner of 

the servient estate, has the right to make reasonable and 

necessary repairs to the twenty-five (25) foot roadway 

easement.

6. The Court concludes that neither Van Ella, Fulkerson 

nor any other person has the right to take any action 

that would unreasonably impede Van Horne’s use of 

the entirety of the twenty-five (25) foot roadway 

easement for the purpose of gaining ingress and egress 

to and from lots 16 and 17.

7. The Court concludes that the law regarding the rights 

of a bona fide purchaser for value of real estate as 

argued by Van Ella and Fulkerson does not change the 

conclusions of this Court as set forth above.

8. The Court concludes that the equitable doctrine of

laches as argued by Van Ella and Fulkerson does not 

change the conclusions reached by this Court as set 

forth above.
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Appellant’s App. Vol. II. pp. 15-18. The trial court then granted VanHorne’s 

motion for summary judgment, denied the cross-motion for summary 

judgment, and gave VanHorne “unimpeded use of the entirety of the twentyfive (25) foot roadway easement for the purpose of having ingress and egress 

rights to and from its lots 16 and 17 without interference by the fee simple title 

owner(s) of the twenty-five (25) foot roadway easement.” Id. at 18. The trial 

court also gave VanHorne “the right to make reasonable and necessary repairs 

to the twenty-five (25) foot roadway easement to assure safe passage to and 

from its lots 16 and 17” but clarified that the repairs “cannot in any manner 

interfere (except when repairs, if any, are being made) with the lawful rights of 

any other person to make use of the entirety of the twenty-five (25) foot 

roadway easement or alter in any manner its original configuration.” Id. at 18-

19. VanHorne filed a motion to make the partial summary judgment a final 

judgment, which the trial court granted. VanElla, Golden Eagle, and the 

Fulkersons filed a motion to correct error and motion for a site visit. After a 

hearing, the trial court denied the motion to correct error. VanElla now 

appeals.1 

Analysis

[10] VanElla challenges the trial court’s grant of summary judgment to VanHorne. 

Summary judgment is appropriate only when the moving party shows there are 

 

1 Golden Eagle and the Fulkersons have not appeared in this appeal or filed briefs.
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no genuine issues of material fact for trial and the moving party is entitled to 

judgment as a matter of law. Schoettmer v. Wright, 992 N.E.2d 702, 705 (Ind. 

2013); see also Ind. Trial Rule 56(C). Once that showing is made, the burden 

shifts to the non-moving party to rebut. Schoettmer, 992 N.E.2d at 705-06.

When ruling on the motion, the trial court construes all evidence and resolves 

all doubts in favor of the non-moving party. Id. at 706. We review the trial 

court’s grant of summary judgment de novo, and we take “care to ensure that 

no party is denied his day in court.” Id.

[11] VanElla argues that summary judgment was improper. According to VanElla, 

the 1970 Order was valid and not subject to challenge by VanHorne, the 

injunction should be dismissed because VanElla is the rightful owner of the 

property and VanHorne has ingress and egress, and laches and acquiescence bar 

VanHorne’s action. VanElla concedes that VanHorne has a right of ingress and 

egress, but he also claims that the easement was vacated. The trial court, 

however, concluded that summary judgment was proper because the 1970 

Order could not divest the lot owners that did not participate in the action or 

consent to the vacation of the easement of their rights to the easement. We 

agree.

[12] In support of its argument VanHorne relies in part on Bob Layne Contractor, Inc. 

v. Buennagel, 158 Ind. App. 43, 301 N.E.2d 671 (1973). There, a developer had 

a subdivision with restrictive covenants platted and sold some of the lots. Later, 

the developer sought to vacate part of the plat to do commercial development 

on that area. The developer filed a petition to vacate part of the plat, but it did 
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not name the lot owners or give them personal notice of the petition. Further, 

“[n]o attempt was made subsequent to the filing of the Vacation Suit to seek an 

agreement by a majority of the lot owners to nullify the restrictions as provided 

in the covenants.” Bob Layne Contractor, 158 Ind. App. at 47, 301 N.E.2d at 

675. The trial court granted the petition to vacate, and the lot owners filed a 

complaint to enjoin the developer from violating the restrictive covenants. The 

trial court granted an injunction prohibiting the developer from violating the 

restrictive covenants, “finding that the restrictive covenants ran with the land, 

that they were not dissolved by [the developer’s] suit to vacate the [property], 

and that they could be dissolved only by an agreement of the majority of the 

owners or by legal action with notice to each owner.” Id. at 48, 301 N.E.2d at 

675. 

[13] On appeal, we held that the “statutory vacation alone does not effect [sic] 

restrictive covenants incorporated in the plat and running with the land.” Id. at 

53, 301 N.E.2d at 678. We recognized the “devastating effect of allowing one 

party to a restrictive covenant to unilaterally dissolve that covenant.” Id. at 54, 

301 N.E.2d at 678. “Vested contract rights in land may not be abrogated by 

statutory proceedings designed to serve a specific limited purpose. Equity 

would shudder were it otherwise.” Id., 301 N.E.2d at 678-79. Consequently, 

the vacation suit by itself did not and could not operate to dissolve the 

restrictive covenants.

[14] We reached a similar result in McIntyre v. Baker, 660 N.E.2d 348, 351 (Ind. Ct. 

App. 1996), where we held: “An owner of lots within a plat cannot modify 
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restrictions on the plat without the consent of all of the owners of all of the lots 

in the plat.” We concluded that, because all of the owners of the land subject to 

the restrictive covenant did not consent to its removal, the restrictive covenant 

was not removed by merely replatting some of the lots. Id. 

[15] Similarly, we held in Adult Grp. Properties, Ltd. v. Imler, 505 N.E.2d 459, 464 

(Ind. Ct. App. 1987), trans. denied, that “[a] restrictive covenant creates a 

property right in each grantee and subsequent grantees.” When the first lot of 

the subdivision was sold, the restrictive covenants became binding. The 

restrictive covenants could not later “be modified or extinguished without the 

consent of all the lot owners in the subdivision.” Adult Grp. Properties, 505 

N.E.2d at 464. 

[16] The easement here is not a restrictive covenant, but the concept is the same. 

Our courts have held that “[a] right of way over land is an interest therein, and, 

whether such right be acquired by adverse use or by express or implied grant, it 

cannot be extinguished except in a mode recognized by law.” Thomas v. McCoy, 

48 Ind. App. 403, 96 N.E. 14, 15 (1911) (internal citation omitted). Once the 

easement that benefited each of the lot owners was platted, individual lot 

owners could not destroy the easement by vacating the easement associated 

with their lots. The easement could not be vacated without the consent of all 

the lot owners or a proper legal action. There is no evidence that the prior 

owners of VanHorne’s lots consented to the vacation of the easement or were 

even served with notice of the petition to vacate the easement, which is used for 

ingress and egress to the lots. Consequently, the 1970 Order did not affect the 
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easement, and VanHorne still has the right to use the twenty-five-foot platted 

easement.2 

[17] Finally, we note:

The owner of an easement, known as the dominant estate, 

possesses all rights necessarily incident to the enjoyment of the 

easement. Panhandle E. Pipe Line Co., v. Tishner, 699 N.E.2d 731, 

739 (Ind. Ct. App. 1998). The dominant estate holder may make 

repairs, improvements, or alterations that are reasonably 

necessary to make the grant of the easement effectual. Id. The 

owner of the property over which the easement passes, known as 

the servient estate, may use his property in any manner and for 

any purpose consistent with the enjoyment of the easement, and 

the dominant estate cannot interfere with the use. Id. “All rights 

necessarily incident to the enjoyment of the easement are 

possessed by the owner of the dominant estate, and it is the duty 

of the servient owner to permit the dominant owner to enjoy his 

easement without interference.” Id. The servient owner “may 

not so use his land as to obstruct the easement or interfere with 

the enjoyment thereof by the owner of the dominant estate.” Id. 

Moreover, the owner of the dominant estate cannot subject the 

servient estate to extra burdens, any more than the holder of the 

servient estate can materially impair or unreasonably interfere 

with the use of the easement. Klotz v. Horn, 558 N.E.2d 1096, 

1100 (Ind. 1990).

 

2 Because we conclude that the 1970 Order did not affect the easement, we need not address VanElla’s 

arguments that the vacation proceeding complied with statutory requirements, that the statute of limitations 

on challenging the order has run, that VanElla was a bona fide purchaser for value, that VanHorne

acquiesced to the condition of the roadway by purchasing the property, or that laches applies.
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McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. Ct. App. 2010), trans. denied. As 

the dominant estate holder, VanHorne may make repairs, improvements, or 

alterations that are reasonably necessary to make the grant of the easement 

effectual. Further, the servient owner, VanElla, may not obstruct the easement 

or interfere with VanHorne’s use of the easement. The trial court properly 

granted VanHorne’s motion for summary judgment and properly denied 

VanElla’s cross-motion for summary judgment.

Conclusion

[18] The trial court properly granted VanHorne’s motion for summary judgment and 

properly denied VanElla’s cross-motion for summary judgment. We affirm.

[19] Affirmed.

Baker, J., and Crone, J., concur.