Court of Appeals of Indiana | Opinion on Rehearing 88A05-1510-PL-1797 | August 3, 2017 Page 1 of 3

OPINION ON REHEARING

ATTORNEY FOR APPELLANT

Mark D. Johnson

Allen & Johnson, LLC

Salem, Indiana

ATTORNEY FOR APPELLEE

Robert R. Thomas

Thomas Law Group, LLC

Zionsville, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Luther T. Collins,

Appellant-Plaintiff,

v.

Metro Real Estate Services,

LLC,

Appellee-Defendant.

August 3, 2017

Court of Appeals Case No.

88A05-1510-PL-1797

Appeal from the Washington 

Circuit Court

The Honorable Larry Medlock, 

Judge

Trial Court Cause No.

88C01-1401-PL-50

Barnes, Judge.

[1] Luther Collins petitions for rehearing following our decision in Collins v. Metro 

Real Estate Services LLC, 72 N.E.3d 1007 (Ind. Ct. App. 2017). In that opinion, 

we held that there was neither an easement by grant nor an easement by prior 

use in favor of Metro over property owned by Collins. Collins, 72 N.E.3d at 

1015-16. However, we did hold that the evidence in the record supported the 

conclusion that Metro, as successor in interest to the dominant estate, had an 
Court of Appeals of Indiana | Opinion on Rehearing 88A05-1510-PL-1797 | August 3, 2017 Page 2 of 3

easement by necessity over Collins’s servient estate. Id. at 1018. Collins asserts 

that the easement by necessity issue is moot because, while this appeal was 

pending, Metro sold the property to a third party who now has access to a 

public right of way through an adjoining property.

[2] The sale of the property by Metro was repeatedly noted by the parties and by 

this court in our original opinion. We denied Collins’s motion to substitute 

Metro with the new owner of the property as appellee after Metro objected to 

that motion. Subsequently, we issued a rule to show cause requiring Collins to 

demonstrate why we should not dismiss the appeal as moot in light of the sale 

of the property. Collins requested that the appeal not be dismissed because the 

new owner of the property still wanted to use the easement over Collins’s 

property.

[3] In our opinion, we specifically noted that we were deciding the case strictly on 

the basis of the trial court record before us and said, “we . . . make no 

prediction regarding if or how the subsequent conveyance of the dominant 

estate affected the easement at issue.” Id. at 1018 n.10. We continue to adhere 

to that position. We acknowledge that an easement of necessity may cease to 

exist when the necessity out of which the easement arose ceases to exist. 

Zakutansky v. Kanzler, 634 N.E.2d 75, 84 (Ind. Ct. App. 1994). On the other 

hand, an easement of necessity does not attach itself to a particular owner and 

does not automatically expire upon transfer of either the dominant or servient 

estate to a new owner. William C. Hakk Trust v. Wilusz, 949 N.E.2d 833, 837 
Court of Appeals of Indiana | Opinion on Rehearing 88A05-1510-PL-1797 | August 3, 2017 Page 3 of 3

(Ind. Ct. App. 2011). Thus, Metro’s sale of the dominant estate to a third party 

did not automatically render the easement by necessity issue moot.

[4] We agree with Collins’s rehearing petition to the extent that whether an 

easement of necessity still exists here is a matter to be litigated on remand 

between Collins and the new property owner. We did not foreclose the 

possibility of such litigation in our original opinion. With these additional 

observations, we reaffirm our original opinion in full and remand to the trial 

court for further proceedings.

Kirsch, J., and Robb, J., concur.