Court of Appeals of Indiana | Opinion on Rehearing 88A05

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OPINION ON REHEARING



### A TTORNEY FOR 

### A PPELLANT Mark D. Johnson Allen & Johnson, LLC Salem, Indiana 

### A TTORNEY FOR 

### A PPELLEE 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 Ca se No. 88A05

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- 1797 Appeal from the Washington Circuit Court The Honorable Larry Medlock, Judge Trial Court Cause No. 88C01

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### 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 evide nce in the record supported the conclusion that Metro, as successor in interest to the dominant estate, had anCourt of Appeals of Indiana | Opinion on Rehearing 88A05

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### 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. W e 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 str ictly 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 attac h 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, 837Court of Appeals of Indiana | Opinion on Rehearing 88A05

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### (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 t he 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 Ro bb, J., concur

.