Court of Appeals of Indiana | Opinion 18A-PL-1123 | March 11, 2019 Page 1 of 20

ATTORNEYS FOR APPELLANTS

Thomas R. Malapit, Jr.

Joshua A. Brown

Ryan L. Groves

Barry A. Hall

McKinney & Malapit Law

Muncie, Indiana

ATTORNEY FOR APPELLEES

Michael L. Carmin

Carmin Parker, PC

Bloomington, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

William J. Huff, II Revocable 

Trust Declaration, Dated June 

28, 2011 and Nicole E. Huff 

Revocable Trust Declaration, 

Dated June 28, 2011,

Appellants-Defendants,

v.

Michael O. Cain and Linda A. 

Raymond,

Appellees-Plaintiffs.

March 11, 2019

Court of Appeals Case No.

18A-PL-1123

Appeal from the 

Monroe Circuit Court 

The Honorable 

J. David Holt, Senior Judge

Trial Court Cause No.

53C06-1804-PL-755

Kirsch, Judge.

[1] William J. Huff, II Revocable Trust Declaration, Dated June 28, 2011 and 

Nicole E. Huff Revocable Trust Declaration, Dated June 28, 2011 (collectively, 
Court of Appeals of Indiana | Opinion 18A-PL-1123 | March 11, 2019 Page 2 of 20

“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. 

[2] We vacate and remand.

Facts and Procedural History1

[3] 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. 

 

1 Oral argument was heard on this case on December 12, 2018 in the Indiana Supreme Court courtroom in 

Indianapolis, Indiana. We commend counsel on the quality of their written and oral advocacy.
Court of Appeals of Indiana | Opinion 18A-PL-1123 | March 11, 2019 Page 3 of 20

[4] 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. 

[5] 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. 

[6] 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 
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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 assigns.” Id. 

[7] 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 obtained by due process of 

law.

Id. 

[8] The Grant of Easement between Robinson, then owner of the land that would 

eventually become The Shores, and THR, then owner of the Huff Real Estate,

was the result of negotiation and dispute by THR on its belief that the platting 
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and development of The Shores landlocked its property. The limitation on use 

of the easements as described in the Grant of Easement for the benefit of the 

THR property, now the Huff Real Estate, was limited to construction, 

development and use of six single family residences and attendant structures

and was an expressly negotiated term, as stated by the attorney representing 

THR at that time, “that’s all Mr. Robinson would agree to.” Tr. at 147-53. 

[9] The Huff Real Estate was comprised of approximately 193 acres, acquired from 

THR, and approximately 44 acres, known as the Chumley parcels, adjacent to 

The Shores. The Huff Real Estate is heavily wooded and hilly land, and access 

by land to the Huff Real Estate is via the three access easements. After the 

Huffs acquired their land, they enlisted the services of Ralph Unversaw 

(“Unversaw”), District Forester for the Indiana Department of Natural 

Resources’ Division of Forestry (“DNR”), who developed a Stewardship Plan 

specifically for the Huff Real Estate, which was finalized in July of 2017. 

Appellants’ App. Vol. 2 at 69-95. Unversaw described the Huff Real Estate as 

about 249 acres, all of which is forested and located partially on Lake Monroe 

adjacent to The Shores. Id. The Stewardship Plan included certain welldelineated goals for the Huff Real Estate, including to improve the stand of 

trees, improve the wildlife habitat, control exotic and invasive species, provide 

an enjoyable place to recreate, selectively harvest trees throughout the woods in 

the future, develop four home sites, provide better access throughout the 

property, and develop fire trails. Id. at 70. 
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[10] As a part of implementing the Stewardship Plan, and pursuant to the Grant of 

Easement, the Huffs hired Logan Freeman (“Freeman”) to clear out the 

easements. Tr. at 187-88. During the time he was working on the Huff Real 

Estate, Freeman worked about five days a week and eight to ten hours each

day. Id. As a part of clearing the easements, Freeman brought in

approximately 100 tri-axle dump trucks of stone through The Shores and the 

easements and did not receive any complaints from Cain or anyone in The 

Shores. Id. at 188-89. 

[11] During roughly the same time that Freeman was working on the Huff Real 

Estate, the Huffs hired Ohio River Veneer to begin the process of harvesting the 

timber on the Huff Real Estate, and the company applied for a logging permit 

from the director of the Monroe County Planning Department (“the Planning 

Department”). Id. at 7, 27. In June 2017, after several delays, the Planning 

Department refused to issue a logging permit to Ohio River Veneer and the 

Huffs. The Planning Department explained that it had been contacted by 

landowners in The Shores who believed that the language of the Grant of 

Easement limited the easements to “construction, development and use by a 

maximum of six single family homes and that their utilization for logging 

activities would ‘overburden’ the easements and is not allowed.” Appellants’ 

App. Vol. 2 at 98. The Planning Department further stated, “[u]ntil the Grant of 

Easement is amended to expand the permissible uses to allow logging activities

or there is a court order that declares that the proposed logging activities are 
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allowed by the existing easement language, our office would be unable to issue 

a logging permit.” Id. 

[12] After reviewing Indiana statutes and consulting with attorneys, the Huffs 

determined that a logging permit was not needed when harvesting timber 

outside of an urban area, and they subsequently withdrew their application for a 

logging permit. Tr. at 127. One statute relied on by the Huffs was Indiana 

Code section 36-7-4-1103(c), which states, “This chapter does not authorize an 

ordinance or action of a plan commission that would prevent, outside of urban 

areas, the complete use and alienation of any mineral resources or forests by the 

owner or alienee of them.” After consulting with a civil engineer, the Huffs 

determined that 98% of the Huff Real Estate is outside of an urban area. Id. at 

135-36. Notwithstanding section 36-7-4-1103(c), the Planning Department 

noted that a permit was still necessary because Monroe County had an 

ordinance that “predates the statute” and requires a permit that can be obtained 

after showing that the applicant is using “best management practices” and 

shows a legal right to the timber and “a way of getting the logs . . . out . . . 

through a . . . valid ingress or egress easement that would allow logging.” Id. at 

14. 

[13] In December 2017, the Huffs entered into a contract with Tri-State Timber 

(“Tri-State”) to cut and remove trees from the Huff Real Estate. Id. at 169-70. 

The Huffs were to receive a percentage of the proceeds from the sale of the 

removed trees. In April 2018, Tri-State filed an application for a logging permit 

with the Planning Department. Id. at 13,98. The logging permit application, 
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citing “Zoning Ordinance 825,” warned that special restrictions on tree 

harvesting may apply to lands in the Lake Monroe watershed and provided that 

logging as part of land clearing for further development may require a grading 

permit. Pls.’s Ex. E. The form further advised that failure to obtain a grading 

permit before clearing land for development purposes was an ordinance 

violation subject to fines and other legal action. Id. The Planning Department 

did not grant the permit. Tr. at 16-17. After being told by the Planning 

Department that the logging permit would not be issued, Tri-State made the 

determination to start harvesting again because it thought that it had the legal 

right to practice forestry outside an urban area pursuant to Indiana Code 

section 36-7-4-1103(c). Id. at 181. Around April 10, 2018, Tri-State began 

harvesting the timber on the Huff Real Estate, and Tri-State expected the work 

to be finished in approximately ten weeks, weather permitting. As part of its 

logging activities, Tri-State drove large commercial logging trucks and 

equipment over Easement No. 1, Shady Side Drive, which is a hilly and curvy 

two-lane road with no sidewalks or shoulders. Id. at 54-55.

[14] On April 18, 2018, Cain filed his complaint for declaratory judgment and 

injunctive relief. In the complaint, Cain requested declaratory judgment to 

determine the rights granted to the Huffs by the Grant of Easement and for a 

declaration that the easements do not authorize ingress and egress for 

commercial logging activity on the Huff Real Estate. Appellants’ App. Vol. 2 at 

15. Cain also requested a permanent injunction against the Huffs, enjoining use 

of the easements for commercial logging activities or any purpose other than 
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specifically authorized by the general conditions in the Grant of Easement. Id. 

at 16. On April 20, 2018, Cain filed a petition for a temporary restraining order 

(“TRO”) to enjoin the Huffs’ logging. The trial court denied the TRO petition 

after a hearing but set the matter for a hearing on a preliminary injunction. 

Logging activities on the Huff Real Estate greatly increased after the TRO 

hearing.

[15] On May 3, 2018, a hearing was held on the issue of a preliminary injunction. 

At the hearing, Cain presented evidence that he is a member of The Shores 

Homeowners’ Association and owned property in The Shores. Cain testified 

that he objected to the Huffs’ use of the easements to remove logs from the Huff 

Real Estate for commercial sale even if for the development of single-family

homes. Tr. at 78. Cain further testified, “I feel like these logging trucks and 

this machinery are trespassing across the easements because they don’t have 

permission to be there.” Id. at 90. Cain also presented evidence that the use of 

logging trucks on the easements is an annoyance and inconvenience to him, 

although he only lives in his home in The Shores approximately four months 

out of the year. Id. at 80, 89. Cain testified that he had safety concerns 

regarding the logging trucks using the easements and introduced a picture of a 

neighbor standing behind a mailbox as a logging truck passed, but Cain did not 

have any knowledge of any accidents occurring on Shade Side Drive in the 

years since he has owned his property. Id. at 85.

[16] Cain also presented testimony of Alice Sharp (“Sharp”), a neighbor of Cain, but 

not a resident of The Shores. Sharp testified that she lives three houses north of 
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Cain on Shady Side Drive and is familiar with The Shores from going on walks 

and visiting people who lived there, but that she is not a member of The Shores. 

Id. at 53-54. Sharp further testified that on one occasion when the logging 

trucks were using Shady Side Drive, she had to pull her car to the shoulder 

when a truck came around a curve in the road. Id. at 54-55. She also stated 

that the logging activity has “definitely slowed down pedestrian traffic.” Id. at 

55. After testifying on direct examination that she had “seen lots of logging 

trucks and equipment” on Shady Side Drive, Sharp testified on crossexamination that she only witnessed approximately six logging trucks pass 

through Shady Side Drive over the course of the prior two weeks. Id. at 54, 57. 

[17] At the hearing, William J. Huff (“William”) testified that, although he was 

clearing trees from the Huff Real Estate, he was not in the process of building 

homes on the land; instead, he was “preparing for the future use of [the] land.” 

Id. at 100. The evidence presented at the hearing included William’s statement

that the logging activity on the Huff Real Estate at the time the complaint was 

filed was to remove trees in accordance with the Stewardship Plan. Id. at 111. 

In discussing what is necessary for future development, the Huffs presented 

testimony from a civil engineer that the “standard first step in a development 

project is clearing” the land. Id. at 131. After reviewing the relevant portions of 

the Grant of Easement, the civil engineer testified that the development and use 

of the Huff Real Estate would include “clearing and grading, establishment of 

building sites for these buildings,” the extension of utility lines, and building of

homes and garages. Id. at 134. The engineer further testified that, as part of 
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this process, any valuable timber that is removed during the clearing could be 

sold to help offset costs. Id. at 135. 

[18] William testified that he understood that the process of harvesting the timber 

would only continue for a period of about eight weeks, depending on weather, 

and that harvesting would not need to be done again for approximately ten 

years. Id. at 122-23. Evidence was presented that, once the timber was 

harvested, a ten to fifteen-year rotation was expected before harvesting needed

to occur again but was dependent on the growth rate of the timber and the 

presence of diseases or other outside forces. Id. at 173, 182. 

[19] The Huffs presented evidence that their contract for selective harvesting with 

Tri-State was worth approximately $500,000, but they did not show what 

percentage of that value they were to receive from Tri-State. Id. at 117. The 

Huffs also maintained that they would incur penalties and fees associated with 

the cessation of work under their contract with Tri-State and that timber worth 

$20,000 had already been cut on their land and would spoil if not removed. Id. 

at 117, 184-85. 

[20] On May 8, 2018, the trial court entered its order granting Cain relief and 

prohibiting the Huffs from using the easements for anything other than the 

construction, development, and use of single-family structures. Appellants’ App. 

Vol. 2 at 106-11. The trial court specifically ordered that the Huffs were 

enjoined from “using the [easements] through The Shores . . . for access to [the 

Huff Real Estate] except for the construction, development and use by [the 
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Huffs] of single-family residential structures, which may include guest and 

caretaker quarters and other buildings attendant thereto.” Id. at 110. The trial 

court further enjoined the Huffs from “use of the [easements] described in the 

Grant of Easement, which encumber [the Huff Real Estate,] for commercial 

logging or for hauling logs or trees, or forestry activity.” Id. The Huffs now 

appeal.

Discussion and Decision

[21] “The grant or denial of a preliminary injunction rests within the sound 

discretion of the trial court, and our review is limited to whether there was a 

clear abuse of that discretion.” Duke Energy of Ind., LLC v. City of Franklin, 69 

N.E.3d 471, 481-82 (Ind. Ct. App. 2016). When granting a preliminary 

injunction, a trial court is required to enter special findings and conclusions 

thereon. Ind. Trial Rules 52, 65(D). When considering whether a trial court’s 

grant of a party’s motion for a preliminary injunction constitutes an abuse of 

discretion, this court determines whether the evidence supports the trial court’s 

special findings of fact and whether the findings support the judgment. Hannum 

Wagle & Cline Eng’g, Inc. v. Am. Consulting, Inc., 64 N.E.3d 863, 874 (Ind. Ct. 

App. 2016). This court should not disturb the findings or judgment unless they 

are clearly erroneous, nor should the court reweigh the evidence or reassess 

witness credibility. Id. Rather, the court should consider only the evidence 

favorable to the judgment and all reasonable inferences to be drawn therefrom. 

Id. We will reverse the trial court’s judgment only when it is clearly erroneous, 
Court of Appeals of Indiana | Opinion 18A-PL-1123 | March 11, 2019 Page 13 of 20

and a judgment is clearly erroneous when a review of the record leaves us with 

a firm conviction that a mistake has been made. Id. 

[22] To obtain a preliminary injunction, the moving party has the burden of showing 

by a preponderance of the evidence that: (1) the movant’s remedies at law are 

inadequate, thus causing irreparable harm pending resolution of the substantive 

action; (2) the movant has at least a reasonable likelihood of success at trial by 

establishing a prima facie case; (3) threatened injury to the movant outweighs 

the potential harm to the nonmoving party resulting from the granting of an 

injunction; and (4) the public interest would not be disserved by the granting of 

the injunction. Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d 

484, 487 (Ind. 2003). In order to grant a preliminary injunction, the moving 

party has the burden of showing, by a preponderance of the evidence, that the 

facts and circumstances entitle him to injunctive relief. U.S. Land Servs., Inc. v. 

U.S. Surveyor, Inc., 826 N.E.2d 49, 62-63 (Ind. Ct. App. 2005). The power to 

issue a preliminary injunction should be issued sparingly, and such relief should 

not be granted except in rare instances in which the law and facts are clearly 

within the moving party’s favor. Id. at 63. 

[23] The Huffs argue that the trial court abused its discretion when it granted the 

preliminary injunction prohibiting them from harvesting timber from the Huff 

Real Estate. Specifically, the Huffs contend, in part, that the trial court’s grant 

of a preliminary injunction was an abuse of discretion because the preliminary 

injunction was overbroad. The Huffs assert that the preliminary injunction was 

not narrowly tailored and was broader than reasonably necessary to protect 
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Cain’s interest because it prevents them from using the easements to exercise 

their rights on the Huff Real Estate. 

[24] An injunction is an extraordinary remedy that should be granted only with 

caution. Rennaker v. Gleason, 913 N.E.2d 723, 733 (Ind. Ct. App. 2009). 

Injunctions must be narrowly tailored and never more extensive in scope than is 

reasonably necessary to protect the interests of aggrieved parties. Id. 

Moreover, the injunction should not be so broad as to prevent the enjoined 

party from exercising his rights. U.S. Land Servs., 826 N.E.2d at 65 (citing 

Boczar v. Meridian St. Found., 749 N.E.2d 87, 94 (Ind. Ct. App. 2001)). If an 

injunction is more extensive than is reasonably necessary to protect a party’s 

interests or unduly prevents a party from exercising his rights, we may remand 

to the trial court for revision. Id. 

[25] Here, the trial court granted a preliminary injunction and ordered the following: 

[T]hat Defendants and Defendants’ agents, employees, attorneys 

and all others under Defendants’ control and in active concert 

and participation with Defendants be restrained and enjoined 

from trespass on Plaintiffs’ Real Estate and specifically are 

restrained and enjoined from using the Access Easements 

through The Shores subdivision for access to Defendants’ Real 

Estate except for the construction, development and use by 

Defendants or Defendants’ grantees and assigns of single family 

residential structures, which may include guest and caretaker 

quarters and other buildings attendant thereto to be located on 

Defendants’ Real Estate . . .

[T]hat Defendants and Defendants’ agents, employees, attorneys 

and all of those under Defendants’ control and in active concert
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and participation with Defendants be restrained and enjoined 

from use of the Access Easements described in the Grant of 

Easement, which encumber Defendants’ Real Estate and 

Plaintiffs’ Real Estate for commercial logging or for hauling logs 

or trees, or forestry activity.

Appellants’ App. Vol. 2 at 110. 

[26] The language in the first paragraph of the order closely mirrors the language 

used in the General Conditions of the original Grant of Easement, which 

provided, “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.” Id. at 31. 

However, the language in the second paragraph goes further and enjoins the 

Huffs from using the easements for commercial logging, hauling logs or trees, 

or any forestry activity. The Huffs assert that this preliminary injunction 

encroaches on their ability to exercise their rights on their property. We agree.

[27] The phrase “forestry activity” was not defined by the trial court. However, 

Indiana Code section 32-30-6-1.5 defines the phrase “forestry operations” as 

“facilities, activities, and equipment used to plant, raise, manage, harvest, and 

remove trees on private land . . . [and] includes site preparation, fertilization, 

pest control, and wildlife management.” Therefore, the language in the second 

paragraph appears to prohibit the Huffs from utilizing the easements for any 

activity associated with planting, managing, harvesting, and removing trees 

from the Huff Real Estate. Under the language in the Grant of Easement, the 
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Huffs’ use of the easements was limited to the construction, development, and 

use by the Huffs and their grantees and assigns of six single-family residential 

structures. The evidence presented established that the Huff Real Estate is

comprised of approximately 240 acres adjacent to The Shores, which consists of

heavily wooded and hilly land with the only access by land being the three 

access easements granted in the Grant of Easement. In order for reasonable 

development or use of the Huff Real Estate, it is clear that some prudent 

logging and removal of trees will be necessary and that the hauling and removal 

of trees would be essential in developing the Huff Real Estate as contemplated 

in the Grant of Easement. We, therefore, conclude that the preliminary 

injunction ordered by the trial court was overbroad as it enjoined the Huffs 

from activities on the Huff Real Estate that would be necessary to develop the 

property and effectively prohibits them from accomplishing what is explicitly 

granted in the Grant of Easement. Based on this, we vacate the trial court’s 

order granting the preliminary injunction.

[28] Although William testified that he was not in the process of building homes on 

the land but was “preparing for the future use of [the] land,” Cain testified that 

he objected to the Huffs’ use of the easements to remove logs for commercial 

sale even if for the development of single-family homes. Tr. at 78, 100. Based 

on the evidence presented, we recommend that this case be referred to 

mediation to allow the parties to hopefully find a middle ground in this dispute. 

Prudent logging of the Huff Real Estate is essential for the reasonable use and 

development of the property, and as the Huff Real Estate is landlocked, the 
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easements will need to be used to facilitate this prudent logging. Some sort of 

middle ground should be sought between the parties to accomplish this end, 

and this court urges the trial court to consider on remand whether the covenants 

on which a middle ground cannot be found are contrary to law and should be 

vacated. 

[29] Vacated and remanded.

Vaidik, C.J., concurs.

Riley, J., dissents with separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

William J. Huff, II Revocable 

Trust Declaration, Dated June 

28, 2011 and Nicole E. Huff 

Revocable Trust Declaration, 

Dated June 28, 2011,

Appellants-Defendants,

v.

Michael O. Cain and Linda A. 

Raymond,

Appellees-Plaintiffs.

Court of Appeals Case No.

18A-PL-1123

Riley, Judge dissenting

[30] I respectfully dissent from the majority’s conclusion that the preliminary 

injunction crafted by the trial court was overbroad. Preliminary and permanent 

injunctions serve different purposes and may, therefore, have different scopes. 

AGS Capital Corp., Inc. v. Product Action Intern., LLC, 884 N.E.2d 294, 313-14 
Court of Appeals of Indiana | Opinion 18A-PL-1123 | March 11, 2019 Page 19 of 20

(Ind. Ct. App. 2008), trans. denied. One of the purposes of a preliminary 

injunction is to protect the property and rights of the parties from any injury, 

usually by maintaining the status quo as it existed prior to the controversy, until 

the issues and equities in a case can be determined after a full examination and 

hearing. Id. at 314. For purposes of a preliminary injunction the status quo is 

usually defined as “the last actual, peaceful and noncontested status which 

preceded the pending controversy.” Kozuch v. CRA-MAR Video Ctr., Inc., 478 

N.E.2d 110, 115 (Ind. Ct. App. 1985). 

[31] The trial court’s order prohibited the Huffs from using the Easements for 

“commercial logging or for hauling logs or trees, or forestry activity.” 

(Appellants’ App. Vol. II, p. 110). It is this last term which the majority finds to 

be overbroad. However, at the preliminary injunction hearing, the Huffs 

maintained that their commercial logging operations were part of the 

implementation of a forestry plan they had developed by the DNR. Regardless 

of their motives in logging their land, the logging is what precipitated the 

controversy between the parties. The trial court’s inclusion of the term 

“forestry activity” was a reasonable description of the implementation of the 

forestry plan the Huffs described, and so I disagree with the majority that the 

term was overbroad for the purpose of preserving the status quo between the 

parties. Furthermore, while I agree with the majority that the Grant of 

Easement furnished the Huffs with the right to use the Easements to construct, 

develop, and use six single-family residential structures, it was undisputed that 

the Huffs were not in the process of constructing, developing or using 
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residential structures when they undertook their commercial logging activities. 

Therefore, I disagree with the majority that the trial court’s order prohibited the 

Huffs from exercising their rights. 

[32] Although the issues were not addressed by the majority, I find that Cain 

demonstrated that irreparable harm would result from the Huffs’ commercial 

logging, he had a reasonable likelihood of success on the merits of his claim, 

and that the public interest would not be disserved by a preliminary injunction 

on the Huffs’ commercial logging pending a full examination and hearing on 

the issues. Therefore, I would affirm the trial court’s grant of preliminary 

injunctive relief to Cain. 

[33] In its decision the majority recommends “that this case be referred to mediation 

to allow the parties to hopefully find a middle ground in this dispute” and urges 

“the trial court to consider on remand whether the covenants on which middle 

ground cannot be found are contrary to law and should be vacated.” (Opinion 

p. 16-17). I find that these observations are imprudent in that they border on 

offering an opinion on ongoing litigation and overstep our role in this review of 

a grant of preliminary injunctive relief. For these reasons, I dissent.