I N T H E

Indiana Supreme Court

Supreme Court Case No. 53S01-1709-PL-612

Town of Ellettsville, Indiana Plan Commission and 

Richland Convenience Store Partners, LLC,

Appellants,

–v–

Joseph V. DeSpirito,

Appellee.

Argued: November 30, 2017 | Decided: November 29, 2018

Appeal from the Monroe Circuit Court

No. 53C01-1509-PL-1714

The Honorable E. Michael Hoff, Judge 

On Petition to Transfer from the Indiana Court of Appeals

No. 53A01-1611-PL-2559

Opinion by Justice Slaughter

Chief Justice Rush and Justices David, Massa, and Goff concur.
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Slaughter, Justice.

We adhere to Indiana’s longstanding common-law rule that relocating 

a fixed easement requires the consent of all affected estate-holders. And 

we reject the minority approach, reflected in the Third Restatement of 

Property (Servitudes), which permits the unilateral relocation of 

easements if a court finds the proposed relocation is “reasonable”, 

consistent with the “normal” use and development of the servient estate, 

and does not adversely affect the dominant estate. Property rights in 

Indiana are not so flimsy that they may be modified or eliminated if their 

exercise impedes what is thought to be a more productive or worthwhile 

use of land. Under Indiana law, such rights may be abridged only with the

bargained-for consent of the property owner or through the lawful 

exercise of eminent domain.

Factual and Procedural History

History of the Affected Properties

At issue here are two adjoining lots in Ellettsville, Indiana, that were 

once a single parcel of land owned by Swifty Oil Company. In 1996, 

Swifty subdivided the parcel and recorded the subdivision by a plat filed 

with the Monroe County Plan Commission. The plat delineates a utility 

easement across Lot 1. Swifty conveyed Lot 2 by warranty deed to Martin 

Hukill, the predecessor in interest to appellee, Joseph V. DeSpirito.

In 2011, DeSpirito obtained Lot 2 by a special limited warranty deed 

executed and recorded in the Monroe County Recorder’s Office. This deed 

conveyed Lot 2 “as shown on the recorded plat thereof” and “[s]ubject to 

covenants, easements and restrictions, if any, appearing in the public 

records.” DeSpirito’s deed does not explicitly mention a utility easement 

running through Lot 1. But one of the public records to which it is 

subject—namely, the subdivision plat—does show the easement. 
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In 2014, Swifty conveyed the other lot—Lot 1—to appellant Richland 

Convenience Store Partners, LLC, by a limited warranty deed executed 

and recorded in April 2014. Richland’s title was explicitly subject to 

“encroachments, easements, rights of way, covenants, reservations, and 

restrictions in the chain of title to the Real Estate or otherwise existing 

thereon”. Richland’s deed made clear Lot 1 was subject to various 

covenants, conditions, restrictions and, relevant here, “Utility and 

Drainage easements and setback lines”, along with any amendments 

disclosed on the subdivision’s recorded plat. 

Town of Ellettsville Plan Commission Proceedings

In 2015, Richland asked the Town of Ellettsville Plan Commission, also 

an appellant here, for permission to relocate the utility easement on Lot 1. 

Richland wanted to move the easement, along with the private sewer line 

running beneath it, fifteen to twenty feet south—all at Richland’s own 

expense. Richland sought to relocate the easement to increase the 

buildable area of Lot 1. DeSpirito, who owned Lot 2, opposed the 

relocation and testified against it at the hearing. 

Despite DeSpirito’s opposition, the Plan Commission approved 

Richland’s request. It found that Richland’s “application [met] all of the 

requirements as set forth by the Town of Ellettsville Zoning Ordinance”;

and it granted the proposed amendment to the plat. The Commission 

specifically found that relocating the sewer line would cause only minimal 

disruption to DeSpirito, and that Richland had agreed to incur the cost of 

replacement. It also found that relocation would increase the buildable 

area on Lot 1 and represented “the best location to allow for future 

development of the site and maintain the functionality of the sewer line.” 

Trial Court Proceedings

DeSpirito petitioned for judicial review of the Commission’s decision in 

the Monroe Circuit Court. He also sought a declaration that the 

Commission’s ruling was null and void, along with injunctive relief 
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preventing construction or other development on Lot 1 inconsistent with 

the utility easement’s existing location as described in the plat. The parties 

agreed to the preliminary injunction. On summary judgment the trial 

court found that DeSpirito, as owner of Lot 2, had a fixed utility easement 

through Lot 1, the location of which was specified in the subdivision plat. 

Citing Indiana appellate caselaw, the court held that the easement’s fixed 

location meant it “cannot be changed by either party without consent of 

the other.” The court thus granted DeSpirito’s motion for summary 

judgment and remanded to the Commission with instructions to dismiss 

Richland’s petition unless DeSpirito agreed to it. The court also ordered 

the preliminary injunction to remain in effect. 

Court of Appeals Proceedings

Richland and the Commission appealed the trial court’s entry of a 

purported final judgment, though the entry did not resolve all claims as to 

all parties. Town of Ellettsville v. DeSpirito, 78 N.E.3d 666 (Ind. Ct. App. 

2017). Ignoring any jurisdictional infirmity, the court of appeals agreed 

with the trial court that there were no disputed material facts. Id. at 668. 

But the court distinguished the caselaw the trial court had relied upon, 

finding it involved “an easement by necessity” and thus did not apply. Id.

at 676-77. The court of appeals concluded that the “more modern” and 

“more equitable approach to easement relocation” is stated in Section 4.8 

of the Third Restatement of Property (Servitudes). Id. at 677. This 

provision entitles the holder of the servient estate—Richland—to “make 

reasonable changes in the location or dimensions of an easement” at its

own expense, but only if they do not “(a) significantly lessen the utility of 

the easement, (b) increase the burdens on the owner of the easement in its 

use and enjoyment, or (c) frustrate the purpose for which the easement 

was created.” Restatement (Third) of Property: Servitudes § 4.8(3) (2000).

In adopting the Restatement, the court of appeals cited an opinion from 

the Supreme Judicial Court of Massachusetts, M.P.M. Builders, LLC v. 

Dwyer, 809 N.E.2d 1053 (Mass. 2004). The Massachusetts court rejected the 

common-law approach because it “permits an easement holder to prevent 
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any reasonable changes in the location of an easement” and thus renders 

“an access easement virtually a possessory interest rather than what it is, 

merely a right of way.” Id. at 1058. Our court of appeals found that 

rationale convincing and predicted we would, too. “We find these 

observations persuasive and believe that our supreme court would also 

recognize the utility of adopting the Restatement’s approach to easement 

relocation.” 78 N.E.3d at 679.

Supreme Court Proceedings

DeSpirito sought transfer, which we granted, thus vacating the court of 

appeals’ opinion. After oral argument, we found appellate jurisdiction 

lacking because the trial court never issued a final judgment—one that 

“disposed of all claims as to all parties”. Ind. Appellate Rule 2(H)(1). Town 

of Ellettsville v. DeSpirito, 87 N.E.3d 9, 11 (Ind. 2017). In the interest of 

judicial economy, we did not dismiss the case outright; rather, we stayed 

the appeal and remanded to the trial court to determine whether it could 

enter a final judgment. Id. at 11-12. In response to our opinion, the trial 

court expressly determined that there was no just reason for delay and

expressly directed entry of judgment for DeSpirito on his claim for judicial 

review and against Richland and the Commission. This entry is sufficient 

to secure appellate jurisdiction.

Standard of Review

We review the entry of summary judgment de novo, and that is no less 

true when the trial court sits as a reviewing court on judicial review from 

an administrative ruling. Under our settled standard, summary judgment 

is proper if the designated evidence shows there is no genuine issue as to 

any fact material to a claim or issue, and the movant is entitled to 

judgment as a matter of law. Ryan v. TCI Architects/Engineers/Contractors, 

Inc., 72 N.E.3d 908, 912-13 (Ind. 2017). Here, the parties agree there are no 

disputed issues of material fact. The only dispute is one of law, which we 

also review de novo: Should we adhere to Indiana’s longstanding 
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common-law rule, which requires all affected estate-holders to consent to 

the relocation of a fixed easement; or adopt the Restatement position, 

which does not always require such consent? We continue to follow the 

common-law rule as the law of Indiana and thus affirm the trial court.

Discussion and Decision

I. Lot 2’s utility easement through Lot 1 is fixed.

An easement is the right to use another’s land for a specified purpose. 

An easement appurtenant benefits adjoining land; an easement in gross 

benefits a specific individual. The land benefited by an easement is the 

dominant estate; the land burdened by an easement is the servient estate.

At issue here is an easement appurtenant because the easement benefits 

land. The parties agree that Lot 2 has a utility easement running through 

Lot 1. DeSpirito owns Lot 2, the dominant estate. Richland owns Lot 1, the 

servient estate. The easement originated in 1996 when the parcel was 

subdivided, and the easement was delineated in the plat recording the 

subdivision. The easement runs with the land and thus survived the 

changed ownership of both lots. DeSpirito obtained Lot 2 “as shown on 

the recorded plat thereof”. Likewise, Richland obtained Lot 1 subject to

(among other things) “Utility and Drainage easements and setback lines 

and any amendments thereto as disclosed on the recorded plat of 

subdivision.” 

Richland argues the easement’s location is not fixed, which is a mixed 

question of law and fact. An easement is fixed if the instrument creating it 

specifies its location or if the law requires it to be maintained in a specific 

position. In contrast, a “floating easement” is not limited to any specific 

part of the servient estate. Easement, BLACK’S LAW DICTIONARY (10th ed. 

2014). Richland argues that the plat describes only the easement’s width, 

not its location in relation to the lot’s boundaries. Thus, Richland says, the

easement is not fixed.
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We disagree. Richland is correct that the plat does not expressly 

indicate the relative distance of the easement to the boundaries. But the 

plat is drawn to scale: One inch equals sixty feet. The plat describes the 

width of the easement and indicates its path through the lot with two 

dashed lines. With a ruler, one can determine the distance of the easement 

to the lot boundaries. These distances are determinable, and the 

easement’s width is explicitly indicated. The easement is fixed.

Moreover, even if the plat were not drawn to scale, the disputed 

easement is fixed by practice. “Where the right to an easement is granted 

without giving definite location and description to it, the exercise of the 

easement in a particular course or manner, with the consent of both 

parties, renders it fixed and certain”. Dudgeon v. Bronson, 159 Ind. 562, 565, 

64 N.E. 910, 910 (1902). (citation omitted) 

In sum, Lot 2 has a utility easement through Lot 1, and its location in 

the subdivision plat is fixed.

II. Indiana’s common law follows a bright-line rule

that is easy to apply, in contrast to the 

Restatement’s multifactor test, which leads to 

uncertain results.

Indiana common-law precedent requires all affected

parties to consent to the modification of various 

servitudes. 

We next consider whether, under Indiana law, a servient estate-holder 

can unilaterally move a fixed utility easement or whether he must obtain

the dominant estate-holder’s consent.

Our starting point is a well-settled principle concerning easements by 

necessity and restrictive covenants. An easement by necessity arises when 

the easement is essential to the reasonable use of nearby property, such as 
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an easement connecting a landlocked parcel of land to a road. Easement, 

BLACK’S LAW DICTIONARY. Once two landowners agree on an easement by 

necessity, one cannot alter it without the other’s consent. Ritchey v. Welsh, 

149 Ind. 214, 221, 48 N.E. 1031, 1033 (1898) (finding a way once selected 

cannot be changed by either party without the consent of the other). The 

same goes for restrictive covenants, which are private agreements that 

restrict the use or occupancy of real property. Covenant, BLACK’S LAW 

DICTIONARY. “If any lot, or part of a lot, located in such plat shall have 

been sold and conveyed, no modification thereof can be made unless the 

owners of all the lots and parts therein join in the execution of such 

writing.” Wischmeyer v. Finch, 231 Ind. 282, 288, 107 N.E.2d 661, 664 (1952)

(internal quotation marks omitted).

Here, we deal with a servitude that is similar to both an easement by 

necessity and a restrictive covenant—specifically, an express fixed 

easement appurtenant. Such an easement is a permitted use of land 

granted by the servient estate-holder for the benefit of the dominant 

estate-holder and runs with the dominant estate. See Sanxay v. Hunger, 42 

Ind. 44, 48 (1873); accord William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 

835 (Ind. Ct. App. 2011).

Our court of appeals considered this type of easement in Shedd v. 

American Maize Products Company, 60 Ind. App. 146, 108 N.E. 610 (1915). 

There, the court found that our default rule for easements by necessity—

that, once established, they cannot be changed without the consent of both 

parties—also applies to fixed easements appurtenant. “When such a way 

is once selected and located it cannot be changed by either party without 

the consent of the other.” 60 Ind. App. at 155, 108 N.E. at 614 (citing 

Thomas v. McCoy, 30 Ind. App. 555, 66 N.E. 700 (1903); Ritchey, 149 Ind. 

214, 48 N.E. 1031). Cf. Daviess-Martin County REMC v. Meadows, 179 Ind. 

App. 622, 625, 386 N.E.2d 1000, 1002 (1979) (affirming trial court’s 

determination that government’s unilateral relocation of electrical-line 

easement was taking for public use even when easement was 

prescriptive). 
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Although we have never previously adopted this rule expressly, we see 

no reason to depart from Shedd’s holding. The same considerations 

regarding relocation rights that apply to easements by necessity also apply 

to easements appurtenant. The Shedd court was correct in concluding that 

once an easement appurtenant’s location is fixed, it cannot be relocated 

unilaterally.

The Restatement approach to relocation agreements is 

unclear and appears internally inconsistent. 

The Restatement advances a different rule—one that only a few state 

courts have adopted and that our court of appeals describes as “more 

modern” and “more equitable” than our common-law approach. 

DeSpirito, 78 N.E.3d at 677. The Restatement “rejects the rule espoused by 

the weight of authority in the United States” in favor of a new rule its 

drafters believe will 

• “permit development of the servient estate to the extent it can be 

accomplished without unduly interfering with the legitimate 

interests of the easement holder”; 

• “increase overall utility”; and 

• “encourage the use of easements” by decreasing the cost to the 

servient landowner to grant them. 

Restatement § 4.8 cmt. f.

To date, six state courts of last resort have adopted the Restatement’s 

approach. See Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229 (Colo. 

2001); Dwyer, 809 N.E.2d 1053; St. James Village, Inc. v. Cunningham, 210 

P.3d 190 (Nev. 2009); Lewis v. Young, 705 N.E.2d 649 (N.Y. 1998); Stanga v. 

Husman, 694 N.W.2d 716 (S.D. 2005); Roy v. Woodstock Cmty. Trust, Inc., 94 

A.3d 530, 539 (Vt. 2014) (adopting § 4.8 for underground easements only). 

But see AKG Real Estate, LLC v. Kosterman, 717 N.W.2d 835 (Wis. 2006); 

Herren v. Pettengill, 538 S.E.2d 735 (Ga. 2000); Stowell v. Andrews, 194 A.3d

953 (N.H. 2018). These adopting courts rely primarily on the rationale that 
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the Restatement “strikes an appropriate balance between the interests of 

the respective estate owners by permitting the servient owner to develop 

his land without unreasonably interfering with the easement holder’s 

rights.” Dwyer, 809 N.E.2d at 1057.

1. Under a plain-meaning interpretation of Section 

4.8, the Restatement does not apply to fixed 

easements.

The Restatement’s operative provision, Section 4.8, opens with an 

introductory clause that suggests the rule does not apply to fixed 

easements:

Except where the location and dimensions are determined by 

the instrument or circumstances surrounding creation of a 

servitude, they are determined as follows:

(1) The owner of the servient estate has the right within a 

reasonable time to specify a location that is reasonably suited to 

carry out the purpose of the servitude.

(2) The dimensions are those reasonably necessary for 

enjoyment of the servitude.

(3) Unless expressly denied by the terms of an easement, as

defined in § 1.2, the owner of the servient estate is entitled to 

make reasonable changes in the location or dimensions of an 

easement, at the servient owner’s expense, to permit normal 

use or development of the servient estate, but only if the 

changes do not

(a) significantly lessen the utility of the easement,
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(b) increase the burdens on the owner of the easement in its 

use and enjoyment, or

(c) frustrate the purpose for which the easement was created.

Restatement § 4.8 (emphasis added).

In light of Section 4.8’s introductory provision—“Except where the 

location and dimensions are determined by the instrument or 

circumstances surrounding creation of a servitude, they are determined as 

follows”—its plain meaning would seem to make the rest of Section 4.8

inapplicable when the “instrument” creating the servitude or the 

“circumstances surrounding” its creation “determined” the location. This

provision, in other words, would appear to limit Section 4.8 to servitudes 

that are not “determined” or fixed.

2. The Restatement’s drafters believe Section 4.8

applies even to fixed easements.

But a plain-meaning interpretation of Section 4.8 leads to a result at 

odds with what the Restatement’s drafters say they were doing in 

adopting Section 4.8—namely, rejecting “the rule espoused by the weight 

of authority in the United States”. Restatement § 4.8 cmt. f. Stated 

differently, the Restatement announced a new rule that would 

purportedly modernize outdated common-law restraints, like Indiana’s, 

and thereby “increase overall utility” and “encourage the use of 

easements”. Id. But if the new rule applies only to the unliteral relocation 

of non-fixed easements, then Section 4.8 amounts to no more than a 

rephrasing—a restatement, if you will—of the longstanding common-law 

rule already in place. Read this way, Section 4.8 is not rejecting anything.

The Supreme Court of Nevada faced this very question in St. James 

Village, 210 P.3d 190. There, the court considered whether Section 4.8 

applies to an easement recorded by deed with a metes-and-bounds 

description. The court adopted the Restatement but held “that the plain 
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meaning of the rule’s introductory language prohibits application of the 

rule when the creating instrument provides for an express location or 

dimensions of the easement.” Id. at 193. The court continued: “Thus, when 

the easement at issue has a location certain, the Restatement rule is not 

applicable and the easement cannot be unilaterally relocated.” Id. See also 

Offshore Systems-Kenai v. State, Dep't of Transp. & Public Facilities, 282 P.3d 

348, 357 (Alaska 2012) (adding in dicta that Restatement applies only 

when easement is not fixed); Lewis, 705 N.E.2d 649, 653–54 (applying draft 

version of § 4.8 to non-fixed easement); Stanga, 694 N.W.2d 718-19

(applying § 4.8 because right-of-way easement was not described in deed 

and had changed course and form over time).

The Nevada court’s plain-meaning interpretation, however, may not be 

what the Restatement’s drafters had in mind. Their comments state that 

subsection 4.8(3) applies unless “expressly negated by the easement 

instrument.” Restatement § 4.8 cmt. f. And if the purchasers of an 

easement wish “to retain control over any change in location, the 

instrument should be drafted to accomplish that result.” Id. The drafters 

also state, under the section “Effects of Specifying Location or 

Dimensions”, that specified locations or dimensions of an easement in the 

creating instrument “may indicate the parties’ intent that no deviation be 

permitted”. Restatement § 4.8, Reporter Note p.570 (emphasis added). 

These statements cast doubt on a plain-reading construction of Section 

4.8. The term “expressly negated” in comment f could mean, as the 

Nevada court found, that specific locational measurements strictly forbid 

unilateral relocation. But this reading is at odds with the “may” language 

following it in the Reporter notes: Specific locations or dimensions in the 

creating instrument “may indicate the parties’ intent that no deviation is 

permitted.” Restatement § 4.8, Reporter Note p.570 (emphasis added).

Comment f also indicates that when parties wish to contract around the 

Restatement rule permitting unilateral relocation, the “instrument should 

be drafted to accomplish that result.” In other words, the instrument 

creating the easement should expressly prohibit unilateral relocation of 

the easement, or else such one-sided action will be deemed permitted.
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Further evidence that the Restatement was intended to apply to 

traditionally fixed easements can be found in Section 4.8’s expository 

examples. In one example, Whiteacre has an easement through Blackacre 

to use the “existing roadway for a private way”. Restatement § 4.8 illus. 4. 

This easement was granted in 1910. The existing roadway meanders 

through Blackacre and passes within ten feet of the house located on 

Blackacre. Blackacre, the servient estate, wants to re-route the road to a 

better location. The deed describes the easement. The road is located when 

the easement is created and is determinable. The road has existed for over 

a century and so is determined by practice. Under the common law, this 

easement would be fixed, thus requiring all parties to consent to a 

relocation. Yet the drafters use this as an example of an easement that can 

be relocated unilaterally. Id.

3. Some courts conclude that Section 4.8 does not 

mean what it says.

Unlike Nevada’s high court, the Supreme Judicial Court of 

Massachusetts in Dwyer, 809 N.E.2d 1053, declined to adopt the plainmeaning construction and instead read Section 4.8 as being a true new 

path. Because the “deed describes the location of the easement” and

“contains no language concerning its relocation”, id. at 1055, Dwyer held 

the fixed easement could be unilaterally relocated under Section 4.8. In 

contrast, and consistent with Section 4.8’s plain meaning, the Wisconsin 

Supreme Court found Dwyer to be an outlier in applying Section 4.8 to 

fixed easements. See AKG Real Estate, 717 N.W.2d at 845.

These conflicting state-court opinions persuade us that our court of 

appeals erred in relying on Dwyer for its conclusion that Richland could 

relocate the disputed easement without DeSpirito’s consent. Given the 

plain meaning of Section 4.8, we reject Dwyer’s holding that the 

Restatement applies to fixed easements. Thus, even if we were to adopt 

the Restatement, we would interpret it based on the section’s actual text 

and not the drafters’ apparent intent. But, as discussed next, we decline to 

adopt Restatement Section 4.8 at all—not as intended or written.
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III. Indiana’s common-law approach has long been 

settled, and we see no reason to modify it.

We decline to adopt the Restatement and opt instead to reaffirm 

Indiana’s common law concerning the relocation of easements: Once an 

easement’s location is fixed, neither the servient nor dominant estateholder can relocate or modify the easement without the other’s consent.

This rule applies to easements by necessity, restrictive covenants, and, 

relevant here, express easements appurtenant.

For four reasons, we continue to embrace the common-law rule. First, 

the common-law approach settles the expectations of property owners 

and honors their bargained-for holdings, ensuring stability in land 

ownership and property valuation. Second, it avoids the likely flood of 

litigation that would occur were we to abandon the common law’s brightline rule and thus inject uncertainty into whether and when the

Restatement applies to various scenarios. Third, it avoids having to 

address whether modifying the common-law rule would effect a judicial 

taking of private property, triggering an entitlement to just compensation.

And, fourth, it likely leads to more efficient economic outcomes than the 

Restatement. 

Settling expectations

Our first concern with the Restatement’s approach is that it may

unsettle property values by frustrating the contracting parties’ 

expectations. Parties often bargain over an easement’s type and location 

when first creating an easement. Allowing one party to thwart that 

bargain may result in a windfall for one party and a corresponding 

shortfall for the other, thus depriving it of its bargain.

As the Supreme Court of Maine explained in Davis v. Bruk, 411 A.2d 

660 (Me. 1980), the Restatement approach would “introduce considerable 

uncertainty into land ownership” by depriving the dominant estateholder “of his property rights in the servient estate”. Id. at 665. And, the 

court continued, following the Restatement could
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confer an economic windfall on the servient owner, who 

presumably purchased the land at a price which reflected the 

restraints existing on the property. Such a rule would relieve 

him of such restraints to the detriment of the owner of the 

dominant estate whose settled expectations would be derailed 

with impunity. 

Id. Reaffirming Indiana’s common-law approach signals to landowners 

that we are holding the parties to the agreement they—or their 

predecessors in interest—made when they negotiated their easement or 

acquired their property concerning the easement. A key virtue of the 

common-law rule is that it promotes certainty and encourages 

investments in dominant estates and the easements serving them by 

ensuring their property interests and corresponding property values

remain stable and predictable.

Minimizing litigation

As Indiana’s dearth of caselaw on this topic underscores, our commonlaw approach has not generated much litigation over the years. The 

common-law approach is a clear, bright-line rule requiring parties to 

consent to the modification or relocation of a fixed easement. Were we to 

adopt the Restatement approach, it would fall to courts to determine, 

among other things:

• what is a reasonable change to an easement;

• would a reasonable change permit normal use or development 

of the servient estate; 

• would relocation significantly lessen the utility of the easement; 

and

• would the relocation frustrate the easement’s purpose?

Property owners are better suited than courts to answer these 

questions. We leave the determination of such questions to the parties 

themselves and the market. Under such circumstances, the governing 

legal principles should be clear, black-letter rules that leave no room for 
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judicial discretion. Our longstanding common-law rule fills that bill. See 

Herren, 538 S.E.2d at 736 (allowing unilateral relocation by servient estateholder would be “opening the door for increased litigation over 

‘reasonableness’ issues based on today’s conditions rather than those 

considered in the original bargain”).

Avoiding judicial takings 

Another reason for retaining the common-law rule is that the Supreme 

Court, in a plurality opinion by Justice Scalia, has observed that a judicial 

taking may arise if a court modifies the common law to eliminate a settled 

property right.

In sum, the Takings Clause bars the State from taking private 

property without paying for it, no matter which branch is the 

instrument of the taking. . . . If a legislature or a court declares 

that what was once an established right of private property no 

longer exists, it has taken that property, no less than if the State 

had physically appropriated it or destroyed its value by 

regulation.

Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envt’l Protection, 560 

U.S. 702, 715 (2010) (emphasis in original). By retaining the common-law 

rule, we avoid having to consider whether the Restatement so 

fundamentally alters a property right in the easement that abandoning the 

rule amounts to a taking of that right requiring the payment of just 

compensation.

Securing economically efficient outcomes

A final reason for adhering to the common-law rule is the economic 

reality that property owners with easement disputes often will bargain 

extralegally—meaning they will contract around existing rules. Both the 

common-law and Restatement approaches are alternative rules that 

presumptively govern a legal relationship unless the parties agree to other 
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terms. But parties are more likely to contract around clear rules that 

address whether and when the law applies. The Restatement often leaves 

such questions unanswered. In contrast, the common law provides a 

straightforward answer and encourages interdependence between parties 

by requiring them to work cooperatively any time one of them wishes to 

move an easement.

A potential problem with extralegal bargaining is that if transaction 

costs are more than de minimis, the parties may be deterred from 

bargaining to the optimal, so-called “Pareto-efficient” outcome—where it 

is impossible to enhance the welfare of one party without making another 

worse off. This is the Coase Theorem in its simplest form. As Professor 

Coase acknowledged, transaction costs often prevent extralegal 

bargaining and frustrate optimal outcomes. R. H. Coase, The Problem of 

Social Cost, 3 J. Law & Econ. 1 (1960). Because transactions costs are 

usually more than negligible, we seek the rule that minimizes bargaining 

costs and encourages parties to attain a more efficient outcome.

The Restatement approach threatens to make bargaining costlier and 

deter the most efficient use of resources. Under the Restatement, the 

servient estate-holder may take initial steps to relocate the easement 

unilaterally because he does not need the dominant estate-holder’s prior 

consent. Especially if those initial steps include investing significant 

resources, those sunk costs might make the owner of the servient estate 

“reluctant to accept an offer from the owner of the dominant estate to 

cease the relocation, even if doing so would be the most efficient 

outcome.” Note, The Right of Owners of Servient Estates to Relocate Easements 

Unilaterally, 109 Harv. L. Rev. 1693, 1701 (1996). The common-law rule, in 

contrast, forces parties to cooperate from the outset. The servient estateholder, aware he must obtain the dominant estate-holder’s consent before 

relocating the easement, will likely engage in dialogue before incurring 

significant costs that would deter a mutually beneficial outcome. Thus, in 

such instances, the common-law rule encourages bargaining at a lower

cost than the Restatement approach.
Indiana Supreme Court | Case No. 53S01-1709-PL-612 | November 29, 2018 Page 18 of 19

Richland worries about the bad actor—the dominant estate-holder who

uses the common-law rule as a shield and refuses to consent to an 

easement’s relocation despite an economic motive to do so. That is a fair 

concern, and we acknowledge the prevailing rule may enable dominant 

estate-holders to use their utility easements to block economically 

beneficial development of an adjacent plot. But the Restatement presents 

its own bad-actor problems. As described by the Maine Supreme Court, 

the dominant estate-holder “could be subjected to harassment by the 

servient owner’s attempts at relocation to serve his own conveniences.” 

Davis, 411 A.2d at 665. Adopting the Restatement would not solve the 

bad-actor problem. It would simply empower a different party—the 

servient estate-holder—to act badly. There is no reason to believe servient 

estate-holders will pursue their own self-interest with any less gusto 

under the Restatement than dominant estate-holders under the common 

law. Thus, adopting the Restatement to thwart the dominant estate-holder 

that uses the easement as a shield would merely reassign property values

to the servient estate-holder, and we see no point in that.

Conclusion

For these reasons, we retain Indiana’s common-law rule prohibiting the 

unilateral relocation of fixed easements and thus affirm the trial court’s 

entry of judgment for DeSpirito on his petition for judicial review and 

against Richland and the Commission. 

Rush, C.J., and David, Massa, and Goff, JJ., concur.
Indiana Supreme Court | Case No. 53S01-1709-PL-612 | November 29, 2018 Page 19 of 19

A T T O R N E Y S F O R A P P E L L A N TS

TOWN OF ELLETTSVILLE PLAN COMMISSION

Darla S. Brown

Sturgeon & Brown, P.C.

Bloomington, Indiana

RICHLAND CONVENIENCE STORE PARTNERS, LLC

Andrew P. Sheff

Sheff Law Office

Indianapolis, Indiana

Carina M. de la Torre

The de la Torre Law Office LLC

Indianapolis, Indiana

A T T O R N E Y S F O R A P P E L L E E

Michael Rabinowitch

Maureen E. Ward

Wooden McLaughlin LLP

Indianapolis, Indiana