Hidden Valley Lake, Inc. v. Kersey

Decision Date08 June 1976
Docket NumberNo. 1--775A125,1--775A125
PartiesHIDDEN VALLEY LAKE, INC., Appellant (Defendant below), v. Alfred KERSEY and Rebecca Kersey, Appellees (Plaintiffs below).
CourtIndiana Appellate Court

Leslie Duvall, Sparrenberger, Duvall, Tabbert & Lalley, Indianapolis, William r. Pfister, Bielby & Pfister, Lawrenceburg, for appellant.

William R. Wilson, Hooper, Wilson & Hoffman, Lawrenceburg, Bobby Jay Small, Indianapolis, for appellees.

LYBROOK, Judge.

Defendant-appellant Hidden Valley Lake, Inc. appeals from a judgment on a jury verdict in favor of plaintiffs-appellees Alfred and Rebecca Kersey on their complaint for damages arising from the construction of a collector sewer line on the Kersey's real estate. The following issues are presented for review:

(1) Whether the Kerseys waived any claim for damages arising from the construction of the sewer line.

(2) Whether the verdict was supported by sufficient evidence.

(3) Whether the damages were excessive.

The evidence most favorable to appellees reveals that on or about June 23, 1971, plaintiffs and defendant entered an installment contract for the sale of lot 49 in Hidden Valley Lake Subdivision in Dearborn County. The contract provided a deferred payment price of $5627.50, and disclosed that plaintiffs had tendered a cash down payment of $1095, leaving an unpaid balance of $4532.50 to be paid in 35 consecutive monthly installments of $126 beginning on August 20, 1971. The contract further provided that defendant would retain legal title to the parcel of real estate until such time as plaintiffs had completed their payment obligation, and that at that time defendant would convey the lot to plaintiffs by warranty deed. The contract noted various restrictive covenants which would be contained in the warranty deed. Of importance in the case at bar is the following restrictive covenant:

'7. Hidden Valley Lake, Inc., for itself, its successors and licensees reserves a fifteen (15) foot wide easement along all road rights of way and a six (6) foot wide easement along the side and rear lines of each and every lot for the purpose of installing, operating, and maintaining utility lines and mains thereon, together with the right to trim and/or cut or remove any trees and/or brush and the right to locate guy wires, braces and anchors wherever necessary for said installations, operations or maintenance; together with the right to install, operate and maintain gas and water mains, sewer lines, culverts and drainage ditches and other services and appurtenances thereto, for the convenience of the property owners, reserving also the rights of ingress and egress to such areas for any of the purposes mentioned above. The Sewer District established by the proper authority shall have, and it hereby is, granted the right, along with other authorized utilities, to use the herein reserved easements to install and maintain such central sewer system. . . .'

The warranty deed from defendant to plaintiffs was executed by defendant on June 23, 1971, and recorded by plaintiffs on April 10, 1973. The record however, does not reveal when the deed was delivered to plaintiffs.

The deed contained inter alia the following restrictive covenant:

'7. Hidden Valley Lake, Inc., for itself, its successors, assigns and licensees reserves a fifteen (15) foot wide easement across the front and any side of said lot bordering on a road right-of-way and a six (6) foot wide easement along the side and rear lines of each and every lot for the purpose of installing, operating and maintaining utility lines and mains thereon, together with the right to trim and/or cut or remove any trees and/or brush and the right to locate guy wires, braces and anchors wherever necessary, for said installations, operations or maintenance; together with the right to install, operate and maintain gas and water mains, sewer lines, culverts, and drainage ditches, and other services and appurtenances thereto, for the convenience of the property owners, reserving also the rights of ingress and egress to such areas for any of the purposes mentioned above. . . .

'Further, Hidden Valley Lake, Inc. for itself, its successors, assigns and licensees, reserves for a period of ten (10) years from the date of this instrument or until the sewer collector line is installed, whichever is first, an easement across said lot at any point and of sufficient width to permit the installation of a sewer collector line and an area 7 1/2 feet on either side as laid. If as a result of such installation the lot is rendered unbuildable then upon demand by grantee, Hidden Valley Lake, Inc. shall refund all money theretofore paid by grantee or credit the same against the purchase price of another lot of grantees' choice as determined by grantees. Grantees waive all claims for damages arising out of the exercise of the rights of the foregoing easements except damages which may occur to building structures and/or driveways.' (Emphasis added.)

It should be noted that the waiver of damage provision contained in the deed was not mentioned in the contract.

On or about September 1, 1971, plaintiffs discovered that a sewer collector line had been installed along the entire length of lot 49. During the installation of said sewer line on lot 49, thirty-two (32) trees of various sizes...

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14 cases
  • State v. Bouras, 1-380A57
    • United States
    • Court of Appeals of Indiana
    • July 29, 1981
    ...(1978) Ind.App., 376 N.E.2d 1159; Ertel v. Radio Corp. of America, (1976) 171 Ind.App. 51, 354 N.E.2d 783; Hidden Valley Lake, Inc. v. Kersey, (1976) 169 Ind.App. 339, 348 N.E.2d 674; Ingmire v. Butts, (1975) 166 Ind.App. 139, 334 N.E.2d 701. Reversal is not justified if the amount awarded ......
  • Palace Bar, Inc. v. Fearnot
    • United States
    • Court of Appeals of Indiana
    • April 19, 1978
    ...passion, prejudice, or partiality. Ertel v. Radio Corporation of America (1976), Ind.App., 354 N.E.2d 783; Hidden Valley Lake, Inc. v. Kersey (1976), Ind.App., 348 N.E.2d 674; Ingmire v. Butts (1975), Ind.App., 334 N.E.2d 701. Reversal is not justified, however, if the amount of damages awa......
  • Foster v. United Home Imp. Co., Inc.
    • United States
    • Court of Appeals of Indiana
    • December 15, 1981
    ...McMahan Construction Co. v. Wegehoft Brothers, Inc., (1976) 170 Ind.App. 558, 354 N.E.2d 278, citing Hidden Valley Lake, Inc. v. Kersey, (1976) 169 Ind.App. 339, 348 N.E.2d 674. See also North v. Newlin, (1981) Ind.App., 416 N.E.2d In viewing the record of the instant case, summarized in pe......
  • Criss v. Bitzegaio, 581S142
    • United States
    • Supreme Court of Indiana
    • May 26, 1981
    ...that the burden of pleading and proving any affirmative defense is on the defendants. Ind.R.Tr.P. 8(C); Hidden Valley Lake, Inc. v. Kersey, (1976) 169 Ind.App. 339, 348 N.E.2d 674. The defendants' appeal on this issue is therefore one from a negative finding. Where the party having the burd......
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