Board of Directors, Ben Davis Conservancy Dist. v. Cloverleaf Farms, Inc.
| Decision Date | 24 March 1977 |
| Docket Number | No. 2--1274A296,2--1274A296 |
| Citation | 171 Ind.App. 682,360 N.E.2d 1039 |
| Parties | BOARD OF DIRECTORS, BEN DAVIS CONSERVANCY DISTRICT, Appellant (Defendant below), v. CLOVERLEAF FARMS, INC., Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Phillip C. Klotz, Noblesville, Robert E. Sward, Indianapolis, for appellant.
J. C. Burris, Indianapolis, for appellee; Burris & Gross, Indianapolis, Campbell, Kyle, Profitt, Cook & Campbell, Noblesville, of counsel.
Petitioner Cloverleaf Farms, Ind. (Cloverleaf) requests a rehearing on the grounds that this Court weighed the evidence when rendering the original opinion.
As part of its argument Cloverleaf points to the original easement, specifically that part which states:
'It is understood that the district will lay and install said line in substantial compliance with the plans and specifications of J. B. Wilson and Associates, Engineers for the Ben Davis Conservancy District, a copy of the drawing describing the nature of the sewer line is attached hereto and made a part of this easement and that said installation is a part of the sewers and sewage system to be installed in said District by the Grantee.'
Petitioner recommends this language to the Court's attention while denominating it a 'recital of partial consideration' (Petitioner's Brief, p. 4). Petitioners rely on this language both read together with the disputed clause and read together with certain testimony of Mr. Hardin.
The fallacy in this argument is that the cited language in the easement, supra, in no way relates to the present action, nor is it a 'recital of partial consideration.' The above language very obviously relates to the large line that was the subject of the easement, and not the manifold sewer system eventually constructed by Cloverleaf. Immediately prior to the above language is a description of a sixteen-foot wide strip of land which was to contain the line. The subsequent language then refers to 'said line', not 'said sewer line,' as quoted by petitioners. The difference is important since it reveals that the quoted language is only referring to that small strip of land that was granted in the easement, and not any subsequent development.
Petitioner also relies on testimony of Roy Prock. However, Prock was not privy to or had any knowledge concerning the origin of this easement. His testimony concerned a time period long after the...
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