Board of Directors, Ben Davis Conservancy Dist. v. Cloverleaf Farms, Inc.

Decision Date24 March 1977
Docket NumberNo. 2--1274A296,2--1274A296
Citation171 Ind.App. 682,360 N.E.2d 1039
PartiesBOARD OF DIRECTORS, BEN DAVIS CONSERVANCY DISTRICT, Appellant (Defendant below), v. CLOVERLEAF FARMS, INC., Appellee (Plaintiff below).
CourtIndiana 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.

LYBROOK, Judge.

ON PETITION FOR REHEARING

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...

To continue reading

Request your trial
3 cases
  • Boswell v. Lyon
    • United States
    • Indiana Appellate Court
    • 24 Marzo 1980
    ...529; Board of Directors, Ben Davis Conservancy District v. Cloverleaf Farms, Inc. (1977), Ind.App., 359 N.E.2d 546,rehearing denied 360 N.E.2d 1039; Miller v. Frankfort Bottled Gas, Inc. (1964), 136 Ind.App. 456, 202 N.E.2d 395. A liberal or technical construction should not be given to an ......
  • Ohio Cas. Group of Ins. Companies v. Gray
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 19 Octubre 1984
    ...Benjamin Davis Conservancy District v. Cloverleaf Farms, Inc., 171 Ind.App. 682, 359 N.E.2d 546, 549 (1977), reh'g. denied, 171 Ind.App. 682, 360 N.E.2d 1039 (1977). In Grant, the court was asked to determine if police officers were intended to be covered by the policy in question. Testimon......
  • Adams v. Reinaker
    • United States
    • Indiana Appellate Court
    • 17 Mayo 2004
    ...Conservancy District v. Cloverleaf Farms, Inc. 171 Ind.App. 682, 689 n. 3, 359 N.E.2d 546, 549 n. 3 (1977), reh'g denied 171 Ind. App. 682, 360 N.E.2d 1039 (1977). A patent ambiguity is apparent on the face of the instrument and arises by reason of an inconsistency or inherent uncertainty o......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT