Burnett v. Heckelman, No. 1-483A107

Docket NºNo. 1-483A107
Citation456 N.E.2d 1094
Case DateDecember 14, 1983
CourtCourt of Appeals of Indiana

Page 1094

456 N.E.2d 1094
Loyd BURNETT, et al., Defendants-Appellants,
v.
Mary L. HECKELMAN, Plaintiff-Appellee.
No. 1-483A107.
Court of Appeals of Indiana,
First District.
Dec. 14, 1983.

Page 1095

J. Scott Waters, IV, Indianapolis, for defendants-appellants.

Anne Marie Sedwick, Sedwick & Sedwick, Sellersburg, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

In an action initiated by Mary Heckelman to have certain restrictive covenants pertaining to her property declared unenforceable, the Clark Superior Court granted judgment in her favor. Various adjoining landowners who had opposed Heckelman in the lower court proceedings now appeal.

We reverse.

Page 1096

FACTS 1

In June of 1955, Heckelman, together with her husband and his parents, 2 purchased five lots in the Beechwood Manor Subdivision in Clarksville, Indiana. While Mary and her husband originally intended to build several houses on these lots, none were ever erected and the lots remain vacant.

Heckelman's lots, numbers 5 through 9, together with the remaining 165 lots in the subdivision, are subject to certain restrictive covenants which run with the land. 3 Among other things, the restrictive covenants prohibited property owners from using their lots for commercial purposes. Consequently, no commercial structures have been erected on any of the 170 lots.

Since 1955, the area surrounding the subdivision has become highly commercialized by the erection of various restaurants, gasoline stations, and retail stores. According to the parties' stipulations, nearly fifty such establishments are now in operation within close proximity to the subdivision.

In addition to the changes occurring in the surrounding area, changes also occurred in the subdivision. Again, referring to the parties' stipulations, it appears as much as fifty feet of the nine lots facing State Road 131 was condemned by the State of Indiana in 1969 to facilitate the widening of the highway. All five of Heckelman's lots were affected by this condemnation.

Because of these changes, Heckelman believed her property was no longer suitable for residential purposes and accordingly, filed her action to have the restrictive covenants declared unenforceable. Rendering judgment in her favor, the trial court modified the restrictive covenants pertaining to Heckelman's lots to permit her to use the property for commercial purposes. Further, the trial court ordered Heckelman to grant all landowners in the subdivision a twenty foot easement across her rear property line. The court also directed Heckelman to erect a fence and plant trees along the entire length of the easement in order to create a barrier between her property and the balance of the subdivision.

Dissatisfied with this arrangement, the remaining property owners sought and were granted a stay of execution pending the outcome of this appeal.

ISSUES

We believe the fundamental issue in the present case may be distilled into the following question:

Were the changes within the subdivision and the area surrounding it so radical in nature that the intended purpose of the restrictive covenants was defeated, thus justifying the trial court's decision to declare them unenforceable?

DISCUSSION AND DECISION

Fundamentally, resolution of the instant case turns on the degree of change which has occurred within the Beechwood Manor Subdivision and the surrounding area since the adoption of the restrictive covenants in 1955. Neither party disputes the fact that changes have occurred, but they strongly disagree over the degree of those changes.

Despite the heavy commercialization of the area around the subdivision, the defendants contend its residential nature has been preserved. In support of their contention they cite the fact that none of the lots are used for commercial purposes. Consequently, they argue, the trial court's decision declaring the covenants unenforceable is contrary to law and the evidence presented at trial.

Page 1097

Heckelman, to the contrary, submits that the changes in the surrounding area, the state's condemnation of a portion of her property, and the deterioration of several adjacent properties has radically altered the residential character of the subdivision so that the restrictive covenants are no longer useful. Thus, in Heckelman's view, the trial court was justified in declaring the covenants unenforceable.

Restrictive covenants, in essence, are a form of express contract between a grantor and a grantee in which the latter agrees to refrain from using his property in a particular manner. Cunningham v. Hiles, (1979) Ind.App., 395 N.E.2d 851, 854; Bob Layne Contractor, Inc. v. Buennagel, (1973) 158 Ind.App. 43, 53, 301 N.E.2d 671, 678, trans. denied (1974); Vierk v. Ritenour, (1961) 131 Ind.App. 547, 555, 172 N.E.2d 679, 683. Generally, their purpose is to enhance and maintain the value of property by controlling the use of adjacent lands. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind.App. at 53, 301 N.E.2d at 678. However, restrictive covenants are not favored in the law. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind.App. at 53, 301 N.E.2d 678; Bachman v. Colpaert Realty Corp., (1935) 101 Ind.App. 306, 314, 194 N.E. 783, 787 trans. denied (1936). Thus, if a covenant is ambiguous or in some manner violative of public policy, it may not be sustained. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind.App. at 53, 301 N.E.2d at 678. Furthermore, if the use of the subject property and its surrounding area has so radically changed from what was originally envisioned that the purpose of the covenants can no longer be attained, they may be declared unenforceable. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind.App. at 54, 301 N.E.2d at 678; Bachman, 101 Ind.App. at 319-20, 194 N.E. at 789. However, as other courts have noted, the degree of change "must be so great as clearly to neutralize the benefits of the restriction to such an extent as to defeat the purpose of the covenant." Franklin v. Moats, (1954) Ky., ...

To continue reading

Request your trial
28 practice notes
  • Adult Group Properties, Ltd. v. Imler, No. 48A02-8604-CV-124
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1987
    ...the nature and use of surrounding lands. Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768; Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094; Cunningham v. Hiles (1979), 182 Ind.App. 511, 395 N.E.2d 851. Although restrictive covenants are not favored by the law, the contractual natu......
  • Indiana High School Athletic Ass'n, Inc. v. Schafer, No. 37A05-9201-CV-19
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 1992
    ...that is, only if we are left with a definite and firm conviction that a mistake has been made. Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094, 1097. We look only to the evidence and inferences therefrom supporting the judgment, neither reweighing the evidence nor judging the credibi......
  • Dettman v. Sumner, No. 4-1083
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1985
    ...be presented in an appellant's brief rather than the summarization of each witness's testimony. Burnett v. Heckelman, (1983) Ind.App., 456 N.E.2d 1094; Elsperman v. Plump, (1983) Ind.App., 443 N.E.2d 1206; Ind.Rules of Procedure, Appellate Rule 8.3(A)(5). However, we often overlook inadequa......
  • Daniels v. Area Plan Com'n of Allen County, No. Civ. 1:00CV157.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 19, 2000
    ...office within that area. Id. Accordingly, the residential restrictive covenant was enforceable. Id. Page 355 In Burnett v. Heckelman, 456 N.E.2d 1094, 1098 (Ind.Ct.App.1983), the Indiana Court of Appeals again found as a matter of law that commercialization and increased traffic near proper......
  • Request a trial to view additional results
28 cases
  • Adult Group Properties, Ltd. v. Imler, No. 48A02-8604-CV-124
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1987
    ...the nature and use of surrounding lands. Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768; Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094; Cunningham v. Hiles (1979), 182 Ind.App. 511, 395 N.E.2d 851. Although restrictive covenants are not favored by the law, the contractual natu......
  • Indiana High School Athletic Ass'n, Inc. v. Schafer, No. 37A05-9201-CV-19
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 1992
    ...that is, only if we are left with a definite and firm conviction that a mistake has been made. Burnett v. Heckelman (1983), Ind.App., 456 N.E.2d 1094, 1097. We look only to the evidence and inferences therefrom supporting the judgment, neither reweighing the evidence nor judging the credibi......
  • Dettman v. Sumner, No. 4-1083
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1985
    ...be presented in an appellant's brief rather than the summarization of each witness's testimony. Burnett v. Heckelman, (1983) Ind.App., 456 N.E.2d 1094; Elsperman v. Plump, (1983) Ind.App., 443 N.E.2d 1206; Ind.Rules of Procedure, Appellate Rule 8.3(A)(5). However, we often overlook inadequa......
  • Daniels v. Area Plan Com'n of Allen County, No. Civ. 1:00CV157.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 19, 2000
    ...office within that area. Id. Accordingly, the residential restrictive covenant was enforceable. Id. Page 355 In Burnett v. Heckelman, 456 N.E.2d 1094, 1098 (Ind.Ct.App.1983), the Indiana Court of Appeals again found as a matter of law that commercialization and increased traffic near proper......
  • Request a trial to view additional results

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