Daddys 'O Pub, LLC v. Purkey Enters. Inc.
| Decision Date | 31 January 2012 |
| Docket Number | No. 29A02-1105-PL-439,29A02-1105-PL-439 |
| Parties | DADDYS 'O PUB, LLC, Appellant-Defendant, v. PURKEY ENTERPRISES, INC., Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
DADDYS 'O PUB, LLC, Appellant-Defendant,
v.
PURKEY ENTERPRISES, INC., Appellee-Plaintiff.
No. 29A02-1105-PL-439
COURT OF APPEALS OF INDIANA
Dated: January 31, 2012
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
JOHN L. STEWART
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
BRUCE A. BOJE
TIMOTHY J. HIXSON
LAURIE D. JOHNSON
Richards, Boje, Pickering, Benner & Becker
Noblesville, Indiana
CRONE, Judge
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The owners of two adjoining buildings got into a dispute about whether an 1897 deed created an easement in a stairway in one building that can be used to access the second story of the other building. Purkey Enterprises, Inc. ("Purkey"), filed a quiet title and declaratory judgment action to extinguish the alleged easement in the stairway, which is located in its building. Daddys 'O Pub ("Daddys") filed a counterclaim for declaratory judgment and injunction. The trial court concluded that the 1897 deed did not create an easement in Purkey's stairway and, alternatively, that any easement had been abandoned long ago. On appeal, Daddys contends that the trial court erred in so concluding. We affirm.
Purkey and abutting buildings on adjacent lots on West Jackson Street in Cicero. In June 2009, Purkey filed a quiet title and declaratory judgment action against Daddys, seeking to extinguish an alleged easement that Daddys claimed in a stairway inside
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Purkey's building. Daddys filed a counterclaim for declaratory judgment and injunction, asserting that the easement was created in an 1897 deed that divided the ownership of the lots. A bench trial was held in February 2011. Purkey requested findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), and the parties submitted proposed findings and conclusions to the trial court.
On April 20, 2011, the trial court issued an order that reads in relevant part as follows:
1. [Purkey] is an Indiana Corporation and is the owner of real property commonly known as 87 West Jackson Street, Cicero, Indiana (hereinafter referred to as the "Purkey Property").
2. [Purkey's] real property is improved with a building which contains a barbershop and apartment on the first floor, and two (2) apartments upstairs.
3. [Daddys] is an Indiana Limited Liability Company and is the owner of real property commonly known as 97 West Jackson Street, Cicero, Indiana (hereinafter referred to as the "Daddys 'O Property").
4. The Daddys 'O Property is improved with a building that contains a bar [on] the first floor and one (1) apartment on the second floor.
5. The buildings on the Purkey Property and Daddys 'O Property abut each other and the west wall of the Purkey building touches the east wall of the Daddys 'O building.
6. Access is provided to the second story of both the Purkey building and the Daddys 'O building by a set of exterior stairs that run along the Purkey Property's western border to the rear of the Purkey building.
7. The outside stairs are fully within the boundaries of the Purkey Property.
8. The Purkey building contains a set of enclosed stairs that run from the front of the building along the inside of the western wall of the Purkey
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building, and which stairs provide access to the both [sic] Purkey apartments "A" and "B." A door to the Daddys 'O apartment was installed in 1958 or 59.
9. This door was installed to allow the Lions Club and/or the VFW to use the upstairs [of the Daddys 'O building] for meetings during the hours that the first floor variety store was closed. Such use continued after the public library occupied the property.
10. The enclosed stairway is contained completely inside the Purkey building.
11. Shortly after [Daddys] purchased the Daddys 'O Property in 2006, a dispute arose among the parties regarding [Daddys'] use of the inside stairs.
12. [Purkey] repeatedly requested that [Daddys] cease its use of the stairs.
13. [Purkey] advised [Daddys] that the outside stairs at the rear of the building were designated for use by both [Purkey] and [Daddys].
14. After [Purkey's] requests for [Daddys] to cease its use of the inside stairs, [Daddys] located an 1897 deed transferring ownership to the Purkey Property. The deed contained the following language:"By agreement of the parties hereto a strip four (4) feet wide and twenty four (24) feet long on the West side of the land herein conveyed is to be used by both parties as a stairway to the second story of the brick building now owned by said grantor and also the second story of the building to be erected on the land herein conveyed. Said stairway to front on Jackson Street in Cicero, Indiana. The erection and maintance (sic.) of said stairway to be borne equally.["]15. The language "Said stairway to front on Jackson Street ..." is not contained in the 2006 deed to [Daddys], and has been absent from every deed for the Daddys 'O Property since at least 1973.
16. [Daddys] was not aware of any such "front on Jackson Street" language at the time it purchased the Daddys 'O Property.
17. The deeds for the Purkey Property do not contain language regarding the use or erection of a stairway, and said language did not appear in a 1989 title policy.
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18. [Purkey] did not have actual or constructive knowledge of any unrecorded easements....
19. At the time of the 1897 deed, the Daddys 'O Property and the Purkey Property were held in common ownership by William Collings and Mary Collings.
20. At the time the properties were severed in 1897, there was no building, or inside stairway. In fact the Purkey Building was not erected until approximately 1905.
21. At the time the properties were severed in 1897, the Daddys 'O Property had other means of access to its second story.
22. Daddys 'O still has another means of access to its second story other than the inside stairway.
23. The use of the inside stairway by Daddys 'O is merely convenient.
24. There was no access from the inside stairs to the second story of the Daddys 'O [P]roperty for a period between 1897 and 1958.
25. Subsequent access to the second story of the Daddys 'O Property by the inside stairs was by permission of the successors in interest.
. . . .
28. The language regarding the future stairway in the 1897 deed did not use language of conveyance or grant, but rather of agreement.
29. The language regarding the future stairway in the 1897 deed did not use irrevocable language.
30. The language regarding the future stairway in the 1897 deed did not identify the property or party who was to
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