GTA v. Shell Oil Co.

• Decision Date: 10 January 1977
• Docket Number: No. 1--676A93,1--676A93
• Citation: 358 N.E.2d 750,171 Ind.App. 647
• Parties: GTA, a partnership comprised of Robert J. Prentice and Wilson E. Prentice, et al, Plaintiff-Appellants, v. SHELL OIL COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 750

358 N.E.2d 750

171 Ind.App. 647

GTA, a partnership comprised of Robert J. Prentice and Wilson E. Prentice, et al, Plaintiff-Appellants, v. SHELL OIL COMPANY, Defendant-Appellee.

No. 1--676A93.

Court of Appeals of Indiana, First District.

Jan. 10, 1977.

Ronald R. Fifer, Stephen W. Voelker, Fifer, Vogt & Lanum, Jeffersonville, E. Clay Ulen, Jr., Robert J. Bremer, Baker & Daniels, Indianapolis, for appellants.

G. William Blackburn, Jr., Stallings & Stallings, Louisville, Ky., Maurice H. McDaniel, New Albany, for appellee.

ROBERTSON, Chief Judge.

Plaintiffs-appellants, GTA, a partnership, (hereinafter GTA), appeal from a negative judgment of the trial court, which refused to find that the determinable easement granted to defendant-appellee, Shell Oil Company (Shell), had terminated and reverted to GTA. ¹

The facts necessary for our disposition of this appeal are as follows: On January 4, 1967, GTA leased to Shell Oil Company, for an initial term of fifteen years, a lot along the northerly boundary of State Road 131 which was bounded on the east by a shopping center owned by GTA, known as Green Tree Mall. On February 27, 1967, GTA and Shell Oil Company executed an instrument entitled 'Agreement Amending Lease', which in pertinent part reads:

'3. So long as the (leasehold) premises are used as an automobile service station, Shell shall have two drive entrances per Shell's plans and specifications to provide ingress and egress to and from leased premises and the westerly entrance to Green Tree Mall Shopping Center.'

Subsequent to January 18, 1969, when Shell completed its construction of the service station on the leasehold, Shell actively used said premises exclusively for automobile service station purposes. On April 4, 1973, Shell temporarily closed the station, and, for a time thereafter, reopening was made impractical due to a gasoline shortage. However, the station was reopened by Shell approximately a year and a half later.

From November 1973 through March 1974, Shell and River City Restaurants, Inc., a subsidiary of Ollie's Trolley, Inc., negotiated for the construction and operation of a fast-food restaurant on the leasehold. Before negotiations were completed, representatives of Ollie's Trolley removed the gasoline islands and pumps on the east side of the station and replaced them with a foundation for the fast-food restaurant. This activity and a notice in the local newspaper were the first notices to GTA that a different use of the leasehold was being considered by Shell. A few weeks later, in April 1974, GTA filed suit for a declaratory judgment to establish the respective rights of the parties under the lease and amendments thereto, and for a permanent injunction to prevent further use by Shell of the westerly entrance to the Green Tree Shopping Center.

The trial court specifically found, among other things, that all negotiations between Shell and Ollie's Trolley, Inc. had been terminated; that Shell had not executed any sublease at any time with any person or corporation; that the rent under the lease was a fixed amount and Shell's payments were made continuously during the period in which the service station was temporarily and that the automobile service station was reopened for business on October 28, 1974, and has continued in operation since that time.

GTA's sole contention of error is that the judgment of the trial court is contrary to law. In support of its contention, GTA argues that the following stipulated events terminated Shell's determinable easement: (1) Shell ceased all automobile service station use of the leasehold in April, 1973, and commenced negotiations in November 1973, for location of a fast-food restaurant on the leasehold; and (2) Shell allowed gasoline pump islands on the leasehold to be removed and replaced with the foundation for the fast-food restaurant on or about March, 1974.

GTA also alleged by affidavit a third event that, for two or more days in March, 1975, 'a pet shop was operated from a van-type vehicle located on the northeasterly corner of' the leasehold and it was connected to an electric utility line servicing the leasehold. Shell's answering affidavit produced conflicting evidence concerning the pet shop.

In reviewing an assignment of error specifying that the trial court's decision was contrary to law, this Court may consider only that evidence which is most favorable to the trial court's decision. The decision will be affirmed unless the evidence is without conflict and leads to only one conclusion and the trial court arrived at a different conclusion. Marshall v. Ahrendt (1975), Ind.App., 332 N.E.2d 223. We cannot say that it affirmatively appears that reasonable men could not have arrived at the same conclusion reached by the trial court concerning each of the three events. Dyer Constructions, Inc. v. Ellas Construction, Inc. (1972), 153 Ind.App. 304, 287 N.E.2d 262.

The issue concerns the proper construction to be given to the lease and its amendments which created the easement. 'The nature, extent and duration of an easement created by an express agreement or grant must be determined by the provisions of the instrument creating the easement.' Erie-Haven, Inc. v. First Church of Christ (1973), Ind.App., 292 N.E.2d 837.

It is the duty of the court, in construing instruments creating easements, to discover and give effect to the intention of the parties. Where the language is not uncertain or ambiguous the intention of the parties is determined by a proper construction of the language of the instrument. L. & G. Realty & Construction Co. v. City of Indianapolis (1957), 127 Ind.App. 315, 139 N.E.2d 580, 585. The language establishing the limitation of the easement in this case, however, is not clear.

The language of paragraph three, which includes the words 'so long as', in the February 27, 1967 amendment to the lease, establishes that the easement was intended to be a qualified easement determinable upon the happening of a particular event. That...