Litzelswope v. Mitchell
| Decision Date | 27 July 1983 |
| Docket Number | No. 1-982A271,1-982A271 |
| Citation | 451 N.E.2d 366 |
| Parties | Louis A. LITZELSWOPE, Jr., Margaret A. Litzelswope, Plaintiffs-Appellants, v. James R. MITCHELL, Patricia A. Mitchell, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Linda B. Lorch, Lorch, Moyer, Gesenhues & Bitzegaio, New Albany, for plaintiffs-appellants.
Michael F. Ward, Rudy, Ward & Crumbo, New Albany, for defendants-appellees.
Louis A. Litzelswope, Jr. and Margaret A. Litzelswope together with John E. Anderson and Kathleen A. Anderson sued James A. Mitchell and Patricia A. Mitchell seeking injunctive relief to compel Mitchells to remove alleged obstructions or encroachments placed by Mitchells in an easement owned in common by the parties. From an adverse judgment, the Litzelswopes appeal. We affirm.
Litzelswopes, Andersons and Mitchells are each the owners of a lot in a residential area in Floyd County. Litzelswopes acquired their real estate in February of 1977 by deed from John and Emma Kannapel. Andersons' lot was acquired by conveyance from John and Charlene Herbst in December of 1979. Mitchells acquired their real Although the easement described in the grants is sixty feet in width, only a portion of it is used as a roadway for access to and from the lots in question and Tanglewood Drive. A gravel or stone roadway approximately twenty feet wide has been constructed on the easement which roadway is slightly off-center. In June 1977, Mitchells' builder constructed a driveway from Mitchells' property across the unimproved portion of the easement to the travelled portion. At the same time a culvert was placed in an open ditch in the easement and covered by the driveway. In the fall of 1977, Mitchells installed a railroad tie retaining wall on the eastern side of the ditch south of their driveway. Later, in the summer of 1979, Mitchells built a garage and poured some excess concrete into the bottom of the open ditch south of their driveway. In the fall of 1979, Mitchells built some wooden steps from their property to the driveway, and in the summer of 1980, they installed bricks in those steps. Also in the summer of 1980, Mitchells extended the culvert from the north side of their driveway to a catch basin which they installed and which is partially in the untravelled portion of Tanglewood Drive. The extended culvert and ditch were then covered with dirt and seeded.
estate from Bennett Built, Inc. in April 1977. The deeds to Litzelswopes and Andersons also conveyed a right-of-way and easement sixty feet wide, which was specifically described "to be used in common with the Grantors, their heirs, transferees, and assigns and in common with the owners of the adjoining real estate, the same to be used as a means of ingress and egress to and from [the lots conveyed] to Tanglewood Drive, a public roadway...." Record at 90, 93. Mitchells' deed did not contain such a grant of easement but provided that their real estate was conveyed "subject to any and all easements of record affecting the same ...." Record at 97. On November 29, 1980, Mitchells obtained a grant of easement from Kannapels identical to that contained in the deeds to Litzelswopes and Andersons.
Prior to the construction of the culvert, the retaining wall, the extension of the culvert to the catch basin, and the placing of concrete in the ditch bottom, the ditch and adjoining land were eroding and the ditch was increasing in width. The retaining wall, steps, culvert, and concrete ditch all are within the boundary of the easement, but outside the travelled portion being between the travelled portion and Mitchells' land.
In October of 1980 Litzelswopes and Mitchells jointly caused a survey to be made. The survey shows the location of all the alleged encroachments. None of these improvements made by Mitchells extend into the improved or travelled portion of the easement. Mitchells driveway extends from their garage in a westerly direction 11.5 feet to the eastern boundary of the easement, and then across the unimproved portion of the easement to the travelled portion. The steps extend in a southwesterly direction 12.4 feet into the unimproved portion of the easement.
Litzelswopes were aware of the construction of the driveway, retaining wall, steps, culvert, drain, and the placing of concrete in the bottom of the open ditch by Mitchells. In fact, Mr. Litzelswope gave advice to Mr. Mitchell concerning the steps, furnished the railroad ties for the wall and steps, and suggested pouring the surplus concrete into the bottom of the ditch to prevent further erosion. Litzelswope claims to have told Mitchell that he had no objection to the improvements made by Mitchell so long as they were not in the easement. On the other hand, Mitchell contends Litzelswope never objected until after the survey when he told Mitchell he had engaged a man with a backhoe to remove them.
The only testimony concerning any interference with use of the easement caused by Mitchells' improvements is Mr. Litzelswope's statement that the catch basin caused him to veer to the left when entering from Tanglewood. This was denied by Mitchell.
The trial court enjoined Mitchells from making any additional encroachments upon
the easement, allowed them to keep, and conduct routine maintenance on, the existing items, but prohibited any changes in character such as paving their driveway, and provided that Mitchells should acquire no rights by prescription or adverse possession to maintain the disputed items on the easement, and that if, as a condition to accepting the easement as a public roadway, the appropriate governmental agency so required, Mitchells must remove the items at their expense.
Litzelswopes raised several issues which simply involve the question of whether or not the trial court erred, as a matter of law, in not requiring Mitchells to remove all of the alleged encroachments.
Mitchells challenge the trial court's refusal to permit them to pave their driveway and seek assessment of damages under Ind.Rules of Procedure, Appellate Rule 15(G).
Prior to considering the specific issues raised in this case, we point out that in cases tried by the court, we will not set aside the findings or judgment of the trial court unless such findings and judgment are clearly erroneous, and due regard shall be given to the trial court's opportunity to judge the credibility of witnesses. Ind.Rules of Procedure, Trial Rule 52(A). When a judgment is attacked as being contrary to law, we neither consider credibility of witnesses nor weigh the evidence. Rather, we look solely to the evidence most favorable to the judgment, together with all reasonable inferences therefrom, and it is only when this evidence is without conflict and leads to but one conclusion and the trial court reached a contrary conclusion that we will reverse that decision as being contrary to law. Dominguez v. Gallmeyer, (1980) Ind.App., 402 N.E.2d 1295, trans. denied. Further, we will affirm the decision of the trial court if it is sustainable upon any legal theory which the evidence supports. Central Indiana Carpenters Welfare Fund v. Ellis, (1980) Ind.App., 412 N.E.2d 865; Tarrant v. Self, (1979) Ind.App., 387 N.E.2d 1349, trans. denied.
Litzelswopes sought injunctive relief requiring Mitchells to remove their driveway, steps, retaining wall, culvert and drain from the untravelled portion of the easement. Injunction is an appropriate remedy in actions involving obstruction of, or continued interference with, an easement. Kramer v. Rager, (1982) Ind.App., 441 N.E.2d 700; Selvia v. Reitmeyer, (1973) 156 Ind.App. 203, 295 N.E.2d 869; Lynch v. Keck, (1970) 147 Ind.App. 570, 263 N.E.2d 176. Any lot owner in a subdivision who has an easement in a private street in common with other lot owners may maintain an action for interference with such easement. Winslow v. Sauerwein, (1955) Mo.App., 285 S.W.2d 21. The question here is whether the evidence is without conflict and leads inescapably to the conclusion that Litzelswopes were entitled to the...
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