McGinnis v. Public Service Co. of Indiana, Inc.

• Decision Date: 23 July 1974
• Docket Number: No. 1--1073A190,1--1073A190
• Citation: 313 N.E.2d 708,161 Ind.App. 1
• Parties: Charles McGINNIS and Lois McGinnis, Appellants (Plaintiffs below), v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 708

313 N.E.2d 708

161 Ind.App. 1

Charles McGINNIS and Lois McGinnis, Appellants (Plaintiffs below), v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellee (Defendant below).

No. 1--1073A190.

Court of Appeals of Indiana, First District.

July 23, 1974.

Thomas M. McDonald, Rogers, Wilder & McDonald, Bloomington, for appellants.

Bunger, Harrell & Robertson, Bloomington, Frank T. Lewis, Plainfield, for appellee.

LOWDERMILK, Judge.

Plaintiffs-appellants were the owners of certain real estate in Monroe County, Indiana, on which they had granted an easement to defendant-appellee for the purpose of constructing, erecting, and maintaining an electric distribution line.

Appellants attempted to negotiate leases or to arrange sales of the said tract of land which they alleged had no uses involving the construction or erection of buildings or structures. Appellee countered by informing potential buyers and lessees that under the rights granted it under the easement appellee would not permit the potential buyers and/or lessees to use the land on which appellee was the dominant tenant and would deny electric service if the easement strip was used as a mobile home sales lot, as the same would be in violation of the easement.

A general motion for summary judgment was filed, heard, considered, and denied by the court. Thereafter appellee filed a motion for partial summary judgment against the appellants as owners of the servient tenement, which was granted and judgment entered thereon by the trial court.

Appellants' motion to correct errors was overruled by the court and this court is now presented with three issues for the determination of this matter.

The first issue is whether the decision of the trial court in granting the defendant a partial summary judgment is contrary to law in that there is a genuine issue of material fact.

A portion of the easement in question which this court believes to be pertinent to the issues is in the words and figures as follows, to-wit:

'Grantors agree that no building or other structure will ever be built by Grantors or their successors in interest on any part of the strip hereinabove described and that, if any such building or other structure should be erected or put upon said strip of land, it shall be considered to be a violation of the easement, right and privilege hereby granted, unless erected by Grantee or its successors.

The Grantors reserve the use of said land not inconsistent with this grant.'

Appellants urgently insist that there are genuine issues of material fact which precluded the trial court from granting the partial summary judgment. The essence of this claim is whether or not a mobile home is to be considered a building or other structure put upon the land.

Appellants further contend that even though the facts are not in dispute that at least reasonable inferences to be drawn therefrom are in dispute and therefore under such circumstances a partial summary judgment is improper. That is to say, the two categories above mentioned may be decided by the court after finding certain facts and inferences therefrom concerning the nature of mobile homes in general. Such findings are argued by appellants to be proper for the fact finding process of a court or jury and not of summary judgment.

Appellee contends that there are no genuine issues of material fact; that the only dispute is the interpretation to be given the language contained in the easement indenture and this, appellee contends, is a matter of law.

Summary judgment is controlled by Ind. Rules of Procedure, Trial Rule 56. Partial summary judgments are approved under TR. 56(D) which is as follows:

'(D) Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.'

We believe it relevant to set out the various factors in the determination of the correctness of summary judgments.

'A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. In deciding whether a genuine issue of fact is raised in any case, a number of general considerations are relevant. First, the right to trial by jury is at stake, so courts must be ever careful to grant summary judgment only when no issue of fact is controverted or turns...