Indiana Law Review


1979] SURVEY-PROPERTY 269

counsel had been ineffective by failing to inform the defendant cor-

rectly as to the nature of his plea with the result that his guilty plea

to second degree murder was not voluntary and intelligent and, fur-
ther, was the product of coercive threats suggesting possible use of
the electric chair upon conviction. The court stated that, by alleging
that his guilty plea was not voluntary, knowing, and intelligent, the
defendant had raised constitutional questions and, therefore, "the

burden of proof by a preponderance of the evidence is relaxed, and
petitioner is permitted to withdraw his guilty plea if he raises a
reasonable doubt on the issues of his counsel's effectiveness."73 Look-

ing to the record, the court concluded that the defendant had received

adequate counsel and that, although the interviews with the

attorney may have been minimal, it did not appear that the defend-
ant had been coerced or that more time in consultation with the at-
torney would have brought about a different result.74

Frances J. Honecker

XIV. Property

Dehra A. Falender*

Several cases involving property rights were decided during the

survey period. The most significant cases 1 are discussed under the

73/d at 641.
n
Id. at 641-42. The Indiana State Bar Association in Opinion Number Two considered

a plea bargaining agreement form in which the defense attorney must state that he

believed the defendant to be guilty of the crime confessed. Such an assertion by an at-

torney is inconsistent with DR 7-106(0(3) which provides that an attorney should not
state his personal opinion as to the guilt or innocence of the accused. A ttorneys and Their
Ethics, 22 Res Gestae 234 (1977).

Assistant Professor of Law, Indiana University School of Law— Indianapolis.
A.B., Mount Holyoke College, 1970; J.D., Indiana University School of Law —
Indianapolis, 1975.

*A case worthy of note, but not discussed in the text, is In re Guardianship of

Fowler, 371 N.E.2d 1345 (Ind. Ct. App. 1978). In Fowler, the court of appeals restated

and applied the rule established in Teegarden v. Lewis, 145 Ind. 98, 40 N.E. 1047

(1895), that the mental capacity required to make a valid inter vivos gift is the same

capacity as that required to make a valid will.
In addition to the judicial developments during the survey period, one legislative

development is worthy of note. The legislature recently amended the statutes regard-

ing the powers and duties of notaries public. See Ind. Code §§ 33-16-2-1 to 9 (1976 &
Supp. 1978). A notary not only must affix his name, expiration date, and seal to a
notarized document, as required under prior law, id. §§ 33-16-2-4, -3-1 (1976), but also

"must print or type his name immediately beneath his signature" (unless his name is ;



270 INDIANA LA W REVIEW [Vol. 12:269

following general headings: (1) Landlord and tenant, (2) real estate

transactions, (3) real estate brokers, (4) easements, (5) zoning, and (6)

eminent domain.

A. Landlord and Tenant

This year, in Ranch v. Circle Theatre* the Indiana Court of
Appeals recognized the right of a lessor to sue for damages for
lessee's anticipatory breach of a lease. Ranch involved the alleged
breach of a lease involving the Indiana Theatre building in In-

dianapolis. The lease, executed in 1926, was to run until the year
2015. From 1938 until 1968, the lessee, Circle Theatre Company,
entered into management contracts with the Greater Indiana
Amusement Company for operation of a theatre on the leased
premises. On August 22, 1968, lessee assigned its rights under the
lease to the management company.3 Lessee then instituted voluntary
corporate dissolution proceedings and liquidated its other assets.4

already printed on the document or is part of his stamp) and must "indicate his county

of residence on the document." Id. § 33-16-2-9(a) (Supp. 1978). A notary's failure to print
his name or indicate his county of residence will not "affect the validity of any docu-
ment notarized before July 1, 1982." Id. § 33-16-2-9(b). But see Act of Apr. 21, 1977,
Pub. L. No. 34, § 4, 1977 Ind. Acts 222, effective January 1, 1978, in which the require-

ment of indicating the county of residence was established without a similar clause
saving the validity of documents notarized without such an indication. Arguably,

notarizations lacking the notary's county of residence, made between January 1, 1978,
and the effective date of the new statute, are invalid.

2374 N.E.2d 546 (Ind. Ct. App. 1978). One other landlord-tenant case, Tastee-
Freez Leasing Corp. v. Milwid, 365 N.E.2d 1388 (Ind. Ct. App. 1977), is worthy of note

because it points out the importance of verifying that an annual rental figure stated in

a lease is consistent with the stated monthly rent. In Milwid, the lease, prepared by

lessor, stated that the "minimum annual rental" was $7,500 payable in monthly in-
stallments of $781.25. The annual rental would have been $9,375 if the stated monthly

rental were extended over a twelve-month period. Even though lessees paid $781.25
per month, the trial court found that the intended rent was $7,500 per year, or $625
per month. The court of appeals affirmed the trial court's judgment that lessees were

not in default for nonpayment of rent. Id. at 139. Lessees had, in fact, overpaid. It is

interesting to note that lessor practically proved lessee's case. Lessor's ledger sheets

denominated $625 as rent and $156.25 as an override. At trial, lessor did not explain
the ledger accounts.

3The Rauch court cogently discussed the liability of the lessee and the assignee

by reason of privity of estate and privity of contract. Id. at 549-50. The court held that

the assignment of the lease did not abrogate lessee's liability, by reason of privity of

contract, for rent and other lease covenants. For further discussion of this issue, see

Townsend, Secured Transactions and Creditors' Rights, 1978 Survey of Recent

Developments in Indiana Law, 12 Ind. L. Rev. 289, 317 (1978).

'Eventually, lessee distributed $475,145 to its shareholders, retaining $122,000 in

escrow to cover dissolution expenses. Of these assets, $325,000 was derived from

lessee's sale of its interest in the theatre.



1979] SURVEY-PROPERTY 271

In 1970, lessors sued lessees for damages,5 alleging that the
dissolution of lessee corporation was an anticipatory breach of the
lease. After a bench trial, lessors were denied relief. Although the
court of appeals affirmed the judgment on the ground that the
lessors proved no damages resulting from the anticipatory breach,6

the court held that an anticipatory breach had occurred when lessee
liquidated its assets with the intent to completely and finally ter-
minate its business enterprise.7 The Ranch court stated:

While there seems to be little Indiana law directly on
point, the general rule allows a lessor an election of
remedies upon a repudiation of the lease by the lessee. In
such a situation, the lessor may elect to either (1) treat the
lease as having been terminated and recover damages for
breach of contract; or (2) treat the repudiation as a notice of
intent to vacate by the lessee and file successive actions to
recover each rental payment as it becomes due. 49
Am.Jur.2d Landlord and Tenant § 178 (1970). Where the
lessor has elected to terminate a lease, his measure of

5Lessors also sought the appointment of a receiver for the preservation of
lessee's assets and an injunction restraining the Indiana Secretary of State from issu-
ing a certificate of dissolution. Lessors argued that "adequate provision" had not been
made for all "debts, obligations and liabilities of the corporation," Ind. Code §
23-l-7-l(b)(4) (1976), because of the lessee's rental obligation for the remaining term of
the lease.

6374 N.E.2d at 553. The court noted that the assignee had performed all the

covenants in the lease, including the covenant to pay rent. The court also noted that

the assignee was "a solvent corporation with assets of equal or greater value than that

of Lessee and with a superior ability to manage and operate the leased premises." Id.
The court held that lessors failed to prove any injury resulting from the breach. Id.

Lessors argued that, to insure full performance of the lease by the assignee, the court

should appoint a receiver to collect from lessee and hold in escrow the present value of

all future rentals, taxes, and maintenance expenses due under the lease. The court of

appeals responded: "While such an arrangement may offer some surface logic, we
think that, as a practical matter such a remedy would be grossly inequitable for all

parties concerned, particularly when considering the extended period of time for which
the lease is to continue (until the year 2015)." Id. at 552.

Ud, Relying on authority from other states, the court ruled that a voluntary

dissolution "does not of itself constitute a breach of the lease." Id. at 551. Rights and

liabilities under a lease inure to the benefit of the shareholders of the corporate lessee.

A breach of the lease would not necessarily occur if, upon dissolution, "the
stockholders or other persons who are in equity entitled to the property of the cor-
poration step into the shoes of the corporate lessee with the same rights and liabilities

in respect to the lease as attached to the corporate lessee." Id. (quoting 49 Am. Jur. 2d

Landlord and Tenant § 997 (1970)). In Ranch, lessee "intended the assignment and

dissolution to be a complete and final termination of its business enterprise rather

than a mere change in its form or structure." 374 N.E.2d at 552. Thus, a breach oc-
curred upon dissolution because the "corporation was voluntarily placing itself in a posi-
tion in which it could not perform its obligations" under the lease. Id.



272 INDIANA LA W REVIEW [Vol. 12:269

damages will normally be the difference between the rent
reserved in the lease for the unexpired term of the lease and
the reasonable rental value of the premises for that term or
the actual rent procured by a subsequent reletting. 49
Am.Jur.2d, supra.8

In holding that a lessor may sue at once when lessee anticipatorily
repudiates a lease and may recover damages for breach of the entire
lease,

9
the court of appeals has finally completely recognized the ap-

plicability of contract principles in the landlord-tenant situation.
10

The only problem with the decision of the Ranch court is that it
does not mention two recent cases, Roberts v. Watson11 and Booker
v. Richmond Square, Inc., 12 both of which rejected the anticipatory
repudiation doctrine as inapplicable in the landlord-tenant context.13

8374 N.E.2d at 552.
9
If the lease is for so long a period of time that an award of damages for the en-

tire period would be arbitrary and speculative, the court would allow damages for a

more limited time. Id. (citing Hawkinson v. Johnston, 122 F.2d 724 (8th Cir. 1941)).
10Under the traditional view that a lease was a conveyance of an interest in land,

the contract doctrine of mitigation of damages was not applied. Lessor could remain
idle and sue for rent installments as they came due. See Krieger & Shurn, Landlord-
Tenant Law: Indiana at the Crossroads, 10 Ind. L. Rev. 591, 637 (1977), and authorities

cited therein. Indiana law now requires that a lessor mitigate damages upon lessee's
abandonment. See also State v. Boyle, 344 N.E.2d 302 (Ind. Ct. App. 1976); Hirsch v.

Merchants Nat'l Bank & Trust Co., 336 N.E.2d 833 (Ind. Ct. App. 1975), noted in Polston,
Property, 1976 Survey ofRecent Developments in Indiana Law, 10 Ind. L. Rev. 297, 302

(1976). Under the traditional common law view, a lessor could not use the contract doc-
trine of anticipatory repudiation on the theory that the covenant to pay rent was not an

enforceable obligation until the rent payment was actually due. See Krieger & Shurn,
supra, at 638-39. The Rauch decision now makes the contract doctrine applicable in

lease situations.
u359 N.E.2d 615 (Ind. Ct. App. 1977), noted in Falender, Property, 1977 Survey of

Recent Developments in Indiana Law, 11 Ind. L. Rev. 232, 233 (1977).
12310 N.E.2d 89 (Ind. Ct. App. 1974), noted in Polston, Property, 1974 Survey of

Recent Developments in Indiana Law, 8 Ind. L. Rev. 228, 228 (1974).
13In both cases, the court stated that a landlord may not recover rent which is not

alleged to be due. 359 N.E.2d at 621; 310 N.E.2d at 91. Booker, however, is consistent

with Rauch, because in Booher the lessor chose the option to recover rent as it became

due. The specific holding of the Booher court was that a prior action for rent was not

res judicata as to a subsequent action for rent which became due after the commence-

ment of the prior suit. In Roberts, however, the lessor sued for the total rent owing

under a five-year lease. The court held that the lessor could recover only the rent due,

but unpaid, at the time the suit was filed. Roberts and Booher are not distinguishable

from Rauch in any significant respect. In Roberts and Booher, the lessees were both

individuals who abandoned the premises. The individuals theoretically would be
available to defend later suits for rent, unlike the dissolved corporation in Rauch.

Abandonment might be considered a more equivocal act of repudiation than corporate

dissolution. In any event, if the Rauch court intended that its decision be reconcilable

with the Roberts decision, it seems that the Rauch court would have referred to

Roberts and would not have made such broad statements about the lessor's option.



1979] SURVEY-PROPERTY 273

Presumably, inconsistent statements in these cases were impliedly
overruled by the Ranch decision. 14

B. Real Estate Transactions

Several cases were decided, during the survey period, involving
real estate contracts.

15
In American Turners of South Bend v.

Rodefer,
1* the purchaser deposited $10,000 as earnest money in con-

nection with an offer to buy vendor's real estate. The offer was ex-
pressly conditioned on "Purchaser's ability to secure ... a firm com-

mitment for a mortgage loan in an amount not less than One Hun-
dred Six Thousand Dollars ($106,000.00) to be amortized monthly
over a period of not less than 10 years. Purchaser agrees to make a
good-faith effort to obtain said mortgage." 17 The offer was accepted,
and purchaser applied for a mortgage loan. The loan application was
made in the names of purchaser and his wife, but the wife did not
sign either the offer or the application. A loan to purchaser and his
wife, in the amount of $106,000 for fifteen years at eight percent in-
terest with monthly payments was approved, but purchaser's wife
refused to sign the mortgage. The purchaser talked to others about
financing the purchase, but did not at any time seek a mortgage
loan in his name alone.

Purchaser notified vendor two days before the scheduled closing
that he would not go through with the sale. The purchaser later
brought an action to recover his earnest money deposit, alleging
that he was unable to secure mortgage financing. The trial court
granted purchaser's motion for judgment on the evidence and

The Ranch court instead cited 49 Am. Jur. 2d Landlord and Tenant § 178 (1970), which

states, in general terms, that an unequivocal repudiation will support an immediate ac-

tion for damages for breach of the entire lease. It seems that abandonment by an in-

dividual lessee may often be as unequivocal as assignment by and dissolution of a cor-
porate lessee.

uThe situation cannot be characterized as one in which there is a divergence of

authority among the districts of the court of appeals. Ranch, Roberts, and Booker
were all decided by the same three judges of the First District of the Indiana Court of

Appeals.
15
In addition to cases discussed in the text, see Blaising v. Mills, 374 N.E.2d 1166

(Ind. Ct. App. 1978) (court ordered reconveyance of property where prior conveyance

to husband was procured by undue influence); Randolph v. Wolff, 374 N.E.2d 533 (Ind.

Ct. App. 1978) (summary judgment improper where genuine issue of material fact ex-

isted as to construction of sale contract containing an ambiguous property description).

A case of particular note to anyone involved in real estate law is Prudential Ins. Co. v.
Executive Estates, Inc., 369 N.E.2d 1117 (Ind. Ct. App. 1977), discussed in Townsend,

supra note 3, at 292. Recent cases involving a broker's right to a commission are

reviewed at notes 33-63 infra and accompanying text.
16372 N.E.2d 516 (Ind. Ct. App. 1978).

"Id. at 518.



274 INDIANA LAW REVIEW [Vol. 12:269

ordered the return of his $10,000. The court of appeals reversed,
stating that, because the evidence would support an inference that

purchaser did not act in good faith in trying to obtain a mortgage

loan, the issues of purchaser's ability to obtain a loan and of his

good faith should not have been taken from a jury.18

In Finley v. Chain, 19 the court of appeals, for the first time in

Indiana, discussed the rights of a vendor under a long-term land con-

tract to recover damages from the purchaser in possession on a
theory of waste.20 The court noted that the vendor has an interest in
real property analogous to that of a mortgagee.21 The court held that
the purchaser in possession, like the mortgagor in possession, may
use and enjoy the property in any manner,22 even to the extent of

committing acts or omitting acts which might be considered waste,23

so long as he does not "render unsafe the security for the remaining

debt."
24 The vendor may not recover damages merely because the

purchaser's active or permissive waste diminished the value of the

property securing the purchase price.25 Vendor's recovery is limited

to the amount that the waste impairs the value of the vendor's
security. Apparently, then, vendor can recover only if, and to the ex-

tent that, the purchaser has, by active or permissive waste, allowed

the value of the property to fall below the balance of the purchase

price owed to vendor.26

18
Ia\ at 519. Compare Rodefer with Blakely v. Currence, 361 N.E.2d 921 (Ind. Ct.

App. 1977), noted in Bepko, Contracts, Commercial Law, and Consumer Law, 1977
Survey of Recent Developments in Indiana Law, 11 Ind. L. Rev. 100, 100-01 (1977), and

in Falender, Property, 1977 Survey of Recent Developments in Indiana Law, 11 Ind.

L. Rev. 232, 241 (1977).
19374 N.E.2d 67 (Ind. Ct. App. 1978).
20The court stated: "Waste is the destruction, misuse, alteration, or neglect of the

premises by one lawfully in possession to the prejudice of an estate or interest therein

of another." Id. at 77. The action is an action in tort. Id.
21
Ia\ (citing numerous authorities). The purchaser, like the mortgagor, is the

owner of the land for all purposes, while the vendor retains legal title as security for

the purchase money, in the same way that a mortgagor holds a mortgage as security
for a debt.

^The parties to the real estate contract may, as may mortgagor and mortgagee,
specify reasonable and unreasonable uses of the property.

23Waste may result from omission to do what is necessary to prevent injury (per-
missive waste) as well as from acts which cause injury (active waste). Id. at 79.

24
Id. at 78. The court disagreed with the position of some authorities that the

mortgagee (or vendor) can never recover for damages resulting from permissive waste.
See id. at 79 & n.7.

26The court noted that, in title theory jurisdictions where the mortgage is con-
sidered a conveyance of legal title to the mortgagee, "remedies against waste arise

when the damage lessens the value of the plaintiffs estate." Id. at 78 n.6.
MFor further discussion of Finley, see Townsend, supra note 3, at 296-97. Professor

Townsend refers to this case as the "leaky spigot case." The court decided that the
vendor could recover damages for the purchaser's failure to repair leaky faucets if, on



1979] SURVEY-PROPERTY 275

In Brademas v. Real Estate Developments Co., 21 the court of ap-
peals affirmed the trial court's decision that the vendor under a real

estate sale contract is not entitled to specific performance. The pur-
chase agreement provided that, in the event of the purchaser's

default, vendor could either cancel and rescind the agreement and

recover the property, or waive the default.28 The court of appeals
agreed with the trial court's conclusion that the two remedies

enumerated in the purchase agreement were the exclusive remedies
available to the vendor in the event of the purchaser's default. The
decision pointed out that individual parties have a right "to make
the terms of their agreements as they deem fit and proper, so long
as those terms are lawful."29

In Lawyers Title Insurance Corp. v. Capp, 30 a title insurance
company (Lawyers) brought an action against the vendor (Capp) who
paid for the policy. The action was to recover $6,900 which the com-
pany paid the purchaser of the real estate pursuant to its liability

under the policy. The vendor had conveyed land to the purchaser by
a warranty deed which erroneously included a 1.38-acre strip that

vendor had previously conveyed to another. Since the contract price

was $5,000 per acre, when purchaser paid vendor the purchase
price, purchaser overpaid by $6,900. In its original insurance com-

mitment, the title insurer noted the fact that the strip had previously

been conveyed by vendor. In a revised commitment, however, no
mention was made of the prior conveyance.

The theory of the title insurer's action against the vendor was
that the insurer, when it paid the purchaser, was subrogated to the
purchaser's rights against the vendor. The trial court denied
recovery, and the court of appeals affirmed, holding that the

equitable doctrine of subrogation did not apply under the "unusual

factual setting" of the case.
31 The court carefully and emphatically

remand, the trial court found that the leaky faucet injured the vendor's security in-

terest. The court denied recovery for damages for a broken water cooler and a broken
front door, not because of any inherent distinction between faucets and water foun-

tains, but because the evidence did not show that the purchaser caused or allowed the

door and the water cooler to break.
27370 N.E.2d 997 (Ind. Ct. App. 1977).

"Vendor argued that the right to waive a default is meaningless unless it carries

with it the ability to seek specific performance. The court stated that the vendor had

the option of allowing the company to continue performance after a default, but vendor

did not have the option of requiring purchaser to perform. Id. at 1000.

"Id.
30369 N.E.2d 672 (Ind. Ct. App. 1977).
n
I<L at 674. The court noted that any right of subrogation that the insurer might

have against the vendor must originate "from either the policy of insurance, or from

the operation of the equitable doctrine of subrogation." Id. The policy of insurance was

not in the record, so the court could look only to the equitable doctrine to support the

insurer's claim.



276 INDIANA LAW REVIEW [Vol. 12:269

limited its holding to apply only to the unusual facts presented. The
court listed all the following facts as relevant and, apparently, as

equally decisive:

(1) The title insurance policy here involved is basically a
tripartite agreement involving vendor, vendee and insurer.

(2) Capp paid the consideration for the policy of title in-
surance.

(3) Lawyers had actual knowledge of the overlap and had
originally excepted that land from coverage under its com-

mitment.

(4) Capp paid and relied on Lawyers to search the record and
provide an accurate legal description, which Lawyers failed

to do.

(5) Since Lawyers had excepted the overlap from its original
commitment, failed to except it from the amended commit-
ment, and offered no explanation, it is safe to assume that
the error was Lawyers' mistake.

(6) The policy of insurance and exceptions thereto were not
made a part of the record.
(7) Since a potential cause of action in tort existed in favor of

[the vendee] and against Lawyers, the trial court may have
interpreted Lawyers' payment of funds to be a settlement
under the tort theory.32

It would seem that vendors would be justified in relying only on the
first, second, and fourth factors to preclude the insurer's equitable
or contractual right of subrogation.

C. Real Estate Brokers

In two cases during the survey period, Gerardot v. Emenhiser 33

and Day v. West, 3* the Indiana Court of Appeals discussed the
statutory requirement that a contract for a broker's commission

must be in writing. Indiana Code section 32-2-2-1, the so-called
broker's Statute of Frauds, provides:

No contract for the payment of any sum of money or thing of
value, as and for a commission or reward for the finding or
procuring by one (1) person of a purchaser for the real estate
of another, shall be valid unless the same shall be in writing,
signed by the owner of such real estate or his legally ap-
pointed and duly qualified representative: Provided, That

32/d

^a N.E.2d 1072 (Ind. Ct. App. 1977).
M373 N.E.2d 935 (Ind. Ct. App. 1978).



1979] SURVEY-PROPERTY 277

any general reference to such real estate sufficient to iden-

tify the same shall be deemed to be a sufficient description
thereof.

35

In Day, the written and signed listing agreement identified

various buildings located on the property
36 and described the proper-

ty as eighty acres "Located in Troy twp Dekalb Co Ind ... 1 mile
north McClellan Church on Bellefountain Rd. between Hamilton and

Edgerton."37 In deciding that this general description satisfied the

statutory requirement, the court enunciated a new test for a suffi-
cient description: "Whether from the information found within the
four corners of the listing agreement a reasonable man could locate
the correct property/'

38 A 1922 case, Hutchinson v. Borum, 39 had in-
terpreted the description proviso of the statute to require a written

description sufficient to identify the property without resort to any

parol evidence. In Hutchinson, a street address was determined to
be inadequate.40 The Day court noted that today in urban areas "the
common and most reasonable means of locating property is by
street address."

41 The Day court overruled Hutchinson to the extent
that Hutchinson was inconsistent with the reasonable man test
enunciated in Day.*2

The Day court also ruled that the trial court had no probative
evidence to justify the conclusion that the broker had failed to per-

form all the acts required to entitle him to a commission.43 Under
the arrangement in Day, as in most listing arrangements, the broker
was entitled to a commission only if he procured a buyer ready, will-
ing, and able to purchase the property on the listed or other

satisfactory terms.
44
In Day, the broker procured an offer, the terms

of which tracked the listed terms. Thus, the buyer was clearly ready

35Ind. Code § 32-2-2-1 (1976). If the broker's right to a commission is not in
writing, the broker cannot recover on a theory of quantum meruit. E.g., Voelkel v.

Berry, 139 Ind. App. 267, 218 N.E.2d 924 (1966).
36The listing agreement referred to a three-bedroom house, a two-car garage, a

pole barn, a basement barn, a brick school and a one-acre pond.
37373 N.E.2d at 937.
38
/d. at 938.

3978 Ind. App. 214, 135 N.E. 179 (1922).
i0Id at 218, 135 N.E. at 180. The description was "549 East Drive Woodruff Place,

Marion County, Indiana." Id. at 215, 135 N.E. at 179.
41373 N.E.2d at 938.
42ta

"Id. at 940.

"The broker was also entitled to a commission if the owner himself sold the prop-
erty during the listing period. This created a so-called exclusive right-to-sell agree-

ment. See Comment, Colorado Real Estate Broker Listing Contracts, 35 U. Colo. L.
Rev. 205, 211 (1963).



278 INDIANA LAW REVIEW [Vol. 12:269

and willing to purchase on terms agreeable to sellers. Sellers,

however, refused to sell.

The broker argued on appeal that he was not required to prove
the buyer's financial ability to perform.

45 The court of appeals stated
that, because the seller refused the buyer's offer outright: "[T]he

question of [the buyer's] financial ability to purchase the farm never

materialized."
46

If the court, by that statement, meant that the

broker need not prove the buyer's financial ability to perform if the

seller refuses to accept an offer which tracks the listed terms, the

court's decision is contrary to the holding of Kaiser v. Shannon,*1 the

case cited by the court in support of the above-quoted statement. A
rule dispensing with the requirement for proof of financial ability

would also not be a sound policy. An unscrupulous broker, knowing
that his seller has had second thoughts about selling, could recover a

commission upon proof that he produced a human being, physically
and mentally capable of entering into a contract, with an acceptable

offer in hand.
48

In Gerardot the court of appeals considered whether the
broker's services were the "essential cause" of a sale for which he
claimed a commission.49 The court found sufficient evidence to sup-
port the trial court's finding that the broker "was not instrumental
in bringing the sellers and buyer together and that the ultimate

45
It is universally agreed that "able" refers to financial ability. See the historical

discussion in Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967).
46373 N.E.2d at 939 (citing Kaiser v. Shannon, 120 Ind. App. 140, 90 N.E.2d 819

(1950)).

47
120 Ind. App. 140, 90 N.E.2d 819 (1950). In Day, the evidence of the buyer's

financial ability to perform was apparently uncontradicted. The buyer's loan was
"ready to be closed," and Day himself had offered to loan the buyer any money he
needed to consummate the deal. 373 N.E.2d at 939. Thus, the Day court's holding could
be interpreted as a determination that all the evidence of probative value supported

the conclusion that the buyer was financially able to perform. In Kaiser, the broker
procured an offer, but the seller refused to accept it. The court held that the pur-
chaser's financial ability would not be presumed. 120 Ind. App. at 144, 90 N.E.2d at

820. The court noted that a presumption of financial ability arises when seller and
buyer enter into a contract to buy and sell the real estate. Id. at 144, 90 N.E.2d at
820-21. See Stauffer v. Linenthal, 29 Ind. App. 305, 64 N.E. 643 (1902); McFarland v.

Lillard, 2 Ind. App. 160, 28 N.E. 229 (1891). For a discussion of the injustice of raising a

presumption of financial ability when seller accepts an offer made by broker's buyer,
see Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967).

48This may well have been what was attempted in Kaiser.
49363 N.E.2d at 1077. The broker must prove that through his procurement "a

third party had entered into a valid executory contract with vendors for the purchase

of the listed property. Id. The question of whether the broker was the procuring
cause of a sale typically arises, as here, when the broker with a listing on the seller's
property dealt with a potential buyer to whom, after the listing expired, the seller sold
the property. For an excellent discussion of procuring cause, see Cramer v. Guercio,
331 So. 2d 550 (La. Ct. of App. 1976).



1979] SURVEY-PROPERTY 279

transfer was substantially altered in form, substance, and as to the
parties involved."

50 The broker had tried to arrange an agreement
between the seller and Martin Maciejko, but was unable to do so.51

Maciejko, in fact, became the ultimate purchaser of seller's property,
but only by means of a complicated transfer whereby Maciejko ex-
changed his own farm for the seller's property and another prop-
erty. This exchange was effected through the efforts of a third party.
The court held that the evidence supported the conclusion that the
broker was not the procuring cause of the multi-party transaction in-
volving several parcels of real estate.52

The court's conclusion on the procuring cause issue should have
been sufficient to support an affirmance of the trial court's judg-

ment denying the broker a commission.53 The court, however, also
discussed whether there was an agreement satisfying the Statute of
Frauds requirement that the contract for a broker's commission be
"in writing, signed by the owner of [the] real estate."54 The broker
had procured and forwarded to seller an offer to purchase seller's

property. When the broker relayed the offer, he did not have a
listing on the property. The seller proposed a counter-offer in
writing, which he signed, and in which appeared the following:

If the above or approximate deal should go through, I

would be willing to pay you [broker] 6% on the first
$50,000.00, 5% on the balance of the $175,000.00. I would not
expect to pay you any commission on the sale of any of the

personal property.

I will expect an answer from you on all that I have writ-

ten by Apr. 4, '72. In event I do not hear by that time, I will

count it as a negative reply.55

^SQS N.E.2d at 1073.
51The broker had a listing on the seller's property, but the listing had expired

when the ultimate sale to Maciejko occurred. The broker had "tried to conclude an
agreement between Martin Maciejko and Dr. Emenhiser but was unable to do so

because Maciejko apparently had objection to the size, topography and improvements

of the Emenhisers' farm." Id. at 1074.
52
Id. at 1077-78.

53
If the broker had had an exclusive agency or an exclusive right-to-sell listing at

the time the seller entered into the exchange agreement with Maciejko, then the

broker would have been entitled to a commission regardless of the outcome on the pro-

curing cause question. See generally Comment, supra note 44, at 211. The terms of the
seller's letter offering to pay the broker a commission, printed in the text accompanying

note 55 infra, seem insufficient to create an exclusive agency or an exclusive right to
sell. Thus, affirmance on the procuring cause issue would have been sufficient for

affirmance of the trial court's judgment.
m
Ind. Code § 32-2-2-1 (1976). The entire statute is printed in the text accompany-

ing note 35 supra.
55363 N.E.2d at 1074.



280 INDIANA LAW REVIEW [Vol. 12:269

The broker did not reply in writing by April 4, but he did bring
another offer to the seller before that date. Nothing ever materialized

between the seller and either of these two buyers.
Despite the fact that the "owner of such real estate"56 signed a

document which appeared to be an agreement to pay the broker a
commission if "the above or approximate deal should go through,"57

the Gerardot court held that because the broker did not sign

anything, there was no writing sufficient to satisfy the statutory re-
quirement.58 The reasoning of the court is strained and faulty. The
statute expressly requires only the signature of the owner of the
real estate. The court seems to have reasoned that, by the terms of
the seller's offer, there could be no "agreement" to pay a commis-

sion until the broker accepted the offer by a timely response59 and,

consequently, that there was no written "contract" without the
broker's signature.60 In fact, the court is doing exactly what it said
the broker was doing when he argued that he did not have to reply
in writing to the seller's offer to pay a commission — equating "in-
appropriately the need for a contract acceptance with the need for a

broker's signature."61 The broker's acceptance of the seller's offer to
pay a commission could be proved by parol evidence without con-

travening the Statute of Frauds writing requirement.62 The Statute
of Frauds precludes proof of a different non-written offer to pay a

58
Ind. Code § 32-2-2-1 (1976).

57363 N.E.2d at 1074. This is language of the seller's offer to pay a commission.
58M at 1075.
59The court referred to the seller's offer as "bilateral in nature." Id. at 1076.

Presumably the court did not mean to suggest that the seller's offer promising to pay
a commission looked to acceptance by a promise on the broker's behalf to procure a

buyer. Perhaps the court meant that the seller's offer to pay a commission would be

accepted not merely by the broker's performance of the requested act of procuring

"the above or approximate deal" (a truly "unilateral" arrangement), but also by the

broker's timely notification of his intent to attempt to arrange a satisfactory deal. This

is pure speculation. The court's characterization of the seller's offer to pay a commis-

sion as "bilateral in nature" is not explained in the opinion. In any event, the court

distinguished between the ambiguous "bilateral" arrangement in the present case and

what the court refers to as "a unilateral contract form offered by a broker requiring

[only] the signature of a seller." Id.

""Perhaps the court is suggesting that the statutory requirement that the "con-

tract" be in writing supersedes the express statutory provision that the owner is the

one, impliedly the only one, who must sign. In other words, the court is saying that the
"contract" is not in writing, as required by the statute, unless both the offer and the

acceptance are in writing. This would be an unreasonable interpretation of legislative

intent. The express requirement that the owner sign would have been unnecessary if

the legislature intended that the term "contract" be read to require that both parties

to the commission agreement sign.
81363 N.E.2d at 1076.
*2See cases cited in Annot., 30 A.L.R.2d 972 (1953).



1979] SURVEY-PROPERTY 281

commission, but the Statute of Frauds cannot be used, on the facts

presented, to support a conclusion that there was no written agree-

ment to pay a commission.63 There was a written agreement, properly
signed by the owner of the listed real estate; the only question that
needed to be answered in Gerardot was whether the broker com-
plied with the terms of the agreement.

D. Easements

In 1970, Center Company conveyed part of a parcel of real
estate to Sedgwick House, a limited partnership of which Center

Company was a general partner. In 1972, Center Company conveyed
the remainder of the parcel to Brademas. The deed to Brademas
contained a reservation, in favor of "Grantor, its successors and

assigns," of an "easement for roadway, parking purposes and for the

drainage of surface waters and waters discharged from the roof and

floor drains of 'Sedgwick House' over, along and across" a described

portion of the property conveyed to Brademas.64 In Brademas v.
Hartwig,*5 the court of appeals affirmed the trial court's judgment
that, although Sedgwick House was not named as a grantee in the
deed, the deed created an easement in its favor.

Relying on Ogle v. Barker,™ Brademas argued that the reserva-
tion was ineffective to convey an interest to a stranger to the deed.
In Ogle, the court had held that a grantor cannot, by reservation,

convey a life estate to a party not named as a grantee in the deed.67

The Brademas court distinguished Ogle as involving a life estate
rather than an easement.68 The court noted that, even under Ogle,

63This statement is made on the assumption that there was an adequate descrip-
tion of the real estate in the signed writing. There is no discussion of the description

in the recited facts of the case.

"Brademas v. Hartwig, 369 N.E.2d 954, 956 (Ind. Ct. App. 1977).
65369 N.E.2d 954 (Ind. Ct. App. 1977).
66224 Ind. 489, 68 N.E.2d 550 (1946).
61
Id. at 495, 68 N.E.2d at 553.

68369 N.E.2d at 957. The Brademas court gave no indication whether it would

have followed the Ogle decision if a life estate had been reserved in the instant case.

This author can think of no reason to treat a reservation of a life estate differently

from a reservation of an easement. The Ogle decision was based upon the traditional,
technical rule: "[T]here can be no valid and operative conveyance of land without

words of grant or alienation." 224 Ind. at 494, 68 N.E.2d at 553. Brademas was willing

to discard the technical rule in favor of a rule effectuating the "patently evident" in-

tentions of the parties. 369 N.E.2d at 957. Whether an easement or a life estate is in-
volved, it seems appropriate to reject technical rules of form and to attempt to discern

and effectuate the parties' intentions from the substance of the transaction. It is in-

teresting to note that the Restatement of Property § 472, Comment b (1944), explicitly
states that an easement may be created by reservation in favor of one not named as a
grantee in the deed, but takes no position with respect to the creation of a life estate

by such a reservation. See Restatement of Property § 107, Comment g (1936).



282 INDIANA LAW REVIEW [Vol. 12:269

the reserved interest was removed from the operation of the grant
and was left in the grantor, who could, by a proper conveyance, con-
vey it to anyone he chose.89 The Brademas court, unable to think of
a reason "why the grantor should be prevented from doing in one
step that which he could do in two,"70 adopted the policy propounded

in the Restatement of Property: "[A]n easement may be created in C
by a deed by A which purports to convey Blackacre to B in fee
reserving an easement to C."71 This logical approach will serve to

promote, rather than frustrate, the obvious intentions of the parties

in most cases.
Brademas also contended that the deed could not create an in-

terest in Sedgwick House because it did not describe the dominant

estate. The court of appeals held that the dominant estate was ade-
quately described.72 The deed, in fact, contained a legal description
of property designated in the deed as "Sedgwick House."

In Searcy v. LaGrotte, 13 the court of appeals affirmed the trial

court's denial of the existence of an easement over LaGrotte's prop-

erty. The Searcys argued that an easement had been created by
implication.

74
In 1925, a former owner divided a parcel of property

between two of his children. The two children regarded a dirt road
as the dividing line between the two parcels without concern as to
the actual boundary. The dirt drive led from Franklin Road to a
barn lot used by both children. In 1959, one parcel was conveyed to

the Searcys, and, in 1960, the other was conveyed to LaGrotte.
Subsequently, a survey was conducted which established that a part
of the drive, including the access to Franklin Road, was located en-
tirely on the Searcy parcel, another part of the drive and the barn

lot were located entirely on the LaGrotte parcel, and the rest of the
drive straddled both properties. A dispute arose over the Searcys'
use of the parts of the drive on LaGrotte's land.75 After a bench

69369 N.E.2d at 957.
10
Id.

"Restatement of Property § 472, Comment b (1944).
72369 N.E.2d at 957. See Ross v. Valentine, 116 Ind. App. 354, 364, 63 N.E.2d 691,

695 (1946), in which the court stated: "The instrument by which an easement by ex-

press grant is created should describe with reasonable certainty the easement created

and the dominant and servient tenements. ... A reservation of an easement is not
operative in favor of land not described in the conveyance." (citations omitted).

73372 N.E.2d 755 (Ind. Ct. App. 1978).
74The Searcys also argued that an easement had been acquired by prescription,

that is, by adverse use for 20 years. See Ind. Code § 32-5-1-1 (1976). The court of ap-
peals held that there was evidence to support the trial court's conclusion that the use
was not adverse for the prescriptive period. 372 N.E.2d at 757. See also Umbreit v.
Chester B. Stem, Inc., 373 N.E.2d 1116 (Ind. Ct. App. 1978) (finding that appellants failed

to meet burden of proving that easement had been acquired by prescription).
75The facts are unclear. It seems that the Searcys were not asserting a right to

use the barn lot.



1979] SURVEY-PROPERTY 283

trial, the Searcys were enjoined from using any part of the drive on
LaGrotte's land.

The court of appeals stated the general rule that an easement
will be implied by law "when the owner of an estate imposes an ob-
vious and permanent servitude on one part in favor of another part,
and at the time ownership is severed the servitude is in use and

reasonably necessary for the fair enjoyment of the part bene-
fited . . . ."

76 This statement reflects the traditional view regarding
the implied grant of an easement.77 When a use is apparent, perma-
nent, and reasonably necessary to the enjoyment of the dominant
estate at the time of a severance of title, an easement may be im-
plied by law as part of the grant of the dominant estate, and as a
burden on the servient estate, on the theory that the parties intended
this result.

78 Once created, the implied easement may be extinguished
only in the manners in which an express easement may be ex-
tinguished.

79 Cessation or diminution of the original reasonable

necessity alone would not, by the traditional view, extinguish the
implied easement.80

76372 N.E.2d at 757.

"Most courts hold that reasonable necessity is sufficient for an implied grant of

an easement, but strict necessity is required for an implied reservation because the im-

plied reservation derogates from the terms of the grantor's otherwise absolute grant.

See generally 2 G. Thompson, The Modern Law of Real Property §§ 351-55 (repl. ed.
J. Grimes 1961). Indiana seems to follow the view that reasonable necessity is suffi-

cient in either case. See, e.g., Indiana Truck Farm Co. v. Chambers, 69 Ind. App. 292,
121 N.E. 662 (1919). In any event, in Searcy, because the severance occurred by ap-

parently contemporaneous conveyances to two grantees, the policy reason supporting

the imposition of the strict necessity requirement did not exist. All statements in this

discussion regarding implied easements refer to easements implied because of prior

use. See note 80 infra regarding implied ways of necessity.
uSee, e.g., Shandy v. Sell, 207 Ind. 215, 189 N.E. 627 (1934); John Hancock Mut.

Life Ins. Co. v. Patterson, 103 Ind. 582, 2 N.E. 188 (1885). G. Thompson, supra note 77,

§ 351, at 309, states:

In determining whether an easement by implied grant has arisen, the car-

dinal consideration is the presumed intention of the parties as disclosed by

the extent and character of the user, the nature of the property, and the

relation of the separated parts to each other. Implied easements rest upon

the intent of the parties not necessity alone.

(Footnotes omitted.)

The dominent estate is the estate benefited by the easement. The servient estate
is the estate burdened by the easement. Before severance, because an owner cannot

own an easement in his own land, the easement is frequently described as a "quasi-
easement."

79An easement may be extinguished by abandonment, release, adverse use, or
merger of the dominant and servient estates. See generally G. Thompson, supra note

77, §§ 440-49.
80The crucial determination in deciding whether an implied easement was created

is whether a reasonable necessity existed at the time of severance of title. If the re-

quirements for the creation of an implied easement then existed (apparent, permanent,



284 INDIANA LAW REVIEW [Vol. 12:269

The troublesome feature of the Searcy decision is that several of
the court's statements suggested that, to establish the existence of

an implied easement, a reasonable necessity must exist not only at
the time of severance of the unity of the title (in this case, when the
former owner divided his land between his two children), but also
throughout the existence of the easement. In other words, the

court's language indicated that an implied easement will be extin-

guished when the reasonable necessity terminates. The court used
the present tense in reference to whether use of the dirt road meets

the reasonable necessity requirement. For example, the court

stated: "Accordingly, the burden is on the party asserting the im-

plied easement to prove that the servitude is reasonably necessary

for the fair enjoyment of his land, not merely convenient or bene-

ficial."
81 Furthermore, the court stated: "The fact that the Searcys

have access to a public road without passing over the LaGrotte

parcel even more firmly establishes that use of the Disputed Area is
merely convenient and beneficial, rather than reasonably necessary

for the fair enjoyment of the Searcy property."82 The court's stated
conclusion is unfortunately ambiguous as to the time when a
reasonable necessity must exist: "There was sufficient evidence to
find that the Disputed Area was neither permanent nor reasonably
necessary for the fair enjoyment of the Searcy parcel, thereby

negating the existence of an implied easement."83 Searcy could be

reconciled with the traditional views regarding the creation and

and reasonably necessary use), then the easement exists as if it had been expressly

granted or reserved in the deed severing the unity of ownership. See Romanchuk v.
Plotkin, 215 Minn. 156, 9 N.W.2d 421 (1943), where the court stated:

[T]he grant of the easement is implied only in the sense that the easement

passes by the conveyance although not expressly mentioned .... It is im-
material, from a legal point of view, whether the easement passes because

the instrument expressly says that it shall pass, or because the cir-

cumstances are such as to call for a construction of the language used as so

saying.

Id at 165, 9 N.W.2d at 426 (quoting 3 H. Tiffany, Real Property § 780 (3d ed. 1939)).
A distinct type of implied easement is a way of necessity. A way of necessity will

be implied, more because of a public policy against property without access than

because of the parties' intent, if there was unity of title and a strict necessity at the

time of severance, regardless of the existence of an apparent and permanent use at

severance. A way of necessity lasts only so long as the necessity lasts. See generally
G. Thompson, supra note 77, §§ 362-68. Several Indiana cases confuse easements im-

plied from quasi-easements with ways of necessity. See, e.g., Hunt v. Zimmerman, 139
Ind. App. 242, 215 N.E.2d 867 (1966); Krueger v. Beecham, 116 Ind. App. 89, 61 N.E.2d

65 (1945). Perhaps the Searcy court was a victim of this confusion.
81372 N.E.2d at 758 (emphasis added).
*2
Id.

S3
Ia\ at 757. The court refers to the dominant parcel by using the name of the pres-

ent owner. Arguably, this is only for convenience of identification.



1979] SURVEY-PROPERTY 285

duration of implied easements, if one concludes that the court chose

its words carelessly in applying the stated rule to the facts. Perhaps

the court could have found that the evidence supported the conclu-

sion that use of the easement was merely convenient or beneficial,

but not reasonably necessary, at the time of severance. The

disputed portion of the road then was a dirt road, evident but not per-

manent, leading to a rear barn lot.
84

It is disconcerting, however, to

see another ambiguous decision in an area of Indiana law that is

already confused.

E. Zoning

In Carpenter v. Whitley County Plan Commission^ the court
construed Indiana law to determine the number of votes required
for official action of a plan commission. The statue provides: "A ma-
jority of members qualified by this chapter to vote, shall constitute
a quorum. No action of the commission is official, however, unless
authorized by a majority of the commission at a regular or properly

called special meeting." 86 Several remonstrators challenged the

Whitley County Plan Commission's approval of a plat for a proposed

subdivision. The nine-member commission had voted five times on
essentially the same plat, with the following results: (1) Four against
approval, two in favor; (2) four in favor, two against; (3) four in favor,
four against; (4) six in favor, two against; and (5) seven in favor, one
against. The remonstrators argued that the first three votes were
denials of the proposed plat and, thus, on the basis of Braughton v.
Metropolitan Board of Zoning Appeals,

81
the Commission should not

have reconsidered the determination ''absent a change of conditions

or circumstances."88 A majority of the Carpenter court held that the
Braughton rationale would not apply unless the prior actions were
legally effective. The majority decided that the statute required, for
official action by the Plan Commission, a vote one way or the other
of five of the nine members — that is, a vote of a majority of the com-
mission rather than a majority of those present and constituting a

84The Searcy court inferentially noted that an apparent purpose to "service the

barns rather than the homestead" supported the conclusion that use of the drive was

merely convenient or beneficial, but not reasonably necessary. Id. at 758.
85367 N.E.2d 1156 (Ind. Ct. App. 1977).

"Ind. Code § 18-7-5-19 (1976).
87146 Ind. App. 652, 257 N.E.2d 839 (1970).
6
*Ia\ at 658, 257 N.E.2d at 842. The Carpenter court noted the rationale of

Braughton: "[I]n the interest of economy, predictability, and repose of the parties, a

matter which is finally determined should not be relitigated." 367 N.E.2d at 1158.



286 INDIANA LAW REVIEW [Vol. 12:269

quorum.89 The dissent argued that the majority misinterpreted the
statute.

90

F. Eminent Domain

The Indiana Court of Appeals was very active in the eminent
domain area during the survey period.91 In City of Indianapolis v.
Central Railroad, 92 the City of Indianapolis filed a complaint to con-

demn certain rail spurs owned by two railroads. Six months after
the complaint was filed, the City moved to dismiss the condemnation
action because of a change of plans. In granting the motion to
dismiss, the trial court ordered the City to pay the railroads a total

of $12,365.25 to cover their attorneys' fees and expenses. The court
of appeals reversed the award of attorneys' fees, following the
general rule that each party involved in litigation must bear his own

89367 N.E.2d at 1158-59, adopting the reasoning of the minority in Ratner v. City

of Richmond, 136 Ind. App. 578, 591-93, 201 N.E.2d 49, 56-57 (1965) (Hunter, C.J.,

dissenting). In Pruden v. Trabits, 370 N.E.2d 959 (Ind. Ct. App. 1977), the Board of

County Commissioners of Warrick County decided to approve a rezoning ordinance

contrary to the recommendation of the Plan Commission. Plaintiffs argued that the

Board's approval was not final because the ordinance had to be referred back to the

Plan Commission for reconsideration. The court noted that, if an ordinance is amended
or rejected, the Board is mandated by statute to return the ordinance to the Commis-

sion for reconsideration. Return of the rejected or amended ordinance is mandated by

Ind. Code § 18-7-4-51 (1976). If, however, the ordinance is approved by the Board, even

though it had been rejected by the Commission, nothing in the statute requires, and no

purpose would be served by, further consideration by the Commission. The court

noted that the Plan Commission "would have no authority to override or change the

accepted version. Thus no purpose is served by requiring any further reconsideration

[unless the ordinance is rejected by the Board or approved in an amended condition]."

370 N.E.2d at 966. If the Plan Commission's affirmative recommendation is not acted

upon by the Board of County Commissioners within 90 days, it becomes effective. Ind.

Code § 18-7-4-50 (Supp. 1978).
90367 N.E.2d at 1162 (Staton, J., dissenting).
91
In addition to the cases discussed in the text, see Indianapolis Power & Light

Co. v. Barnard, 371 N.E.2d 408 (Ind. Ct. App. 1978) (reversing trial court's judgment

that utility lacked the statutory authority to condemn the land); State v. Zehner, 369

N.E.2d 1103 (Ind. Ct. App. 1977) (construing Ind. Code § 32-11-1-6 (1976)) (holding con-

demnee's sale of fill dirt from residual land to contractors building a highway was not

a special benefit and was not relevant as set-off against condemnation award); Board of

Aviation Comm'rs v. Schafer, 366 N.E.2d 195 (Ind. Ct. App. 1977) (holding members of

Clark County Board of Aviation Commissioners were de facto officers and were em-

powered to act to condemn property, despite alleged irregulatities in certificates of ap-

pointment); City of Hammond v. Drangmeister, 364 N.E.2d 157 (Ind. Ct. App. 1977) (af-
firming judgment for damages in inverse condemnation action arising from taking by

construction of a street on condemnee's property); State v. Jones, 363 N.E.2d 1018

(Ind. Ct. App. 1977) (approving income capitalization approach for establishing the fair

market value of land when the income is derived from a sale of minerals or other soil

materials).
92369 N.E.2d 1109 (Ind. Ct. App. 1977).



1979] SURVEY-PROPERTY 287

counsel fees in the absence of specific statutory authority or a con-

tractual agreement otherwise.93 The court reviewed and rejected
four grounds for the award of attorneys' fees. First, the court held
that there was not sufficient evidence of "obdurate behavior," "op-
pressive conduct," or bad faith to justify the recognition of an excep-

tion to the general rule.
94 Second, the court held that Trial Rule

41(A)(2), which states that "an action shall not be dismissed at the

plaintiffs instance save . . . upon such terms and conditions as the

court deems proper,"95 is "not elastic enough to embrace attorneys'
fees on dismissal."

96
Third, the court held that the provision of the

Eminent Domain Statute97 that allows for "costs" to be paid by
plaintiff does not encompass attorneys' fees as part of the term

"costs."
98 Fourth, the court held that the Indiana Relocation

Assistance Act99 did not provide a basis for the award of fees
because the condemnor was not an agency as defined in the Act.100

In deciding that the award of attorneys' fees was not authorized,
the court of appeals adhered to precedent established by the Indiana

Supreme Court. 101 Judge Sullivan expressed his dissatisfaction with
this precedent:

I concur but do so in hope that the Supreme Court might
reevaluate the course heretofore taken and under these cir-

cumstances, permit a trial court to award attorney fees
under T.R. 41(A)(2) for condemnees who are put to unwar-
ranted expense for the defense of actions improvidently

brought by condemnors and which are voluntarily aban-
doned.102

93
Id. at 1112.

94
Id. at 1113.

95
Ind. R. Tr. P. 41(A)(2).

96369 N.E.2d at 1114.
97
Ind. Code § 32-11-1-10 (1976) provided: "The costs of the proceeding shall be paid

by the plaintiff, except that in case of contest, the additional costs thereby caused shall

be paid as the court shall adjudge." This section was amended by Act of May 3, 1977,
Pub. L. No. 312, § 3, 1977 Ind. Acts 1434 (codified at Ind. Code § 32-11-1-10 (Supp.
1978)) to provide, in pertinent part:

However, if, in case of trial, the amount of damages awarded to the defend-
ant by the judgment, exclusive of interest and costs, is greater than the

amount specified in the last offer of settlement made by the plaintiff . . . , the
court shall allow the defendant his litigation expenses in an amount not to
exceed twenty-five hundred dollars ($2,500).
98369 N.E.2d at 1114.

"Ind. Code §§ 8-13-18.5-1 to 20 (1976).
100369 N.E.2d at 1114. "Agency" is defined in Ind. Code § 8-13-18.5-2(a) (1976).
101
State v. Holder, 260 Ind. 336, 295 N.E.2d 799 (1973) (Prentice, J., concurring)

(Arterburn, J., dissenting with opinion) (Hunter, J., concurring in dissent).
102369 N.E.2d at 1116 (Sullivan, J., concurring).



288 INDIANA LA W REVIEW [Vol. 12:269

In State v. Peterson, 103 the court of appeals reversed a judgment
of condemnation damages because the trial court refused to give the
state's tendered instruction: "Loss of access is compensable and may
be considered by you in determining the damages to be awarded the
defendants] only when such loss of access is special and peculiar to
this property, and only when no other reasonable means of access is
available to the property."

104 Judge Garrard dissented on the ground
that the tendered instruction was a misleading statement of the
law.

105 He stated:

[T]he concept that there is no compensable injury unless "no

other reasonable means of access is available," to be correct,
must contemplate reasonableness in terms of the highest and
best use of the property immediately prior to the take. . . .

[W]here, as here, that relationship is not made clear, the in-
struction tends to mislead and confuse the jury into the

belief that it should award no damages if there remains a
reasonable means of securing ingress and egress for any pur-
pose. Such a construction would deny the landowner

damages to which he might be properly entitled. 1106

In Indiana & Michigan Electric Co. v. Stevenson, 101 the court of
appeals held that, when the utility cut a strip of corn on one proper-
ty and cut several trees on another property in the course of

surveying the properties prior to condemnation, the jury could

reasonably have concluded that the utility so substantially in-

terfered with the owners' rights as to amount to a taking. 108 The
court also upheld jury awards of punitive damages.109 Alternative

methods of surveying were available which would have resulted in

only slight damages to the corn and trees. The court stated: "The
jury could have reasonably inferred that IMEC had knowledge of
these alternative methods of surveying property, but elected not to

use them because of the additional time and expense involved[;]
hence, IMEC's actions exhibited a heedless disregard for the property
rights of landowners." 110

103364 N.E.2d 767 (Ind. Ct. App. 1977).
104/d at 768. The court held that a "party is entitled to have an instruction based upon

his theory of the case submitted to the jury if within the issues and if there is

evidence to support it." Id. Since the appellees -did not argue that the refused instruc-

tion was covered by other instructions, the court assumed that it was not. In State v.

Beck, 256 Ind. 318, 268 N.E.2d 874 (1965), the court found no reversible error when the
trial court gave an identical instruction.

105364 N.E.2d at 768 (Garrard, J., dissenting).
m

I<L at 769.
107363 N.E.2d 1254 (Ind. Ct. App. 1977).
mId at 1260.
109/d at 1261.
no

Id. at 1260.