Indiana Law Review


XIV. Property

Walter W. Krieger*

During this survey year more than sixty cases involving the law ot
property were decided by the Indiana courts.' Many of these cases,
however, neither change existing law nor present unique factual or
legal problems. These cases are either excluded or merely summarized
without extensive comment. The more significant cases are discussed
under the following headings: (A) adverse possession, (B) concurrent
estates and partition, (C) easements and covenants, (D) landlord and
tenant relations, and (E) real estate transactions. Subjects not dis-
cussed under these headings include: condemnation by the state,^

*Associate Professor of Law, Indiana University Indianapolis Law School; A.B.,
Bellarmine College, 1959; J.D., University of Louisville, 1962; L.L.M., George Washing-

ton University, 1969. The author wishes to extend his appreciation to Janet W.
Averett for her assistance in the preparation of this discussion.

'There were no significant statutory developments during the survey period.

One case decided during the survey period, State v. Innkeepers of New Castle, Inc.,
392 N.E.2d 459 (Ind. 1979), is treated in the previous survey issue. See Falender, Prop-

erty, 1979 Survey of Recent Developments in Indiana Law, 13 Ind. L. Rev. 343, 355-57

(1980).

In Highland Realty v. Indianapolis Airport Authority, 395 N.E.2d 1259 (Ind. Ct.

App. 1980), Highland Realty appealed from a judgment permitting the Indianapolis

Airport Authority to condemn Highland property. The court found that the airport

authority could condemn property needed for a "clear zone," but that condemnations

for a "clear area protection zone" and a "noise buffer zone" were not authorized. Id. at

1268. A "clear zone" is defined as an area at the end of a runway which permits addi-
tional clearance in case an aircraft undershoots the runway. A "clear area protection
zone" is an area adjacent to the runway that is currently affected by noise. A "noise
buffer zone" is the area that is expected to be affected by noise by the year 1995. A
"clear zone" is required by the Federal Aviation Administration (FAA), but neither a

"noise buffer zone" nor a "clear area protection zone" is required or even defined by

the FAA. Id. at 1262-63.
The airport authority had sought to condemn the latter zones in hopes of avoid-

ing inverse condemnation suits. Inverse condemnation is an action to recover damages

for a taking of property that has not been formally condemned. Blacks Law Dig
TIONARY 740 (5th ed. 1979). The United States Supreme Court has held that aircraft
overflight and accompany noise constitute a compensable taking under the fifth amend-

ment. United States v. Causby, 328 U.S. 256 (1946). The Supreme Court has, however,

also tacitly approved the requirement of a physical invasion of the superadjacent space

for there to be a taking. Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert,

denied, 371 U.S. 955, rehearing denied, 372 U.S. 925 (1963). Thus, damage done by
noise without direct overflight is generally incidental and not recoverable, although a

few states have held airports responsible for a taking when noise of aircraft substan-
tially decreases the value of the property. City of Jacksonville v. Schumann, 167 So. 2d

95 (Fla. Dist. Ct. App. 1964); Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100

(1962); Ackerman v. Port of Seattle, 55 Wash. 2d 400, 348 P.2d 664 (1960). In those

459



460 INDIANA LAW REVIEW [Vol. 14:459

water law,^ conditional land sales contracts/ mechanics liens,^ mort-

gages,** real property taxation/ bailments/ zoning/ and the right of a

jurisdictions that have recognized noise damage as a compensable taking, the state
constitution provides compensation for "taking or damaging." See Baxter & Altree,
Legal Aspects of Airport Noise, 15 J.L. & ECON. 1, 34-40 (1972).

Indiana's constitution provides for damages only for a "taking" of property. Ind.

Const, art. 1, § 21. The majority of Indiana cases dealing with inverse condemnation

are concerned with the right of access to roads. See Note, Inverse Condemnation and

the Right of Access of Abutting Property Owners, 9 Ind. L. Rev. 859 (1976). The Indi-

ana Supreme Court has recognized a right to compensation for taking an airport ease-

ment for approaches to a runway. Indiana Toll Rd. Comm'n v. Jankovich, 244 Ind. 574,
193 N.E.2d 237 (1963), cert, dismissed, 379 U.S. 487 (1965). Indiana courts have not con-

sidered whether noise alone is sufficient damage for a compensable taking. Therefore
it is unclear whether an inverse condemnation suit based on noise damage would be

successful.

'In Davidson v. Mathis, 389 N.E.2d 364 (Ind. Ct. App. 1979), the court stated that

when surface water flows in a definite direction in a regular channel with well defined
banks and bottom for a substantial period of each year, it is a water course. Id. at 365

n.l (citing Lowe v. Loge Realty Co., 138 Ind. App. 434, 436, 241 N.E.2d 400, 402 (1966)).
Therefore, the court enjoined the lower landowner from blocking the drainage from

the upper lands. Had this been merely surface water, the lower landowner could have

taken whatever action was necessary to prevent the water from entering upon his

land. Clay v. Pittsburgh, C, C. & St. L. Ry.. 164 Ind. 439, 73 N.E. 904 (1905); Kinyon &
McClure, Interferences with Surface Waters, 24 MiNN. L. Rev. 891 (1940).

In Suburban Homes Corp. v. Harders, 404 N.E.2d 629 (Ind. Ct. App. 1980), the

corporation sought to establish a legal drain on Harders' property. Mrs. Harders

argued that because the drain was not one established by the mutual consent of two or

more property owners, it could not be made a legal drain. iND. Code § 19-4-5-3(c) (1976).

In holding for Mrs. Harders, the court determined that the presence of previously laid

drainage tile and a culvert between the properties was not sufficient evidence of

mutual consent. Id. at 633. Rather, the ordinary meaning of "mutual drain" is an artifi-

cial drain actually built by the parties, not a drain that is simply used by the parties

with their mutual consent. Id. at 632. The court noted, however, that a natural water-

course can be made a legal drain. Id.

'Several decisions during this survey period dealt with the continuing saga of

Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973), cert, denied, 415 U.S. 921

(1974), in which the court recognized that the conditional sales land contract is an

equitable mortgage, which gives the purchaser the rights of a mortgagor. These cases

are discussed in Townsend, Secured Transactions and Creditors' Rights, 1980 Survey

of Recent Developments in Indiana Law, 14 Ind. L. Rev. (1981).

^Cases involving mechanics liens are discussed in Townsend. Secured Transac-

tions and Creditors' Rights, 1980 Survey of Recent Developments in Indiana Law, 14

Ind. L. Rev (1981).

'Cases dealing with mortgages are discussed in Townsend, Secured Transactions

and Creditors' Rights, 1980 Survey of Recent Developments in Indiana Law, 14 Ind.

L. Rev (1981).

'The Indiana Court of Appeals, in Hawkins v. Marion County Bd. of Review, 394

N.E.2d 957 (Ind. Ct. App. 1979). held that an Indiana resident purchasing property on a

conditional sales contract with a contractual obligation to pay the real estate taxes, is

not "one who owns real property" for purposes of qualifying for a mortgage tax deduc-

tion. Id. at 959-60. See Ind. Code § 6-l.l-12-l(a) (1976). The court determined that dis-

tinguishing equitable and legal owners of real property is not an irrational and invidi-



19811 SURVEY-PROPERTY 461

ous discrimination in violation of the equal protection clause of the United States Con-
stitution. It deferred to the legislature to grant relief. 394 N.E.2d at 961. The legisla-
ture responded by amending the statute. Ind. Code § 6-l.l-12-l(a) (1976) (amended by
Act of Mar. 3, 1980, Pub. L. No. 39, § 1, 1980 Ind. Acts 507) (effective Jan. 1, 1980) (this
amendment effectively overrules Hawkins). The legislature also enacted the Home-
stead Credit Act, Ind. Code §§ 6-1.1-20.9-1 to -6 (Supp. 1980), which provides a tax
credit to persons, other than the legal title holder, who must pay the real estate taxes.

In State v. George, 401 N.E.2d 680 (Ind. 1980), the Indiana Supreme Court held
that a sister who held property jointly with rights of survivorship with her deceased
brother was entitled to an exclusion from inheritance tax for her one-half interest in
the property. The state argued that because the brother had conveyed the joint inter-
est to his sister in 1960, the sister would be unable to show that one-half of the prop-
erty had never belonged to the brother. Therefore, an inheritance tax should be im-
posed on the entire property. The court, however, found this interpretation of the
statute to be too strict. Id. at 682. See Ind. Code § 6-4-1-1 (repealed 1976), which pro-
vided that jointly held property would be treated as devised or bequeathed to the sur-
vivor, and was therefore taxable.

Under the current statute, Ind. Code § 6-4.1-2-5 (1976), property held jointly with
rights of survivorship, upon the death of one of the joint owners, is valued for inheri-
tance tax purposes as the total value of the property less the value of the portion the
surviving joint owner can prove belonged to him and never belonged to the deceased
owner. Thus, the court could have reached the same conclusion under the current
statute. Although the facts are incomplete, the court suggested that title to the prop-
erty was erroneously put in the brother's name alone when his parents died intestate.
If so, the sister would have owned a one-half interest in the property from the time of
her parents' deaths, and the conveyance by brother to sister in 1960 only confirmed a
factual situation that existed prior to the transfer. Furthermore, brother and sister
treated the property as jointly held, with each living and working on the property and
each paying tax on one-half of the income generated by the property.

*The court of appeals decided two cases that raised bailment issues. Hainey v.

Zink, 394 N.E.2d 238 (Ind. Ct. App. 1979), involved an automobile accident which oc-

curred while defendants' tow truck was towing plaintiffs vehicle. The plaintiff argued

that a trial court instruction, that the accident and resulting damages raised no pre-

sumption of wrongdoing, was erroneous. The court of appeals agreed and held that
because receipt of the vehicle by the bailee in good condition and return to the bailor

in a damaged condition raised an inference of negligence on the part of the bailee, the
instruction was confusing. Id. at 241-42.

In French v. Hickman Moving & Storage, 400 N.E.2d 1384 (Ind. Ct. App. 1980),
the court affirmed a summary judgment in favor of the defendant which had sold plain-
tiffs household items after several attempts to contact the plaintiff about payment for
storage of the items. The plaintiff failed to bring her action within the two-year

statute of limitations, which began to run at the time of the sale. She asserted that

there was a confidential relationship between herself and the defendant because of the
bailment; failure to disclose material information resulted in concealment. By not noti-
fying her of the sale, the defendant had concealed the cause of action; thus, the statute

of limitations should not have begun to run until she received actual notice. The court,
however, held that while there is a certain degree of confidence with respect to care

and custody in an ordinary bailment, that alone does not establish a confidential rela-

tionship. Id. at 1389. Because the plaintiff failed to establish any other factor creating a

confidential relationship, the court found there was no such relation and therefore no
fraudulent concealment of the sale. Id.

'While there were a plethora of zoning cases decided during this survey period.



462 INDIANA LAW REVIEW [Vol. 14:459

remote vendee to recover from a builder-vendor on an implied war-
ranty of habitability.'"

most were of a routine nature. One decision worthy of comment is Jacobs v.
Mishawaka Bd. of Zoning Appeals, 395 N.E.2d 834 (Ind. Ct. App. 1979). At the time the

property was zoned as a C-1 use (commercial), a gasoline service station classified as a

C-4 use was in existence and operating on the premises. To prohibit the continuation
of an existing lawful use within a zoning area is both unconstitutional "as a taking of

property without due process of law and as an unreasonable exercise of police power."

Id. at 836. Thus, operation of the service station became a non-conforming use, or a use

of premises which lawfully existed prior to the enactment of a zoning ordinance and

which is allowed to continue even though it does not comply with the use restrictions

presently applicable to the area. Id. at 835-36. The use of the premises as a service sta-

tion was subsequently discontinued and a used car business, also classified as a C-4
use, was opened. The trial court affirmed an order to cease and desist operation of the

used car lot, and the property owner appealed. The court of appeals reversed, inter-

preting the language in the Mishawaka Zoning Ordinance which prohibited the change

of a non-conforming use "to another non-conforming use of greater restriction," to

mean "to another non-conforming use of a more restricted zoning classification." Id at
837-38. Because a used car business is also a C-4 use, the court found that it was a per-

missible non-conforming use under the zoning ordinance.

In a well reasoned dissenting opinion. Judge Staton noted that "the policy of zon-

ing ordinances is to secure the gradual, or eventual elimination of non-conforming uses

and to restrict or diminish rather than increase such uses." Id. at 840 (Staton, J., dis-

senting). The majority opinion would increase and prolong non-conforming uses. For

example, it would permit a landowner operating a non-conforming C-1 use of the prem-

ises as an antique shop to replace it with a motor bus terminal, bowling alley, dance

hall, tavern or any of a myriad of activities which are also designated as C-1 uses. Id.

Clearly this could not have been the intent of the ordinance and thus the phrase

"greater restriction" is not synonymous with "more restricted zoning classification."

Id. at 840-41.

In Metropolitan Dev. Comm'n v. Marianos, 401 N.E.2d 28 (Ind. Ct. App. 1979),
the court of appeals held that it is insufficient to merely establish that a non-conform-

ing use existed at some time prior to the enactment of a zoning ordinance. In order to

establish a non-conforming use it must be shown that the use existed at the time of

the zoning restrictions and has continued since that time in non-conformance to the

ordinance. Id. at 30. The trial court failed to find that the use existed on the effective

date of the ordinance. Id. at 31.

'"In 1971 Indiana joined a growing number of jurisdictions which recognize an im-

plied warranty of habitability from a builder-vendor to the purchaser of a new home.

Theis V. Heuer, 149 Ind. App. 52, 270 N.E.2d 764 (1971), transfer granted and opinion

adopted, 264 Ind. 1, 280 N.E.2d 300 (1972). Indiana became one of the first states to ex-

tend this implied warranty of the builder-vendor to a subsequent purchaser. Barnes v.

Mac Brown & Co.. 264 Ind. 227, 342 N.E.2d 619 (1976); Polston, Property, 1976 Survey

of Recent Developments in Indiana Law, 10 iND. L. Rev. 297, 299-302 (1976).

In Wagner Constr. Co. v. Noonan, 403 N.E.2d 1144 (Ind. Ct. App. 1980), a subse-

quent purchaser of a house sued the builder-vendor for breach of an implied warranty

of habitability because of a defective septic tank system which caused raw sewage to

back into the basement. The plaintiff recovered a small claims judgment of $632.66 and

the defendant appealed. Four major issues were raised on appeal: (1) Whether an im-

plied warranty of habitability should be extended to a second purchaser in the absence

of privity of contract; (2) Whether five years is an excessive time period to extend the

implied warranty of habitation against the original builder; (3) Whether the defect was



1981] SURVEY-PROPERTY 463

A. Adverse Possession

To acquire title to land by adverse possession, the possession

must be: (1) hostile and under a claim of right, (2) actual, (3) open and

notorious, (4) exclusive, and (5) continuous." In addition, Indiana

Code Section 32-1-20-1 requires that the adverse possessor pay all

taxes and special assessments on the land during the period he

claims to have possessed the land adversely. These requirements

were addressed in two interesting cases decided during this survey

period.

In Berrey v. Jean,^^ the plaintiffs, two individuals and a

cemetery association, claimed title by adverse possession and

brought an action to quiet title to land against the record owners.

The property, known as Williams Cemetery, had been utilized for
systematic burial since before 1880. For sixty years, four concrete

serious enough to warrant application of the doctrine of implied warranty of habitabii-

ity; and (4) Whether a breach of the implied warranty of fitness for habitability may be
applied against the builder when the purchaser fails to notify the builder and conse-

quently the builder has had no opportunity to correct the problem. Id. at 1145-46.

On the first issue the court noted that the Indiana Supreme Court had rejected
the privity requirement in Barnes. "The traditional requirement of privity between a

builder-vendor and a purchaser is an outmoded one." Id. at 1146.

Addressing the second issue, the duration of the warranty, the court held that

"[t]he duration of the implied warranty of fitness for habitation is determined by the

standard of reasonableness," id. at 1148, and that a five year period was not too long a
period of time to extend the warranty to a latent defect in a septic system because it

is common knowledge that the expected life of a properly installed septic system is
greater than five years. Id. The court noted that the builder-vendor need not be con-
cerned about extending the warranty into the distant future because all claims would

be extinguished at the expiration of ten years from the date of substantial completion,

pursuant to IND. Code § 34-4-20-2 (Supp. 1980). Id. at 1148 n.3. In another decision,
Walsh V. Halteman, 403 N.E.2d 894 (Ind. Ct. App. 1980), the court noted that iND.

Code § 34-4-20-2 (1976) was amended in 1977 to include construction deficiencies. Thus,
the ten-year statute of limitation now governs actions based upon breach of an implied
warranty of habitability.

With regard to the third issue, whether the defect was sufficiently serious to
warrant the application of the implied warranty of habitability, the court concluded

that breach of the warranty is established by proof of a defect of a nature which sub-

stantially impairs the enjoyment of the residence. 403 N.E.2d at 1148. Raw sewage in
the basement of a residence is more than a minor inconvenience and substantially im-
pairs the intended use and enjoyment of the dwelling for habitation.

Finally, the court addressed the notice issue. The court noted that in personal
property cases, notice of the breach has been held to be a condition precedent to

recovery. Ind. Code § 26-l-2-607(3)(a) (1976). There was no evidence that the plaintiff
ever gave notice of the alleged breach of warranty to the defendant. While no particu-

lar form of notice is required, the court concluded that the notice must at least inform
the builder-vendor of the problem and give him a reasonable opportunity to cure the

defect. 403 N.E.2d at 1150. The judgment was reversed on this issue. Id.
"Worthley v. Burbanks, 146 Ind. 534, 539, 45 N.E. 779, 781 (1897).

'MOl N.E.2d 102 (Ind. Ct. App. 1980).



464 INDIANA LAW REVIEW [Vol. 14:459

corner posts enclosed the gravesites. Members of the community
considered these posts as indicating the boundary of the cemetery.

A fence which had previously enclosed the area stood on only three
sides for thirty-three years; the unenclosed side bordered a

highway. An access to the cemetery across the defendants' land was
utilized for approximately forty-five years."

The defendants stipulated to the existence of the cemetery and
the right of access across their land but contested the extent of the

cemetery property, arguing that the boundaries should be restricted

to existing gravesites with a ten-foot perimeter and not to the en-

tire area defined by the posts and fence. ^^ There was no evidence of
any physical use of the disputed area and the trial court quieted ti-

tle to the property in the plaintiffs. In affirming the judgment of the
trial court, the court of appeals noted: "Actual possession has been

held to be satisfied if the claimant's possession consists of use to

which the land by its nature is suited."'^ Since the land was suitable
for use as a cemetery, such use "by its nature requires open space

in which to accomodate future burials."'* This statement might be

misleading read outside the context of the case. It seems to suggest
that where a part of the land is being physically possessed, the
adverse possessor could claim title to additional areas that might be

suitable for future expansion for a similar use.'^

Courts have often relaxed the actual possession requirement

where the land, because of its location or physical condition, will not
permit a more open, actual, notorious or continuous possession.'*
Although the Berrey court cited Gibson v. Bersteiv}^ in support of
its position that the use need only be suitable to or consistent with

the nature of the land, the facts of Gibson are far different from

those in Berrey. In Gibson, the land at the time of the tax sale was
worth three to five dollars, was not capable of practical cultivation,

"Id. at 104.

'Vd.

''Id. at 106.

'Yd.

"This would be true where a person takes possession of a portion of the land

under color of title. 3 American Law of Property § 15.11 (A.J. Casner ed. 1952) [here-
inafter cited as A.L.P.]. Actual possession of a portion of the land described by the in-

strument will give him constructive possession of the entire area. City of Noblesville v.

Lake Erie and W.R.R. Co., 130 Ind. 1, 29 N.E. 484 (1891). See cases cited in Worthley

V. Burbanks, 146 Ind. 534, 539-40. 45 N.E. 779, 781 (1897).

"Wineberg v. Moore, 194 F. Supp. 12 (N.D. Cal. 1961); Gibbons v. Yosemite

Lumber Co., 190 Cal. 168, 172, 211 P. 4, 5 (1922); Worthley v. Burbanks, 146 Ind. 534,

45 N.E. 779 (1897); Whalen v. Smith, 183 Iowa 949, 953, 167 N.W. 646, 647 (1918);

Howard v. Kunto, 3 Wash. App. 393, 477 P.2d 210 (1970).
"72 Ind. App. 681, 126 N.E. 491 (1920).



1981] SURVEY-PROPERTY 465

and could not be used profitably for any purpose. Thus, going upon

the land, locating the corner stones and stakes, and periodically

visiting the land were considered exercising all the acts of posses-
sion and control of which the land was susceptible/" However, in
Berrey there was no indication that the land could not be used pro-
fitably for some purpose which would allow physical possession.
While the statement that accomodation of future burials is sufficient

use to acquire title by adverse possession might be questionable, the

court in Berrey also found that the fence and corner posts had been
open and visible sixty years or longer and that these monuments
were considered to be the boundaries of the cemetery by long-time
residents "as long as they could remember."^' Because acts of

possession were performed which were actual, visible, open,
notorious and exclusive, holding a portion of the land for future use

was consistent with a claim of ownership to the entire area.
The defendants also argued that, as required by statute,^^ the

plaintiffs, in order to acquire title by adverse possession, must show

that they had paid all taxes and special assessments on the land dur-

ing the period they possessed the land adversely .^^ In rejecting this

argument, the court noted that the cases construing the statute

"have not demanded its rigid application in all situations."^^ The
court cited Echterling v. Kalvaitis,^^ in which the Indiana Supreme
Court stated that the intent of the legislature in enacting the

statute was to put an end to the practice in the northern portion of
the state whereby squatters were obtaining title to large tracts of
unoccupied land on which the absentee owners were paying taxes.^*
The tax requirement was intended to provide notice to the record
owner that an adverse claimant was making a claim to his land.^^
Because the trial court in Berrey, however, had found that the plain-

tiffs acquired title at a point in time prior to the defendants' pur-

chase of the land, notice to the defendant of their claim by the pay-

ment of taxes would not have affected the outcome.^* In addition, the
court concluded that the statute "must be construed as being sup-

plemental to the statute of limitations and not as superseding it."^^

'"Id. at 684-86, 126 N.E. at 492-93.

='401 N.E.2d at 105.

"IND. Code § 32-1-20-1 (1976).
"401 N.E.2d at 104, 105.

''Id. at 105.

='235 Ind. 141, 126 N.E.2d 573 (1955).

''Id. at 145, 126 N.E.2d at 575; see Note, Adverse Possession in Indiana, 16

Notre Dame Law. 216, 219-20 (1941).
='401 N.E.2d at 105. See 235 Ind. at 145, 126 N.E.2d at 575; Kline v. Kramer, 386

N.E.2d 982, 989 (Ind. Ct. App. 1979).
=='401 N.E.2d at 105.

™M (quoting 235 Ind. at 146, 126 N.E.2d at 575).



466 INDIANA LAW REVIEW [Vol. 14:459

In McCarty v. Sheets,^" McCarty brought suit to require Sheets,
an adjoining landowner, to move a portion of his garage which ex-
tended approximately two feet beyond their mutual property line.
The adjoining landowner counterclaimed to quiet title. Sheets ac-
quired title to the land in 1956, but his garage had existed in its pre-

sent location since 1937.^' Sheets had cut weeds around the garage,
raked leaves on the property, and mowed the grass to the middle
line between his garage and McCarty's garage.'^ The trial court
quieted title to a strip of land four feet two inches wide along the
entire west property line "to give to [Sheets] the land located be-
tween the garage of [Sheets] and the garage of [McCarty] to a point
half way between said buildings."^^ It is clear from a sketch of the
property contained in the opinion that the garage occupied only a

small portion of the western property line.^^ Despite the absence of

any physical manifestation of the true boundary line, such as a fence

or shrub, the court affirmed the judgment of the trial court quieting
title to the strip along the entire boundary line,, holding that the

absence of a fence or shrub should not defeat Sheets' title to the

area which he had mowed and maintained.'^
Judge Hoffman, in a dissenting opinion, would have limited the

area quieted to that occupied by the garage: "No fence or markings
of any kind showed where the boundary line existed. It is a sad day
in Indiana when the courts take a man's land from him on evidence
of mowing grass on the side and behind a garage."'* He also ques-
tioned compliance with the provisions of the statute requiring the

adverse possessor to pay taxes on the land.'^ In boundary line

disputes, however, the Indiana courts have uniformly held that the

provisions of the statute are inapplicable.'* In such cases each ad-

joining owner is paying taxes on his land and improvements. The
jtax duplicates issued by county or city treasurers are usually so

sketchy and inaccurate that they would not give notice to the record

™391 N.E.2d 834 (Ind. Ct. App. 1979).

^'The court noted that periods of adverse possession can be tacked from grantor

to grantee. Since Sheets' predecessors in title had occupied the disputed strip in a

similar manner, Sheets had acquired title by adverse possession even before McCarty

bought the adjoining property in 1967. Id. at 836.

''Id.

''Id. at 837.

'*Id. at 836.

''Id. at 837.

'Vd at 838 (Hoffman, J., dissenting).

^^Echterling v. Kalvaitis, 235 Ind. 141, 126 N.E.2d 573 (1955); Berrey v. Jean, 401

N.E.2d 102 (Ind. Ct. App. 1980); Kline v. Kramer, 386 N.E.2d 982 (Ind. Ct. App. 1979);

Penn Cent. Transp. Co. v. Martin, 170 Ind. App. 519, 353 N.E.2d 474 (1976).



1981] SURVEY-PROPERTY 467

owner that a neighbor was claiming an interest in his land, whereas

notice would be given if a squatter suddenly paid the taxes on the

entire tract of land.^'

Another problem raised in boundary line disputes is the require-

ment that possession be hostile and under claim of right. In most
cases the possession is based on a mistake concerning the true boun-

dary line; if called as a witness, the possessor would freely admit

that he did not intend to claim more than he actually owned/" This
has led some courts to hold that such possession is not hostile or
under claim of right."' Indiana, however, following the weight of

authority,"^ has held that when an owner of land takes actual, visible
and exclusive possession of the land under a mistake as to the true

boundary line and holds it for the statutory period for adverse

possession, he thereby acquires title as against the record owner."^

Once title vests, title is not lost even though he pays rent to the

record owner, agrees to survey the land, or offers to buy the

disputed area. Likewise, such acts do not work an estoppel."" In Mc-
Carty, Sheets agreed to pay half the cost of the survey, offered to

erect eave troughs on the garage to prevent runoff onto McCarty's

property, and offered to purchase the disputed area."^ These

pacification efforts, however, did not work an estoppel since the
trial court found that Sheets already owned the land by adverse
possession at the time the offers of conciliation were made."®

B. Concurrent Estates and Partition

When two or more person take as tenants in common under an
instrument which is silent regarding their respective interests,

there is a presumption that their shares are equal."^ In Baker v.

''Echterling v. Kalvaitis, 235 Ind. 141, 146, 126 N.E.2d 573, 575 (1955).

'"Kotze V. Sullivan. 210 Iowa 600, 602-03, 231 N.W. 339, 340 (1930); Van Allen v.
Sweet, 239 Mass. 571, 574, 132 N.E. 348, 349 (1921); Burns v. Foster, 348 Mich. 8, 10, 81
N.W.2d 386, 387 (1957); Howard v. Kunto, 3 Wash. App. 393, 396 n.4, 477 P.2d 210, 213
n.4 (1970).

"E.g., United States v. Wilcox, 258 F. Supp. 944 (N.D. Iowa 1966); Boyle v. D-X
Sunray Oil Co., 191 F. Supp. 263 (N.D. Iowa 1961); Ikola v. Goff, 31 Cal. App. 3d 872,
107 Cal. Rptr. 663 (1973); Miller v. Department of State Highways, 30 Mich. App. 64,
186 N.W.2d 67 (1971); Adams v. White, 488 S.W.2d 289 (Mo. Ct. App. 1972).

"Annot., 80 A.L.R.2d 1171 (1961). See 3 A.L.P., supra note 17, § 15.5.

"Rennert v. Shirk, 163 Ind. 542, 72 N.E. 546 (1904). See also authorities cited in
note 38 supra.

"Kline v. Kramer, 386 N.E.2d 982, 987 (Ind. Ct. App. 1979).
"391 N.E.2d at 836.

"4 G. Thompson, Commentaries on the Modern Law of Real Property § 1797
(repl. ed. 1979); 2 A.L.P., supra note 17, § 6.5.



468 INDIANA LAW REVIEW [Vol. 14:459

Chambers,*^ a case of first impression, the court of appeals con-

cluded that as between the immediate parties this presumption is
rebuttable. The parties, Frank Baker and Zona Chambers, acquired
title to the property in question as "husband and wife," but were
not married at the time of the conveyance."** Had they in fact been
husband and wife, the conveyance to them would have created a
tenancy by the entireties.^" However, because Indiana abolished com-
mon law marriages in 1958^' and because the conveyance did not in-
clude words of survivorship,^^ the court concluded that the con-
veyance created a tenancy in common.''^ Zona Chambers brought an
action for partition claiming a half interest in the property, and the

trial court granted her motion for summary judgment.^* In reversing
the decision, the court of appeals held that despite the wording of

several earlier Indiana decisions which could be read as creating an

irrebuttable presumption of equal shares^^ between the original par-

ties, the presumption is rebuttable.'^'' Because Baker stated by af-

fidavit that he paid the entire consideration, that the bank required

the nomenclature in the deed, and that no gift of a half interest was
contemplated, the court determined that a question of fact was raised
which precluded summary judgment." In dictum, the court stated
that if the parties involved were not the orginal parties, but were,

for example, subsequent purchasers, creditors, or lienholders, the

presumption of equal shares would have been conclusive.^*

While recognizing the general rule that marriage alone does not

create an agency relationship,^' the court of appeals in Moehlenkamp
V. Shatz^" affirmed the trial court's use of an implied agency theory

"398 N.E.2d 1350 (Ind. Ct. App. 1980).

"M at 1351.
^Where a conveyance is made to a husband and wife without any words limiting

the estate, they hold as tenants by the entirety. Brown v. Brown, 133 Ind. 476, 477, 32

N.E. 1128, 1128 (1893).

^IND. Code § 31-1-6-1 (Supp. 1980).

"All conveyances to two or more persons not husband and wife shall create a ten-

ancy in common unless words of survivorship or an intent to create a joint tenancy
shall manifestly appear from the tenor of the instrument. Ind. Code § 32-1-2-7 (1976).

"398 N.E.2d at 1351-52.

"M at 1351.
=*Spanier v. Spanier, 120 Ind. App. 700. 96 N.E.2d 346 (1951); Singleton v. Cush-

man. 117 Ind. App. 183, 70 N.E.2d 642 (1947) (could be read as holding that the pre-

sumption of equal shares is irrebuttable).

^398 N.E.2d at 1352.

"Id. at 1351-52.

"/d at 1352.

^•Martz V. Selig Dry Goods Co., 76 Ind. App. 135. 131 N.E. 528 (1921); Bergh v.

Warner. 47 Minn. 250. 50 N.W. 77 (1891).
"396 N.E.2d 433 (Ind. Ct. App. 1979).



1981] SURVEY-PROPERTY 469

to foreclose a mortgage signed by the husband/' The only evidence

of an agency relationship was that the husband had handled all the
business affairs of the family including the purchase of real estate,

the securing of loans, and the filing of income tax returns.**^ The
court gave considerable weight to the fact that the husband had

previously obtained a loan on the real estate without first informing

his wife of the arrangement and that she subsequently signed the

papers.®^ The court was not impressed that the wife had informed

her husband that she did not like him taking out a loan without her

consent and that she "would rather he not do that anymore.""^ While

the court cited statutory authority"^ for the rule that no particular

form of appointment is necessary to authorize an agent to sign his

principal's name to a negotiable instrument, the court ignored the
provisions of another statute^® which requires written authority of

an agent to sign his principal's name on a mortgage. Perhaps the
court did not consider this point because it concluded that there was

sufficient evidence to support the trial court's judgment on the

alternative theory that the wife had actually signed the note and

mortgage.®'

One of the more interesting cases, Burford v. Burford,^^ was a
suit to partition two adjoining tracts of land spanned by a common
building. In 1945 the Piel family leased Parcel I to S.S. Kresge Co.
and at the same time, but by a separate lease, the Burford family

"Id. at 437.

'Ud.

"'Id.

^Id. at 436.

«'lND. Code § 26-1-3-403(1) (1976).
«7d. § 32-1-10-1.

"'396 N.E.2d at 437.

,
««396 N.E.2d 394 (Ind. Ct. App. 1979).

Another case pointing up the complexities of partition suits is Gilstrap v.

Gilstrap, 397 N.E.2d 1277 (Ind. Ct. App. 1979). In an attempt to partition three tracts

of land, court-appointed commissioners ordered two tracts sold but found a third tract
divisible in severalty with the condition that a sum be paid by one cotenant to another
to make the shares equal because the land could not be exactly divided. Unfortunately,
in evaluating the land, the commissioners failed to consider a zoning ordinance requir-

ing a sixty foot wide access to industrial property; thus, the designation and valuation

of a portion of the property were incorrect. Id, at 1281. The trial court committed re-
versible error when it based the acreage in the final decree upon the description in the
petition and not on the acreage in the survey and commissioners' report. Id. at 1280.
Reversing the case, the court made two important observations: (1) The report of the
commissioners should be viewed as a jury verdict rendered upon a trial at law, and it
should be disturbed by the court only upon grounds similar to those on which a verdict
would be set aside and a new trial granted, id. at 1282; and (2) although the court may
order a partition and divide the property, once the court appoints commissioners and

they render a report, the court must either accept that report or set it aside; the court
may not make any adjustments in the recommended distribution. Id.



470 INDIANA LAW REVIEW [Vol. 14:459

leased Parcel II to Kresge. Under the terms of the separate leases,
Kresge had the right to construct a six-story commercial building
spanning both parcels in such a manner that the building could be
converted into two separate buildings at the expiration of the
leases. The building was not so constructed and Kresge separately
settled both claims for damages with the owners of the two
parcels."*' Plaintiff, a cotenant of Parcel II, filed suit to partition the

building and the two parcels by sale, claiming that they could not be
partitioned separately without damage to the whole.^° The trial
court dismissed the petition. The court of appeals, reversing in part,
held that the plaintiff was entitled to partition of Parcel II and the
portion of the building thereon but denied his right to partition

Parcel I or the entire building. The court concluded that each lease
contemplated converting the building into two separate buildings,

one on each parcel, at the end of the lease, and only Kresge's failure

to comply with the terms of the lease prevented this from happen-

ing.^' Thus, there was no intent to create a "community of interest"

or "common ownership" in the building as a whole.^^
Two cases cited by the court denied partition on the theory that

each owned a part of the property in severalty. In one case, the par-
ty owned a definable floor in a building,^^ and in the other case, the
party owned a particular room in the building.'^ These cases can,
however, be distinguished from Burford in that no practicable use

can be made of the separate portions of the building, and apparently
each portion was of little or no value apart from the whole.

Whatever may have been the original intent of the parties regard-
ing their interest in the building, its fulfillment was rendered im-
possible by Kresge's failure to comply with the terms of the

separate agreements. Payment of damages by Kresge does not make
fulfillment of the agreements possible, and to leave the parties with

worthless parts of a potentially valuable whole results in economic

waste.

C. Easements and Restrictive Covenants''^

It is generally recognized that the holder of an easement over

»»396 N.E.2d at 395.

'"Id. at 395-96.

"M at 397.

"Anderson School Township v. Milroy Lodge F. & A.M.. No. 139, 130 Ind. 108, 29
N.E. 411 (1891).

''School Corp. V. Russelville [sic] Lodge, No. 141, F. & A.M., 140 Ind. 422, 39 N.E.
549 (1895).

'^Another case, involving a covenant not to compete, Unishops, Inc. v. May's

Family Centers. Inc.. 399 N.E.2d 760 (Ind. Ct. App. 1980). is discussed in the section on

Landlord and Tenant, p. 481 infra.



1981] SURVEY-PROPERTY 471

the land of another may enjoin the servient tenant from interfering
with the use and enjoyment of the easement; yet, the owner of the

servient estate may make any use of his land which does not in-
terfere with the use and enjoyment of the easement by the domi-

nant tenant/* In Holding v. Indiana & Michigan Electric Co.,'''' In-
diana and Michigan Electric Company (I&M) acquired an easement
for the purpose of transmitting electric current, which included the

right to maintain poles and cables across the land of the appellants.

The appellants, who were operating an automobile salvage business
on the premises, subsequently spread earth fill over a marshy por-

tion of the land, thereby decreasing the clearance between the

cables and the ground. I&M discovered this fact when a temporary
disruption in the flow of electricity resulted from a dump truck's
coming in contact with a cable above the appellant's land.'* I&M
asked for an injunction requiring the appellants to remove the
amount of fill dirt necessary to re-establish a twenty-two foot
clearance, or alternatively, to pay the cost of adding extensions to

the poles and restringing the cables.'® Appellants argued they were

in compliance with the National Electric Safety Code provisions

relating to heights of high-voltage transmission lines above the

ground.*" First, they urged that they did not interfere with the

transmission of electricity. Second, they suggested that their par-

ticular type of business activity was not covered by the Safety Code
provisions. In rejecting these arguments and affirming the perma-

nent injunction, the court noted that the National Electric Safety

Code established only minimum standards; that Indiana had long
recognized the dangerous propensities inherent in electricity; that

acquisition of an easement for a public service effectively removed
private use of the area to the extent it interfered with the public

use; and that "exercise of safety practices in the operation of high

voltage transmission lines [was] one of the incidents to the use and

enjoyment of the easement.""

While not specifically a case involving an easement, Dolph v.
Mangus^^ made an interesting distinction between prescriptive ease-
ments and the statute of limitations. The plaintiff alleged that the
defendants' alteration of the natural flow of surface water caused
damage to his cropland. The defendants had constructed an exten-
sive drainage system across their lands in 1948 which released

'"W. BuRBY, Handbook of the Law of Real Property 86 (3d ed. 1965); J. Crib-
bet, Principles of the Law of Property 344 (2d ed. 1975).

"400 N.E.2d 1154 (Ind. Ct. App. 1980).

''Id. at 1155-56.

''Id. at 1156.

"/d at 1158.

«M00 N.E.2d 189 (Ind. Ct. App. 1980).



472 INDIANA LAW REVIEW [Vol. 14:459

water onto the plaintiff's land. The court found that the resulting
drainage created a "permanent injury"*^ which started the statute of
limitations running. Therefore, the plaintiff's action to recover

damages for the flooding and erosion of his land was barred by the
six-year statute of limitations.*^ There was no discussion of the plain-
tiffs request for injunctive relief, but perhaps the court concluded

that because the injury was of a permanent nature, there was no
continuing or recurring injury for which injunctive relief could be

granted. The court went to considerable lengths, however, to distin-
guish a prescriptive easement, which is positive and creates rights,

and the statute of limitations, which is negative and destroys reme-

dies.*^ Rejection of the defendants' claim of a prescriptive easement

creates a rather interesting legal vacuum. The plaintiff's claim is
barred by the statute of limitations, but the defendants have ac-

quired no rights. Since surface water is regarded as a common
enemy under Indiana law,*^ there is authority for the position that
the plaintiff could use self-help to block the flow of the water by the

erection of a dam or barricade.*^
Indiana has an interesting statute which creates a method of

establishing a public highway by use, independent of common law
dedication or strict prescription.** Unlike the doctrine of prescriptive

use, it is not essential to prove that the use of the road by the pub-

lic was under a claim of right.** In Fenley Farms, Inc. v. Clark,^" the
defendants owned a five-acre tract of land fronting the Ohio River.
The plaintiff owned land which bordered the defendants' property
and which prevented access to Westport Road. Both tracts of land

and other riverfront parcels were originally part of a single tract,

known as the Bowyer tract. Without notifying or obtaining permis-
sion from the plaintiff, the defendants bulldozed a road from Westport

Road across the plaintiff's property to the defendants' property. The
plaintiff filed suit for trespass and sought an injunction. The trial
court granted judgment for the defendants and the plaintiff ap-

pealed. The evidence established that a road existed from 1852 until
1874 between Westport Road and a ferry landing. The road was

''Id. at 192.

"Vd.

''Id. at 190-91.

'"Capes V. Barger, 123 Ind. App. 212, 109 N.E.2d 725 (1953).

«'Clay V. Pittsburgh, C. C. & St. L. Ry.. 164 Ind. 439, 73 N.E. 904 (1905); Cairo &

V.R.R. V. Stevens. 73 Ind. 278 (1881); Taylor v. Fickas, 64 Ind. 167 (1878). See also

Polston, Property, 1976 Survey of Recent Developments in Indiana Law, 10 iND. L.

Rev. 297, 307-08 (1976).

nND. Code § 8-20-1-15 (1976).

"Cozy Home Realty Co. v. Ralston, 214 Ind. 149, 14 N.E.2d 917 (1938).
'"404 N.E.2d 1164 (Ind. Ct. App. 1980).



1981] SURVEY-PROPERTY 473

used sporadically in subsequent years, primarily by the owners of

the various riverfront tracts. The parties stipulated that during the
past thirty-five years, the road had been used by the defendants,

their immediate predecessors in title and other owners of riverfront

lots carved from the Bowyer tract." Plaintiff argued that the earlier
use of the road to reach the ferry was not a use by the general pub-
lic under a claim of right, but was a use by customers of a private
commercial enterprise. The plaintiff claimed that even if a roadway
had existed at one time, it had since been abandoned.'^ The court re-
jected these arguments, noting that "public" means '"all those who
have occasion to use' the road,"^^ and that use of the road by em-

ployees and customers of a private enterprise was a public use.'*
The fact that the highway was rarely if ever used by persons other
than landowners did not make it less a public road. Even if the road
is open only at one end or extends only to one person's property, it

is still a public road. Moreover, the continued use of the road by the

owners of the riverfront lots was sufficient to negate a claim of
abandonment.*^ Likewise, the court noted that it was immaterial
under the statute whether the use was with the consent of or over
the objection of the landowner. Unlike a prescriptive easement,

adverse use was not essential.®*
The statute also requires that the party alleging a public high-

way has the burden of proving its exact location, width, and descrip-
tion. Fortunately, at the time the Bowyer land was partitioned
among the defendant's heirs, there was a partition plat in a probate
order book which showed the location of the road. There was evi-
dence that the roadbed was visible before the bulldozing and that
the bulldozed road did not deviate from the existing roadbed.®^

Unlike easements, restrictive covenants are enforced in equity,

and equity may refuse to enforce such covenants where changed
conditions in the restricted area have significantly reduced or elimi-

nated any benefits sought to be realized by the enforcement of the

covenant.'^ In Cunningham v. Hiles,^^ the Board of Trustees of the

town of Schererville approved the rezoning of a tract of land in a

"M at 1167-68.
''Id. at 1168.

''Id.

'*Id.

''Id. at 1170.

'Yd. at 1168-69.

'7d. at 1170-71.

''Bob Layne Contractor, Inc. v. Buennagel, 158 Ind. App. 43, 301 N.E.2d 671

(1973); 2 A.L.P., supra note 17, § 9.39; 5 R. Powell, The Law of Real Property 1 684
(1980).

''395 N.E.2d 851 (Ind. Ct. App. 1979).



474 INDIANA LAW REVIEW [Vol. 14:459

subdivision from residential to commercial use; the tract had been

subject to a covenant restricting land use to residential purposes.

Individual defendants purchased one of the lots affected and em-

ployed a general contractor to begin construction of a music store on

the lot. Homeowners in the subdivision brought an action against
the city to challenge the propriety of the zoning reclassification and

against the individual defendants to enjoin the construction of the

music store. The trial court entered judgment for both the town and
the individual defendants finding that the restrictive covenant was
unenforceable. The homeowners appealed.'"" In reversing the trial
court's determination, the court of appeals did not address the pro-

priety of the zoning reclassification. Rezoning of an area subject to a

valid restrictive covenant will not relieve that area of the burdens

of the covenant.'"' The court noted that the only change within the
restricted area was the permitted construction of an office building
which protruded approximately 112 feet into the subdivision at its

northeast corner. There had been a substantial increase in commer-

cial activities in the areas surrounding the subdivision, and the traf-

fic had increased eight to ten times on U.S. 30, which bordered the

subdivision on one side.'"^ However, the court reasoned that "the
weight attributed to these changes should not be as great as that ac-

corded changes which have occurred within the restricted area."'"^

Similarly, the court gave little weight to the fact that the vacant

lots bordering U.S. 30 no longer attracted residential buyers due to

the traffic load. Courts have come to realize that changes outside a
restricted area may reduce the benefit of the covenant to perimeter
lot owners, but to release them from the burden would destroy the
benefit to the interior lot owners and eventually erode the benefit

to the entire area.'"^ To make a restrictive covenant unenforceable,
the changes which have occurred in and around the restricted area

must be so radical in nature that the purpose of the covenant has
been defeated.'"^

While the appeal was pending, the individual defendants pro-

ceeded to construct the music store, and subsequently one of the

defendants, Hiles, filed a petition for rehearing claiming that a

material change in circumstances had rendered the appeal moot.'"'

While not entirely convinced that Hiles had the right to proceed

'""Id. at 853.

""Capp V. Lindenberg, 242 Ind. 423, 433, 178 N.E.2d 736, 740 (1961).
"''395 N.E.2d at 854.

""Id. at 855.

""5 R. Powell, supra note 98, 1 684; 2 A.L.P.. supra note 17, § 9.39.
'"^395 N.E.2d at 856.

'""Cunningham v. Hiles, 402 N.E.2d 17 (Ind. Ct. App. 1980).



1981] SURVEY-PROPERTY 475

with the construction because the homeowners had failed to file a

supersedeas bond,"" the court resolved the issue on the failure to

notify the court of the construction during the appeal. The court

stated, "A Petition for Rehearing will not be granted on the basis of
acts which occurred during the pendency of the appeal and which

were not in any manner presented for this Court's consideration."'"*
Graciously, the court did not feel required to modify its order to re-

quire the removal of the building but instead directed the circuit

court to issue a permanent injunction against the use of the struc-

ture for any purpose which volated the terms of the covenant.'"® No
doubt the structure will make an impressive, though unique, resi-
dence for some lucky homeowner.

Another case involving the enforceability of covenants was

Brendonwood Common v. Franklin^^° In August, 1917, a 350 acre
tract of land was platted as Brendonwood, "a self-regulated residen-

tial zone."'" The addition consisted of 110 lots with various private

roadways and paths, and one public road. In September, 1917, the

entire property was conveyed to Charles Lewis. The deed contained

the Brendonwood covenants."^ The grantee was required to organize
Brendonwood Common as a corporation, to convey all common areas
exclusive of the 110 lots to the corporation,

to provide for 110 memberships in the corporation with each
membership appurtenant to one of the 110 lots and transfer-
able only to successive purchasers of each lot, and to cause

the corporation's articles and bylaws to provide for a system

of rules and regulations permitting the assessment and col-

lection of charges against each [lot] owner for the main-
tenance, care and protection of the common areas. "^

The deed provided that these covenants, stipulations, and agree-
ments were to have the effect of a covenant running with the land
and would bind the grantee, his heirs and assignees."^ The corpora-
tion was organized, and its articles and bylaws provided for the
maintenance charges to be levied against each property owner, en-
forceable as liens against their properties. The bylaws further pro-
vided that assessments for maintenance, as well as development and
improvement charges, would be paid by the owners on an acreage

""Id. at 21 n.4.

""Id. at 21.

""Id. at 22.

"°403 N.E.2d 1136 (Ind. Ct. App. 1980).

"7d. at 1138.

"'Id.

"'Id.



476 INDIANA LAW REVIEW [Vol. 14:459

basis, and in the event of default in payment, the lien on the prop-
erties might be foreclosed."^ In 1974, Brendonwood Common levied a
special roadway assessment against the lot owners on an acreage
basis. A group of lot owners on the south boundary of Brendonwood
refused to pay the special assessment, and several refused to pay
other regular assessments.''^ Brendonwood Common filed suit to col-
lect these delinquent assessments with interest and attorney's fees,

and sought a foreclosure order to sell the defendants' properties.
The defendants filed a cross petition asking the court to declare the
covenants unenforceable as to their properties."' The trial court
held that the covenants were no longer enforceable because of
changed circumstances; Brendonwood Common appealed."* The
court of appeals noted the following changed conditions: (1) the addi-

tion was now part of Indianapolis; (2) the roads were paved rather
than dirt and gravel; (3) the cost of maintenance had increased; and

(4) certain common areas had been turned over to a private country
club whose membership did not include all members of the corpora-
tion. The court concluded, however, that these changes were not so
radical in nature as to defeat the original purpose of the covenant."^

The appellees argued that while the "changed condition" standard
as applied to restrictive covenants might not justify relief, these

were affirmative covenants which imposed positive burdens or af-
firmative duties.'^" Thus, because the defendants owned larger lots,
which bordered on a public road, they would pay a greater portion

of the costs of maintaining the private roads than owners of smaller

interior lots who used those roads, but would receive little or no ad-
vantage from such maintenance. While the court conceded that this

argument was of some relevance, it noted that most commentators
and courts rarely make a distinction between negative and affirma-
tive covenants.'^'

In response to the defendants' argument that the covenants did

not run with the land, the court noted that affirmative covenants

may run with the land if that was the intention of the grantor and if
the covenants touch and concern the land.'^^ Although the defen-

dants' contention was unclear, it may have been based on the fact

'"Id. at 1139.

"Vd at 1137-40.
'"Id. at 1137-38.

'"Id. at 1140.

'"Id.

'"Id. at 1140 n.4.

'"Id.

'^Id. at 1141. There was reference to a subsequent quitclaim deed from the
grantor of the September 1917 deed to the grantee, but the court concluded that it

was ineffective to extinguish the covenants. Id.



1981] SURVEY-PROPERTY 477

that the affirmative duties were created by the bylaws of the subse-
quently formed corporation rather than by the deed itself. On the
other hand, the deed did require the grantee to establish the cor-

poration and to ensure that the articles and bylaws provided for the

assessments and collection of charges against each owner for the
maintenance of Brendonwood.

With regard to the defendants' argument that they were no

longer members of Brendonwood Common, the court noted that
membership was transferable only by sale of the lot to which the
membership was appurtenant. Thus, the letters sent to the corpora-
tion notifying it of the defendants' withdrawal were ineffective. Only
a sale of their properties would be sufficient to extinguish their obli-

gation to pay the fees.^^'

Finally, the court concluded that the provisions in the bylaws

making the assessments a lien on the properties and providing for
foreclosure "with interest, attorney's fees and costs,"'^^ were con-
tractual provisions binding on all members. '^^ This conclusion assumed
that a purchaser of one of the 110 lots would automatically become a
member of the corporation and would be bound by its articles and
bylaws. This point relates to the previous discussion of covenants

running with the land.^^^ The purchaser would be on constructive
notice of these provisions in his chain of title because the 1917 deed

required the grantee to form the corporation and provide for 110

memberships with each membership appurtenant to one of the 110
lots,

D. Landlord and Tenant Relations

At common law, if a person enters into possession of land with
the owner's permission and without any agreement to pay rent, it is
referred to as a tenancy at will — a tenancy terminable at the will of
either party. ^^^ If a tenant under a lease holds over at the expiration
of the term, it is referred to as a tenancy at sufferance. '^^ In Wallace

'''Id. at 1142-43.

'"Id at 1143.

'^^Had the court continued to treat the promise to pay interest, attorney's fees,

and costs as a covenant running with the land, there would have been a problem with

the requirement that the promise must "touch and concern" the land. In Levin v.

Munk, 97 Ind. App. 118, 169 N.E. 82 (1929), the court refused to allow a landlord
reasonable attorney's fees and interest on past due rent, as provided for in the lease

from the tenant's assignee, because these promises were merely collateral and in no

manner touched or concerned the land. Id. at 122, 169 N.E. at 83.

'^"See text accompanying note 122 supra.

'"W. BURDY, supra note 76, 125-27.

'''Id. at 127-28; J. Cribbet, supra note 76, 56.



478 INDIANA LAW REVIEW [Vol. 14:459

V. Rogier,^^^ the Indiana Court of Appeals noted that if a person was
using or living on another's land with permission but was not paying
rent, the term "tenancy at sufferance" was to be used to describe
the relationship.'^" By statute a "tenancy at will" cannot arise or be
created without an express contract/^' and once created, one month's

notice in writing is required to terminate it.'^^ Thus, the statute has

changed the common law use of the term "tenancy at will" and has
forced the court to use the term "tenancy at sufferance" to describe

the relationship. This change of labels, however, does not alter the

substantive law governing the relationship.

In Wallace, Mrs. Rogier brought an action for damages and
ejectment against her daughter and son-in-law, the Wallaces, who
with permission had taken possession of the land in the expectation

of successfully negotiating a contract for the sale of the land. The
Wallaces countersued for specific performance of a land sales con-

tract signed by the Rogiers, but the court found that the "paper"

was a sham contract signed for the purpose of obtaining mortgage
approval.''^ The trial court granted injunctive relief and awarded the
mother $1,000 in damages for wrongful possession."*^ The court of
appeals reversed on the damage issue, noting that neither the
length of time the Wallaces wrongfully possessed the land nor the

rental value of the land had been established.'^^ The court of appeals
also noted that the measure of damages for the loss of use of land is
the rental value of the land for the period of wrongful possession."*

The question of damages for wrongful possession by a holdover
tenant was raised in Brummett v. Pilotte.^^^ In the fall of 1972 the
landlord served a written notice to quit on the tenant, who was pre-
viously under an oral year-to-year farm lease. '^* The tenant refused
to vacate and the landlord brought an action for ejectment. The trial

court entered judgment ejecting the tenant; the tenant appealed and

remained in possession until February 1974 after posting a super-

sedeas bond which was approved by the trial court. '^^ In August
1975, the court of appeals affirmed the judgment of ejection,'^" and

'^'395 N.E.2d 297 (Ind. Ct. App. 1979).

''"Carger v. Fee, 140 Ind. 572, 39 N.E. 93 (1894).

'^'IND. Code § 32-7-1-2 (1976).
"'Ind. Code § 32-7-1-1 (1976). Compare Ind. Code § 32-7-1-7 (1976), where tenancy

at sufferance is terminated.

'^395 N.E.2d at 299.

"'Id. at 300.

"'Id.

'^'390 N.E.2d 705 (Ind. Ct. App. 1979).

'^Tiiotte V. Brummett, 116 Ind. App. 403, 332 N.E.2d 834 (1975).
'^'390 N.E.2d at 706.

'"332 N.E.2d at 834.



1981] SURVEY-PROPERTY 479

the landlord brought the present action to recover damages on the
bond. The trial court awarded the landlord one-half the sale price of
the crop grown during pendency of the appeal, which was the rent
called for by the prior agreement; attorney's fees; the cost of weed
control measures; and the value of deprivation of use of the farm

residence, less certain farm expenses.'^' The landlord appealed,
claiming that she should have been awarded the value of the crops
grown after the date of the judgment since she prevailed in the
prior appeal. '^^ The court noted that neither Trial Rule 62, which
provides guidelines for determining the size of the bond, nor Indiana

case law was conclusive on the elements of damages. '^^

The court distinguished McCaslin v. State,^** in which it was
held that the landlord was entitled to the crops planted after an ac-
tion in ejectment was commenced. McCaslin did not, however, in-
volve a tenant who remained in possession under a bond pending an
appeal. Similarly, the court did not consider Sherry v. State Bank^*^

to be controlling. In Sherry a tenant farmer who remained in posses-
sion of the land during the pendency of an appeal was liable for mesne
profits. The court noted, however, that "mesne profits" is a tool of
equity to be applied in an equitable manner. '^^

The court cited authority suggesting that casting title to crops
upon whomever might prevail in an action to determine title or con-
tinued right to possession of land would unnecessarily interfere with

the cultivation of agricultural lands, an activity which ought to be
encouraged notwithstanding the pendency of a bona fide contro-
versy.'^' Thus, the court concluded that the tenant was liable for the
rental value of the farm from the date of the judgment until sur-
render of possession, but not for the entire product of the farm.'"

Three cases decided during this survey period exemplify the dif-

ficulty inherent in the drafting of leases. In Shahan v. Brinegar,^*^

the court was faced with the task of interpreting the provisions of a
complex commercial lease. Three separate instruments were ex-

'^'390 N.E.2d at 706.

'"/d. at 707.

"*99 Ind. 428 (1885).
'*'6 Ind. 397 (1855).

'"390 N.E.2d at 707.

'"Annot., 113 A.L.R. 1059 (1938); Annot., 95 A.L.R. 1127 (1935). The court quoted
from Woodcock v. Carlson, 41 Minn. 542, 43 N.W. 479 (1889), which held that the ten-
ant should be liable for either rent or crops, but not both. To hold the tenant liable
during an appeal for crops personally produced would make the appeal of doubtful
value.

'"390 N.E.2d at 708.
'"390 N.E.2d 1036 (Ind. Ct. App. 1979).



480 INDIANA LAW REVIEW [Vol. 14:459

ecuted on December 7, 1973: (1) a contract for the sale of tavern
equipment and the contents of the leased premises; (2) an agreement
that the lessee was to serve as sole and exclusive manager of the
tavern as of December 17, 1973,'^° and (3) a lease of the tavern for a
term of five years ending December 17, 1978, at a rental rate of $500
per month "beginning February 5, 1974."'" Three separate interpre-
tation problems were presented to the court.

The first problem involved the date on which the lessee became
liable for rent under the lease. The court, noting that writings ex-
ecuted at the same time and relating to the same transaction or subject
matter are construed together in determining the contract, concluded

that the rental provision was ambiguous, and that, considering the
surrounding circumstances existing when the lease was executed,
the trial court was justified in finding that the lessee was liable for
rents during December 1973 and January 1974.'^^

A second problem involved the interpretation of an arbitration
agreement contained in the lease. '^^ The lessee argued that the pro-
vision made arbitration a condition precedent to the initiation of a
suit. The court rejected this view, holding that a trial court is re-
quired to order the parties to proceed to arbitration only upon the

application of one of the parties. There was no showing that either
party made such a request.'"

The third problem involved a ninety-day grace period on rental
arrearage. The lessee claimed that he must be in arrears for three
months before he is in breach of the lease, whereas the lessor main-

tained that the ninety days referred not to the amount of rent owed,

but to the amount of time the rent was overdue. The court found
that the ordinary interpretation of a ninety-day grace period would

grant the lessee ninety days from the date payment was due within

which to make his payments current. '^^ The court found that the
lessee had exceeded the ninety-day grace period as to the rent for

December 1973, January 1974, and October 1975. Nevertheless, the
court found that the landlord had not made a demand for the over-
due rent until October 4, 1976, and that the provision in the lease

''"Id. at 1038.

"'Id. at 1042.

'^^"In the event a dispute should arise between the parties hereto, each party

agrees to submit the dispute to arbitration under the rules of the American Arbitra-

tion Association." Id. at 1040 n.l.

'"The lessee did not formally request arbitration until page 14 of the lessee's

brief. Id. at 1040 n.2.

'"/d at 1043.



1981] SURVEY-PROPERTY 481

for eight percent per annum interest on such accumulated arrearage
must be computed from the date of the demand.'^*

In Unishops, Inc. v. May's Family Centers, Inc.,^^'' the court was

presented with the interpretation of a covenant not to compete. The
lessee (licensee) entered into two licensing agreements to operate

certain departments in all of May's stores. Both licenses contained a

provision that during the life of the agreement the licensee would

not engage in a business or operate a department similar to that be-

ing conducted under the agreement, within a radius of five miles of

any May's store, without the written consent of the licensor, "which

consent shall not unreasonably be withheld."'^* The covenant further
provided that "[a] violation of this provision shall permit thje Licen-

sor to cancel this License Agreement with respect to all stores,
upon sixty (60) days prior written notice to the Licensee."'*® Without

consulting the Licensor, Unishops began negotiations to operate

similar departments in a Tradeway store located 4.42 miles from one
of May's stores and 4.43 miles from another. As soon as May's learned
of the negotiations, they advised Unishops that they would not con-

sent to such a venture. Nevertheless, Unishops entered into three

licensing agreements with Tradeway and May's filed this action
seeking injunctive relief.'®"

In discussing the enforcement of a restrictive covenant, the

court noted that injunctive relief to prevent a breach will be

granted "if the restraint is reasonable with respect to the parties in-

volved and the public interest."'®' Citing Donahue v. Permacel Tape
Corp.,^^^ the court used a three-pronged test to determine reason-

ableness: (1) the scope of the promise in its protection of the cove-

nantee; (2) the effect of the promise upon the covenantor; and (3) the
effect of the covenant upon the public interest.'®^ The court noted
that because Unishops was intimately associated with May's inside
operation, it could observe May's advertising programs, marketing
policies, purchasing and pricing strategies, and customer lists. '®^

Moreover, the effect upon Unishops was not unreasonable; the re-

'^Yd. at 1042-43. There is nothing in the portion of the lease set forth in the deci-

sion which would require the landlord to make a demand for overdue rent.
'"399 N.E.2d 760 (Ind. Ct. App. 1980).

'Vd at 762.

'«7d.

'7d. at 763.

'"'234 Ind. 398, 127 N.E.2d 235 (1955).
'"399 N.E.2d at 763.

'"M The evidence at the trial indicated that there was a striking similarity be-
tween May's advertising and the initial advertising of the opening of the Tradeway
store. Id.



482 INDIANA LAW REVIEW [Vol. 14:459

striction was limited to a five-mile area, to the life of the license
agreement, and to similar activities.'*^ Thus, the imposition of the

restriction upon the covenantee's liberty or business activity did not
contravene public policy.

Unishops argued that the covenant contained an adequate legal

remedy, termination of the license,'*® The court rejected this argu-
ment: "In order to be adequate, a legal remedy must be as practica-
ble, efficient and adequate as that afforded by equity.""' Unishops'

contention that the termination clause was a liquidated damages
provision was not addressed by the court because it was neither
raised at trial nor in the motion to correct errors. Finally, Unishops

argued that consent to the proposed license agreement with Trade-
way was withheld contrary to the clause which provided that "con-
sent shall not be unreasonably withheld."'** The argument was based
partly upon May's anticipatory refusal. However, the court found
that May's refusal, without a formal request by Unishops, was not
unreasonable.'*^ In fact, such notice to Unishops was expeditious and
designed to prevent "Unishops costly involvement with Tradeway
had they but heeded the letter"''" informing them of the covenant
violation. Unishops also emphasized that the Tradeway store was
located at the "outer fringe" of the five mile radius. The court, how-
ever, did not find the argument, that the "greater the distance the

more unreasonable the refusal," persuasive.
In Piskorowski v. Shell Oil Co.,^''^ Shell entered into an agree-

ment with Piskorowski on August 31, 1965, to lease property in
Hammond, Indiana for a term of ten years. In January 1967, Shell
notified the plaintiff that it was terminating the lease effective May
1, 1967, under the auspices of the termination provision of the lease.

The plaintiff filed suit for breach of contract and the trial court
granted lessee's motion for a summary judgment. On appeal, the
plaintiff argued that there was a material issue of fact whether the
parties intended the termination provisions to give Shell the uni-

lateral power to terminate the lease at any time for any reason."^
Article 13 of the lease agreement, set forth in its entirety in the

opinion, ended by saying: ''Shell may terminate this Lease at any

'''Id. at 764.

""M at 765 (quoting Fisher v. Carey, 67 Ind. App. 438, 442, 119 N.E. 376, 377
(1918)).

"^"399 N.E.2d at 765.

'''Id. at 766.

""Id.

'"403 N.E.2d 838 (Ind. Ct. App. 1980).

"'Id. at 843.



1981] SURVEY-PROPERTY 483

time by giving Lessor at least ninety (90) days' notice""^ Apart

from this last sentence, the clause dealt with notice requirements

and a rent abatement scheme which Shell could have invoked if, due

to the occurrence of certain contingencies, use of the premises as a

service station facility was impaired. '^^ The plaintiff maintained that
Shell's inclusion of the unconditional termination provision in the

last sentence of an article otherwise devoted to conditional termina-

tion powers and procedures, rendered the article ambiguous, mis-

leading and confusing. The court rejected this contention.''^ The
court also rejected the argument that a literal interpretation of the

last sentence would make the remainder of the article meaningless. ''*

In distinguishing the notice requirements,"' the court noted that

Shell could terminate upon the happening of one of the contingen-

cies with only thirty days notice, whereas at least ninety days notice

was required before Shell could unilaterally terminate. Similarly,

the court refused to construe the contract against the author of the

document because without ambiguity, there was nothing to con-
strue."* Unfortunately, the plaintiff's best argument, illegality, was
not addressed by the court because the plaintiff never raised the

issue."' Had the issue been raised, the court might have found the
contract unconscionable and oppressive,'*" based upon the unequal

bargaining power between the plaintiff and Shell.

It has long been recognized that a landlord has a duty to main-

tain and repair common areas or areas over which he retains con-
trol.'*' However, in Purcell v. English,^^^ decided in 1882, the Indiana
Supreme Court held that this duty did not extend to temporary un-
safe conditions caused by the accumulation of ice and snow.

In Rossow V. Jones,^^^ the plaintiff, a tenant in a three-apartment
dwelling, was injured when he slipped and fell on the steps leading
from a porch to the sidewalk. All of the apartments exited onto the
porch, which was a common area under the landlord's control. At
the time of the injury the steps were covered with a natural ac-

"'Id. at 844-45.

"'Id. at 845.

"Ud.

"'Id. at 846.

"'Id. at 847.

''"See Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971); Annot.. 49
A.L.R. 3d 306 (1971).

"'See discussion in Rossow v. Jones, 404 N.E.2d 12, 15-16 (Ind. Ct. App. 1980) (con-

curring opinion).

"'86 Ind. 34 (1882).

'»^404 N.E.2d 12 (Ind. Ct. App. 1980).



484 INDIANA LAW REVIEW [Vol. 14:459

cumulation of ice and snow. Although snow shovels and a box of salt
were available for cleaning the entryway, they had been locked
away by the landlord. It was still light enough to see when the plain-
tiff, wearing leather boots with rubber soles, attempted to descend
the stairs, steadying himself with a hand on the porch column.

There had been a handrail along the steps from the porch to the
walk, but the landlord had removed it.'" The plaintiff filed suit for
personal injuries in a small claims court and recovered a judgment
of $2500. The landlord appealed, claiming that he had breached no
duty and that the tenant was guilty of contributory negligence.'*^
The court reviewed a number of Indiana decisions which have held
the landlord liable to a tenant for injuries caused by defective condi-

tions existing in areas under the landlord's control, and concluded:

"From these authorities ... a landlord does have a duty of
reasonable care that the common ways and areas, or areas over
which he has reserved control are reasonably fit and that hazards

created through natural accumulation of ice and snow are not
beyond the purview of that duty."'*® The court also concluded that
the plaintiff was not guilty of contributory negligence in using the
steps for ingress and egress.'"

In a concurring opinion, Judge Staton noted that one fourth of
Indiana's population now resides in rental housing,'** and many ten-
ants are unequipped to perform the tasks of snow and ice removal.'**
As to the incurred risk-contributory negligence issue. Judge Staton
found it difficult to understand how the majority could state that
the fact-finder could have found Jones guilty of contributory negli-

gence.'^"

One can envision the tenant faced with the unpleasant alterna-
tive of either slowly starving to death in his lonely apartment

because the landlord has not provided him with a safe means of in-
gress and egress or of being without a legal remedy because he has
incurred the risk if he attempts to leave and sustains personal in-

jury. In fact, this argument, that the tenant must either abandon the

apartment or incur the risk, was rejected in Coleman v. DeMoss.^^^
The landlord cannot be allowed to constructively evict a tenant by
failing to provide him with a safe means of ingress and egress, and

"Vd. at 14.

"7d at 13.
'"Id. at 14.

"*Id. at 15 (Staton, J., concurring).

'"Some tenants lack physical ability to perform the task; others lack storage space

for the equipment necessary to perform the task,

'"/d. at 17.

'"144 Ind. App. 408. 246 N.E.2d 483 (1969).



1981] SURVEY-PROPERTY 485

conversely the tenant's refusal to abandon the apartment cannot as

a matter of law be considered an assumption of the risk.'^^

E. Real Estate Transactions

Section Four of the English Statute of Frauds provides that no

action may be brought on any contract for the sale of land unless
the contract or some memorandum of it is in writing and signed by
the party to be charged or his authorized agent.'*'' The Indiana stat-
ute of frauds, based on the English model, contains a similar provi-

sion. '** While the English Statute of Frauds made oral contracts for
the sale of land unenforceable, only twenty-three years after enact-

ing that statute, the House of Lords enforced an oral contract for
the sale of land under the doctrine of part performance.'*'^ All but

four American jurisdictions now hold that an act of part perform-
ance by the purchaser will remove the contract from the Statute of
Frauds.'** There are at least four views on what acts of part per-
formance by the purchaser are sufficient,'*^ but possession of the

land by the purchaser under the oral contract is one of the neces-

sary conditions under all four views.'** Indiana decisions clearly re-

"7d at 418-19, 246 N.E.2d at 488.
"'Statute of Frauds, 1677, 29 Car. 2, c.3. § 4. /

"*"No action shall be brought in any of the following cases: . . . Fourth. Upon any

contract for the sale of lands[,] . . . [u]nless the promise, contract, or agreement . . .

shall be in writing, and signed by the party to be charged therewith." IND. Code §
32-2-1-1 (1976).

"'Lester v. Foxcroft, Colles Cases 108, 1 Eng. Rep. 205 (H.L. 1700). Indiana recog-

nized the doctrine of part performance as early as 1820. Tibbs v. Barker, 1 Blackf. 58

(1820).

'"Kentucky, Mississippi, North Carolina and Tennessee hold that no act of part

performance will remove an oral contract for the sale of land from the Statute of

Frauds. See 2 A. CORBIN, CORBIN ON CONTRACTS § 443 (1950 & Supp. 1971) and cases
cited therein.

'"These views are that: (1) possession alone is sufficient; (2) possession must

be accompanied by payment [of all or part of the consideration]; (3) posses-

sion must be accompanied by the making of valuable and lasting improve-

ments; and (4) there must be both possession and such change of position by

the purchaser that irreparable injury will result unless the oral contract is

enforced.

3 A.L.P., supra note 17, § 11.7. For the various state views see 3 A.L.P., supra note 17,

§ 11.7-.12; 2 A. CORBiN, supra note 196, §§ 420-443. A fifth view is that no acts of part
performance will be recognized.

"'Horner v. McConnell, 158 Ind. 280, 63 N.E. 472 (1902); St. Joseph Hydraulic Co.

V. Globe Tissue Paper Co., 156 Ind. 665, 59 N.E. 995 (1901) (possession and such change

of position that irreparable injury will result sufficient); Johnson v. Pontious, 118 Ind.

270, 20 N.E. 792 (1889) (possession and payment of the purchase price sufficient); Neal

V. Neal, 69 Ind. 419 (1880) (possession sufficient).



486 INDIANA LAW REVIEW [Vol. 14:459

quire possession by the purchaser as a necessary element for the

application of the doctrine of part performance."*®

In Dupont Feedmill Corp. v. Standard Supply Corp.,^°° the court
of appeals apparently departed from the traditional view regarding

enforcement of oral contracts for the sale of land. Dupont sued Stan-
dard for specific performance of an alleged oral agreement for the
sale of land. Although Dupont had tendered a down payment and
the parties had discussed a written contract, no contract was ever
signed. The down payment was returned, and the property was sold
to a third party. ^°' The trial court granted the defendant's motion for
a summary judgment; yet, none of the traditional acts required for
enforcement of the contract under the doctrine of part performance

existed. The court of appeals reversed. Even though there was no
part performance, the court suggested that the contract might still

be enforced under the doctrine of equitable estoppel.^"^ In a counter-

affidavit filed by Dupont on the motion for summary judgment, Du-
pont indicated that it had obtained a mortgage in reliance on the
contract. It claimed that if the transaction were not completed, its
credibility would be shaken, thereby adversely affecting future

banking relations.^"^ The court determined that this detrimental reli-
ance raised a factual issue regarding the enforceability of the con-

tract.^"^ The trial court agreed with Standard that to remove a con-
tract from the Statute of Frauds under the doctrine of equitable

estoppel, it was necessary for Dupont to prove a false representa-
tion or concealment of a material fact.^"^ The court of appeals, how-
ever, held that a finding of actual fraud was not required to use
equitable estoppel or promissory estoppel to defeat the Statute of

Frauds.==°«

In Billman v. Hensel,^°'' the court of appeals was again presented
with the troublesome "subject to financing" clause in a real estate

"''Swales V. Jackson, 126 Ind. 282, 26 N.E. 62 (1890): Wallace v. Long, 105 Ind. 522,

5 N.E. 666 (1886); Genda v. Hall, 129 Ind. App. 643, 154 N.E.2d 527 (1958).
^o'agS N.E.2d 808 (Ind. Ct. App. 1979).

"'Id. at 810.

""Id. at 811.

""Id.

"'*Id.

'"^Id. This view is supported by language in earlier Indiana decisions which

discuss the doctrine of equitable estoppel. Blake v. Hosford, 387 N.E.2d 1335 (Ind. Ct.

App. 1979); Modisett v. Jolly, 153 Ind. App. 173, 286 N.E.2d 675 (1972); Kurd v. Ball,

128 Ind. App. 278, 143 N.E.2d 458 (1957).

"^Id. The court of appeals is correct in holding that actual fraud is not an element

of the doctrine of equitable estoppel. 3 S. WiLLiSTON, A Treatise of the Law of Con-
tracts § 533(A) (3d ed. 1960); 2 A. CORBIN, supra note 196, § 422(a); J. Calamari & J.
Perillo, The Law of Contracts 735-38 (2d ed. 1977).

'"'391 N.E.2d 671 (Ind. Ct. App. 1979).



1981] SURVEY-PROPERTY 487

contract. The contract provided that the sale was conditioned upon
the purchaser's ability to obtain a conventional mortgage for not

less than $35,000.^"* The purchaser approached only one financial in-
stitution and made no formal loan application. In an action by the
purchaser to recover his $1,000 earnest money deposit, the trial
court entered judgment for the vendor.^"^ In affirming, the court of

appeals relied on the better view, that a "subject to financing"

clause imposes upon the purchaser an implied obligation to make a
reasonable and good faith effort to obtain financing.^'" An earlier
case, Blakley v. Currence,^^^ contains language suggesting that a

"subject to loan approval" clause does not require the purchaser to

make a good faith effort to obtain a loan.^'^ The court in Billman
noted that the two cases are distinguishable since the wording of
the finance clause, "subject to loan approval," in the Blakley case

was not conditioned upon the purchaser's ability to obtain financing.^''
The court suggested that had the words "subject to purchaser's
ability to obtain financing" been included, a good faith effort would

have been required.^'^ Nevertheless, the court expressed the belief

that "the rule in Blakley should be limited to the facts there pres-

ent."^'^

In Staley v. Stephens,^^^ Stephens refused to complete a contract

to purchase Staley's residential property. The seller sued to recover
the purchase price, and the buyer counterclaimed for damages for
failure to tender marketable title.^'^ A house, located on the prop-
erty 8.4 feet from the side property line, was part of a subdivision
which was subject to a restrictive covenant requiring a ten foot side
line setback. A town zoning ordinance, which was incorporated by
reference into the covenant, required an 8.5 foot setback.^'* There
was some question as to which requirement controlled,^'® but in any
case, the house was in violation of one or both.^^" The court of ap-
peals affirmed the trial court's finding that the title was unmarket-

'°7d at 672.

""Id.

''"Id. at 673.

'"361 N.E.2d 921 (Ind. Ct. App. 1977).
"'Id.

="'391 N.E.2d at 673.

"*Id.

"'Id.

''M04 N.E.2d 633 (Ind. Ct. App. 1980).
"Ud. at 634.

"'Id.

"'Id. at 635.



488 INDIANA LAW REVIEW [Vol. 14:459

able and that the buyer would not be forced to accept an unmarket-

able title no matter how small the defect.^^'
While one might be tempted to criticize the court's refusal to

grant specific performance because the defect in title was trivial, a
recent court of appeals decision, Metropolitan Development Commis-
sion of Marion County v. Douglas,'^^^ should be noted. There, the
defendant was forced to remove his carport which was 2.2 feet from
an adjacent side property line; a zoning ordinance required a five

foot side yard. Although the affected property owner waived the
deviation in the setback,^^' the court stated that "zoning violations

may be enjoined without regard to the degree of noncompliance."^^^
Strict compliance, not substantial compliance, with the zoning law is

required.^^^ The court noted that the proper remedy for zoning viola-
tions was injunctive relief provided for by statute.^^®

'"Id. at 636.

'^^390 N.E.2d 663 (Ind. Ct. App. 1979).

'''Id. at 666.

'"Id.

'"Id.

'"Id. at 664 n.3. See Ind. Code § 18-7-2-84.1 (1976).

Ill