Indiana Law Review


Recent Developments in Property Law

Michael A. Dorelli*
Joseph C. Bowman**

Introduction

During the period covered by this Article/ Indiana courts addressed many
issues concerning traditional areas of property law. From claims of adverse
possession to disputes over water rights, the courts had opportunities to clarify

the status of long-standing rules of law, to provide innovative interpretation to

novel legal theories, and even to overrule antiquated tenets of property law. The
most significant decisions impacting property law are discussed herein.

I. Adverse Possession

Adverse possession is a "strange and wonderful system, whereby the
occupation of another's land gains the occupier title . . . ."^ To gain title, the
occupier must demonstrate "actual, visible, notorious, and exclusive possession

of the real estate, under a claim of ownership hostile to the true owner for a
continuous ten-year period."^ Because any adverse possession claim is bound to

be highly fact-sensitive, it is not surprising that several decisions addressing the

elements of such a claim reached the appellate level during the survey period.

In Thompson v. Leeper Living Trust,"^ the Indiana Court ofAppeals was faced
with a multi-party dispute over the findings of a legal survey of the parties'

adjoining tracts of property. Property owned by the Thompsons was bordered on
the east by property owned by Gardner and on the west by a tract owned by
Salyer. A tract of land owned by the Leeper Living Trust ("Leeper") extended
along the southern border of each ofthese tracts.^ The Thompsons and Gardner
appealed the survey on an adverse possession theory, claiming that "the boundary

line between their tracts and Leeper' s tract should have been located farther

south than [the] survey indicated because they had acquired, by adverse

possession, a lO-to-12-foot-wide strip of land between their tracts and Leeper'

s

* Associate, Henderson, Daily, Withrow & DeVoe B.S., 1994, Indiana
University—Bloomington; J.D., magna cum laude, 1998, Indiana University School of
Law—Indianapolis.

* Associate, Baker & Daniels. B.S., 1992, Indiana University—Bloomington; J.D., magna
cum laude, 1 998, Indiana University School of Law—Indianapolis.

1

.

This Article surveys decisions handed down by Indiana courts between October 1 , 1 997

and September 30, 1998.

2. Roger A. Cunningham et al.. The Law of Property § 1 1 .7, at 807 (2d ed. 1 993).
3. Rieddle v. Buckner, 629 N.E.2d 860, 862 (Ind. Ct. App. 1994); see also Estate of Mark

V. H.H. Smith Co., 547 N.E.2d 796, 799 (Ind. 1989). Section 34-11-2-11 of the Indiana Code

provides that "[a]n action ... for the recovery ofthe possession of real estateQ must be commenced

within ten (10) years after the cause of action accrues." iND. CODE § 34-1 1-2-11 (1998).
4. 698 N.E.2d 395 (Ind. Ct. App. 1 998).

5. See id. ai396.



974 INDIANA LAW REVIEW [Vol. 32:973

tract."^

For well over the ten-year statutory period, a woven wire fence extended
along the full length of the boundary between the Leeper tract of land and the
tracts owned by Gardner and the Thompsons. In 1995, Leeper removed the fence
and replaced it with a barbed-wire fence, which was positioned approximately
ten to twelve feet north of the woven wire fence's prior position.^

Gardner based his adverse possession claim on four grounds: 1) the location
of the woven wire fence; 2) his belief that the woven wire fence marked the true
boundary between the tracts; 3) that he utilized the disputed strip of land as a
driveway for use by trucks in the operation of his grain storing business; and 4)
that he stored certain machinery on the disputed strip.^ The court rejected all
four grounds.^

The court quickly dismissed the first two grounds offered by Gardner, stating
that "[n]either the fact that the woven wire fence stood where it did, nor the fact
that Gardner believed his property extended to the fence, can decisively show
that he actually, visibly, notoriously, or exclusively possessed the disputed

strip."^^ In making such a conclusory disposition of the issue, the court took a
relatively strict stance toward the establishment of an adverse possession claim,

evidently granting little weight to the existence of a fence marking an apparent

boundary.''

The court then found that the third and fourth grounds cited by Gardner also
failed to support an adverse possession claim, stating that "periodic or sporadic

acts of ownership are not sufficient to constitute adverse possession."'^ The
court concluded that the trucks' use of the disputed strip of property could be

characterized "at best" as periodic or sporadic use and that the storage of

obsolete farm machinery on the tract was equally "intermittent."'^ In drawing

6. Id. at 397. The court also addressed a challenge to the survey based on the survey's

variance with the legal description ofthe property at issue. Id. In rejecting portions of the survey,

the trial court noted that "the legal description is presumed correct and that compelling visual

evidence at variance with the legal description must exist to support a legal survey which varies

from a proper legal description." Id. The court of appeals affirmed the trial court's decision,

granting deference to the trial court's ability to "credit evidence of the survey's inaccuracy and to

discount evidence to the contrary." Id. at 397-98.

7. See id. at 398.

8. See id.

9. Id

10. Id

11. See Cunningham et al., supra note 2, at 809 (recognizing that in many jurisdictions,

"[e]nclosure of the land, perhaps even use of it up to some natural physical boundary, introduces

an important factor favorable to the possessor") (citing Whittemore v. Amator, 713 P.2d 123 1 (Ariz.

1986); Miceli v. Foley, 575 A.2d 1249 (Md. Ct. Spec. App. 1990)).

12. Thompson, 698 N.E.2d at 398 (citing McCarty v. Sheets, 423 N.E.2d 297, 301 (Ind.

1981)).

13. Id. (quoting Ferguson v. Prince, 190 S.W. 548, 549 (Tenn. 1916) (holding that the

evidence failed to sustain a claim of adverse possession where the claimant's supposed possessiion



1999] PROPERTY LAW 975

this conclusion, the court distinguished Smith v. Brown,^^ which found that

adverse possession had been established

where the evidence showed, among other things, that the adverse
possessor "trimmed the shrubbery, mowed the grass, and planted flowers
on the land in dispute," that he "used the entrance and driveway which

crossed the land in dispute and put black top and crushed stone on it[,]"

and that his wife "chased people off the property[.]"^^

The court in Thompson held that Gardner failed to show evidence of activities
comparable to those evidenced in Smith and that he therefore failed to establish

his claim of adverse possession.
^^

In Roser v. Silvers, ^^ the court was faced with a traditional adverse
possession claim over a driveway, but had the opportunity to address an issue of

first impression in Indiana. The facts leading to the dispute are as follows. The
McPeaks acquired their property from the Rosers, whose predecessors in interest
were the Brickers. This property is located adjacent to and east of Silvers' lot,

which Silvers obtained from her parents, the Weavers. The Weavers acquired the
property in 1955, at which time the Brickers lived next door.^*

In 1956, the Weavers installed a driveway that encroached upon the Brickers'

property. The Weavers paid to have the driveway paved in 1969, and the
Weavers and their successors have been using the driveway continuously since

that time. The Brickers never used the driveway.'^ In 1993, the McPeaks and
Silvers began feuding over the use of the driveway. Silvers filed an action to

quiet title. In a bench trial, the court "quieted title in the disputed strip of

property in Silvers' favor based on its determination that Silvers' parents had

acquired the property by adverse possession."^^

The Rosers and the McPeaks (hereafter the "Rosers") appealed the trial
court's decision, arguing both 1) that the evidence was insufficient to support a
determination that the disputed strip was acquired by adverse possession, and 2)
that statements made by Silvers' late father regarding the boundary line between
the properties was inadmissible hearsay.^^ The court of appeals affirmed the

consisted "simply of having dirt thrown upon the lot from time to time to fill up holes, and also of

occasionally storing lumber and wagons thereon")).

14. 134 N.E.2d 823 (Ind. App. 1956).

15. Thompson, 698 N.E.2d at 398-99 (quoting Smith, 1 34 N.E.2d at 827).

16. Id. at 399. The court rejected the Thompsons' claim on identical grounds, stating that

"[bjecause we have held above that adverse possession may not be established on these grounds,

we do not address the Thompsons' claim further." Id.

17. 698 N.E.2d 860 (Ind. Ct. App. 1 998).

18. See id at S62.

19. See id at S62-63.

20. /i/. at 863.

21

.

See id. at 862. The Rosers and the McPeaks also made arguments based on an alleged

violation of a separation of witnesses order and the defense of laches. See id.



976 INDIANA LAW REVIEW [Vol. 32:973

decision of the trial court.^^

In support of their first argument, the Rosers alleged that "the driveway had
been shared by both properties in the past[,] . . . there was no fence or barrier
between the properties[,] ... the adverse possession of Silvers' predecessors was
not open and notorious[,] . . . [and] there was no evidence that the Weavers ever
communicated their intent to possess the property to the Brickers."^^ The court
rejected these arguments, stating that they were "a mere invitation to reweigh the
evidence" and that the trial court's findings were "not clearly erroneous."^"*

Next, the court analyzed a rule of evidence that previously had not been

interpreted by Indiana case law, and that is particularly relevant to claims of

adverse possession. At trial, the court admitted statements made by Silvers' late
father pertaining to the location of the boundary line between the two properties

at issue, despite a hearsay objection by the Rosers.^^ The trial court admitted the
statements under Rule 803(20) ofthe Indiana Rules of Evidence, which provides

that "[rjeputation in a community, arising before the controversy, as to

boundaries of or customs affecting lands in the community . . ." are not excluded

by the hearsay rule.^^

Because no Indiana court had analyzed this rule, the court of appeals looked

to other jurisdictions for interpretive guidance.^^ While courts in other

jurisdictions have held that "[r]eputation evidence as to customs affecting land

[are] not excluded,"^* the court here found that the exception embodied in Rule

803(20) "applies only to reputation or general consensus evidence and does not

permit the admission of specific statements or assertions made by the predecessor
in interest regarding a boundary."^^ As such, the court found that it was
erroneous for the trial court to permit the hearsay testimony "regarding the

statements made by Silvers' late father with respect to the location of the
boundary line."^°

In Panhandle Eastern Pipe Line Co. v. Tishner^^ the Indiana Court of

22. Id.

23. Mat 863.
24. Id.

25. Mat 863-64.
26. Id at 864 (citing IND. R. EviD. 803(20) (1998)).

27. Id

28. Id (citing Williams v. State, 595 So. Id 1299, 1306 (Miss. 1992); Broyhill v. Coppage,

339 S.E.2d 32, 35 (N.C. Ct. App. 1986)).

29. Id (citing Nature Conservancy v. Nakila, 671 P.2d 1025, 1033 (Haw. Ct. App. 1983);

Goodover v. Lindey's Inc., 757 P.2d 1290, 1293-94 (Mont. 1988)). The court also stated that

"[t]his approach comports with Indiana's common law." Id. (citing Ellison v. Branstrator, 54 N.E.

433, 437 (Ind. 1899) (finding no error in excluding evidence of a conversation with a surveyor

regarding boundary line)).

30. Id. The court, however, found that the error was harmless in that it "was merely

cumulative of other evidence to the effect that the western edge of the driveway marked the

boundary line between the properties." Id.

31. 699 N.E.2d 73 1 (Ind. Ct. App. 1998).



1999] PROPERTY LAW 977

Appeals addressed the elements of an adverse possession claim relative to the

rights of an easement holder.^^ Panhandle operated a pipeline that traveled

through Hamilton County, Indiana. The Tishners lived on real estate located in
Hamilton County, which they had ovmed since 1956. Panhandle owned an open
easement of undefined width across the Tishners' property, which provided that

Panhandle had the right to "lay, maintain, operate, repair, replace, change the size

of, and remove a pipeline. The Tishners [were] entitled to fully use and enjoy the

premises except for the purpose granted to Panhandle."" In addition, the

easement required that Panhandle pay for damages to crops and fences caused by

the exercise of their easement rights.^'*

The Tishners built a house and driveway on the property and also made
several aesthetic improvements thereto, including "the installation ofa swimming
pool, a patio, a brick pool wall, a pool house, a stone wall entry into the pool

area, and a brick entry wall. ... In addition, the Tishners planted several trees

in proximity to [a pipeline running through the property], and some directly over
the [pipeline]."^^ Panhandle did not object to the Tishners' improvements.

In 1988, Panhandle discovered problems with the pipeline that would require

entry pursuant to the easement for repair of the pipeline. Panhandle explained

to the Tishners that the repair work would require the removal of the brick entry
wall, a portion of the stone wall, and several trees and shrubs located on the

property near the pipeline.^^ In fact, the repair work required Panhandle to
"remove the brick entry wall, several trees and shrubs, the stone entry wall to the

pool area, and to tear up the asphalt on the Tishners' driveway."^^ Upon
completion of the project. Panhandle filled in the trench and reseeded the lawn,

but did not repair or replace any of the damaged improvements or landscaping.^*
A few years after Panhandle's repair work, the Tishners began making

fiirther improvements to the property. They planted trees near the pipeline and
began construction of a brick entry wall that would sit directly on top of the

pipeline. Panhandle obtained a temporary restraining order to prevent the

Tishners from making any fiirther improvements that would prevent Panhandle
from exercising its easement rights. Panhandle then sought a permanent

injunction against the Tishners and the Tishners filed a counterclaim for damages
to their improvements caused by Panhandle's work pursuant to its easement.^^
The trial court ordered Panhandle to pay damages to the Tishners, and ordered
that the Tishners be allowed to erect and maintain any improvements on their

32. The Panhandle decision discusses both elements of adverse possession and rights of an

easement holder. The aspects of the case addressing the elements of adverse possession will be

discussed here, while the portions focusing on the use of easements are discussed in Part II, infra.

33. Panhandle, 699 N.E.2d at 734.

34. See id

35. Id

36. See id. at 735.

37. Id

38. Id

39. See id.



978 INDIANA LAW REVIEW [Vol. 32:973

property that existed prior to the repair work described above. The court ruled,
however, that the Tishners could not make improvements or erect structures that
fall within the area that Panhandle claims as an easement.'*^

The first issue addressed by the court on appeal was whether Panhandle's
easement was partially extinguished by the Tishners' adverse possession of the
portion of the property subject to the easement. In holding that the easement was
not partially extinguished, the court discussed two elements of an adverse
possession claim, namely, that the claimant's use is "hostile" and that such use

is "exclusive.'"** The court found that neither element was satisfied.
The court began its analysis by recognizing that "[a]n easement may be

extinguished by adverse possession."*^ However, the court found that the
Tishners failed to establish that their use of Panhandle's easement was
"hostile.'"*^ According to the court, possession will be considered "hostile" if

"the party claiming adverse use does not disavow his or her right to possess the

property or acknowledge that it is subservient to the title of the true owner.'"*"*

Here, the Tishners made no attempt to exclude Panhandle from its easement after
Panhandle received a temporary restraining order prohibiting the Tishners from

interfering with Panhandle's work. Therefore, the court concluded that "[t]here

was no sustained hostile use of the easement.'"*^
Further, the court found that the Tishners "failed to establish that their use

ofthe easement was exclusive."*^ This element of an adverse possession claim
requires that the party "claims possession adversely to the exclusion of all

others'' and requires possession "of such a nature that it operates as an ouster of

the owner.'"^^ Panhandle's continuous use of the easement throughout the

relevant time period negated any claims of "ouster" made by the Tishners.
Panhandle regularly conducted projects on the property, performed aerial

surveillance, conducted annual foot patrols, and even sought injunctive relief

when the Tishners attempted to interfere with its access to the property."** The
court thus concluded that "[t]o the extent that the trial court used the doctrine of

adverse possession as the basis for its decision, it is unsupported by the

evidence . . .
."'*^

40. Id.

41. Id. Sit 736-31.

42. Id at 736 (citing McKinney v. Lanning, 38 N.E. 601, 603 (Ind. 1894)).

43. Id

44. Id (citing Kline v. Kramer, 386 N.E.2d 982, 988 (Ind. Ct. App. 1979)).

45. Id at 737.

46. Id

47. Id (emphasis added) (citing Herrell v. Casey, 609 N.E.2d 1 145, 1 148 (Ind. Ct. App.

1993); Davis v. Sponhauer, 574 N.E.2d 292, 298 (Ind. Ct. App. 1991)).

48. See id

49. Id •



1999] PROPERTY LAW 979

II. Easements

A. Scope and Use ofEasements

In addition to addressing certain elements of an adverse possession claim as

they relate to extinguishing an easement, the court in Panhandle had the

opportunity to clarify the status of Indiana law with regard to the scope of an

easement and the parameters of an easement holder's permissible use of an

easement.^^

7. Easement Implied to Ensure Compliance with Federal Law.—The court
in Panhandle noted that Panhandle's operation of the pipeline running through

the Tishners' property was governed by the Natural Gas Pipeline Safety Act,^'
which sets forth the "minimum federal safety standards for the design,
installation, inspection, emergency procedures, testing, extension, construction,

operation, replacement, and maintenance of pipeline facilities.""^ The court
continued by stating that "where common law rules of property are inconsistent
with the congressional scheme set forth in the Act, the common law rules must
give way, rendering any property use inconsistent with the Act subject to

injunction."^^ As the court then recognized, it follows logically that "[a]n
easement which grants the right to operate a natural gas pipeline must, if the

easement is not to be wholly illusory, imply the right to operate the pipeline in

accordance with applicable federal law."^"^ Because federal law requires

Panhandle to inspect the pipeline at regular intervals, as well as implement other

safety measures, the right to access to the property for the purpose of complying

with the federal law requirements is implied. The court concluded that
Panhandle retained all of its rights to the easement.^^

2. Permissible Use ofDominant andServient Estates.—^The Tishners argued
that Panhandle owed them a duty to take reasonable steps to protect the
improvements placed by the Tishners near the pipeline. The trial court agreed,
awarding damages for repair of the Tishners' pool wall, patio, yard, curb,
driveway, and playground.^^ In addressing the propriety of the damages award,

the court of appeals examined the scope of Panhandle's easement.

The court noted that the terms of the grant creating the easement indicated
that the easement was an "open easement" of undefined width.^^ As such, the

50. See id. at 737-39. The facts ofthe Panhandle decision are set out in their entirety in Part

I. See supra notes 31-49 and accompanying text.

51. Id. at 737 (citing 49 U.S.C.A. app. §§ 1671-88 (1994) (recodified at 49 U.S.C. §§

60101-25 (1994 & Supp. II 1996 & Supp. Ill 1997)).
52. Id

53. Id. at 738 (citing Swango Homes, Inc. v. Columbia Gas Transmission Corp., 806 F.

Supp. 180, 184 n.2 (S.D. Ohio 1992)).

54. Id.

55. Id

56. Id

57. Id



980 INDIANA LAW REVIEW [Vol. 32:973

easement covered only "the area reasonably necessary to carry out the purposes

of the easement."^^ It was the court's duty then to determine the extent of the
easement given the particular necessities at hand.^^

At trial. Panhandle demonstrated that an easement sixty-six feet wide would
be sufficient for the purpose of maintaining and repairing the pipeline.^^ The
Tishners provided no contradictory evidence. Further, the court noted that
easements of sixty-six feet had received prior judicial approval for pipelines

operated by Panhandle in the same area.^' An easement of sixty-six feet was thus
deemed reasonable.^^

The court also addressed the respective rights of the owners of both the
dominant and servient estates. Within an easement, the owner of the easement,
or the dominant estate, possesses all the rights "necessarily incident to the
enjoyment of the easement."^^ The owner of the easement "may make repairs,
improvements, or alterations that are reasonably necessary to make the grant of
the easement effectual."^ The owner of the servient estate, on the other hand,
may use the property that is subject to the easement "in any manner and for any
purpose consistent with the enjoyment of the easement, and the dominant estate

cannot interfere with the use."^^ The servient estate owner "may not so use his
land as to obstruct the easement or interfere with the enjoyment thereof by the

owner of the dominant estate."^^
Based on the foregoing statements of law, the court in Panhandle concluded

that Panhandle had the right to enter the Tishners' property for the purpose of

making repairs and replacements to the pipeline, "including any necessary
excavation, without regard to structures erected upon the easement, and the

Tishners erected such structures at their peril."^^ Because the express terms of

the easement grant made Panhandle liable only for damages to crops and fences
within the easement, the court held that Panhandle's liability in this case was
limited to such.^^ The court remanded the case for a determination of whether

58. Id.

59. See id. (citing Rees v. Panhandle E. Pipe Line Co., 452 N.E.2d 405, 410 (Ind. Ct. App.

1983)).

60. See id.

61

.

Id at 738-39 (citing Rees, 452 N.E.2d at 405; Rees v. Panhandle E. Pipe Line Co., 377

N.E.2d 640 (1978)).

62. Id

63. Id at 739 (citing Litzelswope v. Mitchell, 45 1 N.E.2d 366, 369 (Ind. Ct. App. 1983)).

64. Id

65. Id (citing Holding v. Indiana & Mich. Elec. Co., 400 N.E.2d 1 154, 11 57 (Ind. Ct. App.
1980)).

66. Id

67. Id

68. Id. The court distinguished Panhandle's duties "within" the easement from its duties

"outside" the easement. Outside the easement

a landowner has an absolute right to have his land in its natural state laterally supported

by the lands of adjoining landowners. If the adjoining landowner excavates on his land



1 999] PROPERTY LAW 98

1

the damaged structures were within the area of the property subjected to the
easement and for a determination of damages.^^

B. Prescriptive Easements and Disclaimer Thereof

To acquire an easement by prescription, a claimant must show "actual,
hostile, open, notorious, continuous, uninterrupted, adverse use for a period of

twenty years under a claim of right or by continuous adverse use with knowledge

and acquiescence of the owner of the servient estate."^^ In Book v. Hester^^ the
court of appeals addressed the enforceability of a disclaimer of interest in a

prescriptive easement.

The Books raised cattle on a forty-acre parcel of property. The property
could be accessed only via a gravel road crossing Hester's property, which was
located to the east ofthe Books' property. The road had been used continuously
for access to the forty acres since at least 1907. In October 1995, Hester erected

a fence blocking the Books' use of the road. The Books then sought injunctive
and declaratory relief, claiming that they had acquired a prescriptive easement

for use of the road.^^ Hester argued that the Books had relinquished any right to

use of the road that they might have acquired when they signed a disclaimer of

thereby depriving the lands of his neighbor of lateral support, the adjoining landowner

is absolutely liable for such damage even if he is free from negligence.

Id. The court therefore held that Panhandle had an absolute duty to provide lateral support to the

Tishners' land. However, the court recognized that "liability for damage to buildings resulting from

the loss of lateral support must be based upon the negligence of the adjoining landowner in carrying

on the activity which occasioned the loss of lateral support." Id. Panhandle, then, had a duty to

use reasonable care to avoid the negligent removal of lateral support to the improvements erected

on the property by the Tishners.

69. Id. During the survey period, the Indiana Court of Appeals also had the opportunity to

address easement issues in the context of riparian rights. See Abbs v. Town of Syracuse, 686

N.E.2d 928, 928-32 (Ind. Ct. App. 1997). In Abbs, shoreline property owners sued the Town of

Syracuse and various residents for erecting piers and docking boats at the ends of certain public

streets and alleys which lead to water's edge. The Indiana Court of Appeals affirmed the lower

court's ruling that "in creating the public right-of-way, the grantors intended to grant to the public

riparian rights of access to the lake, including the right to establish and use piers, subject only to

regulation by the proper municipal or governmental authority." Id. at 929.

70. Walter Krieger, 1993 Developments in Indiana Property Law, 27 iND. L. Rev. 1285,

1287 (1994) (citing Ind. CODE § 32-5-1-1 (1979) (recodified at Ind. Code § 32-5-1-1 (1998));
Greenco, Inc. v. May, 506 N.E.2d 42, 45 (Ind. Ct. App. 1987); Searcy v. LaGrottee, 372 N.E.2d

755, 757 (Ind. Ct. App. 1978)). See also CUNNINGHAM ET AL., supra note 2, at 451 (noting that the

elements required to establish a prescriptive easement are nearly identical to those required to

establish adverse possession, with the chief distinction being that "in adverse possession the

claimant occupies or possesses the disseisee's land, whereas in prescription he makes some

easement-like use of it").

71. 695 N.E.2d 597 (Ind. Ct. App. 1998).

72. See id. at 598.



982 INDIANA LAW REVIEW [Vol. 32:973

interest in 1989 relating to a quiet title action brought by the Swopes, the
predecessors in interest to Hester7^ The Books countered that the 1989
disclaimer was unenforceable because it was not recorded pursuant to section 32-
3-2-7 of the Indiana Code7^

Section 32-3-2-7 of the Indiana Code provides, in relevant part, that "[a]
disclaimer of an interest in real property is effective . . . only if it is recorded in

each county where the real property is located.""^^ In rejecting the Books'
argument pursuant to this section, the court analyzed the Probate Code Study
Commission Introductory Comments ("the Comments") to the disclaimer
statute/^ The Comments provide that a "disclaimer is a refusal to accept
property ab initio "^^ The Comments further state that the "law of disclaimer
is founded on the property law concept that a transfer oftitle to property is not
complete until it is accepted by the recipient and that no person can beforced to
acceptproperty against his will."^^ Finally, the court noted that the disclaimer

statute itself reads that the "right to disclaim an interest ... is barred by
acceptance of the interest . . . ."^^

Based on the above commentary, the court concluded that "the disclaimer

statute only contemplates the disclaimer of an interest in property prior to

acceptance . . . [and that] [a]s such, the statute does not apply to the present

case."^° In this case, the Books acquired their property by contract in 1969, at
which time they accepted title without disclaiming their interest in the easement.

The court stated that "[h]aving had the use and benefit ofthe easement for many
years, the Books cannot now claim relief under a statute which, if it applied,
would require them to disclaim their interest ab initio .'"^^ Because the disclaimer
statute did not apply, the Books could not rely upon it to require that for their
disclaimer to be enforceable, it must have been previously recorded.

As an alternate ground for its decision, the court stated that "[e]ven if the
disclaimer statute did apply, the Books had actual notice of the disclaimer and,
thus, cannot now complain that they were prejudiced by the fact that the

73. See id d.t59S-99&n.3.

74. See id. at 599.

75. Id. at 600 (quoting IND. Code § 32-3-2-7 (1993) (emphasis added) (recodified at IND.

Code § 32-3-2-7 (1998)). Indiana's disclaimer statute is located at sections 32-3-2-1 to 32-3-2-15

of the Indiana Code and outlines the procedures necessary to disclaim certain property interests.

See id. (enumerating the types of property interests to which the disclaimer statute is applicable).

76. Id. (citing section 32-3-2-14 of the Indiana Code, which provides that commission's

comments may be consulted by the court in applying the disclaimer statute (recodified at iND. CODE

§32-3-2-14(1998)).

77. Id (quoting iND. CODE § 32-3-2-14 (1993) (recodified at Ind. Code § 32-3-2-14 (1998))

(Probate Code Study Comm'n Introductory Cmts.) (emphasis added)).

78. Id. (emphasis added).

79. Id (quoting iND. CODE § 32-3-2-11 (1993) (recodified at iND. CODE § 32-3-2-11

(1998)).

80. Id. (emphasis added). '

81. Id .



1999] PROPERTY LAW 983

disclaimer was not recorded."^^ The court noted that "the disclaimer statute is
designed to give constructive notice to third-parties^^^^ . . . [and that] [a]s a

general rule, a party to a deed, mortgage or other instrument concerning an

interest in real estate is bound by the instrument whether or not it is recorded."^"*

Thus, the Books could not rely on technical compliance with the disclaimer

statute to render their disclaimer of the prescriptive easement unenforceable.

In rendering its decision in Book, the court distinguished the holding from

Popp V. Hardy,^^ that "a quiet title decree was not res judicata against a party not
joined in the quiet title action."^^ The Books relied on this case in arguing that
the disclaimer should not be enforced, as they were not specifically named in the
1989 quiet title action brought by the Swopes, in connection with which the

disclaimer was executed.*^ In distinguishing Popp from the present case, the
court noted that "the Books voluntarily relinquished their interest in the
easement. With the disclaimer in hand, the Swopes had no reason to make the
prescriptive easement an issue and join the Books, who had denied having any
claim or interest in the property."^^ In addition, the court noted that Hester did

not argue that the Books' lawsuit was barred by the Swopes' quiet title decree,
but rather that it is barred "by virtue of their disclaimer."*^ Therefore, the court

found Popp distinguishable and affirmed the trial court's ruling against the
Books.''

III. Eminent DOMAIN

The acquisition of land by eminent domain is governed in Indiana by
statute.'* Any objection by a landowner to the appropriation and condemnation
of land by eminent domain must be made in the manner specified by the statute.
Section 32-1 1-1-5 ofthe Indiana Code provides the following:

Any defendant may object to such proceedings on the grounds that the
court has no jurisdiction either ofthe subject-matter or of the person, or

that the plaintiff has no right to exercise the power of eminent domain
for the use sought, or for any other reason disclosed in the complaint or

set up in such objections. Such objections shall be in writing, separately

stated and numbered, and shall be filed not later than the first appearance

of such defendant; and no pleadings other than the complaint and such

statement or objections shall be allowed in such cause, except the answer

82. Id.

83. Id. (citing Mclntyre v. Baker, 660 N.E.2d 348, 352 (Ind. Ct App. 1996)).

84. Id (citing Blair v. Whitaker, 69 N.E. 182 (Ind. App. 1903)).

85. 508 N.E.2d 1282 (Ind. Ct. App. 1987).

86. BooK 695 N.E.2d at 601 (citing Popp, 508 N.E.2d at 1287).

87. See id.

88. Id

89. Id

90. Id

91. Ind. Code §§ 32-1 1-1-1- to -13 (1998).



984 INDIANA LAW REVIEW [Vol. 32:973

provided for in section 8 of this chapter: provided, that amendments to
pleadings may be made upon leave of court.^^

In Maharis v. Orange County^^ the Indiana Court of Appeals demonstrated
the harsh effects of the above statutory provision resulting from a failure to

strictly comply with the provision's terms. Orange County filed a complaint for
Appropriation of Real Estate against Maharis in an effort to obtain a portion of

Maharis' land for a bridge improvement project. A summons and notice was
issued to Maharis on May 10, 1995.^'* Maharis failed to respond to the summons
and an Order of Appropriation and Appointment of Appraisers was entered on
June 5, 1995.^^ The Order, however, was set aside on June 8, 1995, because the
May summons and notice were returned unclaimed.^^ Because all previous
attempts to serve the summons and notice were unsuccessful, Summons by
Publication was issued on July 13, 1995, which required a response by August

31, 1995.^^ Two days before the deadline, Maharis' attorney filed an appearance
and moved for an extension oftime to respond. This motion was denied and an
Order ofAppropriation ofReal Estate and Appointment ofAppraiser was entered
on September 1, 1995.^^

On October 10, 1995, Maharis filed an answer to the complaint that included
numerous affirmative defenses, a counterclaim against Orange County, and a
demand for trial by jury. On October 26, 1995, Orange County filed a motion to
strike all of Maharis' filings because they were not filed in accordance with the

provisions of the condemnation statute. The trial court granted the motion to
strike.^^

In affirming the trial courts' decision, the court of appeals explained that the

acquisition of land via eminent domain is governed by statute and that "all

objections to the appropriation and condemnation of land . . . must be filed 'not

later than the first appearance of such defendant. "'^°^ The court explained that
Maharis' objections should have been filed with the appearance, but were

incorrectly filed in other pleadings.^^^ Thus, the court found that "Maharis [had]

not preserved any error for appeal on [the] issues" and that the "trial court did not

err in striking Maharis' pleadings that were not allowed under the eminent

domain statute."^^^

92. M§ 32-11-1-5.
93. 685 N.E.2d 1131 (Ind. Ct App. 1997).

94. Seeid.2X\U2.

95. See id.

96. See id.

97. See id

98. See id.

99. 5ee/^. at 1132-33.

100. Id (quoting iND. CODE § 32-11-1-5 (1993) (recodified at iND. CODE § 32-11-1-5

(1998))).

101. Id

102. Id
•



1999] PROPERTY LAW 985

In Lehnen v. State,^^^ the court of appeals highlighted the time limits for
filing exceptions to a report of appraisal and the "due process" requirements of

an eminent domain proceeding. The State of Indiana filed a complaint for
appropriation of a portion of Leynen's real estate for the purpose of

improvements to U.S. Route 23 1 . The lower court appointed three appraisers to

assess the damages that would be sustained by the landowner.^^'^ The report set
damages at $129,984. Lehnen and the State ofIndiana, however, filed exceptions

to the report.
^^^

On September 27, 1995, the State of Indiana filed a second amended
complaint, which reflected changes in the construction plans for the highway.

The trial court appointed three appraisers to assess the damages sustained by the
landowner. ^^^ Damages were assessed in a new report at $166,000. Lehnen filed
no exceptions to the report. Based on the absence of exceptions, judgment was
entered on behalf of the landowner in the amount of $166,000.'°^ On June 3,
1996, Lehnen filed a motion to vacate the judgment, alleging mistake, surprise

and excusable neglect for failure to file exceptions to the appraisal report. The
motion was denied.

^^^

In affirming the lower court's decision, the Indiana Court of Appeals stated

that in regard to a report of appraisal, either or both parties may file exceptions
to the appraisal within twenty days of the report of appraisal being filed.

^°^

"Compliance with all the provisions relating to the assessment of damages and

their recovery is essential.""*^ The court explained that the landowner considered

the filing of exceptions unnecessary regarding the second report because

exceptions were filed regarding the initial report of appraisal.^'' However, the

court stated that "[sjhould a new appraisement be granted by the court ... it will
be open to the same proceedings as a first one would be.""^ Thus, the landowner

was required, by statute,''^ to file exceptions to the second appraisal report within

103. 693 N.E.2d 580 (Ind. Ct. App. 1998).

104. SeeidaXSSl.

105. See id

106. See id

107. See id.

108. See id

109. Id at 582. Indiana Code section 32-1 1-1-8 states:

Any party to such action, aggrieved by the assessment of benefits or damages, may file

written exceptions thereto in the office ofthe clerk of such court in vacation, or in open

court if in session, within twenty (20) days after the filing of such report, and the cause

shall further proceed to issue, trial and judgment as in civil actions; the court may make

such further orders, and render such findings and judgments as may seem just.

Ind. Code § 32-1 1-1-8 (1993) (recodified at Ind. Code § 32-1 1-1-8 (1998)).

1 10. Lehnen, 693 N.E.2d at 582.

HI. Id

112. Id (citing Swinney v. Fort Wayne & Cincinnati Ry. Co., 59 Ind. 205, 218 (1877)).
113. IND. CODE § 32-1 1-1-8 (1993) (recodified at iND. CODE § 32-1 1-1-8)).



986 INDIANA LAW REVIEW [Vol. 32:973

twenty days ofthe report being filed.""* The court concluded that because neither
party filed exceptions, the trial court did not abuse its discretion in approving the

appraisal report."^

The landowner further argued that he was denied his "due process" rights
because the report failed to inform him of his statutory right to file exceptions
within the twenty day time period. He argued that his constitutional rights of
notice were not met because the report is to be treated as a complaint, and as
such, must provide adequate notice."^

The court disagreed with the landowner's contentions. The court stated that
in the context of an eminent domain proceeding, the report and the exceptions
serve to establish that only the issue of damages is to be tried.' '^ The court
concluded that "the report of the appraisers is not a complaint for purposes of

notice to the landowners and that Lehnen received adequate notice of the
proceedings to satisfy due process.""^

The Indiana Court of Appeals further addressed issues relating to appraisal
reports in Daugherty v. State}^^ On March 16, 1995, the State of Indiana
commenced an eminent domain action against Daugherty for real estate located
in Knox County. The State offered Daugherty $1300 for the property. After the
landowner rejected the State's offer, the State filed a complaint for appropriation

of real estate.
'^°

The lower court entered an order of appropriation and appointment of
appraisers.'^' The appraisers filed their report, which appraised the damage to
the landowner at $4500. The State filed exceptions to the report based on the
following: "[The report] overstated the damages to the residue of Daugherty's
property, understated the value of the benefits to the residue, and overstated the

amount ofjust compensation due to Daugherty."'^^
On April 18, 1997, the State withdrew its exceptions and moved for an entry

ofjudgment. Because the landowner had not entered any exceptions, the lower

court granted the State's Motion for Judgment and ordered the State to pay $4500

to Daugherty.
'^^

The sole issue on appeal was whether the trial court erred in permitting the
State of Indiana to unilaterally withdraw its exceptions to the appraisal report.

'^"^

In affirming the lower court's decision, the Indiana Court of Appeals analyzed

1 14. See Lehnen, 693 N.E.2d at 582.

115. Id.

1 16. See Best Realty Corp. v. State, 400 N.E.2d 1204, 1206 (Ind. Ct. App. 1980).

1 17. Lehnen, 693 N.E.2d at 582.

118. Id.

1 19. 699 N.E.2d 780 (Ind. Ct. App. 1998).

120. SeeiddHnX.

121. See id.

122. Id

123. See id.

124. Id



1999] PROPERTY LAW 987

Indiana case law regarding the issue. ^^^ The court noted that an exception had

been established to the general rule that stated that by dismissing his own
exceptions, a party may preclude others from litigating/^^ In State v. Blount, the
court found that "it is unnecessary that a land-owner file exceptions as a

condition precedent to his right to recovery, if exceptions have been filed by the
\

condemning party."'^^ In making this decision, "the trial court noted that Blount
j

had invested both significant time and effort in preparing for trial and it would
j

have been unfair to allow one party to unilaterally withdraw its exceptions."
^^^

I

After reviewing Blount and subsequent decisions, the court concluded that:

"a party does not have an absolute right to withdraw exceptions to the appraisers'
j

report; rather, the withdrawal of exceptions is subject to the trial court's
j

discretion."^^^ Based on the facts of the instant case, the court concluded that the
]

trial court did not abuse its discretion in allowing the withdrawal and that the ^

lower court properly granted the State's motion for judgment.
^^^

In Jenkins v. Board ofCounty Commissioners, ^^^ the court of appeals was
faced with an inverse condemnation proceeding. In this case, a roadway was
altered to eliminate a double T-intersection thereby allowing traffic to proceed

straight on the roadway without the necessity of making a tum.*^^ Utilizing the
power of eminent domain, the Board of County Commissioners of Madison
County (the "Board") acquired property from the Appellant-Plaintiffs neighbor

to accomplish the project. ^^^ After the construction was complete, approximately

675 feet of the roadway was no longer adjacent to the Appellant-Plaintiffs
|

property.
^^"^ The Appellant-Plaintiff filed a Complaint for Inverse Condemnation !

claiming a loss of ingress and egress, road frontage, and comer influence.^^^ The
lower court ruled in favor of the Board. In ruling for the Board, the lower court

\

concluded that 1) "the removal of the road bed represented a seventeen percent
\

(17%) loss of total road frontage[,]" 2) "there was no substantial and material ]

125. Id.dXm.

126. Id. (citing State v. Blount, 290 N.E.2d 480 (Ind. App. 1972)).

127. Blount, 290 N.E.2d at 483-84.

128. Dougherty, 699 N.E.2d at 782 (citing Blount, 290 N.E.2d at 483).

129. Id. The court explained that the factors to be used in the determination include:

[T]he length of time between the filing of the appraisers' report and the motion to

withdraw, whether the withdrawing party is attempting to do so on the eve of the trial,

whether the withdrawing party and trial court have been put on notice of the other

party's dissatisfaction with the report, either that be through the filing of belated

exceptions or otherwise, and the extent of trial preparation which has already occurred,

including the securing of expert witnesses and the extent of discovery.

Mat 783.
130. Id

131. 698 N.E.2d 1268 (Ind. Ct. App. 1998).

132. Id at 1270.

133. Id

134. Id

135. Id



988 INDIANA LAW REVIEW [Vol. 32:973

interference with Jenkins' rights of ingress and egress[,]" and 3) there was no
'compensable taking.

"'*^^

The issue on appeal was whether the trial court erred in determining that the
Appellant-Plaintiffs property had not been "taken."^^^ In affirming the lower

court's decision, the court explained that "[i]t has long been recognized that the

right of ingress and egress is a property right which cannot be taken without
compensation."^^* A "taking" ofproperty includes "any substantial interference
with private property which destroys or impairs one's free use and enjoyment of

the property or one's interest in the property."'^^ The trier of fact, the court
explained, resolves the question of whether the interference is substantial.

^"^^

The court determined that the evidence supported the trial court's decision.
The court explained that "[a]t most the record demonstrates that [the Appellant-
Plaintiff] was inconvenienced in obtaining access to his property. ... A property
owner is not entitled to unlimited access to abutting property at all points along
the highway."^"** In addition, the court stated that the "fact that ingress and egress

is made more circuitous and difficult does not itself constitute a taking of private
property."'"*^ The court concluded by stating that "[w]here, as here, there has
been no taking the question is whether the action of the governmental entity
diminished the value of the property in its present use. . . . There is no evidence

that as farmland the value of [the Appellant-Plaintiffs] property has been

reduced by reason of the relocation of [the roadway].
"^"^^

IV. Landlord AND Tenant

A. Security Deposits Statute

When drafting the Indiana Security Deposits Statute,^'*'* the Legislature
confined the purposes for which a landlord may use a security deposit to the
following:

(1) To reimburse the landlord for actual damages to the rental unit or any
ancillary facility that are not the result of ordinary wear and tear

expected in the normal course of habitation of a dwelling.

(2) To pay the landlord for all rent in arrearage under the under the rental
agreement, and rent due for premature termination of the rental

agreement by the tenant.

136. Id.

137. Id.

138. Id

139. Id (citing Board of Comm'rs v. Joeckel, 407 N.E.2d 274, 278 (Ind. Ct. App. 1980)).

140. Id

141. Id. at 1271 (citing State v. Ensley, 164 N.E.2d 342, 348 (Ind. I960)).

142. Id

143. Id at 1271-72.

144. Ind. Code §§ 32-7-5-1 to -19 (1993) (recodified at Ind. Code §§ 32-7-5-1 'to -19

(1998)).



1999] PROPERTY LAW 989

(3) To pay for the last payment period of a residential rental agreement
where tfiere is a written agreement between the landlord and the tenant

that stipulates the security deposit will serve as the last payment of rent

due.

(4) To reimburse the landlord for utility or sewer charges paid by the
landlord that:

(A) are the obligation of the tenant under the rental agreement; and

(B) are unpaid by the tenant.''*^

The Legislature also provided a notice requirement within the statute that
states:

In case of damage to the rental unit or other obligation against the
security deposit, the landlord shall mail to the tenant, within forty-five

(45) days after the termination ofoccupancy, an itemized list ofdamages

claimed for which the security deposit may be used as provided in
section 13 ofthis chapter, including the estimated cost of repair for each

damaged item and the amounts and lease on which the landlord intends
to assess the tenant. The list must be accompanied by a check or money
order for the difference between the damages claimed and the amount of

the security deposit held by the landlord.
'"^^

During the survey period, three cases were decided by the Indiana Court of

Appeals highlighting various provisions of the Indiana Security Deposits Statute,

particularly the above limited purposes provision and notice requirement. In

Deckard Realty & Development v. Lykins,^^'' a. landlord brought an action against
four tenants for unpaid rent and damages to a house.^"*^ The tenants, students at
Indiana University, entered a one-year lease and secured the lease with an $850

deposit.
^"^^ Upon application for the lease, the landlord's agent wrote down the

address of one of the tenants and placed the address in the rental file.^^° Later,

after an inspection in which the landlord discovered that marijuana was being
grown throughout the house, the landlord requested that the tenants vacate the
premises immediately.^^'

The sole issue presented to the court of appeals for review was whether the
landlord's knowledge of one of the four tenant's addresses was adequate notice
ofthe tenants' forwarding address as required by the Indiana Security Deposits

Statute.'^^ In addressing the landlord's liability under the statute, the court of

145. Id § 32-7-5-13.

146. Id. § 32-7-5-14.

147. 688 N.E.2d 1319 (Ind. Ct. App. 1997).

148. See id

149. See id at \320.

150. See id

151. See id at \320-2\.

152. Id. at 1321. The statute provides the following: "The landlord is not liable under this

chapter until supplied by the tenant in writing with a mailing address to which to deliver the notice



990 INDIANA LAW REVIEW [Vol. 32:973

appeals stated that "a tenant must show that he provided the landlord with a
written record of an address, which was intended to be his forwarding
address."'^^ If an address is provided, the landlord is required to provide to the

tenants an itemized list of damages within forty-five days of the termination of
the tenants' occupancy.'^'* Failure to do so "constitutes an agreement by the
landlord that no damages are due."^^^ The court of appeals concluded that three
of the tenants had not supplied the landlord with their forwarding address and

that a material issue of fact remained as to whether the one address supplied to

the landlord was intended to be the fourth tenant's forwarding address. '^^

In Greasel v. Troy}^^ the Indiana Court of Appeals addressed the statutory
notice requirement ofthe Indiana Security Deposits Statute.^^^ In Greasel, after
the tenant had vacated the premise at the lease expiration, the landlord performed

an inspection of the house and detected a strong pet odor that necessitated

replacement of the carpet.'^^ As required by statute, the landlord provided the
tenant with an itemized statement of damages that included a listing for the
estimated cost of carpet replacement.^^° The tenant filed suit in small claims
court for return of the security deposit. The landlord filed a counterclaim for
damages plus costs, interest, and attorney fees.'^^ On September 30, 1996, the
lower court entered judgment in the landlord's favor for which the landlord

received the $1000 security deposit, $400 in damages, and $700 in attorney

fees.^"'

In Greasel, the dispute centered on whether the landlord complied with the

statutory notice requirement of the Indiana Security Deposit Statute. In her

statement of damages, the landlord listed the carpet damage from the pet odor,
as well as other items that she did not consider acceptable. ^^^ The other items
listed, however, were not assigned an estimated cost.^^"* In deciding that the

notice was sufficient, the court stated that the "purpose of the notice provision
is to inform the tenant that the landlord is keeping the security deposit and for

and amount prescribed by this subsection." IND. CODE § 32-7-5- 12(a)( 1993) (recodified at IND.

Code § 32-7-5-12(a) (1998)).

153. Deckard Realty & Dev. , 688 N.E.2d at 1 322. The court further noted that a "landlord
is not liable for failing to itemize its damages until the tenant has supplied the landlord with an

address to deliver the required notice." Id. at 1322 n.3.

154. See id at 1321 (citing iND. CODE § 32-7-5- 12(a)(3) & (14)).
155. Id (citing iND. CODE § 32-7-5-15 (1993) (recodified at iND. Code § 32-7-5-15 (1998)).

156. Mat 1322.
157. 690 N.E.2d 298 (Ind. Ct. App. 1 997).

158. See iND. CODE § 32-7-5-14 (1993) (recodified at iND. CODE § 22-1-5-14 (1998)).

159. See id at 301.

160. See id.

161. See id.

162. See id

163. See id. at 302.

164. See id



1 999] PROPERTY LAW 99

1

what reason." '^^ The court further stated that such notice gives the tenant the
opportunity to challenge the costs for which the deposit was used by the
landlord. *^^ The court noted that the landlord's failure to assign cost estimates
to the other items did not render the statement insufficient under the statute

because she made no claim for damages other than the carpet at trial.'^^ If
provided for in the lease agreement, "other items" may even include attorney
fees.''«

In Pinnacle Properties v. Saulka,^^^ tenants filed a complaint seeking the

return of their $2500 security deposit.'^° The trial court entered judgment in
favor of the tenants.'^* On appeal, the first issue involved whether security
deposits could be used by landlords for certain purposes. ^^^ As highlighted
above, security deposits may only be used by landlords for limited purposes. ^^^

The landlord's damage report sent to the tenants listed the following charges
against the tenant's security deposit: 1) cleaning/trash out, $558; 2) carpet

cleaning, $180.40; 3) carpet replacement, $550; 4) painting, $700; 5) other

damages, $670; 6) unpaid rent, $330.64.'^^

In deciding that the itemized list was not in compliance with the statute, the
court stated that "the Security Deposits Statute . . . must be strictly construed."

^^^

The court stated that a landlord "cannot merely itemize and include the estimated
cost of repair for some items and then arbitrarily lump together 'other damages'
leaving the tenant unable to discern for what purpose his security deposit is being

retained and whether such charge is proper or reasonable."^^^ The court
concluded that the landlord's failure to comply with the notice provision

"constitutes an agreement that no damages are due.'"^^ The tenants were
refunded their security deposit and were awarded attorney fees pursuant to the

statute.
^"^^

165. Id (citing Meyers v. Langley, 638 N.E.2d 875, 878 (Ind. Ct App. 1994)).

166. Id

167. Id, In fact, the court noted that the landlord's compliance with the statutory notice

requirement "preserves her right to recover 'other damages' beyond the amount of the security

deposit to which she is entitled." Id. (quoting Miller v. Geels, 643 N.E.2d 922, 925 (Ind. Ct. App.

1994)).

1 68. Section 32-7-5-1 2-(c) ofthe Indiana Code provides that "[t]his section does not preclude

the landlord or tenant from recovering other damages to which either is entitled." iND. CODE § 32-

7-5- 12(c) (1993) (recodified at iND. Code § 32-7-5- 12(c) (1998)).
169. 693 N.E.2d 101 (Ind. Ct. App. 1998).

170. Id at 103.

171. See id

172. Id

173. See iND. CODE § 32-7-5-13 (1998).

1 74. See Pinnacle Properties, 693 N.E.2d at 1 04.

175. Id (citing Miller v. Geels, 643 N.E.2d 922, 927 (Ind. Ct. App. 1994)).

176. Id

177. Id See iND. CODE § 32-7-5-15 (1998).

1 78. The Indiana statute provides the following in regard to attorney fees:



992 INDIANA LAW REVIEW [Vol. 32:973

B. Landlord Duty ofCare

Under traditional Indiana law, a landlord covenants to a tenant to 1) deliver
possession ofthe premises on the first day of the lease, 2) not interfere with the
tenant's quiet enjoyment of the premises, and 3) provide habitable premises.

^^^

The Indiana Court of Appeals in Smith v. Standard Life Insurance Co. of
Indiana,^^^ addressed various aspects of a landlord's duty of care owed to a
tenant. In Smith, an employee slipped and fell on an icy sidewalk outside of her
place ofemployment. The employee filed a complaint for negligence against the
owner and lessor of the premises. ^^' The lower court entered summaryjudgment
for the owner and lessor ofthe premises. ^^^

The primary issue on appeal was whether an employee of a tenant qualifies
as a "third person" under the public use exception to the general rule of non-

liability for landlords. '^^ In deciding that the lower court did not err in granting

summaryjudgment for the landlord, the court addressed whether the landlord had
a duty to the employee of the tenant under either the general rule of non-liability

for landlords or the public use exception.
^^'^

Under the general rule of non-liability for landlords, the law is settled
regarding a landlord's duty of reasonable care. The landlord's duty can be stated

A landlord who fails to provide a written statement within forty-five (45) days of
termination of the tenancy or the return of the appropriate security deposit is liable to

the tenant in an amount equal to the part of the deposit withheld by the landlord, plus

reasonable attorney's fees and court costs.

IND. CODE § 32-7-5-16 (1998).

179. See generally Avery v. Dougherty, 2 N.E.2d 123 (Ind. 1985); Kostuck v. Vincent D.,

684 N.E.2d 573 (Ind. Ct. App. 1997); Voss v. Capital City Brewing Co., 96 N.E. 1 1 (Ind. App.

1911). In Bradtmiller v. Hughes Properties, Inc., 693 N.E.2d 85 (Ind. Ct. App. 1998), a tenant

sued a landlord for negligence after being attacked and assaulted in the apartment building parking

lot. In deciding that the landlord did not have a duty to protect the tenant, the court explained that

"the mere relationship of landlord and tenant did not impose upon [the landlord] a legal duty to

protect [the tenant] against the intentional criminal acts of unknown third parties. Foreseeability

ofthe type of harm is required and, here, criminal activity was not a reasonably foreseeable risk."

Id. at 90.

180. 687 N.E.2d 214 (Ind. Ct. App. 1997).

181. Seeid.dX2\e.

182. See id

183. Id

184. Id. at 217-19. The public use exception was explained as follows:

Where premises are leased for public or semi-public purposes, and at [the] time of

lease[,] conditions exist which render premises unsafe for purposes intended, or

constitute a nuisance, and landlord knows or by exercise of reasonable care ought to

know of conditions, and a third person suffers injury on account thereof, landlord is

liable, because [the] third person is there at invitation of landlord, as well as of tenant.

Id at 217 (quoting Walker v. Ellis, 129 N.E.2d 65, 73 (Ind. App. 1955)).



1999] PROPERTY LAW 993

as follows:

[A]s a general rule, in the absence of statute, covenant, fraud or

concealment, a landlord who gives a tenant full control and possession
of the leased property will not be liable for personal injuries sustained

by the tenant or other persons lawfully upon the leased property.
Generally, once possession and control of property have been

surrendered, a landlord does not owe a duty to protect tenants from
defective conditions.

^^^

In Smith, the landlord had relinquished complete possession and control of

the premises in favor of the tenant. The tenant was responsible for the
maintenance and repair ofthe premises, and employees ofthe tenant removed the

snow and ice from the sidewalks. Based on these facts, the court determined
that under the aforementioned general rule, the landlord did not owe the tenant's
employee any type of duty.

'^^

In order for the public use exception to apply, the court of appeals explained

that the employee must provide evidence to support the following:

(1) the property was leased for a public purpose, (2) a condition existed
at the time of the lease which rendered the premises unsafe and the

landlord knew or should have known of the condition by the exercise of
reasonable care, and (3) a third person was injured because of the
existing condition.

*^^

In determining the applicability of the public use exception to Smith's

scenario, the court explained that the dispositive issue is whether the employee

qualifies as a "third person."'^^ The court noted that a landlord may be "liable
to a 'third person' when the property is leased for public use because the third
person is there at the invitation of both the landlord and the tenant."'*^ However,

in ruling that summary judgment was appropriate, the court concluded that the
employee did not qualify as a "third person" under the public use exception
because: 1) the lease gave the tenant complete possession and control; 2) the

employee was on the premises at the time of her injury; and 3) the employee was

185. Id. at 217 (quoting Rogers v. Grunden, 589 N.E.2d 248, 254 (Ind. Ct. App. 1992)

(citations omitted)).

186. Id.

1 87. Id. at 217-18. The court explained that the definition of a "third person" on business

premises is found in the second Restatement of Torts which states:

"Third persons' include all persons other than the possessor of the land, or his servants

acting within the scope of their employment. It includes such servants when they are

acting outside of the scope of their employment, as well as other invitees or licensees

upon the premises, and also trespassers on the land, and even persons outside ofthe land

whose acts endanger the safety of the visitor."

Id. at 218 (quoting RESTATEMENT (SECOND) OF Torts § 344 cmt. b (1965)).

188. Id

189. Id (citing Walker v. Ellis, 129 N.E.2d 65, 73 (Ind. App. 1955)).



994 INDIANA LAW REVIEW [Vol. 32:973

clearly acting within the scope of her employment at the time of the injury.'^

V. Life Estates

In Nelson v. Parker,^^^ the Indiana Supreme Court overruled earlier authority
regarding the creation ofa life estate. Earlier case law^^^ upheld the common law
rule that "a grantor could reserve an interest only for the grantor, but not for a

third person, or 'stranger' to the deed. Words of reservation were not considered
to be words of 'grant' and so could not create an interest in another."^^^ In an
opinion written by Justice Boehm, the court in Nelson found that a warranty deed
that was "subject to a life estate" in the grantor's habitat created a valid life
estate, contrary to earlier precedent,

^^'^

The sole issue for the supreme court was whether a deed "subject to a life
estate" in a third party created a valid life estate. '^^ In the case, Russell Nelson

died three months after executing a warranty deed containing the following

language:

Convey and Warrant to
RUSSELL H. NELSON, DURING HIS
LIFETIME AND UPON HIS DEATH, SHALL
PASS TO DANIEL NELSON.

SUBJECT TO: EASEMENTS, LIENS,
ENCUMBRANCES, LIFE ESTATE IN
IRENE PARKER, AND RESTRICTIONS
OF RECORD.'"'

Irene Parker, the individual subject to the life estate, had lived with Mr.

Nelson for thirteen years prior to his death. Ms. Parker remained on the property

after Mr. Nelson's demise. In 1994, Daniel Nelson, Russell Nelson's son,

initiated an action to eject her based on the fact that no life estate had been

effectively granted.'^ Tlie lower court ruled in favor of Ms. Parker, fmding that

Russell Nelson "had intended to create a life estate in Parker."'"*

The court of appeals affirmed the judgment for Ms. Parker based on the
grantor's intent. The court analyzed and rejected the common law rule upheld
in Ogle V. Barker}^ In rejecting earlier precedent, the court of appeals noted

190. Id.

191. 687 N.E.2d 1 87 (Ind. 1 997).

192. Ogle V. Barker, 68 N.E.2d 550 (Ind. 1946).

193. Nelson, 687 N.E.2d at 188.

194. /c/. at 187.

195. Id.

196. /rf. (emphasis added).

197. See id.

198. Id

199. 68 N.E.2d 550 (Ind. 1946); see Nelson, 687 N.E.2d at 188.



1999] PROPERTY LAW 995

that "the common law rule was derived from efforts, dating back to feudal times,
to limit conveyance by deed as a substitute for livery by seisen."^^^

In affirming the lower court's decision, the Indiana Supreme Court stated that

"the common law rule upheld in Ogle serves no practical purpose today."^^^ The
decision to override earlier precedent, the court noted, is in line with scholarly

opinion and several other jurisdictions.^°^ The court was "not persuaded that the

public policy promoting settled rules requires adherence to a vestige of ancient

conveyancing law that has only pernicious efforts. To the extent Ogle holds
otherwise, it is overruled."^^^

VI. Joint Tenancy and Tenancy in Common

Under established Indiana law, the Indiana Joint Tenancy Statute^^"* governs

the ownership rights incident to property held by two or more persons. A joint
tenancy represents a "single estate in property owned by two or more persons
under one instrument or act."^^^ The requirements that must exist for a joint
tenancy to be found include: "1) The tenants must have one and the same
interest; 2) the interests must accrue by one and the same conveyance; 3) the
interests must commence at one and the same time; and 4) the property must be
held by one and the same undivided possession."^^^ This statute "preserves the
nineteenth century preference for tenancy in common."^^^

Under settled Indiana law regarding tenancy in common, an owner in
common ofpersonal property is permitted to sell his undivided interest; however,
he is not permitted to sell or dispose of the entire property with being granted

200. Nelson, 687 N.E.2d at 1 88.

201. /c/. at 189.

202. Id. (citing Aszmus v. Nelson, 743 P.2d 377 (Alaska 1 987); Borough of Wildwood Crest

V. Smith, 509 A.2d 252 (N.J. Super. Ct. App. Div. 1986); Malloy v. Boetcher, 334 N.W.2d 8 (N.D.

1983); Simpson v. Kistler Inv. Co., 713 P.2d 751 (Wyo. 1986); Roger A. Cunningham ET AL.,

The Law of Property § 10.11, at 719 (1984); 14 Richard R. Powell, Powell on Real
Property ch. 81 A, at 1 19-22, 122 para. 899[3][g] (1997)).

203. Id. at 190.

204. IND. Code § 32-4-1.5-15 (1998). The statute provides:

Personal property, other than an account, which is owned by two (2) or more persons

is owned by them as tenants in common unless expressed otherwise in a written

instrument. However, household goods acquired during coverture and in possession of

both husband and wife, and any promissory note, bond, certificate of title to a motor

vehicle, or any other written or printed instrument evidencing an interest in tangible or

intangible personal property, other than an account, in the name of both husband and

wife, shall upon the death of either become the sole property of the surviving spouse

unless a clear contrary intention is expressed in a written instrument.

Id

205. Poulson v. Poulson, 691 N.E.2d 504, 506 (Ind. Ct. App. 1998) (citations omitted).

206. Id (citing Richardson v. Richardson, 98 N.E.2d 190, 192-93 (Ind. App. 1951)).

207. Id



996 INDIANA LAW REVIEW [Vol. 32:973

authority to do so by his cotenants.^^^ Further, when an owner in common
"converts the whole to his own exclusive use or does something equivalent to an
utter denial of the rights of his co-ovmer, he becomes liable to such co-owner for
the injury thereby inflicted."^^^

In Poulson v. Poulson, the Indiana Court of Appeals, during the survey
period, had the opportunity to address the ownership rights of jointly held
property of spouses after a dissolution of marriage.^^^ The Poulsons were
married in April 1979. The couple separated on October 21, 1991, and the wife
filed a petition for dissolution of marriage on October 25, 1991. The marriage
was dissolved by court order on July 22, 1992, and the marital assets were
distributed pursuant to the marital settlement agreement of the parties.^^^

In August 1996, the ex-wife filed a Rule to Show Cause alleging that the ex-
husband had disposed of a 1966 dune buggy that was jointly owned by each and
had failed to pay the ex-wife one-half of the value of the asset. After a hearing

on the issue, the lower court found for the ex-wife and ordered that the ex-

husband pay $500 to the ex-wife, which represents one-half of the value of the
asset.^'^

On appeal, the sole issue involved whether the lower court abused its
discretion in awarding the ex-wife one-half the value of the asset. The ex-
husband argued that the lower court incorrectly modified the original dissolution

decree by awarding the ex-wife one-half the value of the asset.^^^ The ex-wife,
however, maintained that the Indiana Joint Tenancy Statute does not apply. She

argued that "since the parties held the property as tenants by the entirety during

their marriage, upon dissolution they became tenants in common by operation of
law."^^"^ Thus, she argued, she was entitled to one-half the value of the sold
asset.^^^

In affirming the lower court's decision, the Indiana Court of Appeals

explained that it "has long been held in this state that a final decree of dissolution

converts a tenancy by the entirety into a tenancy in common with both spouses
taking equal shares."^^^ However, the court explained that "it has also been held

that estates by entireties do not exist as to personal property except when such

208. See id. (citing Sims v. Dame, 15 N.E. 217, 219 (Ind. 1888)).

209. Id. (citing Sims, 15 N.E. at 219).

210. Mat 504.
211. See id 2X505.

in. Id

213. See iND. CODE § 31-1-1 1.5-17(b) (1993) (recodified at iND. CODE § 31-15-7-9.1 (1998)).

The court explained that this section "governs the modification of property disposition and states

that property disposition orders entered under final decrees may not be revoked or modified, except

in case of fraud which must be asserted within six years after the order is entered." Poulson, 691

N.E.2d at 505.

214. Pom/^ow, 691 N.E.2d at 505.

215. See id.

216. Id at 506 (citing iND. CODE § 32-4-2-2 (1993) (recodified at iND. CODE § 3^-4-2-2

(1998))).



1999] PROPERTY LAW 997

property is directly derived from real estate held by that title."^^^

Applying the Indiana Joint Tenancy Statute to the instant case, the court

found that the ex-wife and ex-husband had owned the dune buggy as joint tenants
with the right of survivorship, not tenants by the entirety? ^^ The court reasoned
that the individuals' joint tenancy status is dependant upon the continuation of

the marriage relation and that by statute, the law presumes that such property is

held by spouses as joint tenants.^^^ In this case, however, the court explained that

the evidence revealed that the asset, acquired during marriage and titled to both

spouses, was not disposed of in the original dissolution decree.^^° Upon the
dissolution of marriage and the failure of the property to be disposed of in the

divorce decree, the court explained that "the joint tenancy was severed and [the
spouses] became owners of the dune buggy as tenants in common with each
spouse sharing equally in the property."^^^ Thus, the court affirmed the lower

court's decision by concluding that because "Husband disposed of the dune

buggy without Wife's permission and failed to deliver any part of the value to
Wife, Wife was entitled to one-half the value of the dune buggy."^^^

VII. Water Rights

A. Common Enemy Doctrine

In Trowbridge v. Torabi^^^ the Indiana Court ofAppeals had the opportunity

to affirm that Indiana continues to adhere to the "common enemy doctrine." The
Indiana Supreme Court has encapsulated the doctrine as follows:

In its most simplistic and pure form the rule known as the "common
enemy doctrine," declares that surface water which does not flow in
defined channels is a common enemy and that each landowner may deal
with it in such manner as best suits his own convenience. Such
sanctioned dealings include walling it out, walling it in and diverting or

accelerating its flow by any means whatever.^^"^

217. Id. (citing Koehring v. Bowman, 142 N.E. 1 17, 1 18 (Ind. 1924)).

218. Id.

219. Id

220. Id at 507.

221. Id.

111. Id

223. 693 N.E.2d 622 (Ind. Ct. App. 1998).

224. Id at 627 (quoting Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982)). An

exception to the common enemy doctrine (or more accurately, a limiting principle to the doctrine)

was stated by the court in Pickett v. Brown: "[Olne may not collect or concentrate surface water

and cast it, in a body, upon his neighbor." 569 N.E.2d 706, 708 (Ind. Ct. App. 1991) (quoting

Argyelan, 435 N.E.2d at 976). See also Gene B. Click Co. v. Marion Constr. Corp., 331 N.E.2d

26, 31 (Ind. App. 1975) (stating that one "cannot, by means of drains and ditches, concentrate

surface water, and by that means carry it where it never flowed before, and discharge it onto a lower

land-owner to his damage").



998 INDIANA LAW REVIEW [Vol. 32:973

Therefore, under the common enemy doctrine, it is permissible "for a landowner
to improve his land in such a manner as to accelerate or increase the flow of
surface water by limiting or eliminating ground absorption or changing the grade
of the land."'''

Trowbridge involved a dispute among three owners of adjacent properties.
A pond is located on all three properties, but is principally located on property
owned by the Torabis. In 1995, the Torabis constructed a stone driveway across
the pond for the purpose of gaining access to a landlocked part of their property.
The Trowbridges and the Hamiltons (collectively "the Trowbridges") filed a
complaint, alleging that the construction of the driveway caused damage to their
property.''^ The Trowbridges based their claims for damages on theories of
nuisance and trespass.''^ The trial court granted summary judgment in favor of
the Torabis, finding that "the laws of property rights and water rights apply and

not the law of nuisance."''*

The court of appeals initially recognized the need to "classify" the water at
issue in the case, stating that "[d]ifferent 'water rights' attach depending on
whether water is classified as a private pond, a common private pond, a natural
watercourse, or mere surface water.""^ If the body ofwater at issue is classified

as surface water, then nuisance law would not apply.'^*^ However, if the body of
water is labeled a private pond, a common private pond, or a natural water
course, then nuisance law might apply.'^' The classification of the water at issue
in Trowbridge was particularly relevant because if it was classified as surface
water, the common enemy doctrine could apply to shield the Torabis from
liability for damage caused by the construction of the driveway.

The court held that the trial court's grant of summary judgment in favor of
the Torabis was erroneous in that genuine issues of material fact existed with
regard to whether the Torabis were liable for damage to the adjacent
properties.'^' Specifically, the court stated that "if the water involved is mere
surface water, then, pursuant to the common enemy doctrine, the Torabis are not
liable for the alleged damage . . . and the Trowbridges and Hamiltons may not
circumvent the well-settled laws pertaining to surface waters by characterizing

225. Pickett, 569 N.E.2d at 707; Trowbridge, 693 N.E.2d at 626 (citing Argyelan, 435 N.E.2d

at 973. See also Cioverleaf Farms, Inc. v. Surratt, 349 N.E.2d 731, 732 (Ind. App. 1976) (stating

that a landowner may improve his property so as to cause surface water to stand in unusual

quantities on other adjacent land).

226. See Trowbridge, 693 ^.E.2d3it 623-24.

227. See id at 624.

228. Id at 625.

229. Id at 626.

230. See id.

23 1

.

See id. The court in Trowbridge proceeded to define the terms "surface water," "pond,"

"private pond," and "natural watercourse," and also discussed the rights and liabilities of adjacent

landowners with respect to each classification. Id. at 626-28.

232. Mat 628.



1999] PROPERTY LAW 999

their cause of action as one based upon a nuisance."^" On the other hand, the
court continued, "if the water is a common private pond and not mere surface
water, then ... the Torabis may be liable for damages based upon a nuisance
theory . . . ."^^'* The court determined that factual issues existed that could not be
resolved on the present record, and therefore remanded the case to the trial

court.^^^

B. Ground Water Removal

In City of Valparaiso v. Defter^^^ the court of appeals addressed an issue of

first impression in Indiana. Defter addressed the issue of"whether a landowner's

right to remove ground water from his property shields him from liability for
subsidence damage to adjoining land caused by the water's removal."*^^^ In

Defter, landowners filed a lawsuit against the City of Valparaiso (the "City"), its

Board of Public Works, McMahon Associates, Inc., and Woodruff & Sons, Inc.
The landowners alleged that in the course of designing and constructing a sewer
lift station adjacent to their property, the defendants caused their land to

subside.^^^ The City filed a motion for summaryjudgment, which the lower court
denied. This interlocutory appeal followed.^^^

In affirming the lower court's decision, the Indiana Court of Appeals

explained that "[t]wo general theories have developed in the United States

regarding the ownership and use of ground water."^"*^ These theories include:

1) the English Rule, or the absolute dominion rule; and 2) the American Rule, or

the reasonable use rule.^"^^ The English Rule, "provides that ground water is part

of the land and the landowner has the absolute right to use the water as he

wishes. This absolute right allows the owner of land to remove ground water
regardless of the damage caused to neighboring property owners."*^"*^

The American Rule, on the other hand, "provides that where the rights of
others are affected by a landowner's use of ground water, his use is limited to a

'reasonable and beneficial use' or to 'some useful purpose connected with its

occupation and enjoyment. "'^*^ Thus, under the American Rule, the actual effect

that the use of ground water has on neighboring landowners is considered.^"*"*

Indiana is among only ten states that continue to follow some version of the

233. Id.

234. Id

235. Id at 629.

236. 694 N.E.2d 11 77 (Ind. Ct. App. 1998)

237. /J. at 1179.

238. 5ee It/, at 1178-79.

239. Mat 1178.
240. Id. at 1 179 (citation omitted).

241. See id.

242. Id. (citation omitted).

243. /rf. at 1180.

244. See id.



1 000 INDIANA LAW REVIEW [Vol. 32:973

English Rule.^"*^ After analyzing Indiana case law regarding the issue,^"*^ the court

"decline[d] to interpret Indiana's version of the English Rule in a manner which
would essentially place the right to remove ground water from one's property
above the right ofan adjoining landowner to the subjacent support of his land."^'*^

The court explained that its refusal to strictly follow the English Rule is
"bolstered by the clear trend in this state and in other jurisdictions toward
ameliorating the often harsh consequences which can result from strict
application of the English Rule."^"^^ The court held that "Indiana's law regarding
the ownership and use of ground water does not shield the City from liability for

subsidence damage caused by the City's removal of the water."^"^^

VIII. Zoning

During the survey period, a number of zoning cases reached the appellate
courts. Several cases involved appeals from decisions of various zoning

boards—some discussed the standard for reviewing those decisions,^^^ while
others assessed a party's standing to challenge a board's decision.^^^ In

245. See id. (citations omitted).

246. See Wiggins v. Brazil Coal & Clay Corp, 452 N.E.2d 958, 964 (Ind. 1983) (holding that
the right to the use of ground water does not extend to causing injury gratuitously or maliciously

to the nearby lands).

247. De/7er, 694N.E.2datll82.

248. Id.

249. Id. The court also addressed the applicability of the Indiana Tort Claims Act ("ITCA")

to the case. The court found that "the trial court properly denied the City's motion for summary

judgment based upon its claim of immunity under the ITCA." Id. at 11 83.

251. See Scott v. Marshall County Bd. of Zoning Appeals, 696 N.E.2d 884, 885 (Ind. Ct.

App. 1998) (stating that "[o]nly if the Board's decision is arbitrary, capricious or an abuse of

discretion should it be reversed" and recognizing that this places a "heavy burden" on a party

petitioning to overturn the Board's decision); Rush County Bd. of Zoning Appeals v. Ryse, 686

N.E.2d 186, 186-87 (Ind. Ct. App. 1997) (stating that "[w]hen reviewing a decision of the Board

of Zoning Appeals the trial court must determine if the board's decision was incorrect as a matter

of law" and "'[u]nless the Board's decision was illegal, it must be upheld'" (quoting Board of

Zoning Appeals v. Kempf, 656 N.E.2d 1201, 1203 (Ind. Ct. App. 1995))). The court in Scott held

that the board reasonably denied a property owner's request for special exception to construct and

operate a dog kennel on land zoned for agriculture. Scott, 696 N.E.2d at 887. The property owners

were already housing several dogs and neighbors had complained that noise from the dogs was

already a problem. See id.

252. See Robertson v. Board of Zoning Appeals, 699 N.E.2d 310, 315-16 (Ind. Ct. App.

1998) (holding that a grocery store owner did not waive the right to challenge standing of the

landowner and neighborhood association to challenge a board decision to grant a variance by failing

to object to standing during the initial hearing before the board). In Robertson, the court ultimately

found that both the landowner and the neighborhood association lacked standing to challenge the
r

board's granting of the variance. Id. at 3 16-17. See also City ofNew Haven v. Allen County Bd.

of Zoning, 694 N.E.2d 306, 312-13 (Ind. Ct. App. 1998) (finding that a city adjoining a landfill was'



1 999] PROPERTY LAW 1 00

1

Brownsburg Conservation Club, Inc. v. Hendricks County Board of Zoning
Appeals^^^ the court reviewed the board's revocation of a variance that had been

previously issued. The court explained that "[a] variance affords relief from the
enforcement of a zoning ordinance and permits use of property which the

ordinance otherwise forbids."^^"* The court then pointed out that while "the initial
grant or denial of a variance rests within the discretion of the board of zoning

appeals, a zoning board has no inherent authority to revoke a variance once

issued."^^^ However, the court continued, "because a zoning board is expressly

authorized to impose reasonable conditions when it first approves a variance, the
board has implied authority to revoke a variance if the conditions have not been

satisfied."^^^ The court held that the board "erred in failing to give the [property

owners] notice and an opportunity to be heard on the question of whether the

conditions for approval ha[d] been met" and also that the board "erred in failing

to enter findings of fact to support its decision."^^^ This case demonstrates the

care with which a zoning board must proceed when making the decision to
revoke a variance, given that a landowner may have invested substantial sums in
reliance on the variance.^^^

Other decisions handed down during the survey period discussed particular
uses of property. Some discussed whether particular uses were permissible given
local ordinances or zoning classifications,^^^ while others addressed the triggering

of use permit requirements given the particular language ofthe applicable zoning

ordinances.^^^ The court of appeals also addressed the constitutionality of fines

not an "aggrieved" party under the Planning and Development Act, and therefore lacked standing

to challenge the board's settlement of several lawsuits concerning the landfill's operations).

253. 697 N.E.2d 975 (Ind. Ct. App. 1998)

254. Id. at 977 (citing Hazel v. Metropolitan Dev. Comm'n, 289 N.E.2d 308 (Ind. App.

1972)).

255. Id. (citing Ash v. Rush County Bd. of Zoning Appeals, 464 N.E.2d 347, 350 (Ind. Ct.

App. 1984)).

256. Id (citing Schiehuser v. City of Seymour, 674 N.E.2d 1009, 1014 (Ind. Ct. App. 1996)).

257. Id at 978.

258. See Danaya C. Wright, Trains, Trails, and Property Law: Indiana Law and the Rails-

to-Trails Controversy, 31 iND. L. Rev. 753, 778-79 (1998) (discussing Schiehuser, 674 N.E.2d at

1009, and the procedural safeguards to landowners provided therein).

259. See Discovery House, Inc. v. Metropolitan Bd. ofZoning Appeals, 701 N.E.2d 577 (Ind.

Ct. App. 1998) (construing language of zoning ordinance and finding methadone treatment

facility's operations to be a "permitted use" under the ordinance); Board of Zoning Appeals v.

Leisz, 686 N.E.2d 935, 937-40 (Ind. Ct. App. 1998) (finding landlord's "nonconforming use" of

rental property to be permissible in that the use was legal when commenced and it was continuous

from the effective date of the applicable restrictive zoning ordinance).

260. See Brennan v. Board of Zoning Appeals, 695 N.E.2d 983 (Ind. Ct. App. 1998)

(construing definitions contained in zoning code and finding that use permit requirement was

triggered); Ad Craft, Inc. v. Board of Zoning Appeals, 693 N.E.2d 110 (Ind. Ct. App. 1998)
(interpreting language of ordinance requiring use permit for erection of sign, finding that "sign"

includes both the message and the frame or structure displaying the message, and holding that



1 002 INDIANA LAW REVIEW [Vol. 32:973

imposed on property owners for failure to comply with zoning ordinances.^^^
In Wallace v. Brown County Area Plan Commission^^^ the court was faced

primarily with a constitutional issue; however, the case involved an interesting

zoning ordinance. In Wallace, the Brown County Area Plan Commission and
Board of Zoning Appeals filed a complaint for injunctive relief against the
Wallaces seeking the removal of a neon sign from the window of the Wallaces'
restaurant in Nashville, Indiana.^^^ The Wallaces claimed that the ordinance
prohibiting neon signs amounted to an unconstitutional restriction of commercial

speech.'"'

The court proceeded with a discussion of commercial speech doctrine under
the framework of the U.S. Supreme Court's decision in Central Hudson Gas &
Electric Corp. v. Public Service Commission}^^ In finding the zoning ordinance

banning the use of neon signs constitutional, the court concluded that the

ordinance directly advanced the town's interests of safety and aesthetics, as
evidenced by the unique scenic and architectural characteristics of the town.'""
Further, the court held that the ban of neon signs was "no more extensive than
necessary to frirther the [t]own's interests in safety and aesthetics."'"^ The court
agreed with the trial court's statement that "'[o]ther reasonable alternatives are

open to the Wallaces, such as ground lighted signs which would not contrast with

the aesthetic aspects of the community the ordinance seeks to preserve.'"'"*
Therefore, the ordinance was upheld.

alteration of a sign triggers the requirement of obtaining a use permit).

26 1

.

See Ritz v. Area Planning Comm'n, 698 N.E.2d 386 (Ind. Ct. App. 1 998) (finding a fine

excessive in that it exceeded statutory authority and misinterpreted language of statute authorizing

the fine).

262. 689 N.E.2d 491 (Ind. Ct. App. 1998).

263. Mat 492.
264. See id.

265. Id. at 493-94 (discussing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n,
447 U.S. 557 (1980)). In Central Hudson, the Supreme Court set forth a four-part test for

determining the validity of government restrictions on commercial speech:

( 1 ) The First Amendment protects commercial speech only if that speech concerns

lawful activity and is not misleading. A restriction on otherwise protected commercial
speech is valid only if it (2) seeks to implement a substantial government interest, (3)

directly advances that interest, and (4) reaches no further than necessary to accomplish

the given objective.

Id. at 493 (citing Central Hudson Gas & Elec, 447 U.S. at 566; Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 507 (1981)).

266. Mat 493-94.
267. Mat 494.
268. M