Craig Newforth and Marcia Newforth v. Jason Bault

FILED
Mar 06 2019, 9:01 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael L. Carmin Ryan J. Vershay
Carminparker, PC A. Richard M. Blaiklock
Bloomington, Indiana Derek G. Raymond
Lewis Wagner, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Craig Newforth and Marcia March 6, 2019
Newforth, Court of Appeals Case No.
Appellants-Defendants, 60A05-1712-PL-2969
Appeal from the Owen Circuit
v. Court
The Honorable Elizabeth Cure,
Jason Bault, Special Judge
Appellee-Plaintiff. Trial Court Cause No.
60C02-1609-PL-343

Brown, Judge.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 1 of 20
[1] Craig and Marcia Newforth appeal the trial court’s order determining the extent

of an easement over some of their property. The Newforths raise two issues

which we restate as whether the judgment is clearly erroneous. We affirm.

Facts and Procedural History

[2] Jason Bault operates a mulch business and owns approximately five acres in

Owen County, Indiana (the “Bault Property”). State Road 43 is located along

the eastern boundary of the Bault Property. Bault also owns several parcels (the

“Northern Bault Parcels”) located north of the Bault Property. Checkered

Racing owns a parcel (the “Checkered Racing Parcel”) west of the Bault

Property. The Newforths own real property containing approximately 19.55

acres (“Newforth Property”) west of the Checkered Racing Parcel from which

they operate a trash service, and they own a fifty-foot-wide strip of land

containing 0.88 acres (the “Easement Area”) subject to an easement (the

“Easement”) which extends from the 19.55-acre property eastward along the

southern boundary of the Checkered Racing Parcel and the Bault Property to

intersect with State Road 43. A gravel industrial access road (the “Access

Road”) is located in the Easement Area. Bault has an agreement with

Checkered Racing pursuant to which he may access the Northern Bault Parcels

using the Checkered Racing Parcel. The Newforth Property, Bault Property,

and Northern Bault Parcels are part of Franklin Industrial Park.

[3] By way of background, Cheryl Franklin conveyed property of approximately

five acres to Jim Sinders by deed dated March 5, 1998, and recorded March 10,

1998 (the “Franklin Deed”). The Franklin Deed also granted the Easement to

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 2 of 20
 Sinders and included a legal description of the Easement Area. A plat for

Franklin Industrial Park executed by Cheryl Franklin and recorded on

December 11, 2000, depicts the five-acre parcel conveyed to Sinders (which is

now the Bault Property), a 19.55-acre parcel (which is now the Newforth

Property), the Easement Area, and other parcels adjacent to the Easement

Area. The 2000 plat in the record depicts the following:

5.00-Acre Parcel
(currently, the
Currently, the Bault Property)
Checkered Racing Parcel

State Road 43

19.55-Acre Parcel
(currently, the
Newforth Property)
The Easement
Area

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 3 of 20
 See Exhibit 3. 1 Sinders conveyed the five-acre parcel and his right to use the

Easement to John and Peggy Tucker by deed dated August 16, 2006, and

recorded August 18, 2006 (the “Tucker Deed”). An amended plat of Franklin

Industrial Park was recorded in May 2009 depicting the five-acre parcel owned

by the Tuckers (now the Bault Property), the land owned by Cheryl Franklin,

and the 0.88-acre Easement Area.

[4] Cheryl Franklin conveyed property to the Newforths by deed dated June 28,

2011, and recorded June 29, 2011 (the “Newforth Deed”), which included the

Newforth Property of approximately 19.55 acres and the 0.88-acre Easement

Area. The Newforth Deed conveyed the Easement Area “[s]ubject to an

affirmative duty to maintain the easement from the 19.55 acre tract to State

Road 43 for the benefit of the 19.55 acre tract and the adjacent parcels abutting

the easement as shown on” the 2000 plat. Exhibit 5. The Tuckers conveyed

their five-acre parcel and rights under the Easement to Bault by deed dated

April 29, 2016, and recorded June 13, 2016 (the “Bault Deed”). The southern

boundary of the Bault Property coincides with the northern boundary of the

Easement Area.

[5] At some point, Bault approached Craig Newforth about installing drives over a

part of the Easement Area in order to connect the Bault Property to the Access

Road, and Craig Newforth objected. On September 12, 2016, Bault filed a

1
The arrows and names of the Checkered Racing Parcel, the Newforth Property, the Bault Property, State
Road 43, and the Easement Area are supplied by this Court.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 4 of 20
 complaint seeking declaratory relief and an injunction. Bault alleged a shallow

ditch separated his property from the Access Road, that access to and from his

property by semi tractor trailer vehicles is reasonable and necessary for his

mulch business, and that he desires to install at his expense a culvert pipe and

two graded gravel areas within the Easement Area. He requested a permanent

injunction enjoining the Newforths from interfering with his rights.

[6] On December 9, 2016, at Bault’s request the trial court conducted a site visit

with the parties, and in September 2017, it held a bench trial. Bault presented

numerous exhibits including the relevant recorded instruments, the Owen

County zoning ordinance and comprehensive plan, proposed drive illustrations,

traffic notes, and photographs of the Easement Area, his vehicles and mulch

operation, and the access drives of other mulch businesses. Bault presented

evidence related to the volume and types of vehicles which would use the access

drives and proposed a design of two forty-foot-wide drives, a forty-five-foot

apron on the east side of each drive, 2 and a fifteen-foot apron on the west side

of each drive, and he presented evidence regarding the reasons for his proposed

design.

[7] On November 14, 2017, the court entered Findings of Fact, Conclusions of

Law and Judgment. It found that Bault’s rights under the Easement include the

2
“The ‘apron’ is the area on either side of a driveway which flares wider at its connection point with the
roadway (here, the Access Road) [and] is intended to allow turning vehicles additional maneuvering space as
they negotiate the turn.” Appellants’ Appendix Volume 2 at 23.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 5 of 20
 right to utilize the entire Easement and Access Road for vehicular access to and

from the Bault Property; the right to install two one-hundred-foot-wide access

areas which are reasonably necessary to Bault’s use and enjoyment of the

Easement; the right to install a drainage culvert under each access area; and the

right to utilize the Easement and Access Road for vehicular access by Bault’s

heavy equipment vehicles to and from the Northern Bault Parcels via the

Checkered Racing Parcel. The court found that the terms of the Easement are

clear and unambiguous, permit Bault’s intended installation of the access areas,

and do not restrict the manner in which he can use and develop the Bault

Property, the type and size of vehicles he and his customers can utilize, the type

and size of drives or access areas he can install within the Easement Area, or his

use of the Easement for his heavy equipment vehicles to access the Northern

Bault Parcels via the Checkered Racing Parcel.

[8] The court further found it was reasonably foreseeable at the time the Easement

was created that it would be utilized by semi tractor trailers and heavy

equipment vehicles. It found that Bault’s intended use will not subject the

Newforth Property to extra burdens or materially impair or unreasonably

interfere with the Newforths’ use and enjoyment of the Newforth Property. It

found that Bault’s anticipated annual volume of vehicles is reasonably

foreseeable, permissible, and consistent with the historical use of the Access

Road and Franklin Industrial Park, and that his rights under the Easement

include the right to utilize the entire 0.88-acre, fifty-foot-wide Easement for

vehicular access to and from the Bault Property. The court also found that

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 6 of 20
 Bault may use the Easement and Access Road for vehicular access by his heavy

equipment vehicles to and from Northern Bault Parcels via the Checkered

Racing Parcel for as long as the current owner of the Checkered Racing Parcel

allows such access.

[9] Other findings are that a drive width of forty feet is reasonably necessary for

semi tractor trailers to safely and sufficiently enter and exit the Bault Property,

an eastern apron of forty-five feet in width is reasonably necessary for the

vehicles to enter and exit the Bault Property to and from the east via the Access

Road and State Road 43, and a western apron of fifteen feet is reasonably

necessary for Bault’s heavy equipment vehicles to safely and sufficiently exit the

Bault Property to the west toward the Checkered Racing Parcel and the

Northern Bault Parcels at all times of day and in all weather conditions. The

court found the total width of the access areas allows semi tractor trailers to

enter the Bault Property without having to swing into the oncoming lane of

traffic in the Access Road or the access area which would present a safety risk

and create traffic conflicts. Further the court found that Bault established by

clear and convincing evidence that a second drive prevents vehicles from

backing up on the Access Road and potentially State Road 43, promotes more

efficient internal traffic flow on the Bault Property, and creates less stress on the

semi tractor trailers and their tires, and enjoined the Newforths from interfering

with Bault’s rights under the Easement.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 7 of 20
 Discussion

[10] In entering declaratory judgment for Bault, the trial court issued findings of fact

and conclusions thereon pursuant to Indiana Trial Rule 52. Our standard of

review is well-settled:

First, we determine whether the evidence supports the findings
and second, whether the findings support the judgment. In
deference to the trial court’s proximity to the issues, we disturb
the judgment only where there is no evidence supporting the
findings or the findings fail to support the judgment. We do not
reweigh the evidence, but consider only the evidence favorable to
the trial court’s judgment. Challengers must establish that the
trial court’s findings are clearly erroneous. Findings are clearly
erroneous when a review of the record leaves us firmly convinced
a mistake has been made. However, while we defer substantially
to findings of fact, we do not do so to conclusions of law.
Additionally, a judgment is clearly erroneous under Indiana Trial
Rule 52 if it relies on an incorrect legal standard. We evaluate
questions of law de novo and owe no deference to a trial court’s
determination of such questions.

McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010) (citations

omitted), reh’g denied, trans. denied. The Newforths are appealing from an

adverse judgment, and the trial court’s findings are clearly erroneous if they are

not supported by substantial evidence of probative value. See id. We will affirm

a judgment where we find substantial supporting evidence, unless we are left

with a definite and firm conviction that a mistake has been made. Id.

[11] The Newforths assert that the extension of the right to use the Easement for

access to property not identified as the benefited property or dominant estate of

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 8 of 20
 the easement, namely, the Northern Bault Parcels, is an improper extension of

the easement and overburdens the easement. They argue: “The design

characteristics are not in dispute with the exception of the fifteen foot (15’)

apron, the sole purpose of which would allow traffic to exit the Bault Real

Estate westbound, which is an improper enlargement of the easement.”

Appellants’ Brief at 17. Further, the Newforths argue that the genesis of Bault’s

desire for two drives was his unspecified plans for stockpiling mulch on his five-

acre parcel, and that he provided nothing demonstrating a layout for stockpiling

mulch or why two drives allow greater utilization of his land than one drive.

[12] Bault maintains the Newforths do not contend on appeal that any ambiguity

exists in the terms of the Easement. He argues that Checkered Racing has

consented to his use of its parcel to access the Northern Bault Parcels and that

the Easement does not require the Newforths’ consent. Bault further maintains

that the evidence supports the conclusion that the second drive is reasonably

necessary for his use of the Easement and that a second drive avoids damaging

vehicles and equipment, promotes traffic flow and safety on the Access Road

and State Road 43, allows him to store additional mulch, is common in the

mulch industry, and is consistent with the Easement’s purpose of permitting

industrial vehicles safe and sufficient access to and from the rural industrial

park parcels. He also argues that the fifteen-foot western aprons and use of the

Checkered Racing Parcel enable him to keep his slow-moving heavy equipment

vehicles off of State Road 43 which would impede the flow of traffic and

present a risk to driver safety.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 9 of 20
[13] The owner of an easement, known as the dominant estate, possesses all rights

necessarily incident to the enjoyment of the easement. Rehl v. Billetz, 963

N.E.2d 1, 6 (Ind. Ct. App. 2012) (citing Kwolek v. Swickard, 944 N.E.2d 564,

570 (Ind. Ct. App. 2011) (citing McCauley, 928 N.E.2d at 313), trans. denied).

The owners of the property over which the easement passes, known as the

servient estate, may use their property in any manner and for any purpose

consistent with the enjoyment of the easement, and the dominant estate cannot

interfere with the use. Id. All rights necessarily incident to the enjoyment of

the easement are possessed by the owner of the dominant estate, and it is the

duty of the servient owner to permit the dominant owner to enjoy the dominant

owner’s easement without interference. Id. The servient owners may not so

use their land as to obstruct the easement or interfere with the enjoyment

thereof by the owner of the dominant estate. Id. at 6-7. Moreover, the owner of

the dominant estate cannot subject the servient estate to extra burdens, any

more than the holder of the servient estate can materially impair or

unreasonably interfere with the use of the easement. Id. at 7.

[14] Indiana cases have held that the owner of an easement possesses all rights

necessarily incident to the enjoyment of the easement, and that the owner may

make such repairs, improvements, or alterations as are reasonably necessary to

make the grant of the easement effectual. Duke Energy of Ind., LLC v. City of

Franklin, 69 N.E.3d 471, 483 (Ind. Ct. App. 2016) (citing Litzelswope v. Mitchell,

451 N.E.2d 366, 369 (Ind. Ct. App. 1983) (citations omitted)). See also Kwolek,

944 N.E.2d at 571 (“The dominant estate holder may make repairs,

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 10 of 20
 improvements, or alterations that are reasonably necessary to make the grant of

the easement effectual.”) (citing McCauley, 928 N.E.2d at 313); Metcalf v. Houk,

644 N.E.2d 597, 601 (Ind. Ct. App. 1994) (“The owner of the easement has a

right to make such alterations and improvements as to make the grant effectual,

provided, that an owner in common of an easement may not alter or use the

land in such a manner as to render the easement appreciably less convenient

and useful for other co-owners.”) (citations omitted).

[15] The extent of the easement interest is determined by the purpose served by the

easement. Howard v. United States, 964 N.E.2d 779, 781 (Ind. 2012) (citations

omitted). Usually, easements arise to fill some need or serve some purpose. Id.

(citing Klotz v. Horn, 558 N.E.2d 1096, 1099-1100 (Ind. 1990)). That purpose,

whether expressed in the grant, implied, or acquired through prescription, is the

focal point in the relationship which exists between the titleholders of the

dominant and servient estates. Id. The servient estate is burdened to the extent

necessary to accomplish the end for which the dominant estate was created. Id.

See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.10 (2000) (the

holder of the easement “is entitled to use the servient estate in a manner that is

reasonably necessary for the convenient enjoyment of the servitude”);

Comment b., § 4.10 (“In resolving conflicts among the parties to servitudes, the

public policy favoring socially productive use of land generally leads to striking

a balance that maximizes the aggregate utility of the servitude beneficiary and

the servient estate.”); Comment e., § 4.10 (easement holder may construct

improvements on the servient estate “subject to the proviso that the holder . . .

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 11 of 20
 is not entitled to cause unreasonable damage to the servient estate or interfere

unreasonably with its enjoyment”); Comment g., § 4.10 (“In determining

whether a particular improvement will cause unreasonable damage to the

servient estate, aesthetics and the character of the property are important

concerns. . . . A use that is reasonable when both dominant and servient estates

are agricultural in character may become unreasonable when they have become

suburban.”).

[16] When construing an instrument granting an easement, the trial court must

ascertain and give effect to the intention of the parties. McCauley, 928 N.E.2d at

314. Any doubt or uncertainty as to the construction of the language of the

easement will ordinarily be construed in favor of the grantee. Id. at 315 (citing

Metcalf, 644 N.E.2d at 601).

[17] To the extent the Newforths do not challenge the trial court’s findings of fact or

conclusions, including those regarding Bault’s proposed design of the access

drives, we do not disturb those findings and conclusions.

[18] We observe, and the parties do not disagree, that the southern boundary of the

Bault Property coincides with the northern boundary of the Easement Area. As

such, the gravel access drives requested by Bault are located either on his own

property or in the Easement Area and do not extend onto any property of the

Newforths which is not subject to the Easement. The court found that,

pursuant to the Easement, Bault has the right to use the entire 0.88-acre, fifty-

foot-wide strip. The language of the granting instruments does not restrict the

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 12 of 20
 width of the Access Road or limit the installation of drives which would

connect the benefited parcels to the Access Road and allow vehicles to cross

over the ditch or culvert. The Easement does not benefit the Newforth Property

alone, which is clear from the instruments recorded prior to the Newforths’

2011 acquisition of their property. The Franklin Deed was recorded in 1998,

the Tucker Deed was recorded in 2006, and the Easement is depicted on the

2000 plat and 2009 amended plat of Franklin Industrial Park. Moreover, the

2011 Newforth Deed expressly states that the 0.88-acre Easement Area is

subject to the Easement “for the benefit of the 19.55 acre tract and the adjacent

parcels abutting the easement” as shown on the plat recorded in December 2000.

See Exhibit 5 (emphases added). On appeal, the Newforths do not challenge the

trial court’s rulings that Bault is granted access to his property from the

Easement Area and that the installation of a drive over the ditch or culvert

makes the grant effectual. Rather, the Newforths appear to limit their argument

to Bault’s use of the Checkered Racing Parcel to access the Northern Bault

Parcels and the installation of a second access drive and the fifteen-foot western

aprons.

[19] With respect to access to the Northern Bault Parcels, the trial court found:

The Court finds Bault’s rights under the [Easement] include the
right to utilize the [Easement] and Access Road for vehicular
access by his heavy equipment vehicles to and from Bault’s
Northern Parcels via the Checkered Racing Parcel for as long as
the current owner of the Checkered Racing Parcel allows such
access to his property. The Court finds neither the [Easement],
nor the principles and case law cited above, prohibit or restrict

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 13 of 20
 Bault from utilizing the [Easement] and Access Road for this
purpose. If Bault could access his Northern Parcels from his own
land in the Franklin Industrial Park, it is hard to imagine that he
would not be allowed to do so directly instead being forced to
leave out the Newforth easement and going around on SR 43 to
access the parcels from the SR itself. While Bault could not force
Newforth to allow Bault to build an access solely for the purpose
of accessing his Northern Parcels, once such an access is built,
there is nothing the Court can find that states Bault cannot use
the access road and area with permission of the owner of the
property so accessed.

Appellants’ Appendix Volume 2 at 33-34. The court also found, and the

Newforths do not dispute, that vehicular access between the Bault Property and

the Northern Bault Parcels “via the Checkered Racing Parcel and the Access

Road would enable Bault to keep his slow-moving heavy equipment off of S.R.

43, and would allow Bault to travel more safely and efficiently,” “[t]he presence

of slow-moving heavy equipment on S.R. 43 impedes the flow of traffic on S.R.

43, and presents a potential risk to driver safety on S.R. 43,” and “[f]rom a

traffic flow and safety standpoint, it is preferable for slow-moving heavy

equipment to avoid S.R. 43 and use an alternative route, such as the Access

Road and the Checkered Racing Parcel.” Id. at 20-21.

[20] The Easement Area abuts both the Checkered Racing Parcel and the Bault

Property. To the extent Bault’s agreement with Checkered Racing may result

in an increase in the volume of his vehicles using certain portions of the Access

Road, we observe the terms of the granting instruments do not limit the use of

the Easement based on the volume or types of vehicles using the Access Road

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 14 of 20
 or the relative size or use of the benefited parcels or land adjoining the benefited

parcels. The granting instruments do not require Bault and Checkered Racing

to obtain the Newforths’ permission to move vehicles or equipment between

their properties.

[21] Also, the trial court found, and the Newforths do not dispute, that Franklin

Industrial Park “was developed for industrial-type uses” and was originally

developed around a sawmill which was operated on the Newforth Property,

that the Newforth Property and the Easement Area are zoned “heavy

industrial” and the Newforths operate a trash business on their property, that

the Bault Property is zoned “agricultural” and the Owen County Zoning and

Subdivision Control Ordinance effective in 2003 identifies “forestry” as a

permitted use of a parcel zoned agricultural, that mulch is a product of the

forestry industry and its cultivation is a process within the forestry industry, and

that other parcels adjacent to the Easement are zoned “light industrial.” Id. at

15, 17. Neither do the Newforths challenge the court’s findings regarding

Bault’s use of semi tractor trailers or that the vehicles are an integral part of his

fleet and necessary to his business. The court found that daily traffic volume on

the Access Road is steady and that, on one day in 2017, ninety-nine vehicles

used the Access Road including twenty-six trash trucks belonging to Newforth,

nineteen semi tractor trailers accessing one of the parcels adjacent to the

Easement Area, and eight heavy equipment vehicles belonging to Bault. The

court found it is preferable for slow-moving heavy equipment to avoid State

Road 43 and use a route such as the Access Road and Checkered Racing

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 15 of 20
 Parcel. The court’s finding that Bault may access the Northern Bault Parcels

using the Easement and the Checkered Racing Parcel, for as long as the owner

of the Checkered Racing Parcel allows such access, is not clearly erroneous.

[22] With respect to the installation of a second drive and the western aprons, the

trial court found in part:

82. The Court finds that Bault established by clear and
convincing evidence that a total of two (2) Access Areas are
reasonably necessary to promote safety and facilitate traffic flow
both in the Access Road and in the Access Areas. The Court
finds that the evidence established that a second Access Area
allows vehicles to enter the Bault Property whenever the first
Access Area is blocked or impeded by a vehicle, which facilitates
traffic flow on the Access Road and prevents vehicles from
backing up on the Access Road and potentially S.R. 43. It
became clear that a second Access Area is especially important
considering the proximity of the Bault Property to S.R 43, the
size and wide turning radius of Semi’s, and because drivers
sometimes park their Semi’s in a driveway while asking for
parking instructions.

83. The Court finds that Bault established by clear and
convincing evidence that a second Access Area promotes more
efficient internal traffic flow on the Bault Property, creates less
physical stress on the Semi’s and their tires, and allows Bault to
store approximately two hundred (200) additional fifty-three foot
(53’) trailer loads of mulch material on the Bault Property.

Id. at 36. As for the western aprons, the court found that “a west apron of

fifteen feet (15’) of minimum width is reasonably necessary for Bault’s heavy

equipment vehicles to safely and sufficiently exit the Bault property to the west

toward the Checkered Racing Parcel and Bault’s Northern Parcels at all times
Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 16 of 20
 of day and in all weather conditions.” Id. at 35. It also found that the total

width of the drives allows semi tractor trailers to enter the Bault Property

without having to swing into the oncoming lane of traffic in the Access Road or

an access area which would present a safety risk and traffic conflicts.

[23] The evidence before the trial court supports its findings. Bault testified that he

stores and grinds raw material into mulch, and that he purchased the Bault

Property because he needed additional space to store bark inventory and

process mulch. He stated that, when he runs out of room, he drives on the

mulch and piles it high, which causes the mulch to become more compact and

does not allow the material to breathe so heat does not escape and it burns. He

stated that he uses wide rows with spaces between them and that the rows allow

him to access, rotate, and turn over the mulch. He further indicated his plans to

have a pond for irrigation on the northern part of his property which could be

used for dyeing mulch or to extinguish fires. Bault stated that he could store

approximately two hundred additional loads of mulch if he had a second drive,

and that, with two drives, “I can bring my mulch, my raw material farther to

him down the property so that I don’t have to go all the way and turn around

and go back out.” Transcript Volume I at 149.

[24] Bault testified that “U-turns on trucks are hard,” “we call it screwing a trailer in

the ground,” and that a second drive would avoid requiring a vehicle to back

up. Id. at 167. He testified that it is damaging to drive through the ditch at an

angle, that he planned to install culvert pipes to preserve the flow of water if any

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 17 of 20
 in the ditch, and that he would pay to install and maintain the drives and the

culvert.

[25] Sheila Reeves, the office manager at the Owen County Health and Building

Department, testified that, from a planning and zoning standpoint, the use of

semi tractor trailers at Franklin Industrial Park is foreseeable, Bault’s

installation of two drives is permissible in the Park under the 2003 ordinance,

Bault’s anticipated volume of semi tractor trailer loads in and out of the

property is permissible, and Bault’s intended use of his property is consistent

with the purpose and present use of the Park and the 2003 ordinance.

[26] Bault also presented the testimony of Jeromy Grenard, a transportation

engineer, who presented a design for the two access areas. Grenard indicated

that the purpose of the aprons is for larger vehicles to negotiate turns into and

out of the drives, the aprons are important for a larger vehicle which has a

larger turning radius, and it is more important for narrow roads because there is

not as much negotiation space available for a driver. He testified that there

needs to be two drives for the maneuverability of multiple vehicles onto and off

of the Bault Property from the Access Road and that there needs to be a forty-

five-foot apron on the east side of the drives and a fifteen-foot apron on the west

side of the drives. He testified that, in designing the drives, he used a software

program standard in the transportation industry and that the software models

the turning path, or swept path, of a selected vehicle based on the vehicle’s

design including its width, number of axles, distance between axles, and king

pin location or hinge point.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 18 of 20
 Conclusion

[27] There is no question that the Easement was intended to benefit the Bault

Property and that, as the Easement Area and the Bault Property share a

boundary, Bault’s proposed drives are situated within the Easement Area and

do not extend onto any property of the Newforths not subject to the Easement.

The Easement was recorded in the 1998 Franklin Deed, the 2006 Tucker Deed,

the 2011 Newforth Deed, and the 2016 Bault Deed, and it is depicted on the

2000 plat and 2009 amended plat of Franklin Industrial Park. Bault presented

extensive testimony and evidence supporting the trial court’s findings regarding

Franklin Industrial Park, the impact of Bault’s proposed drives, his access to the

Northern Bault Parcels, and the installation of a second drive and the fifteen-

foot aprons.

[28] Based upon the evidence as set forth above and in the record, and noting we do

not reweigh the evidence and consider the evidence most favorable to the

judgment, we conclude that the trial court’s judgment is not clearly erroneous.

See Rehl, 963 N.E.2d at 8 (holding the trial court did not err in entering findings

related to the relative use or increased use of the area of an easement and noting

that the parties presented evidence of the use and changes in the use of the

easement area) (citing McCauley, 928 N.E.2d at 315 (holding that the trial court

properly concluded the easement holders had the right to use the easement in its

entirety and to construct a roadway over all or any part of the easement)).

[29] For the foregoing reasons, we affirm the judgment of the trial court.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 19 of 20
[30] Affirmed.

Altice, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Opinion 60A05-1712-PL-2969 | March 6, 2019 Page 20 of 20