Schneider v. Town of Princes Lake

Concurring Opinion.

Hoffman, J.

While I concur in the result reached by the majority opinion in this case, I believe that the plat notations were sufficient to create the easements, and that the grants were sufficiently specific.

In Wischmeyer v. Finch, 231 Ind. 282, at pages 286, 288-89, 107 N. E. 2d 661 (1952), Judge Bobbitt, speaking for our Supreme Court, said:

“[T]he recording of a plat of a subdivision is notice to the world of the dedication of streets and alleys and of the restrictive covenants therein contained. (Citing authorities.)
“There are two methods of creating restrictions upon the use of property. One is by express covenants contained in the deed, and the other is by a recorded plat of the subdivision and a purchaser buys lots in the subdivision with reference to the plat. (Citing authorities.)
“This court has held that when lands are conveyed according to an official plat of their survey, the plat with its notes becomes as much a part of the grant or deed by which they are conveyed, and controls the same as if they were inserted in the deed or grant. (Citing authorities.)
“The sale of said lots *** served as a dedication of the streets and of the utility strips, and it could not accept the benefits of the survey of the plat, and the street and utility strips, without accepting whatever burden the restrictions might impose.
“This right is not abrogated nor is there any modification of such restrictions by the failure to mention them in the *71instrument of conveyance from a common owner to any person who may acquire a lot or lots after the plat has been recorded.” (Citing authorities.) (Emphasis supplied.)

The rules aptly stated by Judge Bobbitt have been upheld in Northern Ind. Pub. Serv. Co. v. McCoy et ux, 239 Ind. 301, 157 N. E. 2d 181 (1959).

In addition to this case authority, Acts 1905, ch. 129, § 246, p. 219, § 48-801, Burns’ 1963 Repl., provides in pertinent part:

“Every donation or grant to the public, or to any individual, religious society, corporation or body politic, noted as such on such plat, shall be considered a general warranty to the donee or grantee on such plat named or indicated, for the purposes intended by the donor or grantor.”

An easement can be created by plat notation and a grantee takes subject to it. See also the statement in The John Hancock Mutual Life Insurance Company v. Patterson, 103 Ind. 582, 2 N. E. 188 (1885), to the effect that an easement can properly be created by plat reference.

A second contention must be considered — that the plat notation was too vague.

A reasonable construction of the words, “. . . an 8' service easement shall exist down all lot lines . . . indicates that four feet of such easement would fall on each side of the boundary line.

In Shedd v. American Maize etc., Co., 60 Ind. App. 146, 150, 108 N. E. 610 (1915), an easement was conveyed which provided,

“. . . for a right of way under their land, lying between the lands so conveyed and the shore of Lake Michigan to connect the land with Lake Michigan by two pipelines of iron, vitrified tile or cement, ‘to be not less than twenty-four inches in diameter and to be laid so that the tops thereof should be at least one foot below the Chicago City datum’.

*72And, further, at pages 157-158,

“The dispute is as to the location and direction of the pipe line from the point near the shore where the portion of the line first laid ended. ***
“The rules for the location of an easement granted, but not definitely located, are applicable here. *** The interested parties under such a grant may make any reasonable location of the easement on the property over which it is to extend, so long as they do not encroach upon or interfere with other property.”

In the case presently before us, the grants (plat notation) spell out with much greater specificity the location of the easement. From the plat notation the location of the easements are definite and leave no doubt as to their location.

Appellants contend that “service easement” indicates a use limited to service for the benefit of the servient tenant only.

It is unnecessary for a landowner to create an easement lying wholly within his own property, the purpose of which is only to provide utility services for his property. The general purpose of an easement for the furnishing of various utility services is to provide a method of crossing property with utility facilities for the use of others.

A sound construction of the words, “service easement”, indicates a meaning analagous to “utility easement” — “utility strips” — an easement for the various services provided by the town to the inhabitants of the subdivision.

In Claxton v. Johnson County, 20 S. E. 2d 606, 610, (Ga., 1942), the court noted:

“The word ‘service’ has different meanings. *** It is also commonly used to denote the furnishing of water, heat, light, and power, etc., by public-utility companies.”
See also: Central Power & Light Co. v. State, 165 S. W. 2d 920, (Tex., 1942); Coe v. Zwetchkenbaum, 153 A. 2d 517, (R. I., 1959).

*73In view of the context in which the words appear, the descriptive words “service” and “utility” indicate the same function for the easement.

Sharp, J., concurs.

Note. — Reported in 249 N. E. 2d 508.