dissenting.
In this case the original grant by Clos-son, the owner of the servient land, to *978Wiseman, the owner of the adjacent dominant land, was for parking and to facilitate the access of customers of Wiseman's business to the dominant land and was to last for so long as Wiseman might need it. Wiseman then made expenditures of capital and labor upon both the servient and dominant lands in reliance upon the grant, which events were held by the Court of Appeals in its first opinion to have given rise to the legal right to compensation in the event the grant was revoked. The revocability of the right granted and the recoverability of compensation for the revocation of the right were the law of this case as it confronted the trial court on remand for a determination of compensation due Wiseman for the revocation.
The trial court on remand determined the appropriate measure of compensation due Wiseman to be the difference between the fair market value of Wiseman's property with the right in existence and at the time of Closson's first objections to continuance of the right, and the value of Wiseman's property immediately after such point in time without the right. The trial court also deemed any proven lost profits and possible future earnings, proposed alterations, and appraisal to have relevance in arriving at these before and after values.
I regard the approach of the trial court to be in conformity with the majority view that restitution should be the measuring concept. To restore, involves the contemplation of a loss or change of position, and then the receipt of an equivalent of that which was lost or a return to an equivalent position. The majority opinion does not result in restitution.
There is furthermore nothing inequitable in the trial court's approach. It is also in conformity and not at odds with the case of Clauser v. Jones (1885), 100 Ind. 128. I read that case as holding that expenditures by the owner of the dominant land for improvements upon the dominant land can defeat revocability if such improvements are known by the owner of the servient land to be part of a plan to make reasonable use of the right granted. If those improvements are reasonably to be contemplated as part of the dominant owners plan to utilize the right granted in conjunction with a use of his own property, and can defeat revocability, then I believe the law should countenance the cost of such visible and obviously connected improvements upon the dominant land as an element in determining an equitable restitution for loss of the right.
If for example, I grant my neighbor a license to cross my land to reach a farm field, and I observe him do so with a plow and planter, and there till the field and plant it, and then I revoke the license before he has harvested his crop, I should be required to restore his lost investment. To ignore the investment in farming the field, an activity within contemplation of the license, in determining an equitable restitution, would seem to me to be tantamount to condoning a fraud.