(specially concurring).
While I agree with the majority that the trial court erred in ordering the County to clear the ditch, as it had no obligation or duty to do so, I disagree with the majority’s analysis of the nature and scope of the County’s right to maintain the ditch. The majority interprets the contract to allow the County to come on the servient property to maintain the ditch only during construction of the road. Contrary to the majority’s view, I do not think the language of the agreement expressly or impliedly limits the duration of the County’s “easement” as it relates to maintenance of the ditch. Moreover, it appears the church believed the County continued to have an interest in its land as the church’s conveyance of the property to the Fishers was made subject to the County’s “easement.” The creation of a continuing power to maintain the ditch is a logical interpretation of the contract not only based on the absence of any limiting language, but also based on the attendant circumstances. The highway commission may very well have anticipated a future need to clear the ditch itself in the event obstructions in the ditch threatened the integrity of the roadbed.
In summary, I agree with the majority that the County merely had the right to enter the Fishers’ property to maintain the ditch, but had no obligation to do so. I disagree, however, with the majority’s conclusion that this privilege terminated upon completion of the roadway.