ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
ELIZABETH A. GAMBOA LYNETTE GRAY
Franklin, Indiana Johnson, Gray & MacAbee
GEORGE PATTON, JR.
COURT OF APPEALS OF INDIANA
Bose McKinney & Evans LLP
GEORGE D. ADAMS and )
GARY A. HUNTER, )
vs. ) No. 41A05-0306-CV-288
GEORGE H. REINAKER, ERIC L. HAGAN and )
MICHELLE HAGAN, husband and wife, )
SANDRA WILLIS and BILLY WILLIS, )
husband and wife, and KIMBERLY K. GILES, )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable Kim Van Valer Shilts, Judge
Cause No. 41D03-0209-MI-14
May 17, 2004
OPINION FOR PUBLICATION
George Adams and Gary Hunter (collectively Adams), owners of a driveway easement, appeal
the order of the Johnson Superior Court granting judgment on the pleadings for
defendants George Reinaker, Eric and Michelle Hagan
, Sandra and Billy Willis, and Kimberly
Giles (collectively the Reinaker defendants), who own properties subject to the easement and
use it to access their properties. Adams argues on appeal there are
questions of fact concerning whether the parties to the conveyance of the easement
contemplated use by multiple, concurrent subsequent owners when the language in the deed
indicates Adams and Adams successors and assigns would bear all the cost of
repair and maintenance.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On February 8, 1996, the original owner of all the property involved in
this case, Marguerite Mullendore, conveyed a portion of her property to Adams.
In the same deed, she granted an easement across her remaining land so
Adams could access his property from a road. The easement was permanent
and non-exclusive. (Appellants App. at 25.) The deed provided the easement
is granted and accepted upon the express understanding and agreement that maintenance thereof
shall be by and at the sole expense of [Adams]. (
Later, the Reinaker defendants acquired land subject to the easement from subsequent owners
of the Mullendore property.
The Reinaker defendants use the easement to access
their properties from the road, and Adams has borne all the expense of
repairing and maintaining the driveway easement. Adams sought contribution from the Reinaker
defendants for the maintenance expenses but they would not contribute.
On September 24, 2002, Adams sought a declaratory judgment apportioning costs among the
users of the easement for past and future repair and maintenance. In
response, the Reinaker defendants moved for and were granted judgment on the pleadings
pursuant to Ind. Trial Rule 12(C).
DISCUSSION AND DECISION
Our review of a judgment on the pleadings is
de novo. Loomis
v. Ameritech Corp., 764 N.E.2d 658, 661 (Ind. Ct. App. 2002), rehg denied,
trans. denied 783 N.E.2d 695 (Ind. 2002). Such a motion tests the
sufficiency of the complaint to state a redressable claim and should be granted
only when it is clear from the pleadings that the non-moving party cannot
in any way succeed under the facts and allegations therein. Circle Centre
Dev. Co. v. Y/G Indiana, L.P., 762 N.E.2d 176, 178 (Ind. Ct. App.
2002), trans. denied 774 N.E.2d 518 (Ind. 2002). We look solely at
the pleadings and accept all well-pleaded facts as true. Id. The
moving party is deemed to have admitted those facts in favor of the
non-moving party and we will draw all reasonable inferences in the non-moving partys
The Reinaker defendants contend Adams is without relief as a matter of law
because Adams expressly agreed in the original deed that as grantee of a
permanent non-exclusive easement from Mullendore, Adams would be solely responsible for its repair
and maintenance. The relevant portion of the deed reads:
Also, a permanent non-exclusive easement for ingress and egress upon and over a
strip 20.0 feet in width . . . . The foregoing easement
is granted and accepted upon the express understanding and agreement that maintenance thereof
shall be by and at the sole expense of [Adams].
(Appellants App. at 25.) The Reinaker defendants further contend there is no
ambiguity in light of the clear language of the deed. Because the
language is unambiguous and clearly establishes Adams is responsible for maintenance costs, they
assert, Adams cannot later claim others who use the easement must share in
Adams argues the agreement contemplated use by only Mullendore and Adams; in view
of subsequent purchasers now using the easement, he asserts, costs should be apportioned
among all users in common.
The object of deed construction is to ascertain the intent of the parties
and where there is no ambiguity in the deed, the intention of the
parties must be determined from the language of the deed alone. Clark
v. CSX Transp., Inc., 737 N.E.2d 752, 757 (Ind. Ct. App. 2000) (citing
Brown v. Penn Central Corp., 510 N.E.2d 641, 643 (Ind. 1987)), rehg denied,
trans. denied 783 N.E.2d 691 (Ind. 2002). The Reinaker defendants claim there
is no ambiguity in the deed and therefore no reason to go outside
the deed to determine intent.
Generally, where no ambiguity is present the trial court is constrained by the
four corners rule.
Id. That rule provides:
[I]in construing [a] written instrument, the language of the instrument, if unambiguous, determines
the intent of the instrument such that parol or extrinsic evidence is inadmissible
to expand, vary, or explain the instrument unless there has been a showing
of fraud, mistake, ambiguity, illegality, duress or undue influence. Even if ambiguity
exists, extrinsic evidence is only admissible to explain the instrument and not contradict
Id. at 758 (quoting Lippeatt v. Comet Coal and Clay Co., Inc., 419
N.E.2d 1332, 1335 (Ind. Ct. App. 1981)).
The Reinaker defendants argue ambiguity must appear on the face of the deed
for parol evidence to be admitted, and ambiguity should not be created where
See, e.g., DeBoer v. DeBoer, 669 N.E.2d 415, 421 (Ind. Ct.
App. 1996), trans. denied (ambiguity allowing admission of parol evidence must appear on
the face of the document; extrinsic evidence is not admissible in an attempt
to create an ambiguity). However, ambiguities in a document may be of
two types, patent or latent. Board of Directors, Ben Davis Conservancy District
v. Cloverleaf Farms, Inc. 171 Ind. App. 682, 689 n.3, 359 N.E.2d
546, 549 n.3 (1977), rehg denied 171 Ind. App. 682, 360 N.E.2d 1039
A patent ambiguity is apparent on the face of the instrument and arises
by reason of an inconsistency or inherent uncertainty of language used so that
the effect is either to convey no definite meaning or a confused meaning.
Extrinsic evidence is not admissible to explain or remove a patent ambiguity.
A latent ambiguity arises not upon the face of the instrument by
virtue of the words used, but emerges in attempting to apply those words
in the manner directed in the instrument. Extrinsic evidence is admissible to
explain or clear up a latent ambiguity.
Hauck v. Second Natl Bank of Richmond, 153 Ind. App. 245, 261-62, 286
N.E.2d 852, 862 (1972) (citations omitted, emphasis supplied), rehg denied.
A document is found to be ambiguous only when reasonable persons find the
contract subject to several interpretations. Myers v. Maris, 164 Ind. App. 34,
40, 326 N.E.2d 577, 581 (1975). In Cloverleaf Farms, we relied on
an analytical framework articulated in 3 Corbin on Contracts § 537 (1960) to
assist in making a determination about the parties intentions:
There, if the promisor knew or had reason to know the meaning that
the promisee in fact gave to the promisors words, then the promisees understanding
shall be given effect. This is explained as being the result of
securing the realization of expectations reasonably induced by the expressions of agreement.
As pointed out by Corbin, before determining legal effects the court must discover
what the promisees meaning was and whether the promisor knew or had reason
to know that meaning.
171 Ind. App. at 687-88, 359 N.E.2d at 549.
Adams and the Reinaker defendants disagree as to the meaning of the term
non-exclusive in the deed. The meaning of the term is not patently
ambiguous. However, we find latent ambiguity as to whether the parties contemplated
that the easement would be used by others as the Reinaker defendants assert
(Br. of Appellees at 10), or whether the term non-exclusive refers only to
shared use by the original grantor and grantee because [t]here is no indication
Adams intended this provision as an agreement to maintain and repair the easement
for an indefinite number of other users. (Br. of Appellants George Adams
and Gary Hunter at 10.) Disagreement on the application of this term
to the present circumstances in light of what Adams and Mullendore might have
contemplated at the time the agreement was made gives rise to a latent
A non-exclusive easement exists where the servient owner retains the privilege of sharing
the benefit conferred by the easement.
28A C.J.S. Easements, § 164.
This language supports Adams argument that the Adams-Mullendore agreement contemplated use by only
the two original parties. Adams was to pay for maintenance and repair,
as the easement was essential for his use and enjoyment of his conveyed
land and he would have greater occasion to use it. However, Mullendore
might have wanted to retain use of the easement as well. Whether
use by subsequent property owners was contemplated and whether Adams alone was to
bear the burden of maintenance and repair is uncertain in light of these
In Cloverleaf Farms, an agreement granted a conservancy district a sewer easement over
grantors land on condition [g]rantee . . . will permit the [g]rantor, or
his successors, heirs, representatives, or assigns, in interest, to connect to and use
the sewer system . . . upon the same basis and under the
same conditions . . . used by land owners within the [district].
171 Ind. App. at 684, 359 N.E.2d at 547. We determined the
agreement was ambiguous as to whether the district was required to bear the
costs of connection for future housing developed in the district. Id. at
688, 359 N.E.2d at 549.
The housing developer as successor in interest claimed the agreement was not ambiguous
while the district argued that after the date of the agreement the developer
of new housing was required to bear its own costs for connection.
We reasoned [s]ince there is an ambiguity, circumstances other than the document may
be considered, along with the whole document in attempting to ascertain the intent
of the parties at the time of the agreement, keeping in mind that
the court may neither create nor re-write duties and liabilities. Id.
The grantor testified he did not contemplate the district paying for subsequent users
or consider who was going to buy the property and need sewers in
the future. We noted that affirming the trial courts judgment for Cloverleaf
would have added an element to the agreement the parties had failed to
include. Id. at 688-89, 359 N.E.2d at 550.
Similarly, in the case before us, a question remains as to whether Adams
and Mullendore contemplated multiple, concurrent subsequent owners would frequently use the driveway easement
and whether Adams should alone continue to bear the costs of maintenance and
repair despite such additional use. We find the agreement, though not patently
ambiguous, has latent ambiguity as applied to the present circumstances. That ambiguity
cannot be resolved without extrinsic evidence to determine the intent of the parties
to the agreement. Judgment on the pleadings was therefore improper.
We reverse the decision of the court below and remand for further proceedings
consistent with this opinion.
NAJAM, J., and BAKER, J., concur.
In a number of documents submitted in this appeal, the last name
of these decfendats is spelled Hagen.
George Reinaker acquired five acres from Donna Walker-Whitesell in October 1996; the
Hagans obtained one acre from ReNue Homes, Inc. in January 1998; the Willises
were granted ten acres from William and Kimberly Giles in September 2000; and
Kimberly Giles purchased a portion of the Willises property in 2002. (Appellants
App. at 2-5.)