Can You Move the Location of an Easement that Burdens Your Real Estate?

Sometimes, yes, the Indiana Court of Appeals held in May 2017.*  However, In December 2017, the Indiana Supreme Court stayed the appeal and remanded the case on a procedural matter, finding no final judgment in the case, so that the case was not appealable.

It’s interesting to consider the appellate court’s analysis of this issue.   The owner of the real estate burdened with a platted sewer easement, RCSP, at its expense, wanted to relocate the easement that ran through the middle of its real estate to allow for more development.  The adjacent landowner benefitting from the easement, DeSpirito, objected even though it would not affect service to his real estate.  His underlying concern was about RCSP’s development plans and a potential change of access to the adjacent highway.

The Court of Appeals reversed the trial court’s opinion, agreeing with the Plan Commission that RCSP’s relocation of the easement is reasonable.  The Court adopted the approach on relocating an easement from the Restatement (Third) of Property:  the landowner burdened with the easement may move it at its expense if the changes do not make the easement less usable, increase the burden of the easement owner or frustrate the purpose of the easement.

It is significant to the outcome of this case that the easement was created from a subdivision plat and not by a separate instrument between the current and/or former landowners, and that, while the easement had a width and general location on the plat, it had no metes and bounds description.  Interestingly, a brief eminent domain discussion in the opinion is included.  One of the trial court’s findings was that RCSP’s relocation of the easement, which necessitated approval from the Plan Commission, resulted in the taking of private property for private use.  The Court of Appeals disagreed, finding that no authority exists to support the proposition that relocating an easement, with no expense and minimal disruption to the easement owner, constitutes a taking.  The Court of Appeals also noted in a footnote that an easement is a non-possessory interest, although it did rely upon this fact in its opinion.

In January 2018, the trial court entered final judgment in favor of DeSpirito and the appellants (RCSP and the Plan Commission) then filed a supplemental appendix with the Indiana Supreme Court, so stay tuned for updates in this case

*Town of Ellettsville, Ind. Plan Comm’n and Richland Convenience Store Partners v. DeSpirito, 78 N.E.3d 666 (Ind. Ct. App. 2017); stayed and rem. Town of Ellettsville v. Despirito, 87 N.E.3d 9 (Ind. 2017)