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FILED
Apr 17 2012, 9:11 am

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: KARL L. MULVANEY SHANNON D. LANDRETH Bingham Greenebaum Doll LLP Indianapolis, Indiana MICHAEL E. ARMEY Warsaw, Indiana SHELDON L. LEBOLD Orland Hills, Illinois

of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEPHEN R. SNYDER RANDALL L. MORGAN Snyder Morgan LLP Syracuse, Indiana

IN THE COURT OF APPEALS OF INDIANA
TRUST NO. 6011, LAKE COUNTY TRUST COMPANY, TRUSTEE, SIMON BEEMSTERBOER, and VICTORIA J. BEEMSTERBOER, Appellants-Defendants, vs. HEIL'S HAVEN CONDOMINIUMS HOMEOWNERS ASSOCIATION, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 43A05-1108-PL-433

APPEAL FROM THE KOSCIUSKO SUPERIOR COURT The Honorable Rex. L. Reed, Special Judge Cause No. 43D01-1006-PL-96 April 17, 2012 OPINION - FOR PUBLICATION CRONE, Judge

Case Summary Simon and Victoria J. Beemsterboer reside on property ("the Beemsterboer Property") owned by Trust No. 6011, Lake County Trust Company, Trustee. Victoria is the beneficiary of the Trust. The Beemsterboer Property shares a border with Heil's Haven Condominiums. When the condominiums were developed, several agreements were executed between the Heil's Haven Condominiums Homeowners Association ("the Association") and the previous owners of the Beemsterboer Property, granting various easements to each to use portions of the others' property. The Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally granted to the Association. The Association filed suit against the Trust and the Beemsterboers (collectively referred to as "the Beemsterboers") seeking to enjoin the Beemsterboers from improving their property in a manner that infringed on the easements, and the trial court granted the requested relief. The Beemsterboers appeal, arguing that the trial court erred in granting injunctive relief because (1) one of the agreements has terminated; (2) the improvements can be made in a manner that does not infringe upon the Association's existing easements to use the Beemsterboer Property; and (3) the Association's encroachment is greater than that permitted by agreement. We conclude that one agreement has terminated and that the improvements can be made in a manner that does not infringe upon the Association's continuing easements. We further conclude that the trial court's order deals effectively with the Association's encroachment. Therefore, we affirm in part and reverse in part.

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Facts and Procedural History The Beemsterboer Property is located in Kosciusko County, west of and adjacent to property occupied by Heil's Haven Condominiums. These properties extend roughly from Hatchery Road on the south to Lake Wawasee on the north. The properties were once a single parcel owned by James and Jane Fry. The Frys lived in a residence on the west side of the property and operated a motel on the east side. In the 1980s, the Frys converted the motel into Heil's Haven Condominiums and divided the single parcel into two parcels, each with frontage on Lake Wawasee: a western parcel with the personal residence and an eastern parcel for the condominiums. Ultimately, the Frys' western parcel came into the possession of the Beemsterboers. When Heil's Haven was developed, the Frys and the Association executed several written agreements creating easements for the shared use of property and an agreement granting the Association an easement over a portion of the Frys' property.1 All relevant documents were duly recorded. Two are titled "Cross License Agreement," one dealing with the use of a water pump and a sidewalk ("the Water and Walkway Easement"), and the other

Although these agreements use the term "license," the interests conveyed therein are effectively easements, and the parties treat them as such. See 25 Am. Jur. 2d Easements and Licenses

Download Trust No. 6011, Lake County Trust Company, Trustee, Simon Beemsterboer, and Vict

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