Daily Development for Wednesday, December 5, 2001
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
EASEMENTS; GRANT; AMBIGUITY: Grant of easement across
"all lakes common to the boundary of Paradise Lakes" is inherently
ambiguous and meaningless, and extrinsic evidence cannot be admitted to explain
it once the argued servient tenement has been transferred.
Mackiewicz v. Metzger, 750 N.E.2d 812 (Ind.App. 2001).
In 1992, Wilcoin acquired 2000 acres of undeveloped
unplatted land. A portion of the
strip-mined land contained stripper pit lakes, some of which were
interconnected. These lakes apparently
were a desirable recreational resource.
Mackiewicz was one of the first purchasers from Wilcoin of a purchased a lakefront lot. He contracted to acquire his parcel at a
time when the subdivision plat for his parcel was in existence, but Wilcoin did
not actually file it until a few months later.
At the time of contract, Manckiewicz executed a document
entitled "Building and Occupancy Restrictions." These restrictions stated that they applied
only to certain identified lots in the "Wilcoin Exempt Division - Paradise
Lakes." In fact, in the end only
some of those lots ever really came into existence, but Manckiewicz' lot was
one that was in the final recorded plat.
The Wilcoin Exempt Division was roughly "L" shaped, running
along the western edge of a part of the lake system.
The "Restrictions" included the following language
creating a right of use in the lakes:
"All lakes common to the boundary of Paradise Lakes may
be used by all lot and/or tract owners. . ."
The Restrictions included a number of other limitations on
the use of the lakes and apparently vested rule making authority in the
"Paradise Lakes Association," an area substantially to the south of
the Wilcoin Exempt Division and not adjacent to it.
A year and a half later, Wilcoin recorded a plat for the
"Paradise Lakes Subdivision." A year after that, Wilcoin sold 1500
acres of its holdings to the Lake Group.
None of this property was part of the Wilcoin Exempt Division or the
Paradise Lakes Subdivision, but it included a substantial area of the stripper
pit lakes, and all of the area on the eastern side of the lakes that formed the
border of the Wilcoin Exempt Division.
The Lake Group filed a plat calling for a levee and roadway
across one of the lakes. The access
levee built by the Lake Group did not encroach upon Mackiewicz's property, but
it blocked his access to a large portion of the stripper pit lake system.
Mackiewicz brought suit against the Developers and the
Warrick County Area Plan Commission ("Commission"), seeking damages
and an injunction. The trial court
granted defendants' motions for summary judgment.
On appeal: held: Affirmed.
Mankeiwicz is stuck in a corner and, although he can use the lakes, has
no guarantee right of water access from one lake to another.
On appeal from the trial court's grant of summary judgment,
Mackiewicz's first argued that he had an easement that gave him access rights
to the entire stripping pit lake system. The court determined that in order to
create a valid easement, a document must identify the easement, along with the
dominant and servient tenements, with reasonable certainty. Since the documents that recorded the
subdivision did not identify these items with reasonable certainty, the court
rejected Mackiewicz's claim on that point.
Mackiewicz's further argued that he had a right to access
the entire lake system because all the subdivisions were part of a common
scheme or plan. "Where owners can
trace their title to a common source of title and the circumstances demonstrate
a common plan or scheme for development restrictive covenants will be
enforceable against one another, notwithstanding the fact that some lots do not
specifically have such covenants in the chain of title." Id. At 818.
In this case, however, the restrictions burdening the lots to which
Mackiewicz refers were not explicitly imposed upon any other land.
The court concluded that Mackiewicz was attempting to
enforce restrictions against landowners whose parcels were in entirely
different subdivisions platted and
developed by a separate group. It
commented that Wilcoin's entire tract was developed in separate sections and
not as a single unit. There was no
general scheme that would justify imposing upon Lake Group land restrictions
which related to the Wilcoin Exempt Division.
Stated alternatively, the recorded subdivision lacked a general scheme
which would permit owners to enforce restrictive covenants against each other.
Comment 1: The case may be valuable precedent for those
looking for support for the principle that separately developed subdivisions
are not necessarily bound by the same restrictions. It is useful, and correct, on that point.
Comment 2: But what about that easement claim? The court found that "by its own terms,
[the Restrictions] does not purport to burden anyone outside the Wilcoin Exempt
Division and Paradise Lakes." This
is patently incorrect. The grant of the
easement was made by the Developer, Wilcoin, and it potentially bound whatever
property it owned if that property could be viewed as what the parties had in
mind when they said "lakes bordering Paradise Lakes." At the time of the deed to Mankeiwicz, there
was no "Paradise Lakes" subdivision in existence - there was only a
group of interconnected lakes and a reference to an association known as the
"Paradise Lakes Association."
This certainly would lead the editor to conclude that the parties might
have intended that a broader
"Paradise Lakes" community would be developed that would encompass
all the Wilcoin property adjacent to the lake system. Further, the editor would
surmise, the developers may have intended to grant to the purchasers of the
Wilcoin Division lots access over all of the lakes in the system if they then
were commonly known"Paradise Lakes."
The court appears reluctant to reach this conclusion, or to
take extrinsic evidence to evaluate it, because it says that the interests of
third parties - the Lake Group - have intervened. It asserted that these purchasers were entitled to be insulated
from any reinterpretation of the documents that would have a negative impact on
them. This statement would be true if
the language of the easement was plain and unambiguous and the action was for
reformation. But in this case, it would
appear to the editor, based upon the scant information provided by the court,
that the language was inherently ambiguous, and that there is an argument that
Mankiewicz and the developer, at the time that Mankiewicz acquired lot 15A,
both intended that Paradise Lakes included all the lake system. Such phrasing
was in the record and available for The Lake Group's inspection.
It is interesting that a concurring judge admits that the
documents may suggest that Wilcoin did give Mankiewicz these rights when he
admits that Mankiewicz may have an action against Wilcoin for "failure to
protect his access to all lake areas."
So far as the Editor can tell, The Lake Group was on inquiry notice that there was the possibility of an easement across all the lakes. It was not deserving of the protection that the court afforded it here.
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
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