ILNews

Judges rule on easement dispute

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The Indiana Court of Appeals ruled partly in favor of a couple seeking to place a fence along their property line shared with a condominium complex, which would affect the use of a sidewalk by the condo homeowners.

In Trust No. 6011, Lake County Trust Company, Trustee, Simon Beemsterboer, and Victoria J. Beemsterboer v. Heil's Haven Condominiums Homeowners Assn., No. 43A05-1108-PL-433, Simon and Victoria Beemsterboer live on property that belongs to a trust that is adjacent to the property of Heil’s Haven Condominiums. A previous owner of the Beemsterboer property executed several agreements with the condo complex, granting various easements to each other to use portions of the others’ property.

When the Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally granted to the association, the homeowners association sought to enjoin the improvements. The  work included modifying a deck and building a fence around a sidewalk that was on the Beemsterboers’ property, but used by the condo residents. The trial court granted the requested relief.

The COA concluded that one of the agreements at issue has terminated and the improvements can be made in a manner that don’t infringe upon the association’s continuing easements. The Water and Walkway Easement was terminated by its own express terms when the residence on the Beemsterboer property of the previous owner burnt down and the water supply to that property failed.

The judges also found that paragraph 4 of the judgment wasn’t an error. The trial court permanently enjoined the Beemsterboers “from in any fashion interfering with the (association’s) deck … even though the actual location of the deck encroachment may vary slightly from the description contained in the (encroachment agreement).”

“We read the trial court’s order as restricting the Beemsterboers from interfering with the deck based on the fact that its current and historical encroachment is somewhat greater than that described in the Encroachment Agreement. The trial court’s order does not affect the terms of the Encroachment Agreement,” wrote Judge Terry Crone.

They judges also affirmed a portion of the judgment pertaining to the septic easement.   

 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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