MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Feb 12 2016, 8:21 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Dale W. Arnett                                           Meeks Cockerill
Winchester, Indiana                                      Winchester, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry D. Rittenhouse and                                 February 12, 2016

Linda C. Rittenhouse,                                    Court of Appeals Case No.
                                                         68A01-1507-MI-1014
Appellants-Defendants,
                                                         Appeal from the Randolph
        v.                                               Superior Court
                                                         The Honorable Peter D. Haviza
City of Winchester,                                      Trial Court Cause No.
                                                         68D01-1011-MI-649
Appellee-Plaintiff



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016      Page 1 of 10
                                          Case Summary
[1]   The Rittenhouses, who own real property that was platted by Silas Colgrove in

      1870, filed first a complaint and then a motion for summary judgment against

      the City of Winchester, claiming ownership of a portion of Meridian Street.

      Finding no merit to the Rittenhouses’ contention that a prior railroad right-of-

      way precluded Colgrove from platting an easement for Meridian Street, and

      that a class-action declaratory judgment cited as support by the Rittenhouses

      does not pertain to the property at issue in this matter, we find the Rittenhouses

      have failed to demonstrate a genuine issue of material fact. We further

      conclude that although the Rittenhouses may have a fee interest in a portion of

      what is now Meridian Street, subsequent to the railroad right-of-way the

      Colgrove Plat gave to Winchester an easement for public-street purposes—

      Meridian Street—the dimensions of which can be determined by looking at

      Mumma’s Addition in conjunction with Colgrove’s Addition. Thus the City of

      Winchester has an easement on the disputed property.

[2]   We affirm.



                            Facts and Procedural History
[3]   This case was initiated in November 2010, when Larry Rittenhouse filed a

      complaint against the City of Winchester requesting a judgment declaring that

      the Rittenhouses are the rightful owners of certain real estate, orders to quiet

      title and prohibit condemnation of the real estate for a period of two years, and


      Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 2 of 10
      damages. See Appellants’ App. p. 155. Specifically the real estate of which the

      Rittenhouses are claiming ownership is presently a platted, paved city street

      called Meridian Street in Winchester, Indiana.

[4]   The real estate in question has a long and complicated history. In January

      1856, Andrew Aker received a deed for certain real property, which included

      what is now Lots 6,13,14, and 15 of Colgrove Addition and 100 feet to the east

      of the lots. A document signed by Aker, dated July 11, 1856, gave the

      Cincinnati and Fort Wayne Railroad a right-of-way across 100 feet east of the

      lots; the right-of-way was for fifty feet on either side of the railroad track. Aker

      had the privilege of using and cultivating any part of the one-hundred feet not

      needed by the railroad “for the construction, repair, or use of the [rail]road.”

      Id. at 158.


[5]   Later in November 1868, Aker and his wife, Hannah, conveyed to Silas

      Colgrove by warranty deed what is now Lots 6,13,14, and 15 and up to the

      centerline of the railroad subject to the conveyance of the right-of-way granted

      by Aker to the railroad. In May 1870 Colgrove platted the Colgrove Addition,

      including Lots 6, 13, 14, and 15. The plat of Colgrove Addition platted

      subdivision streets as follows: “All the lines of the Streets, Alleys, & Lots have

      the same bearings of the lines of Streets, Alleys & Lots in said Mumma’s

      Addition.” Id. at 33, 124. The contemporaneous Colgrove Addition plat map,

      see id. at 17, together with the contemporary map of John Mumma’s Addition,

      see id. at 17, shows Meridian Street immediately to the east of Lots 6,13,14, and

      15. While no railroad easement is shown on the contemporaneous subdivision

      Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 3 of 10
plat, the original deed granted the railroad right-of-way immediately to the east

of the lots in Colgrove Addition and is shown on an earlier plat, see id. at 16.

Therefore, Meridian Street was platted on the railroad’s right-of-way.




Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 4 of 10
[6]   Sometime in the mid-1980s the railroad abandoned its easement and, shortly

      thereafter, the City of Winchester paved the western-most portion of the

      easement. For over forty years the paved portion of North Meridian Street

      adjacent to Lots 6, 13, 14, and 15 in the Colgrove Addition has been in its

      present location and used by the public as a right-of-way. See id. at 80-81, 86-

      87.

[7]   Larry Rittenhouse filed a complaint in November 20101, and thereafter the City

      of Winchester filed a counterclaim. Rittenhouse claimed that he owed fee

      simple ownership of the abandoned railroad easement east of Lots 6, 13, 14,

      and 15. Both parties then filed motions for partial summary judgments, and

      responses to the same. In June 2015, the trial court issued a summary

      declaratory judgment, finding that the Meridian Street easement existed at the

      same time as the railroad right-of-way, that the Meridian Street easement was

      subservient to the railroad right-of-way, and that the Rittenhouses have the fee

      interest in the property subject to the still-existing Meridian Street easement.

      The Rittenhouses now appeal.



                                   Discussion and Decision
[8]   On appeal the Rittenhouses appeal the trial court’s grant of summary judgment

      in favor of the City of Winchester, contending first that the railroad’s right-of-




      1
          Linda Rittenhouse was added as a necessary third party in December 2012.


      Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 5 of 10
       way was granted before Colgrove took possession; consequently, Colgrove had

       no legal authority to plat an easement for a street on railroad property. Second

       the Rittenhouses argue that the Firestone v. American Premier Underwriters, Inc.

       (formerly known as the Penn Central Corp.), Cause No. 06C01-9912-CP-379, from

       the Boone Circuit Court gives them ownership of the disputed property.

[9]    When reviewing the entry or denial of summary judgment, our standard of

       review is the same as that of the trial court: summary judgment is appropriate

       only where there is no genuine issue of material fact and the moving party is

       entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Wise v. Hays,

       943 N.E.2d 835, 839-40 (Ind. Ct. App. 2011). All facts established by the

       designated evidence and reasonable inferences drawn from those facts are

       construed in favor of the nonmoving party. Wise, 943 N.E.2d at 840.


[10]   The Rittenhouses argue first that Colgrove could not plat Meridian Street on

       railroad property because the railroad’s right-of-way was granted before

       Colgrove took possession. In support of this argument, the Rittenhouses cite

       Indiana Code section 8-3-15-1, which provides as follows:

               The use by the public (of the) right of way or depot grounds of
               any railroad in this state by riding, driving or walking thereon,
               shall not ripen into a right to continue to do so even though it has
               been so used for a period of twenty (20) years or more; nor shall
               such use be evidence of a grant to do so except where such use is
               made across such ground to connect a street or highway on each
               side thereof, and except where a court of competent jurisdiction
               has adjudged the existence of a street or highway.



       Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 6 of 10
       The Rittenhouses also cite to Murphey v. Inter-Ocean Cas. Co., 98 Ind.App. 668,

       186 N.E. 902, 903 (1933), in which this Court relied on the above-cited statute

       in order to find: “In view of this statute, a railroad right of way cannot become

       a public highway by reason of the continuous use thereof by the general public

       as a way of travel.” We find both of these authorities inapposite, however,

       because Meridian Street did not come about merely through public use of the

       railroad right-of-way. Instead, Meridian Street was a subsequent easement,

       given by Colgrove to the town (now city) of Winchester when he platted the

       Colgrove Addition.

[11]   The evidence shows that in 1856, Aker gave the railroad a right-of-way of fifty

       feet on either side of the tracks across a portion of the disputed property, but he

       retained the right to use and cultivate any part of the one-hundred feet that the

       railroad did not need. See Appellants’ App. p. 158. Then, in 1870, Colgrove, to

       whom Aker had conveyed the property, platted and recorded the Colgrove

       Addition, including Lots 6, 13, 14, and 15. The contemporaneous map of

       Colgrove’s Addition, see id. at 17, clearly shows Meridian Street located

       immediately east of Lots 6, 13, 14, and 15 in line with Meridian Street in

       Mumma’s Addition. The bare-bones, hand-drawn map attached to the 1870

       description of Colgrove’s Addition to the town of Winchester, see id. at 161,

       shows Meridian Street and the railroad easements co-existing in the same

       location.

[12]   Thus, we conclude that there were, historically, two easements on this property:

       Meridian Street was an easement subsequent to the railroad right-of-way,

       Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 7 of 10
       covering 82 feet of that right-of-way. The street was platted to run across the

       same property as the railroad right-of-way but, as a subsequent easement, could

       not and did not interfere with the first easement—the railroad right-of-way.

       This is supported by what ultimately occurred, as described by Rittenhouse

       himself: as soon as the railroad abandoned its easement in the mid-1980s and

       the tracks were removed, the City of Winchester paved over the western-most

       portion of the now-vacant and abandoned railroad right-of-way, which it was

       entitled to do by virtue of its long-standing easement. See id. at 154-55. In sum,

       while it may be true that the Rittenhouses maintain a fee interest in some

       portion of the property immediately adjacent to their lots, it is also the case that

       Winchester has had an interest in a public-street easement since 1870, when

       Colgrove platted his addition to the town (now city) of Winchester, and platted

       Meridian Street.

[13]   As a final matter, the Rittenhouses contend that the Firestone case resolves this

       dispute. The entirety of their argument to this effect is as follows:

               The “Firestone” case specifically states it is a class action that
               includes “all owners of land in the State of Indiana next to or
               over which Penn Central Corporation has had a right-of-way for
               railroad purpose . . . .” [internal citation omitted]. [Firestone]
               does not state that an adjacent landowner has to point to out [sic]
               any specific section to claim their rights to the railroad property.


       Appellants’ Br. p. 8. First, it is far from clear that the “Settlement Corridors” at

       issue in Firestone—described as “approximately 733 miles of former Penn

       Central railroad corridor in the State of Indiana[,]” Appellants’ App. p. 49—are

       Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 8 of 10
       even the same railroad corridors that are adjacent to the Rittenhouses’ property.

       Further, confusingly, the Rittenhouses are listed as members of the Class in

       Exhibit A2, but the Tax Map does not list the lots in question here, listing

       instead “40 Lot No NE 29-20-14.20 A.” Id. at 57. Finally, Paragraph 8 of

       Firestone specifically states that it is not within the scope of that decision to

       resolve title disputes between individual persons which may occur as a result of

       conveyances of portions of the Settlement Corridors, and such disputes must be

       resolved by the individual parties concerned. See id. at 52. Thus, the

       Rittenhouses have failed to demonstrate that the Firestone decision is somehow

       relevant to or governs this dispute.

[14]   For the reasons set forth above, we find the Rittenhouses have failed to raise a

       genuine issue of material fact. Wise, 943 N.E.2d at 839-40. Because the

       evidence shows that the City of Winchester has had an easement for Meridian

       Street in this location since Colgrove platted his addition in 1870, any fee

       interest the Rittenhouses may have in this property is immaterial.

[15]   Affirmed.




       2
           From the Firestone decision:

                Exhibit A identifies the adjoining landowners as recorded in the Randolph County property tax
                records, who are members of the Class, as well as, where available, the tax record address for
                each of the adjoining landowner properties, the tax parcel and map numbers of the properties,
                and the nature of title held by APU to that portion of the Randolph County Corridors adjacent
                to each such property.
       Appellants’ App. p. 50.

       Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016          Page 9 of 10
Bailey, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016   Page 10 of 10
