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A property dispute between neighbors will continue in the Brown Circuit Court after the Court of Appeals of Indiana overturned the dismissal of the plaintiffs’ amended complaint.
In March 2022, Randall R. Kirk and Brenda Rae Kirk filed a complaint for preliminary and permanent injunctive relief against John Brown and Annetta Brown. The parties are adjoining landowners in the Tee Pee Point Subdivision in Brown County, and the Browns had plans to construct a home on one of their lots.
Issue arose regarding the Browns’ septic system installation plans for the new home, as their blueprint encroached on the dedicated walkway that provides public access to Lake Lemon and the end of a plotted road for the Kirks.
The Browns filed a motion to dismiss, arguing the Kirks did not attach a recorded plat or a deed indicating they are proper parties in interest. The Kirks responded with an amended complaint naming the Randall R. Kirk Revocable Trust and the Brenda Rae Kirk Revocable Trust as the plaintiffs.
The Browns then filed a motion to dismiss the amended complaint, arguing the Kirks failed “to make any allegations as to how or even whether their alleged irreparable damage would be special or peculiar to Plaintiffs from that of the injury that the general public would suffer by reason of an encroachment on the dedicated public walkway and road.”
The trial court granted the dismissal motion, finding “(t)he Plaintiffs must allege ‘a special and particular injury apart from the injury suffered by the general public.’ Blair v. Anderson, 570 N.E.2d 1337, 1339-40 (Ind. Ct. App. 1991). The injury must be of a different kind, not merely a difference in degree.”
But at the Court of Appeals, judges ruled the Kirks could pursue their complaint.
“Plaintiffs allege the location of the planned installation would affect their access to the lake and their enjoyment of their property, and the reasonable inference is that this is so,” Judge Elaine Brown wrote. “We will affirm the dismissal only if it is apparent that the facts alleged in the Amended Complaint are incapable of supporting relief under any set of circumstances. We cannot say Defendants have made such a showing.”
Brown quoted from Holz v. Lyles, a 1971 case from Alabama that found, “In the instant case, appellee owns two adjoining lots, one of which fronts on Magnolia Street. Thus, he and the occupants of his lots have a convenient access to Palmetto Creek merely by crossing Magnolia Street. … We do not think appellee or his occupants should be required to take a more circuitous route to reach the creek because of the arbitrary and unlawful acts of appellants. This inconvenience, we think, is peculiar and special to appellee in view of the proximity of his lots and premises to Palmetto Creek.”
The case is Randall R. Kirk Revocable Trust (Randall R. Kirk, Trustee), and Brenda Rae Kirk Revocable Trust (Brenda Rae Kirk, Trustee) v. Josh Brown and Annetta Brown, 22A-PL-1984.
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