SYRACUSE — Remodeling of a home on Eli Lilly Road, Syracuse, could resume if the owner desires. However, the matter that stopped construction is still before the courts.
A hearing was held Wednesday, June 13, to seek a preliminary injunction against Ryan Thwaits removing an existing passway on his lot established in the covenants of an original deed. However, after an hour long recess shortly after the hearing began, both sides reached an agreement not to have the preliminary injunction decided at that time. Instead they will combine the injunction with the final trial and have a date set for a jury trial.
Thwaits purchased the property Aug. 30, 2016.
Kosciusko Circuit Court Judge Michael Reed, special judge in the matter, set the trial for Nov. 13-14.
Steve Snyder, counsel for the numerous plaintiffs, stated “In the meantime we will continue our discussion and resolve (the situation) if we can. If we can’t then the trial date is set.” He also noted no temporary restraining order would be sought.
Attorneys for both sides also agreed to have the trial date set and to keep the judge informed of the negotiations.
The perpetual passway involves 23 lots in the Wright’s Place plat plus a plat addition, divided in the late 1800s. Those lots are from the property owned by the Jane M. Jorgensen revocable trust at 7007 E. Eli Lilly Road, to property owned by Thomas and Patricia Kelley, 7199 E. Eli Lilly Road.
That passway was part of a lakeside path between the Wawasee Inn and Club (now Wawasee Spink) to the Sargent Hotel, the location of Randal and Deb Tobias’s home and then on west across Wrights’ land to the Jones Hotel (now owned by Monica Weigand, at 6837 E. Eli Lilly Road). Thwaits is constructing a pool and has landscape plans that allegedly is removing that passway.
Property owners in the Wright’s Place plat filed a complaint in April and filed a motion for a temporary restraining order and preliminary injunction. That complaint was filed in Kosciusko Superior Court 1 before Judge David Cates. Cates did sign a temporary restraining order on the day the complaint was filed and construction has halted.
Counsel for Thwaits, upon filing an answer to the complaint filed to continue the original hearing, set for May 4, and asked for a change of venue from the judge. The change of venue from the judge was granted and Reed took over the case.
All arguments thus far have not been in the courtroom, but through filings with the court.
The complaint filed by the 11 of the approximately 14 homeowners in the Wright’s Place addition, claim in the chain-of-title to Thwaits’ lot there is a covenant reading “And it is further agreed by said grantees that they will maintain a perpetual passway between any buildings that may be created on said land and the lake of sufficient width for foot passengers, said passway to be perpetually open to the public.” That dead was signed Sept. 21, 1938. This covenant is also referenced in a subsequent deed for that lot recorded June 29, 1945.
Additionally, it is noted Thwaits has begun construction with the remodeling and expansion of the existing home, construction of a swimming pool and proposed modification to the real estate between the structures and water’s edge. It’s alleged the modification will interfere with and eliminate the passway over the property established in the original covenant and has been used by the plaintiffs and their predecessors in excess of 120 years.
Arguments on the defense side state while the deeded restrictions for a “public” passway were noted in deeds filed in 1938 and 1945, it was not referenced in deeds filed Feb. 8, 1952, and thereafter. Additionally other documents, such as those from the title insurance commitment or owner’s title policy, do not disclose the passway. The defense contends the covenant was made when there were hotels in the area, which no longer exist. Those lots are now privately owned single family residences and there is no ability for the public to access the passway. The argument is the original purpose for the passway has lapsed and was terminated by abandonment.
It is also pointed out by the defense deeds to only eight of the lots specify where the passway is to be located. The remaining lots, including that of Thwaits’ just notes there is to be an open passway between buildings and the lake for foot passengers. The defense notes there is a concrete sidewalk, recently installed, at the west end of the addition and there is 770 feet where there is no sidewalk or evidence of a passway.
Additionally documents note Thwaits is willing to maintain a passway consistent to the 1945 deed, with the only issue being the location. Since no permanent structure will be built between the pool and lake edge, Thwaits could easily change the landscaping.
Thwaits has filed a counterclaim, seeking attorney fees, damages in construction work delay and consequential damages.
The plaintiffs in the case include Robert Fanning, Brian Fanning, Katherine Fanning, John and Margaret Feighner, William and Luretta Deschner, Ron Baumgartner, Myaamia Vice, LLC, the Ann W. Dalhart Personal Residence, and the Jane M. Jorgensen Revocable Trust.