Covenants

Keene v Elkhart County Park and Recreation Board, 740 NE2d 893 (Ind App 2000).

Facts: The Keenes (owners) owned two tracts of land dissected by a canal formerly owned by Northern Indiana Public Service Company and subsequently owned by the Elkhart County Park and Recreation Board (the Board). The deed to the canal was subject to a covenant running with the land. The covenant provided that "... grantee will construct and forever maintain a proper bridge over the canal to be constructed over and above said lands ... as to provide safe and secure crossing over said canal for all farming operations...." Both parties agreed that the covenant was a burden that ran with the land in perpetuity of its ownership, but the Board maintained that its obligation was to maintain the bridge as originally constructed. Owners, however, argued that the covenant required that the Board not only maintain the bridge but also rebuild it if necessary to accommodate safe passage for modern farm equipment. The trial court granted partial summary judgment for the Board and the owners brought an interlocutory appeal

Holding: Reversed. On appeal, the court interpreted the deed according to the intent of the original parties and "read the language of the covenant according to its clear and ordinary meaning." As a result, the court rejected the Board's argument that the covenant required the canal owner to maintain the existing bridge well enough only to accommodate farm equipment in existence at the time of the agreement. The court stated that the Board's reading simply could not meet the standard of maintenance expressed in the plain meaning of the covenant, and that case law showed that maintenance in perpetuity may command outright replacement of the object.

EDITOR'S NOTE: In Illinois, covenants are construed according to the intent of the original parties and as expressed within the entire context of the document. See Kessler v Palmeri, 278 NE2d 813 (Ill App 1972; Streams Sports Club, Ltd v Richmond, 457 NE2d 1226 (Ill App 1983). In the facts at hand, the language of the entire covenant unambiguously expressed the intent of the original parties for the owner of the canal to sufficiently maintain the bridge for safe passage of all farm equipment in perpetuity. Thus, an Illinois court would likely concur with the ruling of the Indiana Appeals Court.

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