Margaret J. Wilkinson v. Ivan H. Kuehn and Micki L. Kuehn (mem. dec), 74A05-1608-PL-1994

In 1998 Wilkinson conveyed land to the Kuehns that created a 150-foot scenic easement on the Kuehns’ parcel prohibiting construction within the strip.
In ~2007 the Kuehns built a house adjacent to Wilkinson’s land; they showed Wilkinson flagged house location and told her it would be outside the easement. Wilkinson did not object or order a survey.
In 2016 a purchaser’s survey revealed the house encroached on the easement (~7 feet front, ~18 feet back). The Kuehns petitioned for emergency partial relief to quiet title to the encroached portion.
The trial court held an expedited hearing, denied Wilkinson’s second same-day continuance request, and consolidated emergency relief with merits disposition.
The court found the encroachment was unintentional and that Wilkinson had acquiesced; it ordered a partial release/quiet title for the small area of encroachment and reserved damages for later hearing.
Wilkinson appealed, challenging the partial extinguishment, the denial of continuance, and consolidation of the emergency hearing with a trial on the merits.

Issue	Plaintiff's Argument (Kuehns)	Defendant's Argument (Wilkinson)	Held
Whether a portion of the scenic easement may be extinguished/quieted to accommodate the house	Relief justified because encroachment was small, unintentional, and sale/purchaser reliance created urgency	Easement cannot be partially released; trial court lacked legal basis and evidence to extinguish easement	Court affirmed partial release based on Wilkinson’s acquiescence to the construction; equitable estoppel/acquiescence supports quieting title
Whether denial of Wilkinson’s second continuance (same-day) was an abuse of discretion	Continuance needed for adequate preparation and counsel	Continuance would prejudice plaintiffs and purchasers; case facts were straightforward and Wilkinson admitted critical facts	Denial affirmed; no prejudice shown and continuance would have imposed further delay and costs
Whether consolidation of emergency hearing with trial on the merits was improper surprise and reversible error	Consolidation deprived Wilkinson of notice and opportunity to present merits	Consolidation reasonable given narrow disputed issues and absence of prejudice; court could decide on presented evidence	Affirmed; consolidation not reversible absent prejudice and none shown

Estate of Reasor v. Putnam County, 635 N.E.2d 153 (Ind. 1994) (standard of review for findings of fact and conclusions of law)
State v. Van Cleave, 674 N.E.2d 1293 (Ind. 1996) (judgment is clearly erroneous if wrong legal standard applied)
Henning v. Neisz, 268 N.E.2d 310 (Ind. Ct. App. 1971) (acquiescence as release/abandonment of rights)
Bd. of Comm’rs of Cass Cty. v. Plotner, 48 N.E. 635 (Ind. 1897) (acquiescence equated with permission; equity bars repudiation after assent)
Roberts v. Cmty. Hosps. of Ind., Inc., 897 N.E.2d 458 (Ind. 2008) (factors for assessing prejudice from surprise consolidation)
Destination Yachts, Inc. v. Fine, 22 N.E.3d 611 (Ind. Ct. App. 2014) (continuance/abuse of discretion standards)
Evans v. Thomas, 976 N.E.2d 125 (Ind. Ct. App. 2012) (continuance requires showing of good cause)
Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096 (5th Cir. 1972) (surprise consolidation reversible only on showing of prejudice)