Gordon D Emmert v. Leslie R Miller

• Court: Indiana Court of Appeals
• Decided: October 22, 2025
• Docket: 25A-PL-00669
• Status: Published

Opinion

I N THE

Court of Appeals of Indiana GSE Realty LLC, Gordon D. Emmert and Stacey I. Emmert, Appellants-Defendants FILED v. Oct 22 2025, 9:03 am

CLERK Indiana Supreme Court Court of Appeals Leslie R. Miller, and Tax Court

Appellee-Plaintiff

October 22, 2025 Court of Appeals Case No. 25A-PL-669 Appeal from the Parke Circuit Court The Honorable Hunter J. Reece, Special Judge Trial Court Cause No. 61C01-2306-PL-194

Opinion by Judge Tavitas Judges Vaidik and Felix concur.

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 1 of 18 Tavitas, Judge.

Case Summary [1] GSE Realty, LLC, Gordon Emmert, and Stacey Emmert (collectively, “the

Emmerts”) appeal the trial court’s grant of a prescriptive easement and

permanent injunction to Leslie Miller. This appeal involves a dispute between

neighboring property owners over the use of a gravel private subdivision road

located between the properties. It is undisputed that the road was constructed

in the 1960s in the wrong location, and the current location does not

correspond with the platted location of the road. A portion of the road is on the

Emmerts’ property, and a portion of Miller’s house and pole barn are located

on the platted location of the road.

[2] On appeal, the Emmerts argue that the evidence does not support the award of

a prescriptive easement and that the injunction does not describe the

prescriptive easement with particularity. We conclude that the award of a

prescriptive easement is not clearly erroneous except for the portion of the

prescriptive easement that is on the Emmerts’ property and past Miller’s

residence. Because we are remanding, we do not address the Emmerts’

argument regarding the particularity of the injunction. Accordingly, we affirm

in part, reverse in part, and remand for further proceedings.

Issues [3] The Emmerts raise three issues, which we consolidate and restate as:

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 2 of 18 I. Whether the trial court erred by granting Miller a prescriptive easement.

II. Whether the trial court’s injunction described the prescriptive easement with sufficient particularity.

Facts [4] This dispute concerns the location and use of Lazy Lane in Spencer’s

Subdivision near Raccoon Lake. The subdivision’s plat shows a thirty-foot

wide private road, Lazy Lane, leading to and separating Lots 10 and 11 from

Lot 12. The plat restrictions provide: “All that part of the real property

included with said plat as shown as being intended for streets and alleys is

granted and dedicated for the use of the owners of the real estate of said

‘Spencer Subdivision’, their agents, representatives, guests and employees.” Ex.

Vol. III p. 14 (Plaintiff’s Ex. 10). In 1986, the following requirement was added

to the subdivision’s Deed of Dedication: “Main Roads are to be built and

maintained for one (1) year by the seller. Maintenance after one (1) year shall

be pro-rated by property owners. Private streets shall be maintained by the

owners of contiguous or adjacent property, or by the private organization . . . .”

Id. at 33 (Plaintiff’s Ex. 21). Accordingly, Lazy Lane was platted as a private

road to be maintained by the adjacent property owners, including Lots 10, 11,

and 12.

[5] Darrell Allen and Mary Rector (“the Allens”) previously owned Lots 10 and

11. The Allens built a residence on Lot 10 prior to 1967; put gravel on Lazy

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 3 of 18 Lane; and built a pole barn in 1975. The location of Lazy Lane has remained

essentially the same since its construction in the 1960’s.

Figure 1: (Ex. Vol. III p. 16; Plaintiff’s Ex. 11 with labels added).

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 4 of 18 [6] The Emmerts purchased Lot 12 in 2000 and transferred the property to GSE

Realty, LLC, in 2021. 1 Miller purchased Lots 10 and 11 in 2022. According to

Miller, the Emmerts “expanded [Lazy Lane] a little bit.” Tr. Vol. II p. 49. The

Emmerts, however, testified that the graveled area has increased toward their

property “two to three feet” due to Miller’s construction, gravity, and the slope

of the area. Id. at 106.

[7] In March 2023, due to a dispute between the Emmerts and Miller, the Emmerts

hired a surveyor to conduct a retracement survey. The retracement survey

demonstrated that Lazy Lane had been constructed in the wrong location.

Lazy Lane was constructed partially on the Emmerts’ property; Miller’s

residence and pole barn are partially on the platted Lazy Lane; and Miller’s

graveled, parking area in front of his pole barn and residence is on the platted

Lazy Lane. On the survey below, the hatched area represents the original

platted Lazy Lane (“Platted Lazy Lane”), and the area with circles represents

the existing location of Lazy Lane as constructed (“Gravel Driveway”).

1 We note that, given GSE Realty’s ownership of Lot 12, GSE Realty, not the Emmerts, should have been the defendant here.

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 5 of 18 Figure 2: (Appellants’ App. Vol. II p. 30 with labels added).

[8] On June 8, 2023, Miller filed a complaint seeking a prescriptive easement.

Miller later filed an amended complaint naming several additional property

owners in the subdivision as defendants based on their interest in Lazy Lane.

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 6 of 18 Those additional defendants were either voluntarily dismissed or defaulted and

are not parties to this appeal.

[9] A bench trial was held in February 2025. Charlotte Humrichouse, daughter of

the Allens, testified that she owned Lots 10 and 11 in the 1960s with her

husband and parents. She had an interest in the property until approximately

2007 and testified that the location of the driveway was unchanged between the

1960s and late 2000s. Humrichouse has visited the area two or three times a

year since then and testified that the location of Lazy Lane has not changed.

According to Humrichouse, when they owned the property, they had no reason

to use the portion of Lazy Lane past their house and next to the Emmerts’

residence.

[10] Miller testified that he uses the Gravel Driveway to get his boat in and out of

the pole barn and to back out of his driveway. Miller admitted that a small

portion of the house and pole barn encroach on the Platted Lazy Lane.

[11] Gordon Emmert testified that, during Miller’s remodeling of his residence, the

Emmerts were blocked from accessing their property on several occasions,

which prompted them to obtain a survey. Gordon testified that he had no issue

with Miller parking one row of cars on the Platted Lazy Lane near Miller’s

garage. The Emmerts did not request that Miller’s pole barn or house be

moved off the Platted Lazy Lane, and they agreed that a prescriptive easement

for the structures on the Platted Lazy Lane should be granted.

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 7 of 18 [12] On March 3, 2025, the trial court entered findings of fact and conclusions

thereon and granted Miller’s request for a prescriptive easement. The trial court

found:

I. Miller has established by clear and convincing evidence each of the elements for the establishment of a prescriptive easement, for Lazy Lane, as well as for the structures and driveway on Miller’s property, which encroach upon the platted area for the roadway and this easement was established before Emmerts acquired their property. For about 60 years, the driveway has been used for ingress, egress, parking, and walking for the Miller property and as the physical location of the Encroachments. Such easements were legally established under the law in the 1980s and none of them or the adverse uses have been abandoned.

*****

L. The property used [as] Lazy Lane, has not substantially changed in layout or use for about 60 years. The road is immediately visible and readily apparent to any observer of the land. The buildings on [Miller’s] land, which encroach on the platted road, have been in the same position and location far longer than the statutory period requires. The land, driveway and Encroachments were clearly denoted in the real estate listing of the seller to Emmerts, which Emmerts had the opportunity to take notice of before Emmerts purchased Lot 12 from that seller.

N. The Court finds that since [Miller] and his predecessors in interest had no right, along with all other lot owners in the subdivision, to enter upon and across the [Emmerts’] Lot, and was therefore hostile and visible, to the extent is traversed Lot 12,

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 8 of 18 owned by [the Emmerts], and their predecessors in interest. Had the owners of Lot 12 raised these claims in the 1960s, when the first rocks were laid for Lazy Lane across Lot 12, certainly constructing a road across private property would have been actionable. In this case, time is not the [Emmerts’] friend.

Appellants’ App. Vol. II pp. 220-21.

[13] The trial court granted:

(1) a prescriptive easement benefitting Lot 10 “for vehicular and foot traffic and parking over and across that portion of Lazy Lane, also described as the ‘Gravel Driveway’ on the Survey, that is on Lot 12;”

(2) a prescriptive easement benefitting Lot 10 “where it lies both within the Platted Lazy Lane (areas denoted with circles and overlapping hashmarks, on attached Exhibit A[ 2]) and also within Lot 10, to maintain the currently existing physical Encroachments and improvements (i.e. gravel parking area/driveway, house, pole barn and fence)”;

(3) permanently enjoined the Emmerts and their successors in interest from: “(i) removing or relocating gravel from the Gravel Driveway and Lazy Lane, as depicted on the Exhibit A, whether or not the gravel is inside or outside the Platted Lazy Lane; (ii) obstructing or impeding in any manner the free, reasonable use by the holders of the aforesaid prescriptive easements or exercise of the rights associated therewith; and (iii) from entering upon, obstructing, or using [Miller’s] Graveled Property, which

2 Exhibit A was the retracement survey.

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 9 of 18 includes portions of Lot 10 covered by gravel and also any structures, despite those areas being within Platted Lazy Lane”;

(4) enjoined Miller and his successors in interest from making further improvements or encroachments into the platted Lazy Lane or extending the actual Lazy Lane further into the Emmerts’ lot; and

(5) ordered that “nothing in this Order shall prevent Emmerts from using that portion of Lazy Lane/ Gravel Driveway, within their own Lot 12, so long as their use does not obstruct or impede [Miller’s] use, particularly that area to the northwest of the Gravel Driveway used as Lazy Lane, as it transitions to [Miller’s] Graveled Driveway.”

Id. at 222. The Emmerts now appeal.

Discussion and Decision [14] The Emmerts challenge the trial court’s order granting a prescriptive easement

and permanent injunction. The Emmerts filed a motion for findings of fact and

conclusions thereon pursuant to Indiana Trial Rule 52, and the trial court

issued those findings of fact and conclusions thereon. Accordingly, we apply a

two-tiered review. Wysocki v. Johnson, 18 N.E.3d 600, 603 (Ind. 2014). We

“affirm when the evidence supports the findings, and when the findings support

the judgment.” Id. We do not “set aside the findings or judgment unless [they

are] clearly erroneous,” and we must give “due regard . . . to the opportunity of

the trial court to judge the credibility of the witnesses.” Id. (citing Ind. Trial

Rule 52(A)). “Findings of fact are clearly erroneous only when they have no

factual support in the record.” Id. “[A] judgment is clearly erroneous if it Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 10 of 18 applies the wrong legal standard to properly found facts.” Id. at 604. We

review the trial court’s legal conclusions de novo. Gittings v. Deal, 109 N.E.3d

963, 970 (Ind. 2018).

I. Prescriptive Easement

[15] We first address the Emmerts’ challenge to the trial court’s grant of a

prescriptive easement. “An easement is an interest in land that entitles the

owner to use another’s property for a specific purpose.” Morehouse v. Dux N.

LLC, 226 N.E.3d 758, 760-61 (Ind. 2024). “Under Indiana law, easements may

arise by grant, prescription, or implication.” Id. at 763. Prescriptive easements

are at issue here and “arise from an ongoing trespass of property for at least

twenty years.” Id.

[16] Prescriptive easements generally “are not favored in the law.” Wilfong v. Cessna

Corp., 838 N.E.2d 403, 405 (Ind. 2005). The party claiming a prescriptive

easement, thus, must meet “stringent requirements.” Id. Historically, “[a]

party claiming the existence of a prescriptive easement must provide evidence

showing ‘an actual, hostile, open, notorious, continuous, uninterrupted adverse

use for twenty years under a claim of right.’” Id. (quoting Carnahan v. Moriah

Prop. Owners Ass’n., Inc., 716 N.E.2d 437, 441 (Ind. 1999)).

[17] In Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005), our Supreme Court

reformulated the elements necessary to establish adverse possession and held

“the claimant in such circumstances must establish clear and convincing proof

of (1) control, (2) intent, (3) notice, and (4) duration.” Wilfong, 838 N.E.2d at

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 11 of 18 406. In Wilfong, our Supreme Court held that “[t]his reformulation applies as

well for establishing prescriptive easements, save for those differences required

by the differences between fee interests and easements.” Id. These four

elements are established by clear and convincing proof of the following:

(1) Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);

(2) Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);

(3) Notice—The claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and,

(4) Duration—the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).

Id. at 406 n.1 (citing Fraley, 829 N.E.2d at 486).

[18] The elements must be satisfied for a period of twenty years. See Ind. Code § 32-

23-1-1 (“The right-of-way, air, light, or other easement from, in, upon, or over

land owned by a person may not be acquired by another person by adverse use

unless the use is uninterrupted for at least twenty (20) years.”). “Whether a

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 12 of 18 prescriptive easement exists is a question of fact.” Jones v. Von Hollow Ass’n,

Inc., 103 N.E.3d 667, 673 (Ind. Ct. App. 2018).

A. Parking on the Platted Lazy Lane and Gravel Driveway

[19] The Emmerts first argue that Miller failed to present evidence of parking on

either the Platted Lazy Lane or the Gravel Driveway for more than twenty

years. Regarding the Platted Lazy Lane, we note that Gordon Emmert testified

that he had no issue with Miller parking one row of cars on the Platted Lazy

Lane near Miller’s garage. See Tr. Vol. II p. 116. In general, a party cannot

present a different argument on appeal than he presented to the trial court. See

Gladstone v. W. Bend Mut. Ins. Co., 166 N.E.3d 362, 372 (Ind. Ct. App. 2021) (“A

party cannot rely on one reason for an objection at trial and then assert another

argument for objection on appeal.”), trans. denied. Accordingly, this issue is

waived.

[20] As for parking on the Gravel Driveway, part of which is on the Emmerts’

property, the trial court granted Miller a prescriptive easement for vehicular and

foot traffic and parking over and across the area labeled as “Gravel Driveway”

labeled on the Survey. Appellants’ App. Vol. II p. 222. This order grants

Miller a prescriptive easement to park on the Gravel Driveway, which includes

part of Lot 12, and could potentially allow Miller to park in a manner that

would block the Emmerts’ only access to their residence and parking area.

Miller testified that he used the Gravel Driveway when he was backing his boat

out of his shed, but Gordon Emmert testified that it was not necessary for

Miller to drive beyond Point A on Exhibit M below. We note that Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 13 of 18 Humrichouse testified that she and her family had no reason to use the portion

of Lazy Lane past their house, which would correspond to Point A on Exhibit

M. We conclude that there is no evidence of historical, continuous parking by

the owners of Lots 10 and 11 on the Gravel Driveway beyond Point A as

labeled on Exhibit M.

Figure 3: (Ex. Vol. III p. 73; Ex. M with labels added). Accordingly, we reverse

the trial court’s grant of a prescriptive easement beyond Point A as it relates to

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 14 of 18 vehicular traffic, foot traffic, or parking by the owners of Lot 10 and 11 in the

Gravel Driveway.

B. Use of Gravel Driveway on Emmerts’ Property

[21] Next, the Emmerts argue that Miller failed to present evidence of the

continuous use of the Gravel Driveway on Lot 12, which is owned by the

Emmerts. Humrichouse, however, testified that the location of Lazy Lane has

remained unchanged since the 1960s. The trial court found that “the amount of

land covered in stone is somewhat greater now, particularly around [Miller’s]

garage and parking area, but generally the road is unchanged since the 1960s.”

Appellants’ App. Vol. II p. 216. The Emmerts’ arguments regarding other

portions of Humrichouse’s testimony and other exhibits are merely requests

that we reweigh the evidence, which we cannot do. The trial court’s finding

regarding a prescriptive easement over the Gravel Driveway is not clearly

erroneous, except as noted above beyond Point A.

C. Adverse Use

[22] Additionally, the Emmerts briefly argue that Miller failed to present evidence

that his use of the “subject property was adverse.” Appellants’ Br. p. 27. The

trial court found that “Miller and his predecessors in interest never asked for

permission to use the roadway, were never given such permission, and were

never challenged in its use since 1962, until the current lawsuit.” Appellants’

App. Vol. II p. 220. The Emmerts cite to no evidence that Miller or his

predecessors were given permission to build their house or pole barn on Platted

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 15 of 18 Lazy Lane, park on Platted Lazy Lane, or utilize the Gravel Driveway to access

Lots 10 and 11. Accordingly, we cannot say the trial court’s finding regarding

adverse use is clearly erroneous.

II. Permanent Injunction

[23] Finally, the Emmerts challenge the particularity of the permanent injunction,

which provides:

[The Emmerts] and their successors in interest are permanently enjoined from (i) removing or relocating gravel from the Gravel Driveway and Lazy Lane, as depicted on the Exhibit A, whether or not the gravel is inside or outside the Platted Lazy Lane; (ii) obstructing or impeding in any manner the free, reasonable use by the holders of the aforesaid prescriptive easements or exercise of the rights associated therewith; and (iii) from entering upon, obstructing, or using [Miller’s] Graveled Property, which includes portions of Lot 10 covered by gravel and also any structures, despite those areas being within Platted Lazy Lane. [Miller] shall be hereafter entitled to quiet use and enjoyment of this area, despite these improvements laying in the Platted Lazy Lane.

Appellants’ App. Vol. II p. 222. According to the Emmerts, Indiana Trial Rule

65(D) requires an injunction to be “specific in terms,” and the injunction “shall

describe in reasonable detail . . . the act or acts sought to be restrained.” The

Emmerts argue that the injunction here fails to provide “clear notice to the

parties involved and ensure compliance.” Appellants’ Br. p. 13. In particular,

they point out that, although the trial court’s order references the survey, see

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 16 of 18 supra Figure 2, the survey does not describe the width of the prescriptive

easement on Lot 12.

[24] We do not address the Emmerts’ argument because, given our reversal of a

portion of the trial court’s granted prescriptive easement and our remand, it will

be necessary for the trial court to revise its order and description of the

prescriptive easement. The issues raised in the Emmerts’ argument may be

considered on remand.

Conclusion [25] We reverse the trial court’s grant of a prescriptive easement to Miller regarding

the Gravel Driveway beyond Point A as shown on Figure 3 (Exhibit M). The

Emmerts, however, have failed to demonstrate that the trial court’s grant of a

prescriptive easement on the remaining property at issue here is clearly

erroneous. Accordingly, we affirm the remaining prescriptive easement. Given

our remand for correction of the prescriptive easement, we do not address the

Emmerts’ argument regarding the permanent injunction. Accordingly, we

affirm in part, reverse in part, and remand.

[26] Affirmed in part, reversed in part, and remanded.

Vaidik, J., and Felix, J., concur.

ATTORNEY FOR APPELLANTS Glen E. Koch II Boren, Oliver & Coffey, LLP Martinsville, Indiana

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 17 of 18 ATTORNEYS FOR APPELLEE William W. Gooden Kristin A. McKinney Jennifer F. Perry Clark, Quinn, Moses, Scott & Grahn, LLP Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 25A-PL-669 | October 22, 2025 Page 18 of 18