Gordon S. Nesbit Revocable Trust v. Robert Jason Hendrickson

• Court: Indiana Court of Appeals
• Decided: April 7, 2026
• Docket: 25A-PL-02274
• Status: Published
• Author: Judge Bradford

Opinion

IN THE

Court of Appeals of Indiana FILED Apr 07 2026, 9:08 am

Gordon S. Nesbit Revocable Trust, CLERK Indiana Supreme Court Appellant/Plaintiff/Counterclaim Defendant Court of Appeals and Tax Court

v.

Robert Jason Hendrickson, Appellee/Defendant/Counterclaim Plaintiff

April 7, 2026 Court of Appeals Case No. 25A-PL-2274 Appeal from the Monroe Circuit Court The Honorable Geoffrey J. Bradley, Judge Trial Court Cause No. 53C01-2308-PL-1863

Opinion by Judge Bradford

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 1 of 13 Judges Pyle and Kenworthy concur.

Bradford, Judge.

Case Summary [1] The Gordon S. Nesbit Revocable Trust (“the Trust”) and Robert Jason

Hendrickson (“Jason”) own adjoining parcels of land in Monroe County. In

2023, a disagreement arose concerning the exact location of their shared

property line, with the disputed area being a strip of land of approximately 3.22

acres (“the Disputed Area”). The Trust filed a complaint for criminal trespass,

seeking declaratory judgment as to ownership of the Disputed Area, and

seeking a permanent injunction against and damages from Jason. Jason filed a

counterclaim to quiet title in the Disputed Area. After a bench trial, the trial

court entered judgment in favor of Jason. The Trust contends that the trial

court erred in finding (1) that Jason’s proposed property line was the true

property line and (2) that the parties had not acquiesced in the Trust’s proposed

property line in any event. Because we disagree, we affirm.

Facts and Procedural History I. Background [2] The Trust owns land at 3685 East Robinson Road in Monroe County, Indiana

(“the Eastern Parcel”). The adjacent property to the west, at 3681 East

Robinson Road (“the Western Parcel”), is owned by Jason. The Eastern and

Western Parcels are located, respectively, in the northwest and northeast

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 2 of 13 quarters of Section 2, Township 9 North, Range 1 West (“Section 2”), in

Monroe County.1 This appeal concerns a dispute regarding the location of the

property line shared by the Eastern and Western Parcels, illustrated by the map

below, with the shaded area representing the area in dispute (“the Disputed

Area”):

1 In the United States Public Land Survey System, land is generally divided into thirty-six-square-mile survey townships (identified in relation to a principal meridian and a baseline), which are then subdivided into thirty-six sections of one square mile or 640 acres each. See Purdue Extension, Indiana Land Surveys: Their Development and Uses, https://docs.lib.purdue.edu/agext/1077/ (last visited March 24, 2026).

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 3 of 13 Ex. Vol. I p. 191. The Disputed Area of approximately 3.22 acres is seventy-

one feet wide on the north boundary and thirty-six feet wide on the south

boundary.

II. Facts [3] In 1838 and 1859, J.W. Spencer conducted a survey in or near Section 2 and

established its northwest corner, as well as the northwest corner of the east half

of the northwest quarter, i.e., the Eastern Parcel. In 1937, a Commissioner’s

Deed was issued to Robert Hendrickson, which transferred to him the land

comprised of the Eastern and Western Parcels. By 1974, the land transferred by

the 1937 deed was owned by Ocie, Robert’s widow.

[4] On September 12, 1974, Ocie transferred the Western Parcel to her son Carl

and his wife Alma Jean (Jason’s grandparents) by warranty deed. The deed

provided that the following land was being transferred:

East half of the Northwest quarter of Section Two (2), Township Nine (9) North, Range One (1) West.

Subject to the fall installment of taxes due and payable in November, 1974, and all subsequent taxes thereto.

Subject to the right of ingress and egress to other adjoining property along the existing road.

Subject to survey. Ex. Vol. I p. 170.

[5] In January of 1975, Monroe County Surveyor Raymond Graham was

commissioned to execute a survey and plat of the Eastern Parcel. Graham’s

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 4 of 13 survey was subsequently affirmed by two later surveys by him, one in

December of 1975 and another in 1986. Graham’s survey purported to identify

the line between the northeast and northwest quarters of Section 2, which he

marked with iron pipes on the north and south ends (“the Graham Line”).

Graham’s draft depiction did note, however, the presence of a partial fence or

corral near a barn approximately seventy feet to the east of the Graham Line at

the north boundary and approximately thirty-one feet to the east of the line at

the south boundary. On October 17, 1978, Ocie transferred the Eastern Parcel

to her son Walter Lee Hendrickson (“Jimmy”) and his wife Donna via a

warranty deed whose description of the parcel’s west boundary reflected

Graham’s survey. At some point after Ocie had conveyed the Eastern Parcel to

Jimmy, he put up a fence on the Graham Line. Despite the presence of

Jimmy’s fence, members of the extended Hendrickson family, in some ways at

least, continued to treat the Eastern and Western Parcels as one property.

[6] On January 25, 2021, Jimmy’s sons transferred the Eastern Parcel to the Trust,

and the description of the parcel in the warranty deed again reflected Graham’s

survey. Sometime in 2023, a dispute arose between the Trust and Jason when

Jason approached Gordon Nesbit and claimed that the existing fence originally

installed by Jimmy was not on the property line, which he alleged was further

to the east. Jason hired surveyor Eric Deckard to perform a retracement survey

on the east half of the northwest quarter of Section 2. After Deckard reviewed

the Graham survey and deed history for both parcels and conducted field work,

he determined that the actual property line was approximately seventy-one feet

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 5 of 13 to the east of the Graham Line at the north boundary of Section 2 and

approximately thirty-six feet to the east on the south boundary, an overlap area

of approximately 3.22 acres.

[7] The Trust hired Gary Kent to review Deckard’s survey, who determined that

the Graham Line was the property line based on the principle of original

survey. Kent concluded that the Graham survey had been the original survey,

not only on the basis that it had been the first to properly establish the relevant

quarter-section line, but also on the basis that it had represented the property

line that had been identified when Ocie had deeded the Western Parcel to Carl

and Alma Jean.

III. Procedural History [8] On August 21, 2023, the Trust filed its complaint for declaratory judgment and

trespass, seeking a permanent injunction against and damages from Jason. On

October 16, 2023, Jason responded to the Trust’s complaint and filed a

counterclaim to quiet title in the Disputed Area on the basis that the Deckard

Line was the true property line and that his and the Trust’s predecessors-in-

interest had treated the Disputed Area as though Jason’s predecessors had

owned it. On March 17, 2025, the Trust requested that the trial court issue

findings of fact and conclusions thereon. On April 7 and 8, 2025, the trial court

conducted a bench trial.

[9] On August 22, 2025, the trial court entered judgment in favor of Jason, finding,

inter alia, that

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 6 of 13 [t]here is no evidence of an express agreement […] as to the boundary line being the Graham Line. Rather, the evidence established that since the time Ocie Hendrickson and Robert Hendrickson owned the land until the Nesbit Trust Real Estate was transferred to Nesbit Trust, it was used as if it was one piece of land. Even after Ocie Hendrickson transferred the Hendrickson Real Estate and the Nesbit Trust Real Estate to Jimmy Hendrickson, the land was still used by the Hendrickson family as if it was one property. Order p. 12. The trial court also denied the Trust’s criminal-trespass claim and

found that the Deckard Line was the true property line, effectively awarding the

Disputed Area to Jason.

Discussion and Decision [10] The trial court entered findings of fact at the Trust’s request. Under such

circumstances,

we determine whether the evidence supports the trial court’s findings, and we determine whether the findings support the judgment. We will not disturb the trial court’s findings or judgment unless they are clearly erroneous. Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them, and the trial court’s judgment is clearly erroneous if it is unsupported by the findings and the conclusions which rely upon those findings. In determining whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. We will neither reweigh evidence nor judge the credibility of witnesses. Bussing v. Ind. Dep’t of Transp., 779 N.E.2d 98, 102–03 (Ind. Ct. App. 2002)

(citations omitted), trans. denied. “In order to determine that a finding or

conclusion is clearly erroneous, an appellate court’s review of the evidence must

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 7 of 13 leave it with the firm conviction that a mistake has been made.” Yanoff v.

Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).

I. Acquiescence [11] The Trust contends that the trial court erred in failing to conclude that Jason

and/or his predecessors-in-interest had acquiesced to the Trust’s possession of

the Disputed Area. In order to establish acquiescence, the Trust was required

to establish that

two adjoining property owners (1) share a good-faith belief concerning the location of the common boundary line that separates their properties and, (2) although the agreed-upon location is not in fact the actual boundary, (3) use their properties as if that boundary was the actual boundary (4) for a period of at least twenty years. It is the original agreement between the adjoining owners that takes this and all other “acquiescence” cases out of the realm of adverse possession. MLS Enters., LLC v. Norman, 209 N.E.3d 30, 37 n.3 (Ind. Ct. App. 2023)

(citation omitted).

[12] An agreement between the parties supporting acquiescence does not have to be

express, but it can be implied:

The line agreement need not be express and may be inferred from the parties’ actions, but there must be evidence of some agreement as to the boundary line. Use and improvement of the land up to the alleged boundary line may be sufficient to satisfy the requirement of an agreement if the adjoining landowner acquiesces. Freiburger v. Fry, 439 N.E.2d 169, 172 (Ind. Ct. App. 1982) (citation omitted).

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 8 of 13 [13] At the very least, the Trust has failed to establish that the parties and their

predecessors-in-interest had ever agreed that the Graham Line was the property

line between the Eastern and Western Parcels before the sale of the Eastern

Parcel to the Trust. It is undisputed that all of the predecessors-in-interest to

both parties (as well as Jason) had been members of the extended Hendrickson

family from 1974 until 2021, when the Eastern Parcel was sold to the Trust.

Carl’s son John lived on the Hendrickson property from 1960 until 1978. John

testified that neither the transfer of the Eastern Parcel to his parents nor the

installation of Jimmy’s fence had affected where he or other family members

had gone on either property. John also testified that Carl had kept horses “as

long he [could] remember[,] who ran “the whole property” even after Jimmy’s

fence had been installed. Tr. Vol. I p. 116.

[14] Jason, who was born in 1974, testified that he had owned the Western Parcel

since 2006 and had never treated Jimmy’s fence as though it represented the

property line between the Eastern and Western Parcels. Jason testified that he

had run cattle on the Western Parcel with Jimmy’s approval and that all of the

property at issue “was used and viewed as Hendrickson family property[,]”

which had continued after the sale of the Eastern Parcel to Jimmy in 1978. Tr.

Vol. I p. 172. The record supports the trial court’s finding that the relevant

persons had never acted as though the Western and Eastern Parcels were

separate properties before the sale of the Western Parcel to the Trust.

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 9 of 13 II. The Property Line [15] The finding that the parties have never treated the Graham Line as the true

property line, while sufficient to fatally undercut the Trust’s acquiescence claim,

only takes us part of the way. The trial court’s judgment in favor of Jason relies

on the Deckard Line being the true property line, and we conclude that there is

sufficient evidence to support such a finding. Deckard testified that he had

performed a retracement survey of the relevant property, which is “retracing an

original survey that was performed prior.” Tr. Vol. I p. 198. In so doing, he

had examined all of the deeds within the vicinity, located records of surveys in

the area, and “head[ed] to the field” to search for trace evidence of monuments

left in previous surveys. Tr. Vol. I p. 200.

[16] As for the relevant deeds, a 1937 Commissioner’s deed issued to Robert A.

Hendrickson was admitted in which “the east half of the northwest quarter of

section two (2), township nine (9) north, range one (1) west [and] part of the

west half of the northeast quarter of said section, town[ship] and range” was

transferred. Ex. Vol. I p. 83. The 1974 and all subsequent transfers of the

Western Parcel transferred the “East half of the Northwest quarter of Section

Two (2), Township Nine (9) North, Range One (1) West[,]” and none includes

a carve-out for the Disputed Area, which extends into the east half of the

northwest quarter of Section 2. Ex. Vol. I pp. 170, 172, 173, 174, 176, 178.

[17] Moreover, the evidence of Deckard’s field work confirmed that the line he

identified is the true centerline of Section 2. First, the Deckard Line referred

back to and incorporated the Spencer surveys of 1838 and 1859. While neither

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 10 of 13 of the Spencer surveys had marked the center point on the north boundary of

Section 2, Deckard determined that both of Spencer’s surveys agreed with

respect to the north boundary of Section 2. Deckard located a stone marking

the northwest corner of the east half of the northwest quarter of Section 2 (i.e.,

one quarter of the way across Section 2 across the north boundary from the

west boundary), believed to have been set by Spencer in 1859 and mentioned in

contemporaneous records of the Monroe County Surveyor. Deckard also

located the nail in Old State Road 37 marking the northwest corner of Section 2

and measured east from that corner along the north boundary of Section 2.

Deckard found that the distance from the nail to the stone was approximately

seventy feet longer than the distance from the stone to the monument Graham

had placed at the supposed centerline of Section 2, when the two distances

should have been the same. Once Deckard had located the true center of the

north boundary of Section 2, he drew a straight line to another existing

monument at the center of Section 2 on the south boundary, thereby marking

the centerline of Section 2.

[18] Further evidence is provided by the fact that, in Graham’s 1975 survey, he had

noted evidence of a fence approximately seventy feet to the east of the Graham

Line at the north boundary of Section 2, which Deckard determined “agree[d]

with the aliquot[2] breakdown of the section.” Tr. Vol. I p. 211. Although

2 To aliquot a piece of land is to “divide […] into equal parts[,]” which in this case meant dividing Section 2 into equal western and eastern halves by locating the north-south centerline. WEBSTER’S 3D NEW INT’L DICTIONARY 53 (Phillip Babcock Gove et al. eds., G.&C. Merriam Company 1993).

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 11 of 13 fences do not by any means always mark a property line, they frequently do,

lending further support to Deckard’s conclusion regarding the location of the

centerline of Section 2.

[19] Regarding Graham’s surveys, Deckard concluded that, while Graham had

apparently been attempting a retracement survey, he had not followed the

minimum standards for such a survey. While Deckard had located relevant

monuments and other trace evidence, Deckard found no evidence that Graham

had done the same. Moreover, Graham had noted the existing fence but had

included it in his final survey drawing, as he, apparently, had not considered it

as evidence of the centerline of Section 2. In summary, Deckard opined that

the line he identified as the centerline of Section 2 was the actual centerline

according to “original survey doctrine[.]” Tr. Vol. I p. 214.

[20] The Trust argues that the provision in the 1974 deed that the transfer of the

Western Parcel to Carl and Alma Jean was “subject to survey” somehow

validates Graham’s 1975 survey of the Eastern Parcel and that Graham’s survey

was original and therefore has precedence over the Deckard Line in any event.

Both of these arguments are undercut by the fact that Graham’s survey was of

the Eastern Parcel, and it seems that no survey specifically of the Western

Parcel was completed until Deckard surveyed it in 2023. In the end, the 1974

deed transferred the entirety of the east half of the northwest quarter of Section

2 to Carl and Alma Jean, which means that Ocie’s later transfer of part of that

half to Jimmy was an attempt to transfer land that she no longer owned. It is

an “ancient maxim that a grantor cannot convey that which he does not own.

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 12 of 13 […] If a grantor conveys property, part of which belongs to the grantor and part

of which belongs to another, the deed is good as to the property owned by the

grantor and a mere nullity as to the property not owned by the grantor.”

Downing v. Eubanks, 557 N.E.2d 1029–30 (Ind. Ct. App. 1990) (citation and

quotation marks omitted).

[21] We affirm the judgment of the trial court.

Pyle, J., and Kenworthy, J., concur.

ATTORNEY FOR APPELLANT Larry D. Allen Paganelli Law Group Bloomington, Indiana ATTORNEY FOR APPELLEE Christine L. Bartlett Ferguson Law Bloomington, Indiana

Court of Appeals of Indiana | Opinion 25A-PL-2274 | April 7, 2026 Page 13 of 13