Harry J. Evans v. Tommy L. Short (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 16, 2015
• Docket: 79A02-1409-PL-627
• Status: Published

Opinion

MEMORANDUM DECISION Apr 16 2015, 6:13 am

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Ryan C. Munden Jason R. Ramsland Reiling Teder & Schrier, LLC Ball Eggleston, PC Lafayette, Indiana Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harry J. Evans, et al., April 16, 2015

Appellants, Court of Appeals Case No. 79A02-1409-PL-627 v. Appeal from the Tippecanoe Superior Court. The Honorable Thomas H. Busch, Tommy L. Short, Judge. Appellee Cause No. 79D02-1305-PL-20

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 1 of 11 [1] Harry Evans, Barbara Evans, and Clairana Kallner (collectively, the appellants)

appeal the trial court’s judgment finding that Tommy Short had acquired

certain property by adverse possession and that Harry Evans had trespassed

onto that property.1 Finding no error, we affirm.

Facts [2] The Evanses own certain property on 750 East in Lafayette. This property

abuts Short’s property; the south border of the Evanses’ property touches the

north border of Short’s property. Kallner also owns property on 750 East in

Lafayette. Pursuant to deeds for the three properties, Short and Kallner are

entitled to an easement allowing ingress and egress from the public highway

(the Easement). The Easement contains a gravel road to allow for such ingress

and egress.

[3] This appeal involves a section of land north of the south line of the Evanses’

property and abutting the southern end of the gravel road. Short’s father

acquired the Short property in 1957, and built a house and driveways, which

abut the gravel road, on the property. When Short inherited the property in

2002, he believed that the boundary of his property was the southern border of

1 Appellants argue that, if the trial court incorrectly determined that Short had acquired title by adverse possession, there is insufficient evidence to determine that Harry Evans committed trespass. As we find that the trial court did not err in determining that Short had acquired title to the property, we need not address this argument.

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 2 of 11 the gravel lane. Therefore, he placed poles and rocks on the southern border to

keep others from driving onto it.

[4] On May 24, 2013, the appellants filed suit seeking a declaratory judgment

concerning the location of the easement, alleging trespass for Short’s

encroachment onto the easement, and seeking injunctive relief to enjoin Short

from blocking or obstructing the easement. On June 20, 2013, Short filed his

answer and counterclaim, alleging that he had acquired title by adverse

possession and alleging trespass against Harry Evans. On October 1, 2013, the

appellants filed a motion for partial summary judgment regarding their request

for a declaratory judgment and Short’s adverse possession claim. The trial

court denied the motion on December 13, 2013.

[5] On June 12, 2014, the trial court held an evidentiary hearing on the matter. It

entered findings of fact and conclusions of law on August 12, 2014. The

findings of fact pertinent to this decision are as follows:

9. Short inherited the Short Property from his parents in 2002. 10. Short has lived at the Short property without interruption since 2002. 11. Short’s father acquired the Short Property from Short’s grandparents in approximately 1957. 12. [The] Evans acquired their property in late 1968. *** 13. Short’s father erected a house on the Short property in approximately 1957. 14. Short’s two driveways were installed on the property at approximately the same time that the house was built.

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 3 of 11 15. Short lived at the property from approximately the time of his birth in 1959 until he moved out as a young man 16. After Short moved out of the home on the property, he remained familiar with it because of frequent visits to his parents. *** 20. At the time they acquired their property [the] Evans did not know where their property bordered Short’s. 21. At or near the southern edge of the Evans property is a gravel lane. 22. The gravel lane served the Short Property and the properties of Short’s two neighbors to the west. 23. When [the] Evans purchased the Evans Property in 1968, they did not measure the distance between the recorded property line and the gravel lane. 24. [The] Evans do not know where the gravel lane was relative to the property line in 1968. 25. The improvements on the Short property, including the home, garage, and driveways, were all in place prior to [the] Evans taking title to their property. 26. Short reliably testified that the gravel lane has remained in the same place for a period exceeding fifty (50) years. *** 30. Short reliably testifies that he and his father exhibited the following indications of ownership over the area bounded by the surveyed property border, the gravel driveway, the western edge of Short’s westernmost driveway and County Road 750 East (the “Limited Disputed Area”): (d) placement of obstacles, including rocks, posts, and cement blocks in the Limited Disputed Area designed and intended to prevent others from entering thereupon; (e) repeatedly demanding that others refrain from driving their vehicles upon the Limited Disputed Area unnecessarily; (f) installation of driveways in the Limited Disputed Area;

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 4 of 11 (g) parking in the Limited Disputed Area; (h) removing loose gravel from the Limited Disputed Area and re-depositing it upon the gravel lane; (i) summoning law enforcement when trespassers entered upon the Limited Disputed Area; (k) consistently claiming ownership over the Limited Disputed Area. *** 35. Short reliably testified that he believed he was paying property taxes on the entire disputed area when he paid the property taxes for the Short property. 36. Short has always held out that the Limited Disputed Area belongs to him, and belonged to his father before him. 37. Short believed that the Limited Disputed Area is rightly part of the Short property. 38. Short’s belief that the Limited Disputed Area is rightly part of the Short property was reasonable. Appellants’ App. p. 5-8.

[6] The trial court also concluded that Short had exercised control consistent with

ownership over the Limited Disputed Area, that such control was inconsistent

with the appellants’ deeds, and that such control and “intentional exercise of

dominion” was open and not hidden. Id. at 9. Based on these findings, the trial

court concluded that Short had established that he had complied with the

adverse possession tax statute and that he has controlled the Limited Disputed

Area for a period exceeding ten years. Finally, the trial court found that Short

had acquired title to the Limited Disputed Area by adverse possession, and

that, therefore, Harry Evans had trespassed on Short’s land when he drove his

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 5 of 11 car onto the Limited Disputed Area and caused damage. Appellants now

appeal.

Discussion and Decision [7] The appellants argue that the trial court erred in determining that Short had

acquired title to the limited disputed property by adverse possession. When

reviewing claims tried without a jury, this Court will not set aside the findings

and judgment unless clearly erroneous, and due regard will be given to the trial

court’s ability to judge the credibility of the witnesses. Ind. Trial Rule 52(A). A

judgment will only be deemed clearly erroneous if there “is no evidence

supporting the findings or the findings fail to support the judgment.” Chidester

v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994). “In order to determine that a

finding or conclusion is clearly erroneous, an appellate court’s review of the

evidence must leave it with the firm conviction that a mistake has been made.”

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

[8] In Indiana, the doctrine of adverse possession entitles a person without title to

obtain ownership of a piece of land upon proof of control, intent, notice, and

duration. Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005). The adverse

possessor must also pay all taxes that he reasonably believes in good faith to be

due on the property during the period he claims to have adversely possessed the

property. Ind. Code § 32-21-7-1. The burden is on the claimant to establish all

the elements of a claim of adverse possession by clear and convincing evidence.

Fraley, 829 N.E.2d at 483.

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 6 of 11 [9] In addition, we note that adverse possession claims are necessarily decided on a

case-by-case basis, for what constitutes possession of one type of property may

not constitute possession of another. McCarty v. Sheets, 423 N.E.2d 297, 300

(Ind.1981). In this case, while the Evanses’ litigated interest is in a portion of

their property, Kallner’s litigated interest is an easement. An easement created

by grant is not typically lost by mere nonuse. Jeffers v. Toschlog, 178 Ind. App.

603, 383 N.E.2d 457, 459 (1978). Generally, where an easement is created by

express written contract, lapse of time and occupation will not extinguish it

unless there is “an absolute denial of the right to the easement, and the

occupation was so adverse and hostile that the owner of the easement could

have maintained an action for obstructing his enjoyment of it.” Seymour Water

Co. v. Lebline, 195 Ind. 481, 144 N.E. 30, 33 (1924).

[10] Appellants argue that the trial court’s determination that Short had acquired

title to the Limited Disputed Area by adverse possession is not supported by

sufficient evidence. They argue that 1) they were not absolutely denied use of

the easement within the Limited Disputed Area, 2) explicit and outward

showings of Short’s claim to the Limited Disputed Area did not appear until

2008, and 3) there was insufficient evidence to show that Short had a

reasonable, good faith belief that he was paying taxes on the Limited Disputed

Area. We will address each of these contentions in turn.

[11] The appellants first argue that the trial court incorrectly determined that “Short

and his predecessor in title absolutely denied use of the easement within the

Limited Disputed Area.” Appellants’ App p. 17. In support of this argument,

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 7 of 11 they point out that the trial court found that Harry Evans drove into the

Limited Disputed Area and that Short called law enforcement regarding people

entering the Limited Disputed Area without his permission. Id.; Tr. p. 31, 62.

They argue that “a reasonable trier of fact could not conclude that if a party has

committed a trespass upon certain property, repeatedly driven across said

property, and had law enforcement called for accessing said property, that

he/she has been ‘absolutely denied use’ of the property.” Appellant’s Br. p. 18.

[12] While it is true that “generally, where an easement is created by express written

contract, lapse of time and occupation will not extinguish it unless there is an

absolute denial of the right to the easement,” here, the trial court could

reasonably find that Short did deny the Appellants such use. King v. Wiley, 785

N.E.2d 1102, 1109 (Ind. Ct. App. 2003) (internal quotations removed). Short

put up rocks and posts to deny access to the Limited Disputed Area and

requested that no one access the Limited Disputed Area. Further, the fact that

Short called law enforcement to keep trespassers off the property is evidence

that he did absolutely deny access to the Limited Disputed Area. The fact that

the appellants choose not to heed this denial does not mean that it was not, in

fact, a denial.

[13] Next, the appellants argue that explicit and outward showings of Short’s claim

to the Limited Disputed Area did not appear until 2008. They argue that Short

failed to do more than maintain the gravel path, and that maintenance is not

sufficient to constitute evidence of dominion over land. Appellants also argue

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 8 of 11 that the evidence at trial did not establish that the rocks and/or posts had been

placed in the Limited Disputed Area for the statutory time period.

[14] This is, however, a misstatement of the evidence. The clearest and most

permanent outward showing of Short’s, and his predecessors, claim to the

Limited Disputed Area are the driveways that were installed on the Limited

Disputed Area before the Evanses even took title to their property in 1968.

Appellants’ App. p. 5. Appellant Kallner admitted that these driveways, as well

as Short’s action of parking on the driveways, made it difficult to access the

Limited Disputed Area. The installation of the driveways and the placing of

obstacles around the Limited Disputed Area by Short, and his predecessor,

establish that Short and his father openly held out that the Limited Disputed

Area was a part of their property.

[15] Appellants also argue that there was insufficient evidence to allow the trial

court to find that Short had a reasonable, good faith belief that he was paying

the property taxes on the Limited Disputed Area. Pursuant to Indiana Code

section 31-21-7-1:

[P]ossession of the real property is not adverse to the owner in a manner as to establish title to the real property unless the adverse possessor pays all taxes and special assessments that the adverse possessor reasonably believes in good faith to be due on the real property during the period the adverse possessor claims to have adversely possessed the real property. However, substantial compliance may satisfy the requirement of the adverse

possession tax statute in boundary disputes where the adverse possession

claimant has a reasonable and good faith belief that the claimant is paying the Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 9 of 11 taxes on disputed parcel during the period of adverse possession. Fraley, 829

N.E.2d at 492.

[16] Appellants cite Fraley in support of their argument that a reasonable finder of

fact could not have found that Short had a reasonable, good faith belief that he

was paying taxes on the Limited Disputed Area. In Fraley, our Supreme Court

determined that the trial court made “no finding that during the period of

adverse possession the Mingers ‘paid and discharged all taxes and special

assessments of every nature falling due on such land’ as required by the adverse

possession tax statute, nor is there a finding of substantial compliance.” Id. at

493.

[17] The instant case is distinguishable from Fraley. Here, Short testified that he

believed that he owned the Limited Disputed Area and that he believed that he

had been paying taxes on the property. Tr. p. 74. Unlike the trial court in

Fraley, here, the trial court took note of that testimony and specifically found

that “Short reasonably believed he was paying property taxes on the entire

disputed area when he paid property taxes for the Short property.” Appellants’

App. p. 12. In addition, the area in question is an eight-foot strip that extends

from the northern border of Short’s property to the gravel lane. Without

looking at a survey of the property, one would likely assume that the Limited

Disputed Area is the curtilage to the Short residence. Thus, it is reasonable that

Short might believe that he owned the Limited Disputed Area, and, therefore,

reasonable that he believed he was paying taxes on the Limited Disputed Area.

Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 10 of 11 [18] Finally, Appellants argue that the trial court erred in finding that Short acquired

ownership of the Limited Disputed Area by acquiescence.2 Appellants

maintain that the doctrine of acquiesce is arcane and should not be applied to

easements. However, we need not address this argument today. As

Appellants concede, “the trial court did not make any conclusions of law based

on the theory of acquiescence.” Appellants’ Br. p. 19. Further, acquiescence

only applies when adverse possession does not. Garrett, 998 N.E.2d at 304. As

the trial court found explicitly that Short had taken title to the Limited Disputed

Area by adverse possession, it did not find that Short has acquired title by

acquiescence. Appellants’ App. p. 12.

[19] The judgment of the trial court is affirmed.

Najam, J., and Friedlander, J., concur.

2 The doctrine of acquiescence applies only when:

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. Garett v. Spear, 998 N.E.2d 297, 304 (Ind. Ct. App. 2004).

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