FOR PUBLICATION
                                                        FILED
                                                      Oct 24 2012, 9:18 am


                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court




ATTORNEY FOR APPELLANTS:                    ATTORNEY FOR APPELLEES:

W. L. SIDERS                                PATRICK J. ROBERTS
Peru, Indiana                               Roberts Law Firm
                                            Peru, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

HARRY E. KNAUFF, JR. and                    )
CAROLYN R. KNAUFF,                          )
                                            )
      Appellants,                           )
                                            )
             vs.                            )       No. 52A05-1111-PL-584
                                            )
NATHAN T. HOVERMALE and                     )
SARAH E. HOVERMALE,                         )
                                            )
      Appellees.                            )


                     APPEAL FROM THE MIAMI CIRCUIT COURT
                         The Honorable Robert A. Spahr, Judge
                            Cause No. 52C01-1008-PL-426



                                 October 24, 2012


                          OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Harry E. Knauff, Jr. and Carolyn R. Knauff appeal the trial court judgment

quieting title in certain real property in the names of Nathan T. Hovermale and Sara E.

Hovermale following a bench trial. The Knauffs present three issues for review, which

we consolidate and restate as whether the trial court erred when it determined that the

Knauffs had not met their burden to prove adverse possession.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On April 6, 1983, the Knauffs purchased a landlocked 20-acre parcel and a 26-

acre parcel from Donald E. Ensley in Miami County.           The warranty deed for that

purchase was recorded on October 20, 1992. Along the east border of the 20-acre parcel

lies an untitled quarter-acre parcel (“the gapland”), and along the east border of the

gapland lies a 2.33-acre parcel (“the disputed area”). Only part of the disputed area is

tillable, and the size of the tillable area depends each year on several factors, including

the amount of ground moisture. The remains of an old wire fence, which is broken down

in some places, runs north to south somewhere in the middle of the disputed area. Since

1983, the Knauffs or their tenant farmed parts of the 20-acre parcel, the gapland, and the

tillable part of the disputed area west of the broken down wire fence.

       In 1987, the Hovermales purchased by special warranty deed an 11.171-acre tract

(“the Hovermale parcel”) in Miami County from the Federal Home Loan Mortgage

Corporation. The Hovermale parcel lies adjacent to and shares the eastern border of the

gapland.   In 2010, the Hovermales erected a fence on the western border of the


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Hovermale parcel, which is the same as the western border of the disputed area.

Subsequently, the Knauffs obtained a survey and learned for the first time that they did

not own the disputed area.

       Nevertheless, on August 19, 2010, the Knauffs filed a complaint against the

Hovermales seeking a declaratory judgment, to quiet title in the disputed area and the

gapland, and seeking damages for trespass. The Hovermales filed an answer to the

complaint and, later, a motion for special findings pursuant to Trial Rule 52(A).

Following a bench trial on June 20 and 21, 2011, the parties filed proposed findings of

fact and conclusions thereon. And on October 13, the trial court entered its order which,

in relevant part, denied the Knauffs’ claims on all three counts, with the exception of

awarding them ownership of the gapland “by default[,]” and quieted title in the disputed

area in the Hovermales. The Knauffs now appeal.

                             DISCUSSION AND DECISION

                                   Standard of Review

       Where, as here, the trial court has entered special findings and conclusions thereon

pursuant to Indiana Trial Rule 52, our standard of review is well settled:

       First, we determine whether the evidence supports the findings and second,
       whether the findings support the judgment. In deference to the trial court’s
       proximity to the issues, we disturb the judgment only where there is no
       evidence supporting the findings or the findings fail to support the
       judgment. We do not reweigh the evidence, but consider only the evidence
       favorable to the trial court’s judgment. Challengers must establish that the
       trial court’s findings are clearly erroneous. Findings are clearly erroneous
       when a review of the record leaves us firmly convinced a mistake has been
       made. However, while we defer substantially to findings of fact, we do not
       do so to conclusions of law. Additionally, a judgment is clearly erroneous
       under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We


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       evaluate questions of law de novo and owe no deference to a trial court’s
       determination of such questions.

Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2010) (citation omitted), trans.

denied. In other words, “[a] decision is clearly erroneous if it is clearly against the logic

and effect of the facts and circumstances that were before the trial court” or if the court

misinterprets the law. Id. (citation omitted).

       We also observe that the Knauffs are appealing from a negative judgment. Thus,

we will reverse that decision only if the evidence is without conflict and all reasonable

inferences to be drawn from the evidence lead to a conclusion other than that reached by

the trial court. Capital Drywall Supply v. Jai Jagdish, Inc., 934 N.E.2d 1193, 1199 (Ind.

Ct. App. 2010) (citation omitted).

                                     Adverse Possession

       The Knauffs contend that the trial court erred when it concluded that they had not

proved the elements of adverse possession of the disputed area. The traditional common

law elements of adverse possession required the claimant to prove the possession was (1)

actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership;

(6) hostile; and (7) continuous for a statutory period of time. Fraley v. Minger, 829

N.E.2d 476, 485 (Ind. 2005). In Fraley, however, our supreme court rephrased the

elements of adverse possession, stating that “the doctrine of adverse possession entitles a

person without title to obtain ownership to a parcel of land upon clear and convincing

proof of control, intent, notice, and duration.” 829 N.E.2d at 486. These elements were

defined in Fraley as follows:



                                                 4
       (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 1152. These elements must be satisfied for the statutory period of ten years. Hoose

v. Doody, 886 N.E.2d 83, 92 (Ind. Ct. App. 2008) (citing Ind. Code § 34-11-2-11), trans.

denied. The failure to establish any one element of an adverse possession claim defeats

the claim. Fraley, 829 N.E.2d at 476. But “once a party established the elements of

adverse possession, ‘fee simple title to the disputed tract of land is conferred upon the

possessor by operation of law, and title is extinguished in the original owner.’” Garriott

v. Peters, 878 N.E.2d 431, 439 (Ind. Ct. App. 2007) (citation omitted), trans. denied.

       The Knauffs contend that the trial court erred when it concluded that the Knauffs

had not demonstrated by clear and convincing evidence all of the elements of adverse

possession. Specifically, the Knauffs take issue with the trial court’s findings that the

Knauffs did not demonstrate exclusive control and that the Knauffs did not substantially

comply with Indiana Code Section 32-21-7-1, the adverse possession tax statute. We

find the issue regarding the control element to be dispositive.
                                             5
       To establish the requisite control, an adverse possession claimant “must exercise a

degree of use and control over the parcel that is normal and customary considering the

characteristics of the land; this element includes former elements of actual and exclusive

possession.” Ludban v. Burtch, 951 N.E.2d 846, 852 (Ind. Ct. App. 2011) (citing Daisy

Farm Ltd. P’ship v. Morrolf, 915 N.E.2d 480, 488 (Ind. Ct. App. 2009)). In the present

case, the trial court found in relevant part:

       14. Several witnesses confirmed that various mushroom hunters searched
       along the wooded broken wire fence in the disputed area and other persons
       hunted for wildlife, deer and rabbit, in addition to Plaintiffs Knauff seeking
       butternut seeds and monitoring the growth of a butternut tree at the north
       end of the broken wire fence. Exclusive control of the disputed area by
       Plaintiffs Knauff is reasonably challenged by this evidence and testimony.

Appellant’s App. at 12. The trial court therefore concluded: “10. Thus use of the marsh

ground, woods and wetlands [part of the disputed area] was occasional by Plaintiffs

Knauff and was not exclusive. . . .” Id. at 14.

       Here, the disputed area is a mixed use parcel. The evidence shows that the

Knauffs used part of the disputed area for farming, although the size of the tillable

portion changed from year to year. They also used part of the unfarmed portion to

monitor a butternut tree. But the evidence also shows that others used the area, too, for

hunting mushrooms and wild game. Harry Knauff testified that it was hard to keep the

mushroom hunters out, but he did not testify that he tried to exclude or chase off

mushroom hunters or anyone else from the property. The trial court concluded that the

Knauffs failed to show control of the disputed area necessary to establish adverse

possession because others had also used the area for hunting game and mushrooms. We

may or may not have considered such occasional use by others to be inconsistent with
                                                6
establishing the control element of adverse possession under the circumstances presented

in this case. But we cannot say that the trial court’s conclusion on this point is clearly

erroneous, which is our standard of review on appeal.

       Again, failure to establish any one element of an adverse possession claim defeats

the claim. Fraley, 829 N.E.2d at 476. The Knauffs have not shown that the trial court

clearly erred when it concluded that they failed to establish the control element of adverse

possession.   Thus, we need not consider whether they have established any other

elements of adverse possession. As such, the Knauffs have not shown that the trial court

erred when it entered judgment in favor of the Hovermales on the Knauffs’ complaint

seeking a declaratory judgment, to quiet title in the disputed area, and seeking damages

for trespass on the disputed area.

       Affirmed.

MAY, J., concurs.

KIRSCH, J., dissents without opinion.




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