MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Dec 13 2017, 7:09 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
R. Patrick Magrath                                       Brent E. Steele
Alcorn Sage Schwartz & Magrath, LLP                      Steele & Steele, LLC
Madison, Indiana                                         Bedford, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stewart H. Hudson and                                    December 13, 2017
Shelia D. Hudson,                                        Court of Appeals Case No.
Appellants-Defendants,                                   47A01-1704-PL-865
                                                         Appeal from the Lawrence Circuit
        v.                                               Court
                                                         The Honorable Andrea K.
The Winford D. Dixon                                     McCord, Judge
Revocable Living Trust,                                  Trial Court Cause No.
Crystal J. Dixon, Trustee,                               47C01-1505-PL-699
Trevor Robbins,
Amanda Robbins,
Appellees-Plaintiffs



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 1 of 15
[1]   Stewart and Shelia Hudson appeal the trial court’s order granting the quiet title

      action filed by The Winford D. Dixon Revocable Living Trust (the Dixon

      Trust) and Trevor and Amanda Robbins. The Hudsons contend that the trial

      court erroneously determined that the Dixon Trust and the Robbinses

      established adverse possession of the disputed property. Additionally, the

      Hudsons appeal the trial court’s denial of their request for an easement of

      necessity over a portion of land owned by the Dixon Trust. Finding no error,

      we affirm.


                                                         Facts
[2]   In 1881, Mary Dixon acquired a parcel of real estate in Lawrence County. In

      1898, Mary sold a portion of that real estate to Emma (Dixon) Dodds. That

      real estate is now owned by the Dixon Trust (the Dixon Trust Property). 1 In

      1899, Mary sold the other portion of her real estate to Josiah and Thomas

      Dixon. That property was transferred five times within the Dixon family

      between 1899 and 2006, when it was sold to Kevin and Tammie Biddle. In

      2013, the Biddles lost the property in foreclosure to Farm Credit Services,

      which sold it to the Hudsons in 2014. The Hudsons are the current owners of

      that real estate (the Hudson Property). The Dixon Trust Property, which is

      approximately 19 acres, and the Hudson Property, which is approximately 108

      acres, abut one another.




      1
          The Robbinses have an equitable interest in the Dixon Trust Property pursuant to a land contract.


      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017            Page 2 of 15
[3]   The area of real estate in dispute (the Disputed Property) is a 2.5-acre tract that

      is wholly contained within the legal description of the Hudson Property. The

      Disputed Property is located between a creek and the legal boundary line

      separating the Dixon Trust Property from the Hudson Property. Some parts of

      the Disputed Property are mowed, while others are overgrown with brush and

      trees. Many decades ago, a fence was erected along the creek. Throughout the

      history of the two properties, the owners have treated the creek/fence line as the

      boundary line.


[4]   Hubert Thomas Dixon (Tommy) was a predecessor in title to the Hudsons; he

      owned the Hudson Property from 1980 through 2006. Tommy testified that the

      Disputed Property was always used and maintained by the Dixon family.

      According to Tommy, Winford Dixon—prior owner of the Dixon Trust

      Property, which was placed in the family trust in 2008—had the hay cut from

      the Disputed Property from the time he acquired the real estate in 1958.

      Additionally, Winford installed a septic system at some point during his

      ownership of the real estate, and the septic field extends underneath the

      Disputed Property. Winford farmed part of the Disputed Property and his

      family occasionally used part of it as a softball field.


[5]   The Hudson Property contains a field on the northeast segment of the real

      estate (the Back Property). When Tommy owned this real estate, he used the

      Dixon driveway and a trail beyond it to access the Back Property, but always

      got permission from Winford before doing so. No one accessed the Back

      Property or the trail beyond it without Winford’s permission.

      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 3 of 15
[6]   When Tommy sold the Hudson Property to the Biddles in 2006, he told them

      that he would introduce them to Winford and that they would have to resolve

      any desired use of Winford’s property with him. An old road, since overgrown,

      called the Hubert Dixon Road, can also be used to access the Back Property;

      that road is on the Hudson Property. The Hudsons have used a tractor to

      access the Back Property via the Hubert Dixon Road. Winford gave permission

      to the Biddles to use the driveway and trail to the Back Property. He later

      withdrew that permission, however, because the Biddles were driving up and

      down the driveway too fast on their four-wheeled vehicles and had turned his

      driveway into “a playground for the kids that lived with the Biddles.” Tr. Vol.

      II p. 34. After that, no one aside from Winford, his family, and people hired by

      them used the driveway.


[7]   After Tommy sold the Hudson Property to the Biddles, the person with whom

      Winford contracted to cut and remove the hay on the Disputed Property

      continued to do so. The Biddles did not tell that individual to get off their

      property.


[8]   In August 2014, Amanda and Trevor Robbins entered into a contract to

      purchase the Dixon Trust Property. Two months later, the Hudsons acquired

      their real estate. Stewart Hudson asked Amanda where she thought the

      property line was, and she replied that she believed it was the creek. He also

      asked her for permission to come through her back field if water blocked the

      bridge to his house; the Robbinses agreed. After having a survey performed, the

      Hudsons presented the Robbinses with a contract to exchange a fifty-foot

      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 4 of 15
       easement for the Disputed Property.2 The Hudsons intended to use the

       easement to build a county-managed road, install utilities, and build houses on

       the Back Property. The easement would have removed a portion of the

       Robbinses’ garage, and the Robbinses believed that the Disputed Property

       already belonged to them, so they refused to sign. After that, relations between

       the neighbors deteriorated dramatically.


[9]    On May 29, 2015, the Dixon Trust and the Robbinses filed a complaint to quiet

       title to the Disputed Property. On July 28, 2015, the Hudsons filed an answer

       and a counterclaim seeking a prescriptive easement and an easement of

       necessity for access to the Back Property. A bench trial took place on February

       16, 2017. At this time, the Lawrence County Courthouse was under

       reconstruction and work was being done on the roof. The trial proceeded, and

       none of the parties objected based on noise levels. Subsequent to the hearing,

       the trial court judge conducted a visual inspection of the real estate at issue.


[10]   On March 27, 2017, the trial court ruled in favor of the Dixon Trust and the

       Robbinses on their quiet title action and ruled against the Hudsons on their

       request for an easement. In pertinent part, the trial court found as follows:




       2
           The Hudsons presented a similar agreement to the trustee of the Dixon Trust; she also declined.


       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017               Page 5 of 15
                                      Easement of Necessity


        20.     The [Hudsons’] home residence abuts a blacktop county
                road which provides access to any and all of the
                [Hudsons’] real estate.


        21.     The aerial pictures entered into evidence at the trial show
                there were trails and roadways leading across various
                places on the lands of the [Hudsons] to [the Back
                Property].


        22.     Upon a physical examination and walk-through of the real
                estate, the Court saw what appeared to be a road made
                with some sort of heavy equipment with gravel on it, with
                an incline that appeared able to be traveled on by a four-
                wheel drive vehicle and did not appear particularly
                cumbersome.


                                                ***


        24.     The court finds in favor of [the Dixon Trust] and against
                the [Hudsons] in their request for an easement of necessity.


                                        Adverse Possession


        25.     Upon a physical examination of the property by the Court,
                old, rusted wire was found growing out of the dead center
                of a large sycamore tree. Old, but newer wire fencing had
                been installed outside the tree. The Court could see the
                fence had been placed and maintained over many years,
                with fence ranging from woven wire embedded in the trees
                to barbed wire from two (2) different periods of time, one
                more dilapidated and rusted than the newer. The Court
                finds that the wire fence along the branch of the creek

Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 6 of 15
                bordering the [Disputed Property] had been placed along
                this property line a very long time ago in the history of this
                real estate.


        26.     [Tommy] testified that he was born on this property in
                1936, grew up on the real estate and the wire fence along
                the creek had been the boundary line since his father
                acquired the real estate. . . . He testified he never thought
                he owned any real estate beyond the creek.


        27.     [Multiple witnesses] all testified that the [Dixon Trust] and
                its predecessors in title used the [Disputed Property] for
                everything from placement of a wrought iron fence in the
                early 1900s, septic fingers and tank in 1959, erecting
                clothesline and poles many years ago . . . , placing satellite
                TV antennae in the 1990s, farming operations cutting hay,
                planting and harvesting crops for decades and as a softball
                field.


                                                ***


        29.     The fence in this case was in existence for over seven (7)
                decades prior to the Hudson’s [sic] purchase of their real
                estate in 2014, far in excess of the ten (10) years required
                for adverse possession. The Dixon family acquiesced to
                and set this fence line a long, long time ago.


        30.     The [Disputed Property] was always used by [the Dixon
                Trust] and its predecessors in title and never by the
                [Hudsons’] or their predecessors in title.


                                                ***




Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 7 of 15
               37.     [The Dixon Trust and the Robbinses] have met their
                       burden of proof regarding adverse possession . . . .


               38.     Title to the [Disputed Property] should be quieted in the
                       name of the [Dixon Trust], free and clear of any claim of
                       the [Hudsons].


       Appealed Order p. 6-10. The Hudsons now appeal.


                                    Discussion and Decision
                                             I. Due Process
[11]   First, the Hudsons argue that their procedural due process rights were violated

       because of the construction to the courthouse that was ongoing during the trial.

       According to the Hudsons, the noise made it difficult to hear testimony and

       caused many portions of the transcript to be indecipherable. Procedural due

       process “is the opportunity to be heard at a meaningful time and in a

       meaningful manner,” Perdue v. Gargano, 964 N.E.2d 824, 832 (Ind. 2012), and

       generally includes “‘an opportunity to present every available defense,’” Morton

       v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008) (quoting Lindsey v. Normet, 405 U.S.

       56, 66 (1972)).


[12]   Initially, we note that the Hudsons did not object to the trial court’s decision to

       proceed with the trial in the midst of the ongoing construction. Moreover, they

       did not file a motion to correct error or a motion for relief from judgment

       related to the construction noise. As a result, this argument has been waived.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 8 of 15
[13]   Waiver notwithstanding, we note that the court reporter executed an affidavit

       explaining that the numerous instances of “indiscernible” in the transcript were

       the result of malfunctioning recording equipment, not of the noise in the

       courtroom. Appellees’ App. Vol. II p. 15. Moreover, the court reporter

       attested that there was special equipment available for people with hearing

       impairments, but no one requested to use that equipment during the trial.


[14]   In any event, the Hudsons received a full and fair trial, including direct and

       cross-examination of witnesses and an in-person trip to the properties by the

       trial court judge. The Hudsons also filed a post-trial brief in support of their

       positions, meaning that they were able to present the trial court with their

       arguments in writing—a format entirely unaffected by the noise in the

       courtroom. Under these circumstances, we decline to reverse based on due

       process concerns.


                                     II. Adverse Possession
[15]   The Hudsons next argue that the trial court erroneously determined that the

       Dixon Trust is entitled to adverse possession of the Disputed Property. To

       establish adverse possession, a claimant must show “clear and convincing proof

       of control, intent, notice, and duration.” Fraley v. Minger, 829 N.E.2d 476, 485

       (Ind. 2005). These elements, which must be satisfied for a period of ten years,

       are defined as follows:


               (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

       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 9 of 15
                       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 486. In evaluating the trial court’s conclusion that adverse possession was

       established, we may consider only the probative evidence and reasonable

       inferences supporting the judgment, may not reweigh evidence or assess witness

       credibility, and will affirm if a reasonable trier of fact could conclude that the

       judgment was established by clear and convincing evidence. Id. at 483.


                                                 A. Notice
[16]   The only Fraley element challenged by the Hudsons in this case is the element

       of notice. According to the Hudsons, the actions of the Dixon Trust and its



       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 10 of 15
       predecessors in title were not sufficiently visible, open, and notorious to

       establish this element by clear and convincing evidence.


[17]   The record reveals the following evidence regarding the use of the Disputed

       Property by the Dixon Trust and its predecessors in title:


           • The Dixon family had large portions of the Disputed Property mowed.
           • They also farmed part of the Disputed Property.
           • The Disputed Property included a yard in which the family sometimes
             played softball, as well as a clothesline and a satellite television dish.
           • Winford had a septic system constructed, and the septic field underlies
             part of the Disputed Property.
           • A fence consistent with the use of the Disputed Property by the Dixon
             Trust and its predecessors in title has been in place for many decades.
           • Throughout the years, the respective owners of the Dixon Trust Property
             and the Hudson Property have believed that the Disputed Property is
             part of the Dixon Trust Property and have acted accordingly.

       This evidence supports the trial court’s conclusion that the Dixon Trust

       established the notice element of adverse possession. While the Hudsons direct

       our attention to other evidence in the record supporting their argument that

       notice was not established, this amounts to a request that we reweigh the

       evidence—a request we decline.


                                                  B. Taxes
[18]   In addition to the elements described by our Supreme Court in Fraley, an

       adverse possessor must also comply with Indiana Code section 32-21-7-1

       regarding payment of taxes. This statute requires an adverse possessor to pay

       all taxes and special assessments that the adverse possessor reasonably believes

       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 11 of 15
       in good faith to be due on the property during the period of claimed adverse

       possession. I.C. § 32-21-7-1(a).


[19]   The Hudsons contend that the Dixon Trust failed to establish compliance with

       Indiana Code section 32-21-7-1 and that the trial court erred by neglecting to

       make a finding regarding payment of taxes.


[20]   At the outset of the trial, the parties informed the trial court that “[w]e’ve also

       stipulated through the (indiscernible) decision that taxes are what they are. The

       Plaintiff and Defendant have each paid the taxes in accordance with their tax

       papers as sent by the Treasurer.” Tr. Vol. II p. 3-4. The Hudsons argue that

       the Dixon Trust should have entered those “tax papers” into evidence, but we

       cannot agree that this action was required given that the parties had stipulated

       to the issue.


[21]   While this stipulation is far from a model of clarity, it is apparent that the

       parties were endeavoring to simplify the litigation by agreeing on the issue of

       taxes from the outset. Stipulations are binding upon the parties and the trial

       court and may not be challenged on appeal. E.g., Norris Ave. Prof’l Bldg. P’ship v.

       Coordinated Health, LLC, 28 N.E.3d 296, 299 (Ind. Ct. App. 2015); Wayne Twp.

       v. Lutheran Hosp. of Fort Wayne, Inc., 590 N.E.2d 1130, 1133 (Ind. Ct. App.

       1992). Because the parties stipulated that the Dixon Trust had paid all taxes,

       presumably including the Disputed Property, the Hudsons may not now

       challenge that fact.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 12 of 15
[22]   As for whether the trial court was required to include a finding regarding taxes,

       we agree that it would have been the better practice to have done so. But we

       cannot say that the trial court was required to do so, since the parties had

       expressly agreed on the issue. Furthermore, were we to rule in favor of the

       Hudsons on this point, the remedy would be to remand to the trial court to add

       a finding regarding taxes, which would just be a recitation of the parties’

       stipulation—hardly an efficient use of judicial resources. Therefore, we decline

       to reverse or remand on this basis.


                                                    III. Easement
[23]   Finally, the Hudsons argue that the trial court erred by denying their request for

       an easement of necessity on a portion of the Dixon Trust Property.3 This Court

       has explained easements of necessity as follows:


                  An easement of necessity will be implied when “there has been a
                  severance of the unity of ownership of a tract of land in such a
                  way as to leave one part without access to a public road.” An
                  easement of necessity may arise, if ever, only at the time that the
                  parcel is divided and only because of inaccessibility then existing.
                  To demonstrate that an easement of necessity should be implied,
                  a plaintiff must establish both unity of title at the time that tracts
                  of land were severed from one another and the necessity of the
                  easement.


                                                               ***




       3
           They do not appeal the trial court’s finding that they are not entitled to a prescriptive easement.


       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017               Page 13 of 15
               To demonstrate that the easement is “of necessity,” a plaintiff
               must demonstrate more than that the easement would be
               beneficial or convenient. If the plaintiff has another means of
               accessing his land, he may not claim a right to pass over the land of
               another. This rule controls even if the alternate means of access would be
               more difficult or expensive for the plaintiff.


       Cockrell v. Hawkins, 764 N.E.2d 289, 292 (Ind. Ct. App. 2002) (emphasis added)

       (internal citations omitted).


[24]   Stewart testified that there was no “practical” way to get to the Back Property

       other than through the Dixon Trust Property. Tr. Vol. II p. 95. But he also

       testified that he was able to use a tractor to access the Back Property over his

       own land to clear trees on the Back Property. Id. at 95-96. Additionally, the

       trial court found further evidence that the Hudsons would be able to access the

       Back Property without having to traverse the Dixon Trust Property:


           • The Hudsons’ home abuts a blacktop road that “provides access to any
             and all of the [Hudsons’] real estate.” Appealed Order p. 6.
           • Aerial pictures establish that there are “trails and roadways leading
             across various places” on the Hudson Property to the Back Property. Id.
           • The trial court judge herself walked through the property and observed
             “what appeared to be a road made with some sort of heavy equipment
             with gravel on it, with an incline that appeared able to be traveled on by
             a four-wheel drive vehicle and did not appear particularly cumbersome.”
             Id.

       This evidence readily supports the trial court’s conclusion that the Hudsons

       have a means—possibly multiple means—of accessing the Back Property that

       does not involve traveling over a portion of the Dixon Trust Property.


       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 14 of 15
       Consequently, we find that the trial court did not err by denying the Hudsons’

       request for an easement of necessity.


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


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PL-865 | December 13, 2017   Page 15 of 15
