                                                                                        FILED
                                                                                Oct 12 2017, 11:04 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      John A. Kraft                                              J. David Agnew
      Young, Lind, Endres & Kraft                                Robert P. Hamilton
      New Albany, Indiana                                        Lorch Naville Ward LLC
                                                                 New Albany, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robert K. Reinmiller Living                                October 12, 2017
      Trust, Timothy H. Matthews and                             Court of Appeals Case No.
      Paula C. Matthews,                                         31A01-1609-PL-2168
      Appellants-Plaintiffs,                                     Appeal from the Harrison Circuit
                                                                 Court
              v.                                                 The Honorable John T. Evans,
                                                                 Judge
      Jeffrey L. Metschuleit, Karen                              Trial Court Cause No.
      Metschuleit, Glenn Nix, and                                31C01-1408-PL-18
      Moira Nix,
      Appellees-Defendants.



      Pyle, Judge.


                                        Statement of the Case
[1]   The Appellants/Plaintiffs, Robert K. Reinmiller Living Trust (“Reinmiller”)

      and Timothy and Paula Matthews (collectively, “the Matthews”), filed a

      complaint to challenge a legal survey completed on behalf of their neighbors,

      Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017                           Page 1 of 22
      the Appellees/Defendants, Jeffrey L. and Karen Metschuleit (collectively, “the

      Metschuleits”) and Glenn and Moira Nix (collectively, “the Nixes”). They

      argued that a center section line (“Center Line”) established in the survey was

      erroneous and that the survey inappropriately included land within the

      Metschuleits’ property boundaries that was not included in their deed’s property

      description. The trial court issued a judgment granting in part and denying in

      part Reinmiller and the Matthews’ (collectively, “the Appellants”) requested

      relief. Specifically, the trial court invalidated the part of the survey that had

      inappropriately included land within the Metschuleits’ property boundaries that

      they did not own according to their property deed. However, the trial court

      found that the survey’s Center Line was valid.


[2]   On appeal, the Appellants argue that the trial court erred when it granted in

      part and denied in part their challenge to the legal survey. With respect to the

      trial court’s denial in part, they argue that the trial court’s determination that

      the Center Line was valid was based on erroneous and conflicting findings.

      With respect to the trial court’s grant in part, they assert that the trial court

      granted relief not authorized by INDIANA CODE § 36-2-12-14(c), the statutory

      provision governing “appeals” of legal surveys, because it did not have the

      authority to partially validate and partially invalidate a legal survey.


[3]   Because we determine that the trial court’s findings were not erroneous and

      supported its judgment that the Center Line was valid, we affirm the trial

      court’s judgment in part. However, we agree with the Appellants that the trial

      court granted relief not authorized by statute. Upon rejecting part of the survey

      Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 2 of 22
      at issue, the trial court was required to order a new survey completed by a

      different surveyor or to order the county surveyor to locate and mark the

      boundaries with durable markers in the proper places according to the trial

      court’s findings. The trial court chose not to order a new survey but failed to

      order the county surveyor to locate and mark the proper boundaries according

      to its findings. Therefore, we reverse in part and remand with instructions for

      the trial court to enter a new judgment ordering the county surveyor to locate

      and mark with durable markings the boundaries of the Center Line that the trial

      court has found valid.


[4]   We affirm in part, reverse in part, and remand with instructions.


                                                      Issues
              1. Whether the trial court erred when it denied in part the
                 Appellants’ challenge to a legal survey.

              2. Whether the trial court granted relief not authorized by statute
                 by partially validating and partially invalidating a survey.


                                        Statement of the Facts
[5]   The parties to this appeal are adjoining and contiguous landowners in Harrison

      County. The Metschuleits and Reinmiller own adjacent parcels of real estate,

      situated so that Reinmiller’s property lies to the south and the east of the

      Metschuleits’ property. The Matthews own property to the north and east of

      the Metschuleits and to the north and west of Reinmiller. The Nixes own

      property to the north of the Metschuleits and Reinmiller and to the west of the

      Matthews. Victor McCauley (“McCauley”), a professional land surveyor,
      Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 3 of 22
surveyed the legal boundaries of the neighbors’ properties, and that survey is the

subject of this appeal. McCauley depicted the boundaries of the properties as

follows:




Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 4 of 22
Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 5 of 22
      (App. Vol. 2 at 107).


[6]   Prior to McCauley’s survey, a civil engineer and land surveyor, Reginald

      Timberlake (“Timberlake”) surveyed sections of Reinmiller’s land in 2005 and

      2011 so that Reinmiller could log timber. Timberlake did not record either of

      these surveys.


[7]   Subsequently, in 2012, the Nixes hired Timberlake to complete a legal survey of

      the Nixes’, the Metschuleits’, and the Matthews’ properties. Each of the three

      sets of property owners agreed to pay 1/3 of the price for the survey. However,

      after Timberlake completed the survey in March of 2012, neither the Nixes nor

      the Metschuleits agreed with his results. They were concerned that the Center

      Line, which was the line that determined the boundary between the Nixes’ and

      the Matthews’ properties and the boundary between the Metschuleits’ and

      Reinmiller’s properties, was not placed where they thought it existed. (Tr. Vol.

      2 at 55). They believed Timberlake’s line was misplaced because it “severed” a

      cultivated field, ran west of an existing fence line, and ran west of where they

      thought it should based on where they believed remnants of an historic school

      were located. (Tr. Vol. 2 at 25).


[8]   With respect to the school, the Metschuleits’ deed describes their property as

      containing the “south half of the northwest quarter of Section 25, Township 1

      south, Range 2 east,” except for “one (1) acre out of the southeast corner

      thereof deeded to Blue River Township for school purposes.” (App. Vol. 2 at

      Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 6 of 22
       53). The deed described the location of the school acre as “[b]eginning at the

       southeast corner of said northwest quarter, running thence west along the south

       line of said quarter . . . .” (App. Vol. 2 at 53). The Metschuleits’ property

       contained “remnants of a foundation” of a building on a “man-made plateau

       area” where they believed that the school had been located, and they believed

       this location was consistent with where their deed said the school acre was and

       was inconsistent with Timberlake’s survey. (Tr. Vol. 2 at 59, 144).

       Timberlake’s Center Line was to the west of the school acre, whereas the

       Metschuleits believed the Center Line should be to the east of the school acre.


[9]    After receiving Timberlake’s survey results, the Metschuleits wrote him letters

       stating that they believed the survey was incorrect and asking him to re-evaluate

       his Center Line, but he declined to do so. As a result, neither the Metschuleits

       nor the Nixes paid the 1/3 of Timberlake’s charge they had agreed to pay, and

       Timberlake did not record the survey.


[10]   Subsequently, in mid-2012, the Nixes and the Metschuleits hired McCauley to

       conduct the legal survey that is depicted above. McCauley completed the

       survey and recorded it in the Harrison County Recorder’s office on June 1,

       2014. His survey placed the Center Line around 150 to 165 feet to the east of

       Timberlake’s Center Line. According to McCauley’s Center Line, the

       Metschuleits’ eastern property boundary coincided with the eastern boundary of

       the cultivated field that Timberlake’s Center Line had “severed.” (Tr. Vol. 2 at

       25). However, McCauley also included the one-acre school property within the

       Metschuleits’ property boundaries, even though it was excepted from the deed,

       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 7 of 22
       as well as a 7.575 acre parcel of land (“7.575-acre parcel”) that was not included

       in their deed’s property description and did not appear to have an identified

       owner.


[11]   On August 12, 2014, the Appellants (Reinmiller and the Matthews) filed a

       complaint challenging McCauley’s survey under INDIANA CODE § 36-2-12-14,

       which allows owners of property surveyed to “appeal” that survey to the circuit

       court, superior court, or probate court for the county. They argued that

       McCauley’s survey reflected “different lines” than previous surveys had and

       requested that the trial court set aside the survey. (App. Vol. 2 at 24).


[12]   The trial court held a bench trial on April 22 and July 13, 2016. At trial, both

       Timberlake and McCauley testified regarding their respective Center Line

       placements. McCauley testified that when completing this type of legal survey,

       a retracement survey, the goal is to “retrace the descriptions of the property” or

       “follow the retracement of a deed.” (Tr. Vol. 2 at 28, 42). He further explained

       that, in determining where a property’s boundaries should exist “on the

       ground,” surveyors consider a “hierarchy” of landmarks. (Tr. Vol. 2 at 45).

       First, a surveyor looks at the deed, then “natural monument[s]” such as “a cliff,

       creek, valley, something natural.” (Tr. Vol. 2 at 42). Next on the hierarchy,

       according to McCauley, a surveyor examines “artificial monuments,” such as

       roads, fence lines, [and] tree lines.” (Tr. Vol. 2 at 42-43). McCauley also

       explained:


               In between natural monuments and artificial monuments [are]
               surveyor monuments that are placed. Then after artificial

       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 8 of 22
               monuments you go down to bearings, distances. . . . [Y]ou go on
               down to testimony by long time landowners, parole evidence, . . .
               and then at the bottom when all else fails you calculate by
               acreage.


       (Tr. Vol. 2 at 43).


[13]   Within the context of the current case, McCauley testified that he believed the

       “cultural features and the occupation” of the parties’ properties “pretty much

       supported the deeds.” (Tr. Vol. 2 at 29). He concluded that it was “quite

       obvious on the ground that the survey markers from Mr. Timberlake’s survey

       [had] missed the old fence lines, the foundation, the cemetery, old roads by – he

       was about 150 to 160 feet west of the existing occupation.” (Tr. Vol. 2 at 29).

       McCauley based his placement of the Center Line on his review of the

       historical documents and deeds and his conclusion that the Center Line was

       supposed to be to the east of the school acre as the deed specified that the

       school acre was in the southeast corner of the northwest quarter. He identified

       that the school acre, on the ground, existed where there were remnants of

       building foundation on the Metschuleits’ property. McCauley testified that it

       was “not difficult to figure out where the school was at” on the ground because

       the foundation remnants included “parts of maybe the chimney” and “lots of . .

       . foundation type rocks[] spewed all over the area.” (Tr. Vol. 2 at 60).


[14]   In addition to the placement of the school acre, McCauley also believed that his

       placement of the Center Line was supported by other cultural features. Next to

       the school, the Center Line was consistent with the location of a cemetery and


       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 9 of 22
       coincided with a quarter-mile of old fencing. It also formed the eastern

       boundary of the cultivated field that Timberlake’s Center Line had severed by

       “about a hundred and fifty feet or so.” (Tr. Vol. 2 at 62). McCauley testified

       that, along the portion of the Center Line that followed the old fencing, he had

       located a “pinnacle type limestone[,] [a stone that] a lot of the old surveyors

       used to plant for corners” in a location consistent with a corner described in the

       Matthews’ deed. (Tr. Vol. 2 at 63). Specifically, the Matthews’ deed described

       a “stone marking the southeast corner of the northeast fourth of the Nor[th]west

       quarter of section 25.” (Tr. Vol. 2 at 66).


[15]   With respect to the northeastern diagonal boundary of the Nixes’ property,

       McCauley acknowledged that the property line intersecting with the Blue River

       was supposed to be marked by an elm tree. He testified that he had not found

       an elm tree in the location where he believed it should be according to his

       placement of the Center Line. At the location where he calculated the elm

       should be, the river bank had “sloughed off,” so he concluded that the tree had

       “washed into the river.” (Tr. Vol. 2 at 76). He also testified that he did not find

       an elm tree “at the terminus of Mr. Timberlake’s line,” either. (Tr. Vol. 2 at

       83).


[16]   Although the placement of the Center Line was the primary subject of

       McCauley’s testimony at trial, he also admitted that he had included two

       separate parcels of land—the one-acre school parcel and the 7.575-acre parcel—

       in the Metschuleits’ property boundaries even though they were not included in

       the Metschuleits’ property deed. His basis for including the school property in

       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 10 of 22
       the Metschuleits’ boundaries was that the Metschuleits were “going to claim the

       property . . . after this is done, even by adverse possession or by other means.”

       (Tr. Vol. 2 at 45).


[17]   Timberlake testified at trial and explained that his Center Line was based on

       two stones he had found when he completed his 2005 survey of Reinmiller’s

       property. Although the 2005 survey concerned property to the south of the land

       surveyed in the instant case, Timberlake believed that the stones established

       lines and corners that were relevant to his placement of his Center Line here.

       Specifically, the stones were 1320 feet apart, or “a normal quarter mile,” which

       “very seldom ever happens,” and the stone to the east (“Eastern stone”) had a

       “plus on the top,” which Timberlake thought meant someone had “marked it”

       previously. (Tr. Vol. 2 at 111, 112, 113). The stones formed an east-west line,

       and the Eastern stone was located approximately in the location that McCauley

       labeled with a diamond and “see report” on his later survey. The stone to the

       west (“Western stone”) was located where McCauley identified the “east

       sixteenth corner” on his survey. (Tr. Vol. 2 at 112-13). Timberlake testified

       that he had verified the lines and corners these two stones formed because

       directly north of the Western stone, he found a “stone marked with a survey

       ribbon” (“Northern stone”). (Tr. Vol. 2 at 119). This stone was the equivalent

       of “L3” on McCauley’s survey. See (App. Vol. 2 at 111). Timberlake further

       explained that he had established the Center Line in his later survey as the line

       formed between the Western stone and the Northern stone.




       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 11 of 22
[18]   Timberlake also testified that he had found other evidence supporting his

       placement of the Center Line. Specifically, where he had calculated that the

       elm tree by the Blue River should be, he had found a tree that “was root

       wadded down into the river.” (Tr. Vol. 2 at 160). Also, the northern portion of

       his Center Line followed an old road. As for the Metschuleits’ and the Nixes’

       concerns regarding the old school foundation, Timberlake testified that they

       had “raised some serious questions” that he had not “take[n] lightly” but that

       he had ultimately concluded that his Center Line was correct. (Tr. Vol. 2 at

       127). He explained that:


               The fact that the school is either east or west of the line does not
               control my line. Now the fact that a deed calls for it to be [on]
               one particular side definitely gets my attention. But in the course
               of the years that I [have] spent doing this, I’ve seen people build
               houses across the line. . . . If someone can build a house across
               the line, what about an old school building a hundred years
               ago[?]


       (Tr. Vol. 2 at 128).


[19]   At the conclusion of the trial, the trial court issued an order granting the

       Appellants’ appeal of McCauley’s survey in part and denying it in part.

       Specifically, the trial court found that McCauley had correctly identified the

       Center Line and ruled that his identification of the Center Line was “valid and

       confirmed.” (App. Vol. 2 at 22) (emphasis removed). However, the trial court

       held that the survey was “partially invalid” in so far as it attempted to establish




       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 12 of 22
       the Metschuleits as owners of the one-acre school parcel and the 7.575-acre

       parcel. (App. Vol. 2 at 22) (emphasis removed). The Appellants now appeal.


                                                     Decision
[20]   On appeal, the Appellants argue that the trial court erred when it granted in

       part and denied in part their appeal of McCauley’s survey. In their challenge to

       the trial court’s denial in part of the appeal, they assert that the trial court erred

       because its findings conflicted or were erroneous and did not support its

       conclusion that McCauley’s Center Line was valid. With respect to the trial

       court’s grant in part of their appeal, they contend that the trial court erred

       because it did not have statutory authority to only partially invalidate a survey.

       We will address each of these issues in turn.


[21]   Preliminarily, though, we note that the trial court entered findings of fact and

       conclusions of law thereon. Accordingly, we must conduct a two-tiered

       standard of review. Lane Alan Schrader Trust v. Gilbert, 974 N.E.2d 516, 521

       (Ind. Ct. App. 2012), decision clarified on reh’g, 978 N.E.2d 519 (2012). First, we

       determine whether the evidence supports the findings, and then we determine

       whether the findings support the judgment. Id. We will not set aside the trial

       court’s findings unless they are clearly erroneous, meaning that they are

       unsupported by facts in the record or reasonable inferences drawn from the

       facts. Id. When determining whether findings are clearly erroneous, we neither

       reweigh the evidence nor judge the credibility of witnesses and consider only

       the evidence supporting the judgment. Id. We may affirm the judgment on any


       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 13 of 22
       legal theory supported by the findings. Id. We review questions of law de novo.

       Id. at 522.


       1. Denial in Part

[22]   First, the Appellants challenge the trial court’s denial in part of their appeal of

       McCauley’s survey. They argue that the trial court’s denial in part was

       erroneous because its findings did not support its conclusion that McCauley’s

       identification of the Center Line was valid. We divide their contentions into

       two broad arguments: (1) that the trial court erred when it found that

       McCauley had properly surveyed the properties because McCauley did not

       properly follow the statutory procedure for a legal survey; and (2) the trial

       court’s findings regarding the placement of the Center Line in relation to the

       school acre conflicted with each other. The Appellants’ remaining arguments

       are requests to reweigh the evidence, which we will not do. See id.


[23]   In support of the Appellants’ first broad argument, they direct us to 865

       INDIANA ADMINISTRATIVE CODE § 1-12-10, which provides:


               When conducting a retracement or original survey, a land
               surveyor shall do the following:

               (1) Search for controlling physical monuments and, when found,
               weigh their reliability.

               (2) Search for and locate the following:

                        (A) Monuments that reference missing control
                        monuments.




       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 14 of 22
                 (B) Monuments that substantiate control monuments that
                 have been obliterated.

                 (C) Other monuments and real evidence that are necessary
                 to the survey.

        (3) If necessary:

                 (A) investigate possible parol evidence supporting the
                 positions of obliterated control monuments; and

                 (B) obtain the necessary affidavits or affidavits from
                 individuals involved.

        (4) Obtain the following:

                 (A) Necessary measurements to correlate all found
                 evidence, including the relationship to adjoining
                 properties.

                 (B) Sufficient check measurements to satisfactorily verify
                 the work.

        (5) Locate physical evidence of possession between adjoiners and
        identify age of possession, for example, by parol evidence, if
        possible.

                                           *        *       *

        (7) Any controlling corners that are original public land surveyor
        corners or other government corners such as land grants shall be:

                 (A) evaluated;

                 (B) perpetuated;

                 (C) documented;

        in accordance with section 30 of this rule.




Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 15 of 22
       The Appellants assert that McCauley failed to “search” for controlling physical

       monuments as required by 865 IAC § 1-12-10, failed to investigate parol

       evidence supporting the positions of the obliterated control monuments, and

       inappropriately established new monuments. We disagree. To the contrary,

       there was evidence to support the trial court’s finding and conclusion that

       McCauley completed a valid legal survey.


[24]   The primary controlling physical monument the Appellants claim McCauley

       failed to “search” for was the elm tree that was supposed to form a boundary to

       the Nixes’ property along the Blue River. They admit that he “looked for” the

       elm tree but claim that there is a difference between “searching for” a tree and

       “looking for” a tree. (Appellants’ Br. 17). They also claim that he should have

       investigated parol evidence to find the “obliterated control monument[],” the

       elm tree, such as by hiring an “arborist, ecologist, pedologist, potamologist, or

       other specialist to locate this very important tree.” (Appellants’ Br. 18).

       Because he did not find the tree, they also claim that he failed to weigh its

       reliability.


[25]   When we interpret administrative regulations, the rules of statutory

       construction apply. Ind. Family & Social Servs. Admin. v. Pickett, 903 N.E.2d 171,

       176 (Ind. Ct. App. 2009), reh’g granted on other grounds. The express language of

       the regulation controls, and the regulation is interpreted as a whole, giving

       words their plain and ordinary meaning. Id. Moreover, we construe statutes

       and regulations in such a way as to prevent absurdity and hardship. Id.



       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 16 of 22
[26]   In the context of the Appellants’ argument, we do not find a significant

       difference between the common and ordinary meanings of “search for” and

       “look for.” Both express the sentiment that, as the Appellants acknowledge,

       McCauley attempted to find the elm tree. As for their contention that he

       should have hired a specialist, the Administrative Code does not mandate any

       such requirements, and it seems possible that doing so would create “absurdity

       and hardship.” See id.


[27]   The Appellants also contend that “McCauley did not evaluate the evidence

       properly as required by the rule” with respect to the school acre because he did

       not find definitive proof that the foundation remnants on the Metschuleits’

       property were, in fact, the remnants of the old school. (Appellants’ Br. 19).

       However, the Appellants do not clarify what evidence they think McCauley

       should have evaluated that would have produced definitive proof that the

       foundation remnants were the remnants of the school. Further, there was

       evidence that McCauley did properly evaluate the evidence. He stated that he

       received “testimony of the clients” and researched “old photographs” and

       “newspaper articles.” (Tr. Vol. 2 at 25). He also testified that he researched the

       county surveyor’s records, the auditor’s records, the chain of title, and the

       deeds, to the extent that he “went back to the mid-1800’s for locating the school

       deeds when that was initially deeded out as a school.” (Tr. Vol. 2 at 26). On

       the ground, he searched for controlling monuments and determined that there

       was “cultural evidence” supporting the location of the school, including a half

       mile of fencing, an old road, and the location of a cemetery. (Tr. Vol. 2 at 57).


       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 17 of 22
       He also determined that the deeds indicated that the foundation was “exactly

       where [the school was] supposed to [have been].” (Tr. Vol. 2 at 57). Thus,

       there was evidence in the record to support the trial court’s conclusion that

       McCauley properly conducted his survey and evaluated the evidence. 1


[28]   The Appellants’ second broad argument—that the trial court’s findings

       conflicted—also relates to McCauley’s determination of the placement of the

       Center Line in relation to the school acre. The trial court found that

       McCauley’s Center Line placement was correct but that he should have

       excluded the school acre from the Metschuleits’ property boundaries because it

       was excepted from their deed. The Appellants assert that these two findings are

       inconsistent because McCauley’s placement of the Center Line automatically

       “includes” the school acre in the Metschuleits’ property, whereas “[t]he

       Timberlake line, which the court did not follow, would properly exclude the

       School Property” because the school acre would be to the east of the Center

       Line and the Metschuleits’ property boundary. (Appellants’ Br. 21).


[29]   We do not find these findings inconsistent. If the school acre were not within

       the boundaries of what would be considered the Metschuleits’ property

       according to the placement of the Center Line, then there would be no reason

       to except the property from their ownership in the deed. Under Timberlake’s




       1
         The Appellants also argue that McCauley based his placement of the Center Line on his clients’ wishes
       rather than controlling monuments. This is a request to reweigh the evidence as McCauley testified that “the
       cultural features and the occupation” he based his survey upon “pretty much supported the deeds.” (Tr. Vol.
       2 at 29).

       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017                    Page 18 of 22
       Center Line placement, the school acre would have been clearly outside of the

       Metschuleits’ property boundaries and within Reinmiller’s property boundaries,

       leaving no reason for the Metschuleits’ deed to mention the parcel.

       Accordingly, the trial court’s findings are consistent.


       2. Grant in Part


[30]   Next, the Appellants argue that the trial court erred when it validated

       McCauley’s Center Line placement but invalidated McCauley’s inclusion of the

       one-acre school parcel and the 7.575-acre parcel within the Metschuleits’

       property boundaries without ordering a new survey. They contend that the trial

       court did not have the statutory authority to partially validate and partially

       invalidate a survey. We agree.


[31]   INDIANA CODE § 36-2-12-14(c) governs appeals of legal surveys. It provides

       that:


               If the court decides against the original survey, it may order a
               new survey to be made by a competent person other than the
               person who did the original survey, and it shall:

                        (1) determine the true boundary lines and corners of the
                        lands included in the survey; and

                        (2) order the county surveyor to:

                                 (A) locate and perpetuate the boundary lines and
                                 corners according to the court’s findings by
                                 depositing durable markers in the proper places,
                                 below the freezing point;

                                 (B) mark the boundary lines and corners; and

       Court of Appeals of Indiana | Opinion 31A01-1609-PL-2168 | October 12, 2017   Page 19 of 22
                                 (C) enter the boundary lines and corners in the
                                 county surveyor’s field notes.


       I.C. § 36-2-12-14(c). In Lane Alan Schrader Trust, we interpreted this provision

       as providing the trial court with three options in an appeal of a survey:


               (1) it may accept the original survey; (2) it may reject the original
               survey and it is permitted to order that a new survey be
               performed by a different surveyor from the surveyor who
               performed the original survey; [or] (3) it may reject the original
               survey and order the county surveyor to locate and mark the
               boundaries with durable markers in the proper places according
               to the trial court’s findings based upon evidence presented to it,
               including previous surveys.


       Lane Alan Schrader Trust, 974 N.E.2d at 524.


[32]   Our holding in Lane Alan Schrader Trust is instructive here. There, a landowner

       appealed a legal survey and introduced into evidence two previous surveys that

       contradicted the legal survey at issue. Id. at 519-20. The trial court held that

       there was no evidence of the validity of the two previous surveys because there

       was no evidence that the surveyors had satisfied the statutory notice

       prerequisites for creating a valid survey. Id. at 524. Nevertheless, the trial court

       rejected the legal survey at issue, declined to order a new survey completed, and

       ruled that the prior two surveys had clearly and validly delineated the property

       boundaries. Id. at 524-25.


[33]   On appeal, the appellant argued that the trial court’s only options by statute had

       been to affirm the survey or order a new one, not to accept boundaries without

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       a valid survey. Id. at 523. We disagreed and interpreted the statute as

       providing the trial court with the three options listed above. Id. at 524. As a

       result of this interpretation, we concluded that the trial court had had the

       authority to determine proper legal boundaries based on the evidence presented

       to it, even if that evidence was not consistent with a valid survey. See id. at 525.

       However, in that eventuality, the trial court had been required to “order[] the

       county surveyor to locate the boundary lines with durable markers in the proper

       places according to its findings.” Id. Accordingly, we concluded that the trial

       court had erred by imposing the boundaries listed in the two previous surveys

       without ordering the county surveyor to mark the boundary lines according to

       the surveys. Id. Doing so would have “in effect, establish[ed] a new legal

       survey.” Id. at 525. We explained that, “[p]ut another way, the trial court

       [had] not err[ed] by accepting the two previous surveys but [had] skipped a step

       by imposing them.” Id.


[34]   Based on our holding in Lane Alan Schrader Trust, we conclude that the trial

       court here had the authority to determine that McCauley’s Center Line was

       valid based on the evidence before it, even though it also partially invalidated

       McCauley’s survey. However, as in Lane Alan Schrader Trust, the trial court

       “skipped” the step of ordering the county surveyor to locate the boundary lines

       with durable markers, thereby establishing a new legal survey. See id. Absent

       this step, McCauley’s survey, with its partially invalidated boundary lines, is

       still recorded at the Harrison County Recorder’s Office, and, as the Appellants

       note, cannot give future interested parties proper notice of the properties’ legal

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       boundaries. As the trial court, thus, granted relief not authorized by statute, we

       determine that it erred by rejecting part of McCauley’s survey without ordering

       a different surveyor to complete a new survey or ordering the county surveyor

       to mark the boundaries with durable markers in the proper places according to

       its findings. We reverse this specific part of the trial court’s order and remand

       with instructions for the trial court to vacate this portion of its judgment.

       Because the trial court chose to enter findings on the correct placement of the

       Center Line without ordering a new survey, we also remand with instructions

       for the trial court to order the county surveyor to locate the Center Line with

       durable markers in the proper place according to its findings.


[35]   Affirmed in part, reversed in part, and remanded with instructions.


[36]   Baker, J., and Mathias, J., concur.




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