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).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015                 Page 11 of 11
