ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
Travis   Bonnell
         J.                                                Jim   J.   Brugh
Indianapolis, Indiana                                      Logansport, Indiana




                                                3511   the                                   Feb 16 2016, 9:27 am


                              Santana émpreme Qtuurt
                                         No. 66503-1509—PL-530

TOM BONNELL,
                                                                       Appellant (Defendant below),



RUBY A. COTNER, DOUGLAS WAYNE
COTNER, ARTHUR J. JOHNSON, JIMMY J.
JOHNSON, and JERRY L. JOHNSON,
                                                                       Appellees (Plaintzfﬂv below).


                    Appeal from the Pulaski County Circuit Court, No. 66C01-1208—PL-11
                            The Honorable Patrick B. Blankenship, Special Judge


          On Petition to Transfer from the Indiana Court of Appeals, No. 66A03-1410-PL-372


                                            February    16,    2016

Massa, Justice.


              Tom   Bonnell purchased a 35-foot-wide   strip   of land from the Pulaski County Board of
Commissioners, and Ruby and Douglas Cotner brought this action to quiet title, claiming that they
had previously acquired ownership of a section of that land via adverse possession. The             trial   court

disagreed, ﬁnding that the prior sale of the Strip     by tax deed extinguished any interest the Cotners
may have had.     Nevertheless, the         trial   court awarded the Cotners a prescriptive easement on certain

outbuildings erected on the Strip, and both parties appealed.                       We afﬁrm the denial of the Cotners’
adverse possession claim, and reverse the grant of a prescriptive easement, ﬁnding that the sale of

the Strip   by tax deed extinguished any and all                 interest the   Cotners previously possessed.




                                             Facts and Procedural History


         In 1948,   Leo and Ruth Cottingham subdivided                    their seven~acre parcel in Pulaski            County,
Indiana into eleven residential            lots.    Lot   1    consisted of a two—acre block on the south end of the

parcel, while the remaining ten lots               were   all   equal half-acre rectangles,        deﬁned     as   “One hundred
(100) feet    by Two hundred Fourteen and One-half                           (2141/2) feet.”       Plaintiff s EX.     G   at 20;

Defendant’s Ex.     2.        The    original survey          accompanying the subdivision also accounts               for State

Highway     119, and     it   marks the western boundary of these               lots as   being   at   the center of the State’s

right   of way. There         is   also an ancient farm fence          214   feet   from the eastern edge of the           State’s

right   of way. There         is   thus a 35-foot gap in between the edge of the parcels and the fence on the

eastern edge (“the Strip”),            which was not a part of the ofﬁcial parcel                 division; nevertheless, the

owners of Lots 2 through              11 treated their respective portions          of the Strip as part of their property,
and they believed the ancient farm fence marked the property                         line.   Ruby Cotner purchased Lot          8

in 1997.1    The previous owners of Lot               8 constructed a barn in 1968,               and the Cotners expanded
upon it with a lean—to in 2010; a portion of these buildings encroaches some distance onto the                              Strip.




  Shirley Johnson purchased Lot 9 in 1990, from whom the Johnson Plaintiffs (her sons) obtained title in
1




2009. Although the Johnsons were initially plaintiffs in this case, they quitclaimed their interest in Lot 9
to the Cotners during the pendency of this action; therefore, the Cotners are the only interested party on
appeal.
          The   Strip    was   originally included   by title with    the larger farm ﬁeld to the east; however,         it


was divided off Via quitclaim deed             in 1985.    The     State subsequently sold the Strip twice Via tax

sale; the ﬁrst in        1993 to Jeff Kopkey, and the second in 2011 to the Pulaski County Board of
Commissioners,           who then   sold the Strip to Bonnell in 2012.       When he bought it, Bonnell believed
the Strip   was located on the         eastern side of the ancient fence.    Upon a subsequent survey, however,
he discovered the Strip was located effectively in the backyards of the Cottingham Subdivision
owners. Bonnell then proposed a sale of each section of the Strip to the property owner                           who had
been occupying the          land, at   $890 apiece. All     the    owners eventually reached an agreement with
Bonnell except the Johnsons and the Cotners,               who asserted ownership of their section of the Strip
by adverse possession, and ﬁled              this suit to quiet title.     Bonnell defended on the grounds the
Cotners had not demonstrated they paid taxes on the disputed portion of the Strip and thus could
not perfect their adverse possession claim under Indiana law.                  And     in   any event, the Indiana Tax
Deed     Statutes, Ind.     Code    chs. 6-1.1-24   and —25 (2014), mandate        that the sale      of any property by
tax deed severs      all   prior claims of ownership, including ownership              by adverse possession.


          The    trial   court agreed with Bonnell, ﬁnding since            title to   the Strip ran separately at      all

times, the Cotners could not reasonably believe they                   were paying taxes on          their portion   of the
Strip,   and thus had not perfected        their claim   of adverse possession. The         trial   court   went on to ﬁnd,
as a matter of ﬁrst impression, that              even    if the   Cotners’ adverse possession claim             had been
perfected, the subsequent tax sales of the Strip divested the Cotners of their interest.                      However, the
trial   court also determined sua sponte that the Cotners should receive a prescriptive easement for

use of their outbuildings encroaching onto the Strip.



          Both    parties appealed,        and a unanimous panel of our Court of Appeals reversed and
remanded. Bonnell           v.   Cotner, 35 N.E.3d 275, 284 (Ind. Ct. App. 2015).                   The panel found     the

Cotners showed they paid taxes on the outbuildings that encroached upon the Strip, which was
sufﬁcient to establish good faith, and the subsequent tax sales could not divest an adverse possessor

of their interest, because otherwise “vested adverse holders               may become divested of their property
for failing to         pay taxes despite reasonably believing                  in   good    faith that       they are paying the

appropriate taxes due.”               &   at   283 (emphasis   in original).




       We granted transfer, thus vacating the Court of Appeals opinion below. Bonnell V. Cotner,
37 N.E.3d 493 (Ind. 2015) (table); Ind. Appellate Rule 58(A). We now afﬁrm the trial court with
respect to the denial of title to the Cotners              by adverse possession, but reverse                  as to granting    them
a prescriptive easement.




                                                      Standard of Review


          The parties’ claims were tried without a jury;               therefore,      we “shall not set aside the ﬁndings
or judgment unless clearly erroneous.” Ind. Trial Rule 52(A). “Findings of fact are only clearly

erroneous    if there is      no factual support for them           in the     record whatsoever, either directly or                by
inference.”       Johnson        v.   Wysocki, 990 N.E.2d 456, 460                  (Ind. 2013).        “A judgment        is   clearly

erroneous    if   it   applies the     wrong     legal standard to properly         found   facts.”    Woodmffv.         Ind.   Family
& Soc, Servs. Admin, 964 N.E.2d 784, 790 (Ind. 2012) (quoting Nichols v. Minnick, 885 N.E.2d
1,   3 (Ind. 2008)).




                   The Cotners Established Their Claim              of Adverse Possession of the
                                                 Disputed Portion of the Strip.


          As we        explained in great detail in Fraley v. Minger, there are four traditional elements to




                                                                                                                         m
adverse possession          at   common         law: control, intent, notice, and duration.                  829 N.E.2d 476, 486
(Ind. 2005).      Bonnell does not dispute that the Cotners have established                          all   of these elements with
respect to the disputed portion of the Strip. Rather, Bonnell relies                          on our holding        in            that,

pursuant to Indiana         Code       section 32-21-7-1 (2008), an adverse possessor                   is   required to pay taxes

on the property claimed               in order to perfect his or her interest, although substantial                 compliance       is
sufﬁcient, so long as “the adverse claimant has a reasonable and                  good   faith belief that the   claimant

is   paying the taxes during the period of adverse possession.” Fraley, 829 N.E.2d at 493.2 Bonnell
claims the Cotners did not satisfy this requirement because they paid taxes on the encroaching

outbuildings only, and not on the entire disputed portion of the Strip.



           We     ﬁnd   the Cotners have satisﬁed the adverse possession tax statute.                    In Fraley    we
expressly upheld our prior interpretation of this statutory adverse possession requirement from

Echterling       V. Kalvaitis,   including the following hypothetical where substantial compliance with

the adverse possession tax statute         would    exist:


                     An example     might be where one has record title to Lot No. l and
                     has erected a building on that lot, which, twenty years later, is found
                     by some surveyor to be one foot over on an adjoining lot, No.                 2—
                     the fact that the owner of Lot No. l was assessed for improvements
                     (the building) and real estate (Lot No. 1) would be sufﬁcient to
                     comply with the statute as to payment of taxes.

Fraley, 829       N.E.2d   at   490 (quoting Echterling         v. Kalvaitis,   235   Ind. 141, 147,   126 N.E.2d 573,
575—76 (1955)). That precise scenario has occurred                    here: the Cotners’ predecessors-in-interest

were assessed tax on the barn beginning             in   1968, and at least a portion of that building encroaches

upon the disputed portion of the                    That

                                                                                            E
                                           Strip.          is   sufﬁcient to establish the Cotners perfected their

adverse possessory interest in the disputed area of the Strip as of 1978.                       Celebration Worship

Ctr. Inc. v. Tucker,       35 N.E.3d 251, 255 (Ind. 2015) (ﬁnding adverse possessor had substantially
complied with tax        statute   “because they believed the disputed real estate to be part of the side yard

of their   lot   4ifor which they actually paid taxes.” (emphasis               in original».




       E
  Our General Assembly subsequently incorporated the holding of Fraley into Indiana Code section 32-21-
2

7-1.     2006 Ind. Acts 3606 (clarifying that the adverse possessor need only pay that tax “that the adverse
possessor or claimant reasonably believes in good faith to be due”).
                      The Subsequent Tax Sales of the Strip Defeat the Cotners’ Claim of
                                     Ownership by Adverse Possession.


          Perfecting an adverse possessory interest, however, does not automatically entitle the

Cotners to judgment in their favor. “[T]he 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        .    .   .
                                           .”
                                                My, 829 N.E.2d             at   486 (emphasis added). Acquiring ownership by
adverse possession does not render operative                              all   the rights and responsibilities of the record           title

holder; indeed, as demonstrated                      by the    facts    of this case, the adverse possessor would ﬁrst have to
                                                                            become                        acknowledged owner of the
             E
succeed     in    an action to quiet                title in   order to                    the legally

property.              App.   at       22—26;      Ind.   Code    §   32-30-2-20 (2014)         (listing   an adverse possessor as one

type of plaintiff entitled to bring a quiet                     title action); Ind.        Code   §   32-30—3-17 (stating that the ﬁnal

judgment in a quiet title action                   shall   be entered by the county recorder in the “Quiet Title Record”).
Moreover, although the Cotners’ predecessors-in-interest had a good                                         faith belief that they     were
paying taxes on the disputed portion of the                            Strip,   it is   undisputed that they were not       in fact   paying


                                                                                                       &
those taxes. Accordingly, since the record                              title   holder also failed to pay the requisite property

taxes, the entire Strip                was      subject to tax sale      by Pulaski County.                 Ind.   Code   § 6-1.1-24-1(a),

(C)


          “A purchaser at a tax                   sale receives a tax certiﬁcate evidencing a lien against the property

for the entire         amount          paid.      The     lien is superior to all other liens              which   exist at the time the

certiﬁcate       is   issued.”         Calhoun       v. Jennings,        512 N.E.2d 178, 181             (Ind. 1987) (citing Ind.      Code
§6-1.1-24-9) (emphasis omitted).                            Any       person    may “redeem”          the property within a statutory
period of up to one year after the date of sale.3 Ind.                              Code §   6—1.1—25-1, —4(a).     Once the redemption
period expires, the tax certiﬁcate holder                          may petition the court for a tax deed to the property.                    Ind.

Code     § 6—1.1-25-4.6(a).           Our General Assembly has                        also twice stated that the tax           deed “vests     in

the grantee an estate in fee simple absolute, free and clear of                                  all   liens   and encumbrances created
or suffered before or after the tax sale                   .   .   .
                                                                       .”   Ind.   Code   § 6-1.1-25-4(f), -4.6(g).      There are a ﬁnite
number of ways         to defeat a tax            deed by appeal; claim of title by adverse possession                          is   not   among
them.4




 The redemption amount is determined based on, among other things, the date of redemption, the amount
                                                                                                                                             E
3


of outstanding taxes and penalties, the initial minimum bid of the sale, and the ultimate purchase price.
Ind.   Code    § 6-1.1-25-2.

4
    &   Ind,   Code § 6-1.1-25-16 (“A person may, upon appeal, defeat the title conveyed by a tax deed executed
under this chapter only        if:



                     (1) the tract or real property described in the                       deed was not subject to the
                     taxes for       which   it   was   sold;


                     (2) the delinquent taxes or special assessments for which the tract or real
                     property was sold were paid before the sale;

                     (3) the tract or real property was not assessed for the taxes and special
                     assessments for which it was sold;

                     (4) the tract or real property was redeemed before the expiration                               of the
                     period of redemption (as speciﬁed in section 4 of this chapter);

                     (5) the proper county ofﬁcers issued a certiﬁcate, within the time limited
                     by law for paying taxes or for redeeming the tract or real property, which
                     states either that no taxes were due at the time the sale was made or that
                     the tract or real property           was not           subject to taxation;


                     (6) the description of the tract or real property                       was so imperfect     as to fail
                     to describe it with reasonable certainty; or
          Because of the       relative strength       of a tax deed, there are also several layers of statutory
notice of the tax sale proceedings (and each such notice contains no less than fourteen mandatory

components). Ind. Code            § 6-1.1-24-2; Ind.        Code    § 6-1.1-25-4.5.               The county    auditor   is   required

to post a   copy of the ﬁrst notice         in the    county courthouse            at least       21 days prior to the     initial   tax

sale,   publish the notice at least once a           week   for three consecutive              weeks, Ind. Code      § 6-1.1-24-3,

and further send a copy          to “the   owner of record.”            Ind.    Code     § 6—1.1—24—4(a)        (emphasis added).
Second, prior to the issuance of a tax deed, the purchaser must provide actual notice “to the owner

of record at the time of the       sale   and any person with a substantial property                    interest ofpublic       record
in the tract or real property.” Ind.         Code      § 6-1.1-25-4.5(a)          (emphasis added).


          Here, although the Cotners’ predecessors-in-interest acquired ownership of the disputed

portion of the Strip in 1978, they did not seek to quiet                       title   and formalize     that ownership. Thus,

by statute,   the Cotners     were not     entitled to   any more than publication notice of the two tax sales                         in

1993 and 2011.        And the very        issuance of those tax deeds                   prima facie evidence of the validity

                                                                                                                               E
                                                                                   is

of the notice given        in those tax sales,      evidence that has not been rebutted by the Cotners.                              Ind.

Code     § 6-1.1-25-4.6(g)      (“The deed     is   prima facie evidence           of: (l) the regularity        of the sale of the
real property described in the deed; (2) the regularity                   of all proper proceedings; and             (3) valid title

in fee   simple   in the   grantee of the deed”). There            is   also   no evidence         in the record that the      Cotners

or anyone else contested the validity of those tax sales, as permitted                                 by Indiana Code




                                                                 w
                                                                                                                                section

6-1.1-25-16.       Moreover, the statutory text             is   uncompromising:                  the Pulaski   County Board of
Commissioners obtained “fee simple absolute”                        in the Strip in               2011, free and clear of any
encumbrances. Ind. Code            §   6—1.1-25-4.6(g);                    Ind.        Code   §   6-1.1—25-14 (“An unrecorded

instrument does not affect the plaintiff’s               title   as established         by    the court’s [tax deed] decree”).




                   (7) the notices required by 1C 6-1.1-24-2, IC 6-1.1-24-4, and sections 4.5
                   and 4.6 of this chapter were not in substantial compliance with the manner
                   prescribed in those sections”)
Accordingly, under the plain text of the Tax               Deed Statutes,        in   1993 and again   in   2011, the Cotners
were divested of their ownership             interest    based on adverse possession of the disputed section of
the Strip.




                           The Trial Court’s Award to the Cotners of a
                    Prescriptive Easement in the Barn was Clearly Erroneous.



        We now turn to the trial court’s sua sponte award of a prescriptive easement to the Cotners
for their continued use       of the outbuildings, based on the court’s conclusion                     that the cost of their

removal would “far exceed the value of the Defendant’s entire parcel, not just the portion upon
which the building encroaches.” App.              at 20.




        We    begin by noting that the           trial   court    was within      its   authority to consider awarding a

prescriptive easement sua sponte.             The Cotners pleaded with particularity in              their   complaint    all   of
the elements of adverse possession, and “[t]he                     my          formulation for adverse possession also

applies to prescriptive easements, save for those differences required                        by   the differences between

fee interests   and easements.” TLlcer, 35 N.E.3d                   at   257   (internal quotations omitted).       The only
relevant difference here          is   the requisite statutory period of adverse             use—20 years—before            the

easement vested.           Ind.   Code      § 32-23-1-1.          The Cotners         also speciﬁcally pleaded that the

outbuilding was erected in 1968, and that they and their predecessors-in-interest had exercised

exclusive control over the entire disputed portion of the Strip since that time. Moreover, in their

prayer for   relief, the   Cotners included the familiar catch-all of “all other relief appropriate under
the circumstances.”        App.    at 26.    Therefore, there was sufﬁcient evidence before the                 trial   court to

determine the Cotners’ predecessors-in—interest had perfected a prescriptive easement in the
outbuilding as of 1988.



        Unfortunately, this attempt by the               trial   court to craft an equitable       remedy was unavailable
as a matter of law, again         by operation of the Tax Deed             Statutes. Indiana        Code    section 6-1.1-25-
4(f)(l) states unequivocally that for a prior

the easement

deed executed under
                    must be “shown by public records.”5
                             this chapter for real
                                                                            M
                                                        easement over property


                                                        property sold in a tax sale:
                                                                                     Ind.
                                                                                            to survive its sale

                                                                                            Code   § 6-1.1-25-4(g)

                                                                                                   (1)

extinguish an easement recorded before the date of the tax sale in the office of the recorder of the
                                                                                                                  by tax deed,
                                                                                                                       (“A tax
                                                                                                         does not operate to



county     in   which the   real property is located     .   .   .
                                                                     .”   (emphasis added)). Thus, as with the Cotners’
claim of adverse possession, they cannot claim a prescriptive easement in the outbuilding because
that     easement was never recorded, and was therefore extinguished with the                        first   tax sale in 1993.6




                                                        Conclusion


           After more than three years of litigation and two vigorous appeals, Mr. Bonnell                          now owns
a 35—foot—by—100—foot section of land in the Cotners’ backyard, predominately covered with a pole

barn,     which Bonnell values      at   approximately $890.               We affirm the denial of the Cotners’ claim of
adverse possession in the disputed portion of the Strip, and reverse the grant of a prescriptive

easement        in the Cotners’   encroaching outbuildings.



Rush, C.J., and Dickson, Rucker,            JJ.,   concur.
David, J ., did not participate.




5
    Wenote that a counterpart of this provision appears in Indiana Code section 6-1.1-25-4.6(g), and it does
not specify that prior easements must be recorded in order to survive a tax sale of the property; however,

consistently.     E
given that the scope of the two provisions is virtually identical, we are bound to read the two sections
                   Klotz v. Hog, 900 N.E.2d l, 5 (Ind. 2009) (“Statutes relating to the same general subject
matter are in part materia on the same subject and should be construed together so as to produce a
harmonious statutory scheme.” (internal quotations and alterations omitted».
6
    Since the second tax deed was issued in 2011, the Cotners did not acquire a second prescriptive easement
in the outbuildings prior to the second tax sale, as the requisite 20 years of use had not accrued.



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