ATTORNEYS FOR APPELLANT                                      ATTORNEY FOR APPELLEES
Joseph C. Klausing                                           John A. Kraft
Stephanie L. Caldwell                                        Young, Lind, Endres & Kraft
O'Bryan, Brown & Toner, PLLC                                 New Albany, Indiana
Louisville, Kentucky
____________________________________________________________________________

                                              In the
                               Indiana Supreme Court                             Jun 29 2015, 3:17 pm


                               _________________________________

                                      No. 22S01-1506-PL-401

        CELEBRATION WORSHIP CENTER, INC.,                            Appellant (Plaintiff),

                                                 v.

        PATRICK TUCKER AND
        CAROLYN P. TUCKER, A/K/A PATTY TUCKER,                       Appellees (Defendants).

                               _________________________________

                                 Appeal from the Floyd Circuit Court
                                The Honorable J. Terrence Cody, Judge
                                   Cause No. 22C01-1106-PL-948
                               _________________________________

            On Transfer from the Indiana Court of Appeals, No. 22A01-1405-PL-229
                           _________________________________

                                            June 29, 2015

Dickson, Justice.


        This appeal challenges summary judgment for claimants establishing title to and use of
real property by adverse possession and by prescriptive easement. Finding no genuine issue of
material fact, we affirm the trial court.


        In June 2011, the appellant/plaintiff Celebration Worship Center ("the church") filed a
complaint for declaratory judgment, seeking to determine the boundary line between it and the
appellees/defendants Patrick and Carolyn P. ('Patty') Tucker (collectively, "the homeowners"), to
determine ownership of its real estate, to allow it to build a fence along the boundary line, and to
seek further injunctive relief against the homeowners to cease their "trespass" activities. Appel-
lant's App'x at 8. The church holds the deed to lots 1, 2, and 3 on plat 349 in Floyd County, Indi-
ana. The homeowners hold the deed to lot 4, the adjacent property to the east. Surveys attached
to the church's complaint describe a boundary line as "Edge of Gravel," id. at 15–16, which ap-
pears to refer to the east edge of a gravel driveway along the east border of lot 3.


       Although the church has sued both the homeowners, the only titleholder of the disputed
real estate is Patty Tucker, who purchased her home from her mother, Bonnie Weathers, who had
owned and occupied the property from March 15, 1972, until she conveyed it to Patty by quit-
claim deed on November 4, 2003. Organized in 2002, the church took title to its real estate on
January 10, 2003, from Resurrection Morning Fellowship, Inc. The church's pastor, David
Ledger, began his employment in 2001 and never held an office with Resurrection Morning Fel-
lowship. The boundary control issue arose in 2003—shortly before the homeowners moved in,
and the property was surveyed soon after.


       The homeowners filed their answer and a counterclaim to the church's complaint for de-
claratory judgment, arguing they had acquired title to the disputed real estate—the grassy portion
along the east side of lot 3 contiguous to the west side of lot 4 (their side yard) and the "edge of
the gravel"—by adverse possession, as well as a prescriptive easement over the adjacent gravel
driveway along the west edge of the disputed grassy area and contiguous to the gravel parking
area of lot 3. After written discovery and depositions, competing motions for summary judg-
ment, and a hearing on said motions, the trial court issued an order on July 16, 2013, denying the
church's motion for summary judgment and granting summary judgment in favor of the home-
owners on both the adverse possession and prescriptive easement claims. The parties subse-
quently filed numerous motions to correct errors, for clarification, and for reconsideration.


       The church appeals the trial court's July 16, 2013 order as well as its orders clarifying the
homeowner's use of the acquired prescriptive easement on January 22, 2014, and April 30, 2014.
The Court of Appeals reversed the trial court on both claims, concluding the church, not the
homeowners, was entitled to summary judgment. Celebration Worship Ctr., Inc. v. Tucker, 26

                                                  2
N.E.3d 1074 (Ind. Ct. App. Jan. 14, 2015) (table). We now grant transfer and affirm the trial
court on both claims.


        We review a summary judgment decision de novo, applying the same standard as the trial
court: summary judgment is appropriate where, drawing all reasonable inferences in favor of the
non-moving party, the designated evidence shows "that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to a judgment as a matter of law." Trial Rule 56(C),
quoted in Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014); Williams v. Tharp, 914 N.E.2d
756, 761 (Ind. 2009). "A fact is 'material' if its resolution would affect the outcome of the case,
and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of
the truth . . . or if the undisputed material facts support conflicting reasonable inferences." Wil-
liams, 914 N.E.2d at 761 (internal citations omitted), quoted in Hughley, 15 N.E.3d at 1003. The
initial burden is on the party moving for summary judgment to "demonstrate[] the absence of any
genuine issue of fact as to a determinative issue." Id. at 761–62 (internal substitution omitted),
quoted in Hughley, 15 N.E.3d at 1003.


        The church appeals the trial court's July 16, 2013 order granting the homeowners' motion
for summary judgment on both the adverse possession and prescriptive easement claims. As
such, for the basis of this appeal, the homeowners are the moving party for summary judgment.


                                     Adverse Possession Claim


        In Fraley v. Minger, this Court discussed and synthesized the common law doctrine of
adverse possession:

        [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, 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 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

                                                    3
                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).

829 N.E.2d 476, 486 (Ind. 2005). The requisite period of time for adverse possession is ten
years. Id. at 487; see Ind. Code § 34-11-2-11. In addition to these elements, our Legislature has
added the statutory requirement that "the adverse possessor pay[] all taxes and special assess-
ments 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."
Ind. Code § 32-21-7-1.1 Substantial compliance satisfies this statutory tax payment requirement
"where 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.


        In their motion for summary judgment, the homeowners argue they took fee simple title
to the disputed real estate from their immediate predecessor in title: "Patty's mother, the immedi-
ate predecessor in title had already established the necessary time elements of adverse possession
and prescriptive easement prior to [the church] ever taking title to its real estate." Appellant's
App'x at 144. The church, in contrast, focuses on the homeowners' behavior since 2003 ("the
past ten years"), the year both the church and the homeowners took possession of their real es-
tate. Appellant's Br. at 11. We find the homeowners, as the moving party, have met their initial
burden of establishing a prima facie case that there is no genuine issue of material fact as to the
designated evidence. This evidence, in turn, establishes by clear and convincing proof that the
homeowner's immediate predecessor in title adversely possessed and obtained fee simple title to
the disputed real estate by operation of law2 prior to the church ever taking title to its real estate.


        1
           Indiana Code section 32-21-7-1 was amended, with no substantive change, in 2014.
        2
           Once the elements of adverse possession have been established, fee simple title to the disputed
tract of land is conferred upon the possessor by operation of law, and title is extinguished in the original
owner. Echterling v. Kalvaitis, 235 Ind. 141, 147–48, 126 N.E.2d 573, 576 (1955); Rennert v. Shirk, 163
Ind. 542, 550–51 72 N.E. 546, 549 (1904); Snowball Corp. v. Pope, 580 N.E.2d 733, 734 (Ind. Ct. App.
1991), trans. not sought.
                                                     4
Such title by adverse possession was conferred in 2003 to the homeowners, who have maintained
their possession.


       In their motion for summary judgment, the homeowners also point to designated evi-
dence establishing by clear and convincing proof that they and their predecessor met the statu-
tory tax payment requirement of adverse possession. This evidence includes the sworn affidavits
of Weathers and her daughter Patty, stating they each believed in good faith that the taxes they
had always paid on their real estate (lot 4) included all the grassy portions of the yard over to the
gravel. See Appellees' App'x at 49 ("In good faith I always believed the taxes I paid on the Real
Estate included all the area of the yard (grass area) over to the gravel."), 58 ("At all times during
my ownership of the Real Estate I believe[d] in good faith the taxes we were paying on the Real
Estate was for all those portions occupied by the grassy area used as the yard."). These affidavits
are corroborated by designated county tax records showing the transfer of ownership from
Weathers to her daughter Patty (showing no arrearage in taxes on lot 4) and the homeowners'
payment of real estate taxes since. In response, the church does not dispute the payment of the
taxes assessed on lot 4. The church even concedes that the homeowners and Patty's mother
thought such payments covered the disputed tract. Appellant's App'x at 157.


       The church focuses its argument instead on the homeowners' admission that they did not
actually pay taxes on the disputed real estate. Id. Comparing this case to Hoose v. Doody, 886
N.E.2d 83 (Ind. Ct. App. 2008), trans. denied, and Flick v. Reuter, 5 N.E.3d 372 (Ind. Ct. App.
2014), trans. denied, the church argues that "the Tuckers have offered no evidence as to why
they would have believed they paid any taxes on 'lot 3' . . . ." Id. at 157. We find both Hoose
and Flick distinguishable from the facts of this case. In Hoose, the claimants sought to obtain an
entire lot via adverse possession and submitted evidence that claimant's parents had written
checks indicating separate payments for Lot 8 and Lot 7, the disputed real estate. 886 N.E.2d at
86. Following a bench trial, the court rejected the claim, and the Court of Appeals affirmed on
the basis that the claimants "could not reasonably have believed in good faith that they both
owned Lot 7 and did not have to pay taxes on it." Id. at 93. In Flick, the trial court granted sum-
mary judgment in favor of claimant's adverse possession claim. 5 N.E.3d at 379. With respect



                                                  5
to the statutory tax payment requirement, claimant designated her sworn affidavit that she had
paid all taxes for the statutory period, believing her assessment included both the disputed real
estate and her mobile home. Id. at 380. The Court of Appeals reversed the trial court on this is-
sue, however, because the record showed that, at best, claimant had paid taxes on her mobile
home3 for less than half of the statutory period. Id. In contrast, the homeowners in the present
case argue they and their predecessor have paid all taxes that they reasonably believed in good
faith to be due on the disputed real estate because they believed the disputed real estate to be part
of the side yard of their lot 4—for which they actually paid taxes. This reasonable and good
faith belief substantially complies with the statutory tax payment requirement. See Fraley, 829
N.E.2d at 493. We conclude that no genuine issue of fact remains and find as a matter of law
that the homeowners have satisfied the statutory tax payment requirement.


        The homeowners also designated evidence in their motion for summary judgment that es-
tablished by clear and convincing proof that the homeowners met the common law elements of
adverse possession: control, intent, notice, and duration. First, the homeowners argue they have
met the element of duration because Patty's mother, the immediate predecessor in title had al-
ready established the necessary time elements of adverse possession prior to the church ever tak-
ing title to its real estate. Patty's mother owned and occupied the property from March 15, 1972,
until she conveyed it to Patty by quitclaim deed. The church took possession of its real estate on
January 10, 2003—over thirty years after Patty's mother took possession of her house and sur-
rounding real estate—and does not dispute the statutory time period for adverse possession has
run.


        Second, in her designated sworn affidavit, Patty's mother clearly expressed her intent to
claim full ownership of the disputed real estate superior to the rights of all others:

        During the time period I owned the Real Estate, my neighbors were the Southwest Indiana
        District Church of the Nazarene, and at no time was there any question as to my continuous
        use of the Real Estate over to the gravel, nor use of the driveway, nor any objection to my
        maintenance of the driveway and purchase of gravel for the same.



        3
         Property taxes on "mobile homes" are assessed separately from real estate taxes under Indiana
Code section § 6-1.1-7 et seq.
                                                   6
Appellees' App'x at 49 (emphasis added). Patty's mother added further that: "At no time did I
ever ask for permission or consent to use the Real Estate over to the gravel area . . . ." Id. at 48.


       Third, as evidence of notice, the homeowners again rely on the affidavits of Patty and her
mother and point to photographs from the 1980s and a 2004 survey, arguing that their actions
with respect to the disputed real estate were sufficient to give at least constructive notice to the
legal owner of lot 3 of their intent and exclusive control. The surveyor, William B. Gibson, de-
scribed the purpose of the survey as follows:

       THE PURPOSE OF THIS SURVEY DRAWING IS TO DESCRIBE THAT PART OF
       LOT 3 OF PLAT NO. 349, SITUATED ON STATE ROAD 6[4] IN THE TOWN OF
       GEORGETOWN IN FLOYD COUNTY, INDIANA, THAT HAS BEEN USED AND
       RECOGNIZED AS PART OF THE PROPERTY OF THE OWNER OF LOT NO. 4
       OF PLAT NO. 349.

Appellant's App'x at 139; see id. at 152 (bold emphasis added by the homeowners). The photo-
graphs from the 1980s reflect use of the disputed real estate by Patty and her mother and family,
namely the location of the old garage and girls departing for prom.


       As evidence of control, the homeowners point to the affidavit of Patty's mother, which
includes the following:

       During my ownership of the Real Estate and my use of the gravel drive, I controlled the
       activities thereon, and even paid for maintenance of the gravel driveway, including pur-
       chase of gravel and spreading of the same on the gravel drive, and I continuously main-
       tained my yard over to the gravel, and at no time did the church neighbor cut the grass or
       do any other maintenance to what was my yard and what is now claimed to be the yard of
       my daughter.

Appellees' App'x at 48. The affidavit further states:

       During the time period I owned the Real Estate, my neighbors were the Southwest Indiana
       District Church of the Nazarene, and at no time was there any question as to my continuous
       use of the Real Estate over to the gravel, nor use of the driveway, nor any objection to my
       maintenance of the driveway and purchase of gravel for the same.

Id. at 49. There is no dispute that the boundary control issue arose in 2003—shortly before the
homeowners moved in, and the property was surveyed soon after. Whether the church or the
homeowners exercised the requisite exclusive control for adverse possession by maintaining the


                                                  7
grass, posting signs, placing landscape timbers, attempting to erect a fence, etc. since that date
remains a disputed question of fact. But we find no evidence countering Patty's mother's sworn
testimony that she, "along with other members of [her] family, continuously used, controlled and
occupied the Real Estate" for over thirty years. Id. at 48.


        We conclude that the homeowners, as the moving party, have established a prima facie
case that there is no genuine issue of material fact as to the designated evidence, which estab-
lishes by clear and convincing proof that the homeowner's immediate predecessor in title ad-
versely possessed and obtained fee simple title to the disputed real estate by operation of law
prior to the church ever taking title to its real estate. And the church has failed to rebut these as-
sertions. The homeowners are entitled to summary judgment on their claim of adverse posses-
sion.


                                   Prescriptive Easement Claim


        We likewise agree with the trial court that, as a matter of law, the homeowners possess a
prescriptive easement to use the gravel driveway. When Patty's mother purchased her home in
1972, a detached, west-facing garage sat in the southwestern portion of her yard, adjacent to and
opening to the east side of the driveway. The gravel driveway was the only means of access into
the garage on the property during the period from at least 1972 until 2003. When Patty and her
husband moved in, they tore down the old garage and built a two-car garage closer to their
house, on the eastern border of lot 4 and opening to an alley way to the south.


        The Fraley formulation for adverse possession also applies to prescriptive easements,
"save for those differences required by the differences between fee interests and easements."
Wilfong v. Cessna Corp., 838 N.E.2d 403, 406 (Ind. 2005), cited in Hoose, 886 N.E.2d at 94.
For example, for prescriptive easements, the requisite statutory period is twenty years, Ind. Code
§ 32-23-1-1, and the claimant must exercise control of its limited land interest for a specific pur-
pose, e.g. a right-of-way. Hoose, 886 N.E.2d at 94. Prescriptive easements "generally are not
favored in the law," and, for that reason, a party claiming a prescriptive easement "must meet



                                                  8
stringent requirements." Wilfong, 838 N.E.2d at 405 (internal quotation marks and citation omit-
ted), cited in Chickamauga Properties, Inc. v. Barnard, 853 N.E.2d 148, 152 (Ind. Ct. App.
2006), reh'g denied. "Where there has been use of an easement for 20 years which is unex-
plained," however, "such use will be presumed to be under a claim of right, adverse, and suffi-
cient to establish title by prescription unless that use is contradicted or explained." Chicka-
mauga, 853 N.E.2d at 153 (quoting Bauer v. Harris, 617 N.E.2d 923, 927 (Ind. Ct. App. 1993),
reh'g denied, superseded by statute on other grounds). In order to rebut that presumption, "the
owner must explain such use by demonstrating that he merely permitted the claimant to use his
land." Id.


       In their motion for summary judgment, the homeowners intermingle their prescriptive
easement argument with their argument on adverse possession, arguing similarly that "Patty's
mother, the immediate predecessor in title had already established the necessary time elements of
adverse possession and prescriptive easement prior to [the church] ever taking title to its real es-
tate." Appellant's App'x at 144. Again, the facts are undisputed as to the statutory time period
having been established for the homeowners during Patty's mother's ownership and occupancy of
lot 4. Further, the homeowners designated Patty's mother's affidavit, where she testified that she
used and controlled the gravel driveway, without permission, to access her west-facing garage,
which was only accessible from the gravel driveway—just as her predecessor had done. Patty's
mother also testified that she paid for the maintenance of the gravel driveway, including the pur-
chase of gravel, and that railroad ties to the west of the gravel driveway (depicted in an exhibit
attached to her affidavit) separated the driveway from the gravel parking lot portion of lot 3.
Further, "at no time was there any question as to [her] continuous use . . . of the driveway, nor
any objection to [her] maintenance of the driveway and purchase of gravel for the same." Appel-
lees' App'x at 49. The church presents no evidence to rebut the presumption that Patty's mother's
use of the gravel driveway was adverse from the early 1970s thru the 1990s and thus fails to re-
but that presumption that her prescriptive rights ripened prior to the time the church took title to
its real estate. See Chickamauga, 853 N.E.2d at 154–55.


       The church, however, argues in part that the homeowners abandoned any prescriptive
easement when they tore down the west-facing garage and replaced it with the south-facing, two-

                                                  9
car garage. An easement, whether acquired by prescription or created by express grant or reser-
vation, can be abandoned. Chickamauga, 853 N.E.2d at 154 (citing Seymour Water Co. v. Le-
bline, 195 Ind. 481, 488–89, 144 N.E. 30, 33 (1924)). Abandonment of a prescriptive easement
requires nonuse and intent to abandon. Chickamauga, 853 N.E.2d at 154; Bauer, 617 N.E.2d at
929, cited with approval in Consol. Rail Corp. v. Lewellen, 682 N.E.2d 779, 783 (Ind. 1997).
The church has failed to designate evidence of either. Although the easement is no longer neces-
sary for vehicular access into the homeowners' garage, the homeowners claim possession of an
easement by prescription, not an easement by necessity. And there is no dispute that the home-
owners continue to use the easement for ingress and egress to their garage.4 See Chickamauga,
853 N.E.2d at 154–55 (finding no intent to abandon easement where possessor used access road
intermittently after complying with landowner's request to remove dog kennels and conveyed
easement to son, the subsequent landowner). The homeowners have established a prima facie
case that there is no genuine issue of material fact as to the designated evidence, which estab-
lishes by clear and convincing proof that the homeowners' immediate predecessor in title ob-
tained a prescriptive easement, and the church has failed to show disputed material facts to the
contrary. The homeowners are entitled to summary judgment on their claim of prescriptive ease-
ment.


                                                Conclusion


        Finding no genuine issue of material fact, we affirm the grant of judgment for the home-
owners for both their adverse possession and prescriptive easement claims.


Rush, C.J., and Rucker, David, and Massa, JJ., concur.




        4
          Although Patty Tucker mentioned in her affidavit that she and her family "have continuously
used the gravel area, not only for means of ingress and egress" but also "for parking . . . vehicles" and as a
means to access their "front door," in their motion for summary judgment, the homeowners focused on
their use of the easement "for access through the gravel drive" to their garage. See Appellees' App'x at
58; Appellant's App'x at 143. Further, in her deposition, Patty admitted that her family "parked in the
front side yard," not the driveway. Appellant's App'x at 61. The limited easement established by Patty's
mother does not confer upon the homeowners the additional right to block the easement with parked vehi-
cles. See Kwolek v. Swickard, 944 N.E.2d 564, 572 (Ind. Ct. App. 2011), trans. denied.
                                                     10
