                                                                                    FILED
                                                                            May 23 2019, 8:41 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Michael L. Carmin                                         Robert S. McCrea
      CarminParker, P.C.                                        McCrea & McCrea
      Bloomington, Indiana                                      Bloomington, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gregory T. Hardin and Kelly T.                            May 23, 2019
      Hardin,                                                   Court of Appeals Case No.
      Appellants,                                               53A01-1712-PL-2964
                                                                Appeal from the Monroe Circuit
              v.                                                Court
                                                                The Honorable Elizabeth Ann
      Ruth McClintic,                                           Cure, Judge
      Appellee.                                                 Trial Court Cause No.
                                                                53C01-1605-PL-1113



      Pyle, Judge.


                                        Statement of the Case
[1]   This appeal involves a dispute between adjacent property owners over a

      property boundary and the use of a gravel driveway located on the boundary of

      the two properties. Following a bench trial, the trial court determined that: (1)

      Appellee/Defendant Ruth McClintic (“McClintic”) had established her

      counterclaims for adverse possession to land that was up to the right wheel
      Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                           Page 1 of 21
      track of the gravel driveway and her counterclaim for a prescriptive easement to

      use the remainder of the driveway for ingress and egress to her property;1 and

      (2) Gregory T. Hardin and Kelly T. Hardin (collectively, “the Hardins”) had

      failed to establish their claims for injunctive relief based on trespass and

      damages. The Hardins argue that the trial court erred by entering judgment in

      favor of McClintic on her counterclaims and by entering judgment against them

      on their claims.2 Concluding that there was no error, we affirm the trial court’s

      judgment.


[2]   We affirm.


                                                       Issues
           1. Whether the trial court erred by entering judgment in favor of
           McClintic on her counterclaims.

           2. Whether the trial court erred by entering judgment against the
           Hardins on their claims.
                                                        Facts
[3]   Both McClintic and the Hardins own property that abuts Lake Lemon in

      Monroe County. McClintic owns a rectangular tract of real estate located at




      1
        The trial court also determined that McClintic had established a right to use the gravel driveway based on
      her counterclaim for an implied easement by prior use. Because we affirm the trial court’s judgment that
      McClintic had a right to use the driveway based on the prescriptive easement, we need not address her right
      to use it based on an implied easement by prior use.
      2
        The Hardins state that appellate review of the trial court’s judgment on their claims would be reviewable on
      appeal only if our Court were to reverse the trial court’s judgment on McClintic’s counterclaims. Therefore,
      we will review the Hardins’ argument regarding the counterclaims before we review their argument regarding
      their claims.

      Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                          Page 2 of 21
      9161 East Southshore Drive (“McClintic Property”), and this tract measures

      49.8 feet wide and 269 feet long and contains 0.30 of an acre “more or less.”

      (Ex. Vol. at 28). The Hardins own an adjacent rectangular tract of real estate

      located at 9155 East Southshore Drive (“Hardin Property”), which is located to

      the west of the McClintic Property.3 The Hardin Property measures 90 feet

      wide and 269 feet long and contains 0.56 of an acre “more or less.” (Ex. Vol. at

      27). A gravel driveway, which is the focus of this appeal, lies on the western

      border of the McClintic Property and the eastern border of the Hardin Property.


[4]   These two property tracts were originally part of a larger tract of real estate

      owned by Virginia Chitwood (“Chitwood”). Around 1965, Chitwood divided

      her larger tract of land (“the Chitwood Property”) into several rectangular tracts

      and sold them. Among the tracts of land sold were the McClintic Property and

      the Hardin Property. The gravel driveway at issue was in existence at the time

      Chitwood severed and conveyed these two tracts of the Chitwood Property.


[5]   On July 20, 1965, Chitwood conveyed the Hardin Property to Norma Ratliff

      (“Ratliff”) as trustee for a group of families, who called themselves the

      Bloomington Boat Club (“the Boat Club”). The members of the Boat Club put

      some trailers on the western side of their property and used the property during

      the weekends. On April 5, 1966, Chitwood conveyed the McClintic Property to




      3
       The Hardins also own another tract of real estate at 9149 East Southshore Drive, which is west of the
      Hardin Property. They purchased this other property prior to purchasing the Hardin Property. This other
      property is not at issue in this appeal.

      Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                       Page 3 of 21
      Raymond Hacker and Gladys Hacker (“the Hackers”). The Hackers added a

      cabin on their property and added a parking area by the cabin. The Hackers’

      cabin is located immediately to the east of the gravel driveway. The Hackers

      and the members of the Boat Club used the gravel driveway to access their

      individual properties, and they “always shared the cost on it.” (App. Vol. 2 at

      158).


[6]   On December 24, 1970, the Hackers conveyed the McClintic Property to

      Lowell Willis and Lauretta Willis (“McClintic’s parents”). Shortly thereafter,

      in 1971, McClintic’s parents, after obtaining a permit from the Monroe County

      Health Department for the approval of a septic system, installed a septic system

      on the McClintic Property. The septic system is located on the property

      between the cabin and Southshore Drive, and it encompasses almost the entire

      width of the property. In August 1987, McClintic’s parents obtained a permit

      to install a mobile home on the McClintic Property. Around that same time,

      they also obtained a driveway permit, which was for a “pre-existing” driveway,

      at the McClintic property. (Ex. Vol. at 39). As did their predecessor in title,

      McClintic’s parents always used the gravel driveway for ingress to and egress

      from the McClintic Property, and they contributed to the maintenance of the

      gravel driveway by paying for some gravel to add to it.


[7]   In 1995, McClintic began living on the McClintic Property, including in the

      cabin and then in the mobile home. On June 25, 2004, McClintic’s parents

      conveyed the McClintic Property to McClintic. McClintic continued to live on

      the McClintic Property until 2014 or 2015, and then she rented it out to tenants.

      Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 4 of 21
       Both McClintic and her tenants used the gravel driveway to enter and exit the

       McClintic Property.


[8]    On July 18, 2007, the remaining members of the Boat Club—which included

       Mary Masters, Garland Guy Robertson, Eugenia M. Goodman, Candra

       Empson, Claudia Polley, and Sharon Slaughter—conveyed the Hardin

       Property to the Hardins. The Hardins did not have or review a survey prior to

       purchasing the property. They had planned to remove the three trailers that the

       Boat Club had installed on the property, build a house on the lot, and then sell

       it.


[9]    In October 2007, after having a survey done of the Hardin Property, the

       Hardins learned that McClintic could possibly have some rights to the gravel

       driveway. At the end of 2007, the Hardins sent McClintic two letters, in which

       they sought to determine if McClintic had permission or an easement to use the

       gravel driveway and in which they told her that her use of the driveway would

       constitute trespass. McClintic did not respond to these letters. At the beginning

       of 2008, the Hardins sent McClintic two more letters, in which they stated that

       they wished to avoid any confrontation and that they were granting McClintic

       permission to continue using the gravel driveway.


[10]   The Hardins later removed the trailers from the Hardin Property, but they did

       not replace them with any other type of structure. Whenever the Hardins went

       to Lake Lemon, which was about six times per year, they stayed at the home of




       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 5 of 21
       their friend, Lynn McNamee (“McNamee”), who owned a property to the west

       of the Hardin Property.


[11]   Years later, in 2016, the Hardins put the Hardin Property on the market. In

       April 2016, the Hardins had another survey done and hired a contractor to erect

       a fence around their property. The contractor set stakes to mark where the area

       where the fence would be installed, and that area apparently included part of

       the gravel driveway. McClintic objected, and her tenant blocked the contractor

       from erecting the fence.


[12]   In May 2016, the Hardins filed a complaint against McClintic and sought: (1)

       a permanent restraining order based on trespass to enjoin McClintic from

       entering onto the Hardins’ Property, including the driveway; (2) damages from

       when McClintic trespassed on their property and blocked installation of the

       fence gate; and (3) damages based on McClintic’s alleged tortious interference

       with the Hardins’ fencing contract. Thereafter, McClintic filed a counterclaim

       and raised the following claims: (1) adverse possession of a “strip of land

       encompassing the gravel driveway[;]” (2) prescriptive easement for use of the

       gravel driveway to access her property; and (3) implied easement from prior

       use. (App. Vol. 2 at 70, 71).4




       4
        McClintic later filed an amended counterclaim, adding a claim for an irrevocable license and a claim of title
       by acquiescence. These claims are not at issue in this appeal.

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                           Page 6 of 21
[13]   In July 2017, the trial court held a bench trial on the Hardins’ claims and

       McClintic’s counterclaims. During the Hardins’ case-in-chief on their claims,

       Kelly Hardin (“Hardin”) testified that when she purchased the Hardin Property,

       she saw that McClintic was using the gravel driveway. Hardin also testified

       that she had “no concern” when she saw McClintic using the driveway and that

       she had allowed McClintic to continue using it. (Tr. Vol. 3 at 36).

       Additionally, Hardin testified that she was now revoking her permission for

       McClintic to use the gravel driveway and that McClintic could put a driveway

       on her own property.


[14]   In support of McClintic’s counterclaims, she testified and presented testimony

       from two individuals, Garland Guy Robertson (“Robertson”) and Sharon

       Masters (“Masters”), who were the children of some of the charter members of

       the Boat Club.5 McClintic presented evidence regarding the property boundary

       for her property, the historical use of the gravel driveway, and her payment of

       property taxes.


[15]   McClintic testified that her parents purchased the McClintic Property in 1970 to

       use for weekend getaways and that she and her parents had used the gravel

       driveway continuously since that time to access the McClintic Property. She

       also testified that there was never an issue with the gravel driveway until 2007




       5
        Robertson was the stepson of Ratliff, who was the original owner listed on the deed when Chitwood
       conveyed the Hardin Property to the Boat Club in 1965, and Masters was the daughter of charter member
       Mary Masters. Robertson’s testimony was introduced via his deposition, and Masters testified at trial.

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                      Page 7 of 21
       when the Hardins purchased the Hardin Property and then sent her some

       letters.


[16]   McClintic testified that she had discussed the location of the property boundary

       with her father and that she had always understood that she, and her parents

       before her, owned part of the driveway, consisting of one-third of the driveway

       at the top, which corresponded approximately to the right wheel track, and two-

       thirds of it at the bottom. McClintic testified that she had paid property taxes

       on the McClintic Property and that she understood that her tax payments

       covered the portion of the gravel driveway that she claimed that she owned.

       She also introduced property tax statements showing tax payments made

       between 1981-2015.


[17]   McClintic testified that, throughout the years, she and her parents had helped

       maintain the gravel driveway and had paid for gravel to add to the driveway.

       She also testified that her tenant who was living on the McClintic Property had

       also recently paid for gravel. McClintic introduced some receipts showing the

       purchase of gravel. She testified that she had never asked the Boat Club for

       permission to use the gravel driveway and that no member of the Boat Club had

       ever given her permission to do so.


[18]   McClintic’s testimony regarding the property boundary and use of the gravel

       driveway was corroborated by Robertson’s and Masters’ testimony. Robertson

       was a child when his parents and the other members of the Boat Club had

       purchased the Hardin Property in 1965. Robertson testified that the gravel


       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 8 of 21
       driveway was originally owned by Chitwood and had been in existence since

       the Boat Club purchased the Hardin Property. He testified that the property

       boundary between the McClintic Property and the Hardin Property was the

       “right wheel track” of the gravel driveway. (App. Vol. 2 at 168). Robertson

       testified that, since the time he was a child, his parents had told him to stay off

       the property on the other side of the right wheel track because that was the

       McClintic Property. He also testified that the use of the driveway had always

       been shared by the Boat Club and the owners of the McClintic Property,

       including McClintic, her parents, and the Hackers. Additionally, Robertson’s

       testimony confirmed that McClintic’s parents had shared in the cost of adding

       stone to the driveway.


[19]   Masters also testified that the gravel driveway was in existence at the time her

       family and the other members of the Boat Club purchased the Hardin Property

       in 1965. She testified that the property boundary between the McClintic

       Property and the Hardin Property was a “boundary down the driveway” and

       that McClintic owned part of the driveway. (Tr. Vol. 3 at 47). Masters testified

       that her parents and the other Boat Club members showed her the location of

       the property line when the Boat Club purchased the property and that she was

       told that the Boat Club owned a “[p]ortion” of the driveway. (Tr. Vol. 3 at 56).

       Masters also testified that McClintic and McClintic’s parents had always used

       the driveway and that the Boat Club referred to the gravel driveway as a shared

       driveway. Moreover, Masters testified that neither McClintic nor her parents

       had ever asked for permission to use the gravel driveway, and she testified that


       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019    Page 9 of 21
       none of the Boat Club members ever objected to McClintic’s or her parents’ use

       of the driveway.


[20]   In defense of McClintic’s counterclaims, the Hardins offered the testimony of

       their friend, McNamee, and they introduced the deposition of Sharon Slaughter

       (“Slaughter”), whose family had been members of the Boat Club. The

       testimony of McNamee and Slaughter suggested that the property line was

       someplace other than the right wheel track as had been identified by

       McClintic’s witnesses, and Slaughter testified that someone from the Boat Club

       had given McClintic’s predecessors in title permission to use the gravel

       driveway.


[21]   In September 2017, the trial court issued detailed findings of fact and

       conclusions thereon pursuant to Trial Rule 52. When determining whether

       McClintic had met her burden of proving her counterclaims for adverse

       possession and prescriptive easement, the trial court applied the factors and

       analysis set forth in Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005) and Celebration

       Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015). When ruling on

       these counterclaims, it was clear that the trial court assigned greater weight to

       the testimony of McClintic’s witnesses, and it determined that McClintic had

       established her adverse possession counterclaim for the land up to the right

       wheel track of the gravel driveway and had established that she had a

       prescriptive easement to use the remainder of the driveway for access to her

       property. At the end of the trial court’s twenty-one-page order, the trial court

       “enter[ed] judgment in favor of the Defendant/Counterclaimant, Ruth

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 10 of 21
       McClintic based on the theory of adverse possession, prescriptive easement, and

       easement by prior use and . . . quiet[ed] title to the driveway in McClintic’s

       favor.” (App. Vol. 2 at 32). The trial court also entered judgment against the

       Hardins on the claims in their complaint.


[22]   Thereafter, the Hardins filed a motion to correct error, arguing that the trial

       court had entered judgment on “incompatible legal theories” that created

       “uncertainty and impossible performance by the parties.” (App. Vol. 2 at 108).

       They specifically argued that “prescriptive easement and implied easement by

       prior use, as entered by the Court in its judgment, indicate[d] that [the Hardins]

       continue[] to own the land encompassing the driveway but subject to certain

       easement rights in favor of [McClintic]” and that “[t]his conclusion [wa]s

       incompatible with the finding of adverse possession which [wa]s a transfer of

       title to [McClintic] and completely deprive[d] [the Hardins] of any continued or

       future use of the driveway area.” (App. Vol. 2 at 108-09). When McClintic

       responded to the Hardins’ motion to correct error, she requested the trial court

       to amend its order “to differentiate the land where fee titled ha[d] been obtained

       via adverse possession and the land where only a use right exist[ed] in an

       easement.” (App. Vol. 2 at 130).


[23]   The trial court denied the Hardins’ motion to correct error and granted

       McClintic’s motion to amend its order. In the amended order, the trial court

       kept its findings and conclusion intact but clarified its prior judgment in favor of

       McClintic by adding the following language:



       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 11 of 21
               The Court now quiets title to the land up to the right wheel
               track of the gravel driveway in fee simple in favor of the
               Defendant, Ruth McClintic. The Court quiets title to the
               remainder of the gravel driveway in favor of the Defendant,
               Ruth McClintic, in her right to use the remainder of the gravel
               driveway for purposes of ingress and egress to her property.


       (App. Vol. 2 at 54) (emphasis in original). The Hardins now appeal.


                                                    Decision
[24]   The Hardins argue that the trial court erred by: (1) entering judgment in favor

       of McClintic on her counterclaims; and (2) entering judgment against the

       Hardins on their claims. We will review each argument in turn.


[25]   Here, following a bench trial, the trial court entered findings of fact and

       conclusions thereon pursuant to Trial Rule 52. “In the appellate review of

       claims tried without a jury, the findings and judgment are not to be set aside

       unless clearly erroneous, and due regard is to be given to the trial court’s ability

       to assess the credibility of the witnesses.” Fraley v. Minger, 829 N.E.2d 476, 482

       (Ind. 2005) (citing Ind. Trial Rule 52). “Indeed, ‘it is not within the province of

       an appellate court to reweigh the evidence or to reassess the credibility of the

       witnesses.’” Garriott v. Peters, 878 N.E.2d 431, 437 (Ind. Ct. App. 2007)

       (quoting Wilfong v. Cessna Corp., 838 N.E.2d 403, 407 (Ind. 2005)), trans. denied.

       “A judgment will be clearly erroneous when there is no evidence supporting the

       findings or the findings fail to support the judgment, and when the trial court

       applies the wrong legal standard to properly found facts.” Fraley, 829 N.E.2d at

       482 (internal citations and quotation marks omitted). “While findings of fact

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 12 of 21
       are reviewed under the clearly erroneous standard, appellate courts do not defer

       to conclusions of law, which are reviewed de novo.” Id. We will not reverse

       the trial court’s judgment unless it is clearly erroneous, that is, when our review

       of the record leaves us with a firm conviction that a mistake has been made. Id.


       1. McClintic’s Counterclaims


[26]   The Hardins contend that the trial court erred by entering judgment in favor of

       McClintic on her counterclaims for adverse possession and prescriptive

       easement.


[27]   “[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[.]” Id. at 486. More specifically, the adverse

       possessor must show the following:


               (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 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,


       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 13 of 21
        (4) Duration—the claimant must satisfy each of these elements
        continuously for the required period of time (reflecting the former
        “continuous” element).


Id. “The requisite period of time for adverse possession is ten years.” Celebration

Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015). In addition to these

elements, INDIANA CODE § 32-21-7-1(a) imposes a requirement that an adverse

possessor “pay 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.” “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.’”

Celebration Worship Ctr., 35 N.E.3d at 254 (quoting Fraley, 829 N.E.2d at 493).

“Once the elements of adverse possession are 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.” Id. at 254 n.2. “Once title vests in a

party at the conclusion of the ten-year possessory period, the title may not be

lost, abandoned, or forfeited, even where the party pays rent to the titleholder,

agrees to a survey to attempt to find the true boundary line, expresses

satisfaction with a survey whose results are inconsistent with the property

adversely possessed by him, or states that he does not claim the land and offers

to buy it.” Fraley, 829 N.E.2d at 487 (internal citations omitted).




Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 14 of 21
[28]   “The Fraley formulation for adverse possession also applies to prescriptive

       easements, save for those differences required by the differences between fee

       interests and easements.” Celebration Worship Ctr., 35 N.E.3d at 257 (internal

       quotation marks and citations omitted). Thus, a party claiming the existence of

       a prescriptive easement “must establish clear and convincing proof of[:] (1)

       control, (2) intent, (3) notice, and (4) duration.” Wilfong, 838 N.E.2d at 406.

       The requisite statutory period for a prescriptive easement is twenty years. See

       Celebration Worship Ctr., 35 N.E.3d at 257; IND. CODE § 32-23-1-1 (explaining

       that “[t]he right-of-way, air, light, or other easement from, in, upon, or over

       land owned by a person may not be acquired by another person by adverse use

       unless the use is uninterrupted for at least twenty (20) years”). The continuity

       of use for the required twenty-year period may be shown by “tacking” from the

       use of the predecessors in title. Whitman v. Denzik, 882 N.E.2d 260, 264 (Ind.

       Ct. App. 2008). “Where there has been use of an easement for 20 years which

       is unexplained . . . such use will be presumed to be under a claim of right,

       adverse, and sufficient to establish title by prescription unless that use is

       contradicted or explained.” Celebration Worship Ctr., 35 N.E.3d at 257 (internal

       quotation marks and citations omitted). “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. (internal quotation marks and citations omitted).

       “Prescriptive easements generally are not favored in the law, and, for that

       reason, a party claiming a prescriptive easement must meet stringent

       requirements.” Celebration Worship Ctr., 35 N.E.3d at 257 (internal quotation

       marks and citations omitted). Similar to adverse possession, the existence or
       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019    Page 15 of 21
       non-existence of a prescriptive easement is a question of fact. Id. “[O]nce a

       prescriptive easement has been established, the right vests by operation of law.”

       Id.


[29]   In regard to McClintic’s adverse possession counterclaim, the trial court

       concluded that “the Fraley factors for adverse possession ha[d] been satisfied for

       the portion of the driveway up to and including the right wheel tire track when

       driving north along the driveway towards Lake Lemon in favor of Ruth

       McClintic” and that “McClintic by and through her predecessors [in] title

       including [McClintic’s Parents], ha[d] established that they ha[d] substantially

       complied with the requirement to pay taxes due upon the land in satisfaction of

       IC § 32-21-7-1.” (App. Vol. 2 at 46). Additionally, the trial court determined

       that McClintic was entitled to judgment on her prescriptive easement

       counterclaim because “the Fraley factors for adverse possession as adapted to

       prescriptive easements ha[d] been satisfied by Ms. McClintic and her

       predecessors in title . . . in satisfaction of the 20[-]year requirement imposed by

       IC § 32-23-1-1.” (App. Vol. 2 at 44).


[30]   The Hardins do not dispute that McClintic and her predecessors in title had

       used the gravel driveway for more than twenty years. Nor do they challenge

       the trial court’s determination that the property boundary of the two properties

       was the right wheel track of the driveway. Instead, the Hardins argue that: (1)

       the evidence does not support the Fraley elements for adverse possession or a

       prescriptive easement because the Hardins presented evidence that the use of

       the gravel driveway by McClintic and her predecessors in title was permissive

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 16 of 21
       and/or because the driveway was not used exclusively by McClintic; and (2)

       the tax payment element of adverse possession was not met because McClintic

       did not have a good faith belief that she had paid taxes attributable to the gravel

       driveway.


[31]   The Hardins’ challenge to the trial court’s judgment on adverse possession and

       prescriptive easement seems to be premised on the mistaken understanding that

       the trial court had determined that McClintic had both adverse possession and a

       prescriptive easement of the entire gravel driveway. The trial court, however,

       determined that McClintic had established her adverse possession counterclaim

       for the land up to the right wheel track of the gravel driveway, resulting in

       ownership of that part of the land, and that she had established that she had a

       prescriptive easement to use the remainder of the driveway for ingress and

       egress to her property. With that clarification in mind, we turn to the Hardins’

       arguments.


[32]   We first reject the Hardins’ assertion that McClintic’s counterclaims should be

       reversed because McClintic’s use of the gravel driveway (and the use of her

       predecessors in title) was merely permissive. The Hardins made this argument

       during bench trial, and the trial court specifically rejected it. The trial court,

       after weighing the credibility of McClintic’s witnesses and the Hardins’ witness,

       found that McClintic and her predecessors in title had never sought permission

       from the Boat Club to use the gravel driveway, nor had the Boat Club ever

       granted such permission. The Hardins’ argument regarding permission

       amounts to merely a request to reweigh the evidence and the trial court’s

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019    Page 17 of 21
       credibility determinations, both of which we decline to do. See Fraley, 829

       N.E.2d at 482 (explaining that we will give due regard to the trial court’s

       determination of witness credibility).6


[33]   We also reject the Hardins’ contention that the trial court erred by entering

       judgment for McClintic because she was not the only person to use the gravel

       driveway and their argument that “[t]he fact that others ha[d] the right to use

       the disputed parcel is fatal to the claimant’s claim” of adverse possession. (The

       Hardins’ Br. 16). Again, the Hardins fail to distinguish between the ownership

       of part of the land up to the right wheel track of the driveway and the use of the

       remainder of the driveway. The record before us does not show that the Boat

       Club ever used the land up to the right wheel track such that it would defeat

       McClintic’s adverse possession counterclaim. Indeed, Robertson testified that

       the Boat Club had treated the boundary between the McClintic Property and

       the Hardin Property as the right wheel track of the gravel driveway and that his

       parents had always told him to stay off the property on the other side of the

       right wheel track because that was the McClintic Property. In regard to the

       remainder of the driveway that was on the Hardin Property, the record reveals

       that the members of the Boat Club knew that McClintic and her predecessors in



       6
         Additionally, we do not find merit in the Hardins’ suggestion that evidence that McClintic and her
       predecessors in title had shared the use of the driveway with the Boat Club shows that the use was permissive
       and not adverse. See Capps v. Abbott, 897 N.E.2d 984, 989 (Ind. Ct. App. 2008) (explaining that evidence that
       claimants had used another landowner’s drive for ingress and egress for over twenty years indicated that the
       landowner had knowledge that the claimants were using the drive “in a manner that was adverse to [the
       landowner’s] property interest”).



       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                         Page 18 of 21
       title had used that part of the driveway for ingress and egress purposes since

       1966, thereby establishing McClintic’s right to use the remainder of the

       driveway for ingress and egress by means of a prescriptive easement. See Capps

       v. Abbott, 897 N.E.2d 984, 989-90 (Ind. Ct. App. 2008) (affirming the trial

       court’s prescriptive easement judgment for the claimants where the evidence

       showed that the claimants’ and their predecessors in title’s use of the drive of a

       neighboring landowner constituted an open and continuous use of the other’s

       land with knowledge of that owner for the required twenty-year period).


[34]   The Hardins’ argument regarding the tax payment requirement of adverse

       possession also fails. They do not dispute that McClintic’s evidence that she

       and her parents had paid property taxes during the relevant period for adverse

       possession. Instead, they challenge the trial court’s determination that

       McClintic had substantially complied with the tax statute, arguing that

       McClintic did not have had a good faith belief that she had paid taxes for the

       gravel driveway. McClintic, however, was not required to make that showing

       for the entire driveway because she claimed that she owned only a portion of

       the driveway. The evidence introduced during the bench trial showed that

       McClintic, her parents, and members of the Boat Club operated with the

       understanding that the gravel driveway was located on both the McClintic

       Property and the Hardin Property because the boundary between the two

       properties was the right wheel track of the driveway. McClintic showed that

       she and her parents paid the property taxes while having a reasonable and good

       faith belief that they were paying the taxes for the portion of the driveway on


       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 19 of 21
       the McClintic Property, which they and the Boat Club understood to belong to

       the McClintic Property. Given the inferences reasonably drawn from evidence

       presented, there was clear and convincing evidence from which the trial court,

       as finder of fact, could have concluded that McClintic had substantially

       complied with tax statute. See Piles v. Gosman, 851 N.E.2d 1009, 1017 (Ind. Ct.

       App. 2006) (affirming the trial court’s adverse possession judgment for the

       adverse claimants where the evidence showed that the adverse claimants

       believed that a fence marked their property line and that they had paid their

       property taxes with a reasonable and good faith belief that they were paying the

       taxes on the property up to the fence). Accordingly, the trial court did not err

       by entering judgment for McClintic on her adverse possession and prescriptive

       easement counterclaims.7


       2. The Hardins’ Claims


[35]   The Hardins argue that the trial court erred by denying their claims for

       injunctive relief based on trespass and for damages based on tortious

       interference with a contract. Because the Hardins bore the burden of proof

       regarding their claims and had judgment entered against them, they are

       appealing from a negative judgment. On appeal, we will not reverse such a

       judgment unless “the evidence is without conflict and all reasonable inferences




       7
        Additionally, we reject the Hardins’ suggestion that the trial court did not apply the required standard of
       proof when ruling on McClintic’s adverse possession and prescriptive easement counterclaims. The trial
       court applied the applicable law, as set forth in Fraley and Celebration Worship Ctr., which explained that the
       Fraley factors must be proven by clear and convincing evidence.

       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019                            Page 20 of 21
       to be drawn from the evidence lead to a conclusion other than that reached by

       the trial court.” Garriott, 878 N.E.2d at 437 (internal quotation marks and

       citation omitted).


[36]   The Hardins acknowledge that their arguments regarding their claims would

       only be reviewable on appeal if we were to reverse the trial court’s judgment in

       favor of McClintic on her counterclaims. Because we affirm the trial court’s

       judgment in favor of McClintic on her counterclaims, we need not address the

       Hardins’ argument challenge to the trial court’s judgment on their claims.

       Accordingly, we affirm the trial court’s judgment.


[37]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Opinion 53A01-1712-PL-2964 | May 23, 2019   Page 21 of 21
