MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 09 2017, 8:44 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Steven E. Ripstra
Ripstra Law Office
Jasper, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James L. Hochgesang,                                     June 9, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         13A01-1608-PL-1944
        v.                                               Appeal from the Crawford Circuit
                                                         Court
Stanley McLain Sr.,                                      The Honorable Kenneth Lynn
Appellee-Defendant.                                      Lopp, Judge
                                                         Trial Court Cause No.
                                                         13C01-1504-PL-13



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017         Page 1 of 13
                                Case Summary and Issue
[1]   Following a bench trial, the trial court concluded James Hochgesang failed to

      establish the existence of a prescriptive easement by clear and convincing

      evidence. Hochgesang now appeals, raising the sole issue of whether the trial

      court’s judgment is clearly erroneous. Concluding the trial court’s judgment is

      not clearly erroneous, we affirm.



                            Facts and Procedural History
[2]   Hochgesang owns several parcels of real estate in Crawford County, Indiana,

      two of which are at issue in this appeal. One parcel, which Hochgesang

      acquired in February of 1995, consists of 141 acres; the other parcel, which

      Hochgesang acquired in December of 1995, consists of 115 acres and adjoins

      the 141 acre parcel (collectively, the “Property”). Hochgesang purchased the

      115 acre parcel from Ronald McIntosh. McIntosh owned the property from

      approximately 1992 to 1995. Prior to McIntosh’s ownership, the parcel was

      owned by Melvin and Alice Buchanan for about twenty years. As to the 141

      acre parcel, the prior owner was James Buggs, who purchased the land on

      contract from Tash & Souders Auction Service (“T & S Auction Service”).




      Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 2 of 13
      T & S Auction Service purchased the land from George and Ethel Patton, who

      owned the land since approximately 1930.1


[3]   To access his Property, Hochgesang drives on a gravel roadway located on

      property owned by Stanley McLain, Sr. The gravel roadway originates from a

      public road, leads to McLain’s house, and continues until it reaches the

      property line between McLain’s and Hochgesang’s properties.2 Hochgesang

      has used this roadway to access his Property since he purchased the Property in

      1995 and uses the Property for logging, hunting, and recreational purposes.

      Hochgesang often allows his friends and family to hunt on his Property and

      utilizes some of the Property for farming.


[4]   McLain purchased his home and property in 2011. From approximately 1991

      to 2011, the property was owned by several different people, including Ronnie

      McLain, Robert Ritter, and Steven Lynch.3 Prior to these owners, Melvin and

      Alice Buchanan owned the property for several decades before selling it in the

      early 1990s. Originally, McLain had no objections to anyone using his road.

      However, in 2012, McLain informed Hochgesang he would no longer be able

      to access the roadway. When Hochgesang refused to stop using the road,




      1
       The record is unclear when the property was sold by the Pattons to T & S Auction Service, and from T & S
      Auction Service to Buggs.
      2
       No other roads exist for Hochgesang to access his Property; however, because Hochgesang owns a third
      parcel of real estate that adjoins his Property and a public road, the easement at issue is a prescriptive
      easement and not an easement by necessity.
      3
          The record is also unclear who specifically owned the real estate during that period of time.


      Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017                 Page 3 of 13
      McLain used cables and a bulldozer to block vehicles from using the road.

      McLain still permits farmers to use the road to reach their fields. Following

      their dispute, Hochgesang purchased an easement from Donald Tucker to

      access his Property.


[5]   On April 23, 2015, Hochgesang filed a complaint alleging he had established a

      prescriptive easement over McLain’s property and that McLain should be

      enjoined from blocking his use of the easement. On April 26, 2016, the trial

      court held a bench trial. At trial, Hochgesang presented the testimony of David

      Buchanan, Virgil Shelton, Donald Tucker, Dexter Eastridge, and McLain.


[6]   David Buchanan, the son of Melvin and Alice Buchanan, testified his parents

      owned McLain’s property and sold it in 1990 or 1991. He lived at the property

      from 1959 to 1978. Concerning the use of the gravel roadway, Buchanan

      stated,

                [T]here’s two guys of the T&S Auction Service and I don’t
                remember which one’s son actually lived back there for a short
                period of time and, of course, they used the road. And anybody
                that wanted to use the road . . . they just drove up . . . we thought
                well they were coming to the house, but they would just go on
                past and we just thought well they’re going back to the Patton
                farm.


      Transcript, Volume 2 at 65-66. Buchanan further stated he was not aware of

      whether permission was ever granted to use the gravel road.


[7]   Virgil Shelton, a friend of the Buchanans and Hochgesang, testified he has used

      the roadway to access the Property for hunting. Shelton also testified he always
      Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 4 of 13
       asked permission to hunt, but was unaware of whether permission was ever

       granted to use the roadway. Shelton did not state when, or how often he used

       the roadway.


[8]    Hochgesang also presented the testimony of Donald Tucker, McLain’s

       neighbor to the south. Tucker stated the roadway has existed for his entire life

       and he always assumed the road was a public road; anyone who wanted to

       access the Property had permission, in his opinion. He also testified he saw

       James Buggs use the road a couple times, but not very often.


[9]    Finally, Hochgesang presented the testimony of Dexter Eastridge, a tenant who

       rented McLain’s property when it was owned by Robert Ritter. Eastridge

       rented the property from Ritter from 1996 to 1999 and observed Hochgesang

       and those who Hochgesang permitted to hunt the Property use the roadway.


[10]   On July 22, 2016, the trial court issued its order denying Hochgesang’s

       prescriptive easement claim. Specifically, the trial court found:


                                           FINDINGS OF FACT

               ***

               5.       The roadway in dispute for which [Hochgesang] seeks a
                        prescriptive easement is a “two-track” gravel drive located
                        on the real estate owned by [McLain] that [Hochgesang]
                        asserts he uses to access [his Property].

               6.       The first portion of the roadway extends from Belcher
                        Road to [McLain’s] residence. The second portion of the
                        roadway runs along the boundary line of [McLain’s] real
                        estate and real estate owned by Don Tucker.


       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 5 of 13
        ***

        11.      [Hochgesang] asserts that he has used the roadway located
                 upon [McLain’s] real estate beginning February 1, 1995,
                 and continuing thereafter until February of 2012, being a
                 period of Seventeen (17) years, under a claim of right and
                 adverse to [McLain].

        12.      [Hochgesang] asserts that the predecessors in title of [the
                 Property] used the roadway located upon [McLain’s] real
                 estate for a period of time that exceeds twenty (20) years
                 ....

        13.      [Hochgesang] did not present specific evidence identifying
                 the predecessors in title of [his Property], [sic] that
                 identified the name of the legal owners of the real estate
                 and the exact period of [t]ime that the predecessors in title
                 owned the real estate.

        14.      [Hochgesang] testified that he never asked the prior
                 owners of [McLain’s] real estate for permission to use the
                 roadway and that he never asked [McLain] for permission
                 to use the roadway.

        ***

        19.      [Hochgesang] did not present any evidence regarding the
                 ownership of [McLain’s] real estate for the period of 1991
                 through 2012.

        ***

                                CONCLUSIONS OF LAW

        ***

        7.       [Hochgesang] failed to present evidence to support the
                 element of Intent. . . . [Hochgesang] failed to present any
                 evidence that his predecessors in title intended to claim full
                 or exclusive ownership of the roadway on [McLain’s] real
                 estate . . . .


Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 6 of 13
               8.       The evidence presented by [Hochgesang] does not support
                        the element of Notice. [Hochgesang’s] actions and the
                        actions of [Hochgesang’s] predecessors in title were not
                        sufficient to give actual or constructive notice to [McLain]
                        or [McLain’s] predecessors in title of [their] intent . . . .

               9.       The evidence presented by [Hochgesang] does not support
                        the element of Duration. [Hochgesang’s] testimony claims
                        he was exercising exclusive control of the real estate for
                        the period of February 1, 1995, through February 2012, a
                        period consisting of seventeen (17) years. To establish the
                        element of duration, [Hochgesang] was required to show
                        and establish the elements of Control, Intent, and Notice
                        for a period of twenty years, including a period of three (3)
                        years prior to [Hochgesang’s] ownership of the real estate.
                        [Hochgesang] failed to present clear and convincing proof
                        of each of the elements required to establish a prescriptive
                        easement during the three (3) year period preceding
                        [Hochgesang’s] ownership . . . .


       Appellant’s Appendix, Volume 2 at 6-13. Hochgesang now appeals.

       Additional facts will be added as necessary.



                                  Discussion and Decision
                                       I. Standard of Review
[11]   At the outset, we note McLain did not file an appellee’s brief. In cases where

       an appellee fails to file a brief, we apply a less stringent standard of review but

       we will not develop arguments on his or her behalf. Vandenburgh v.

       Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App. 2009). If the appellant is able

       to establish prima facie error, or error at first sight, we may reverse the trial

       court. Id. However, an appellee’s failure to submit a brief does not relieve us of


       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 7 of 13
       our obligation to correctly apply the law to the facts in the record in order to

       determine whether reversal is required. Id.


[12]   Further, the trial court entered findings of fact and conclusions thereon in its

       order denying Hochgesang’s complaint for a prescriptive easement. Our review

       is therefore governed by Trial Rule 52(A). First, we consider whether the

       evidence supports the factual findings and then consider whether those findings

       support the trial court’s judgment. Bass v. Salyer, 923 N.E.2d 961, 964 (Ind. Ct.

       App. 2010). We will not set aside the findings or judgment unless they are

       clearly erroneous. Id. Findings are clearly erroneous when there are no facts in

       the record to support them; a judgment is clearly erroneous if it relies on an

       incorrect legal standard. Id. We give substantial deference to the court’s

       findings of fact but not to its conclusions, which are reviewed de novo. Id.


                                   II. Prescriptive Easements
[13]   As our caselaw has often stated, prescriptive easements are generally not

       favored in the law; for that reason, a party claiming a prescriptive easement

       must meet stringent requirements. Wilfong v. Cessna Corp., 838 N.E.2d 403, 405

       (Ind. 2005). A party seeking to establish the existence of a prescriptive

       easement must establish “proof of (1) control, (2) intent, (3) notice, and (4)

       duration.” Id. at 406. Each element of a prescriptive easement must be proven

       by clear and convincing evidence and “must be established as a necessary,

       independent, ultimate fact,” with the burden of proof on the party asserting the

       prescriptive easement. Id. at 405-06. If a party successfully demonstrates the


       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 8 of 13
       existence of a prescriptive easement, the rights vest by operation of law.

       Downing v. Owens, 809 N.E.2d 444, 452 (Ind. Ct. App. 2004), trans. denied.


[14]   As noted above, the trial court concluded Hochgesang failed to demonstrate the

       existence of a prescriptive easement by clear and convincing evidence.

       Specifically, the trial court noted Hochgesang failed to prove the elements of

       intent, notice, and duration. A party’s failure to demonstrate any one element

       is fatal to its claim. Wilfong, 838 N.E.2d at 405.


[15]   To satisfy the element of intent, “the claimant must demonstrate intent to claim

       the right to use the [land] for a specific purpose.” Whitman v. Denzik, 882

       N.E.2d 260, 265 (Ind. Ct. App. 2008). With respect to 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 to use and control the tract.”

       Id. As to the element of duration, the “right-of-way . . . 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.” Ind. Code § 32-

       23-1-1.


[16]   Finally, in reviewing a judgment requiring proof by clear and convincing

       evidence, we are guided by the principle that

               an appellate court may not impose its own view as to whether the
               evidence is clear and convincing but must determine, by
               considering only the probative evidence and reasonable
               inferences supporting the judgment and without weighing
               evidence or assessing witness credibility, whether a reasonable


       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 9 of 13
               trier of fact could conclude that the judgment was established by
               clear and convincing evidence.


       Fraley v. Minger, 829 N.E.2d 476, 483 (Ind. 2005) (citation omitted).


                                       III. Element of Intent
[17]   Regarding the element of intent, the trial court concluded Hochgesang failed to

       establish his predecessors-in-title intended to claim the right to use the gravel

       road. In its findings of fact, the trial court noted Hochgesang failed to produce

       any specific evidence regarding the predecessors-in-title to his Property and

       whether their intent to use the roadway was established from the years 1992 to

       1995. After reviewing the record, we agree with the trial court’s findings that

       the evidence concerning both Hochgesang’s and McLain’s predecessors-in-title

       and their use of the roadway is sparse.


[18]   Hochgesang claims he has established the existence of a prescriptive easement

       dating back thirty to seventy years, which is more than sufficient to meet the

       twenty-year requirement. However, as noted by the trial court in its order,

       there is sparse evidence, if any at all, concerning the years needed by

       Hochgesang to establish a prescriptive easement. Hochgesang alleges he used

       the gravel roadway without interference or permission from the time he

       purchased the Property in February of 1995 until McLain prohibited his use of

       the road in February of 2012, a period of seventeen years. Therefore,

       Hochgesang must tack the use of the gravel road by his predecessors-in-title to

       establish the easement. See Wolfe v. Gregory, 800 N.E.2d 237, 240 (Ind. Ct. App.


       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 10 of 13
       2003) (noting “tacking,” or the continuous use of an easement by predecessors-

       in-title, may be added to the use of the present claimant to satisfy the twenty-

       year requirement). Further, we note prescriptive easements may be abandoned,

       Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 258 (Ind. 2015), and we

       therefore find it irrelevant whether the roadway was used up to seventy years

       prior to Hochgesang’s purchase. The relevant time period needed by

       Hochgesang to establish the existence of a prescriptive easement is 1992 to

       2012.


[19]   From what we can gather from the record, Hochgesang’s predecessors-in-title

       from the relevant time period were Ronald McIntosh and James Buggs/T & S

       Auction Service. The prior owners of McLain’s property were Ronnie McLain,

       Robert Ritter, and/or Steven Lynch.4 None of these people or entities testified

       concerning the use of the gravel roadway or whether their permission was

       sought or given. See Downing, 809 N.E.2d at 455-56 (noting use is not adverse

       or hostile when permission is given). And although David Buchanan, Virgil

       Shelton, and Donald Tucker testified generally the road was in use by those

       seeking to access the Property, they offered few specific details concerning who



       4
        To the extent our rendition of the ownership of the properties is incorrect, we note the appellant produced
       an inadequate record of who owned the properties during what time period, who used the roadway, and how
       often. In addition, we note Hochgesang challenges the trial court’s finding number nineteen, which states,

                19. [Hochgesang] did not present any evidence regarding the ownership of [McLain’s]
                real estate for the period of 1991 through 2012.

       Appellant’s App., Vol. 2 at 10. We note this finding is clearly erroneous as we have recited the
       available evidence of the prior ownership of the real estate.



       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017                Page 11 of 13
       used the roadway or how often and it was within the trial court’s sound

       discretion to weigh that evidence and determine whether it meets the

       heightened standard of clear and convincing proof. Fraley, 829 N.E.2d at 483.

       We further note Buchanan and Shelton both testified they were unaware

       whether any of the prior owners of McLain’s property ever gave anyone

       permission to use the road. Given the witnesses’ lack of personal knowledge

       about whether permission was ever granted and the lack of specific testimony

       concerning use of the roadway during the years of 1992 to 1995, we cannot say

       the trial court’s judgment that Hochgesang failed to prove the element of intent

       by clear and convincing evidence is clearly erroneous.5


[20]   In sum, Hochgesang simply did not present clear and convincing evidence

       establishing the existence of a prescriptive easement. It is not our prerogative to

       weigh evidence or judge the credibility of witnesses; that task remains within

       the trial court’s sound discretion and the trial court determined the evidence

       presented by Hochgesang did not meet the heightened standard of clear and

       convincing proof. Based on the evidence presented and the “stringent

       requirements” necessary to establish a prescriptive easement, we cannot say the

       trial court’s findings or judgment are clearly erroneous. See Wilfong, 838 N.E.2d

       at 405.




       5
         Because Hochgesang has not demonstrated the element of intent for the requisite statutory period, he
       likewise has not met the element of duration. Further, in light of our conclusion regarding the element of
       intent, we need not address Hochgesang’s argument regarding the element of notice.

       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017             Page 12 of 13
                                               Conclusion
[21]   The trial court’s judgment that Hochgesang failed to establish the existence of a

       prescriptive easement by clear and convincing evidence is not clearly erroneous.

       The judgment of the trial court is affirmed.


[22]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 13A01-1608-PL-1944 | June 9, 2017   Page 13 of 13
