                                                                 FILED
MEMORANDUM DECISION                                         May 31 2016, 8:16 am


Pursuant to Ind. Appellate Rule 65(D),                           CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
this Memorandum Decision shall not be                             and Tax Court

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                 ATTORNEY FOR APPELLEES
Mark J. Crandley                                        John A. Kraft
Barnes & Thornburg LLP                                  Young, Lind, Endres & Kraft
Indianapolis, Indiana                                   New Albany, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Albert Costello and Lisa                          May 31, 2016
Renee Costello,                                         Court of Appeals Case No.
Appellants-Plaintiffs,                                  10A05-1503-PL-97
                                                        Appeal from the Clark Circuit
        v.                                              Court
                                                        The Honorable Joseph P. Weber,
Wayne Zollman and Teresa                                Judge
Zollman,                                                Trial Court Cause No.
Appellees-Defendants.                                   10D03-0901-PL-1




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016    Page 1 of 25
                                  Case Summary and Issues
[1]   James and Lisa Costello appeal from the trial court’s judgment against them in

      their action against Wayne and Teresa Zollman regarding a dispute over the

      ownership of land in Clark County, Indiana. The Costellos raise five issues for

      our review, which we consolidate and restate as (1) whether the trial court’s

      decision declaring the Zollmans acquired title to the property by adverse

      possession is clearly erroneous; (2) whether the trial court’s decision awarding

      the Zollmans damages is clearly erroneous; and (3) whether the trial court’s

      decision rejecting the Costellos’ claim for trespass is clearly erroneous. We

      conclude the trial court did not err in finding the Zollmans gained title to the

      property by adverse possession. However, we further conclude the trial court

      erred in awarding the Zollmans damages and in rejecting the Costellos’ claims

      for trespass. Therefore, we affirm in part, reverse in part, and remand.



                              Facts and Procedural History                                    1




      1
        The Brief of Appellees contains a few errors and we take this opportunity to remind counsel of our appellate
      rules. Appellate Rule 46(B) requires an appellee’s brief conform with Appellate Rule 46(A) with certain
      exceptions inapplicable here. First, Rule 46(A)(5) requires the Statement of Case include citations to the
      Record on Appeal or Appendix. Here, the Statement of Case does not contain a single citation to the record
      or the appendix. Second, Rule 46(A)(6)(a) requires the Statement of Facts be “supported by page references
      to the Record on Appeal or Appendix . . . .” Here, the Statement of Facts does not contain a single citation
      to the record or the appendix. Third, Rule 46(A)(8) requires the party’s contentions “be supported by
      citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”
      Here, the Argument section is replete with factual assertions lacking proper citation. Considering the size of
      the record and the case’s complexities, the failure to properly cite to the record has made this Court’s task
      that much more difficult. Finally, Rule 43(E) states, “All text shall be double-spaced, except that footnotes,
      tables, charts, or similar material and text that is blocked and indented shall be single-spaced.” Here, the text
      of the brief is not double-spaced.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016                   Page 2 of 25
[2]   The Costellos and the Zollmans live on neighboring lands in Clark County,

      Indiana. The Costello Real Estate is immediately west of, and runs adjacent to,

      the Zollman Real Estate. At some point prior to 1957, a fence (“Fence”) was

      constructed between the two properties. It is unknown who constructed the

      Fence. In the 1960s, Verlon and Myrtle Morgan owned the Zollman Real

      Estate and the Zollmans began renting the Zollman Real Estate for the purpose

      of hunting and farming. During this time, Wayne believed the Fence acted as

      the boundary line between the northeastern portion of the Costello Real Estate

      and the southwestern portion of the Zollman Real Estate (“Historical Fence

      Line”). Over the next several years, Wayne often repaired the Fence for the

      Morgans. In 1978, the Morgans conveyed fee simple title in the Zollman Real

      Estate to the Zollmans. Over the next five years, the Zollmans used the land

      immediately east of the Fence (“Disputed Property”) for farming; the Disputed

      Property does not include the Fence. In 1983, the Zollmans built additional

      fencing on the Disputed Property and attached it to the Fence in order to

      contain their farm animals.


[3]   In 1993, Lisa’s parents purchased the Costello Real Estate and the Costellos

      often resided on the property. At the time, Lisa did not know whether the

      Fence acted as the legal boundary line between the two properties but did not

      observe the Zollmans housing animals on the Disputed Property. In 1997,

      Lisa’s parents deeded Lisa fee simple title in the Costello Real Estate. Shortly

      thereafter, Lisa observed the Zollmans stored piles of lime dust near the

      Zollman’s barn, which is located 100 feet east of the Fence.


      Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 3 of 25
[4]   At some point over the next several years, the Zollmans again attached

      additional fencing to the Fence to enclose their animals. The Costellos claimed

      the Zollmans’ animals damaged the Fence, began entering the Costello Real

      Estate, and required the Costellos to often fix and replace portions of the Fence.

      Around the same time, a cluster of thirty-one trees located on the Costello Real

      Estate and immediately west of the Fence started “to die and rot out” at the

      base; no other trees on the Costello Real Estate were rotting or dying.

      Transcript at 28. Lisa removed the dead trees, leaving only stumps. Lisa then

      had samples of the soil surrounding the tree stumps tested by an environmental

      laboratory. The results indicated an increased pH level in the soil.


[5]   In 2003, Lisa employed the Clark County Surveyor, Robert Isgrigg, to conduct

      a retracement survey in order to determine the boundary line between the

      Costello Real Estate and the Zollman Real Estate (“2003 Survey”). The survey

      revealed the entire length of the Fence was located on the Costello Real Estate,

      the Costello Real Estate included a portion of the Disputed Property, and a

      strip of land immediately east of the “true” boundary line was unowned. In

      other words, portions of the Disputed Property were either a part of the

      Costello Real Estate or unowned.


[6]   At some point, the Township Trustee removed and replaced a portion of the

      Fence. The cost was assessed against the Costellos’ property taxes. In October

      2005, the Costellos filed a complaint against Wayne and several township




      Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 4 of 25
      officials, including the Township Trustee. 2 In his answer, Wayne asserted a

      counterclaim against the Costellos, alleging the lawsuit was frivolous and

      requesting attorney’s fees. After the parties participated in mediation, the

      Costellos dismissed their claims against the township officials in consideration

      of a $1,815.00 payment, but did not settle their claims against Wayne.


[7]   In 2009, Lisa employed another environmental laboratory to take a sample of

      the soil surrounding the tree stumps along the Fence and test the soil’s pH level;

      the results showed the pH had returned to normal. On September 10, 2010,

      Lisa again employed Isgrigg to conduct a legal survey (“2010 Survey”). On

      October 13, 2010, Isgrigg returned to the properties and ultimately adopted his

      2003 Survey findings, specifically stating the entirety of the Fence was located

      on the Costello Real Estate, the Costello Real Estate extended approximately

      1.33 feet into the Disputed Property, and a 5.88-foot-wide strip of land further

      east was unowned. On the same day, Isgrigg recorded the survey at the Clark

      County Surveyor’s Office.


[8]   In May 2011, the Costellos filed a complaint amending their 2005 complaint.

      In August 2011, the Costellos filed a Third Amended Complaint for Damages

      and Request for Declaratory Judgment and added Teresa as a defendant.

      Specifically, the complaint requested the trial court adopt the findings of the

      2010 Survey and declare the Costellos the owners of the Disputed Property,



      2
       The initial complaint is not a part of the record, but based on the trial court’s findings, it appears the
      Costellos sued the Township Trustee for trespass relating to the construction of that portion of the Fence.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016                  Page 5 of 25
      award damages to the Costellos under a theory of common law trespass, and

      award treble damages and attorney’s fees under a theory of criminal trespass

      pursuant to Indiana Code section 34-24-3-1.3 The Zollmans’ answer did not

      include any counterclaims.


[9]   After the parties participated in discovery, a bench trial was held in August

      2014. Prior to trial, the Zollmans made a motion for specific findings of fact

      and conclusions, which the trial court granted. Also prior to trial, Lisa removed

      the Fence. Following the trial, each party submitted its proposed findings of

      fact and conclusions. The Zollmans’ proposed findings included findings that

      Lisa committed criminal trespass in removing the Fence and that the Zollmans

      were entitled to treble damages in the amount of $5,850.00. On October 28,

      2014, the trial court entered a general order stating the Zollmans held title to the

      Disputed Property, the Costellos were not entitled to damages, and the

      Zollmans were entitled to a personal judgment against the Costellos in the

      amount of $1,950.00 for damages suffered by the removal of the Fence.

      However, the trial court did not enter specific findings of fact and conclusions.




      3
        The Costellos alleged numerous acts of trespass. However, on appeal, the Costellos only challenge the trial
      court’s finding that the Zollmans committed trespass in storing lime dust piles near the Fence thereby
      allowing “toxic chemicals and harmful herbicides to flow” onto the Costello Real Estate. Appellants’
      Appendix at 30.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016                Page 6 of 25
After the Costellos filed a motion to correct error, the trial court adopted the

Zollmans’ proposed findings and conclusions verbatim4:


                                            [Findings of Fact]


         6. The Zollmans, prior to their purchase of the Zollman Real
         Estate leased the same from their predecessors Verlon Morgan
         and Myrtle Morgan from the mid to late sixties until they
         purchased the same in 1978, and occupied and farmed all the
         property over to a fence which was observed by Zollmans and
         their predecessors as the common boundary line with the
         Costello Real Estate.
         7. [P]rior to Lisa removing the fence between the Costello Real
         Estate and the Zollman Real Estate in April, 2014 the fence
         remained at that same location—in fact the fence was the original
         basis for this litigation when the “boundary fence” was
         constructed by the Township Trustee pursuant to Indiana’s fence
         law (I.C. 32-26-9 et. seq.).
         8. The current litigation originally commenced on October 20,
         2005, between Costello and other named Defendants, including
         the Owen Township Trustee, Leroy Graebe and the Clark
         County Auditor, Barbara Bratcher-Haas, concerning a fence line
         constructed by the Township Trustee in accordance with [the
         fence law] . . . .
         9. On October 5, 2009 Costello, in consideration of a payment of
         $1,815.00 by the County, dismissed all parties, except Wayne
         Zollman and waived any claim of trespass of the Township
         Trustee relating to the fence erection. The fence constructed by
         the Trustee was along the historically observed boundary line
         between Costello and Zollman.
         10. The fence erected by the Township Trustee no longer exists



4
  There is no signed order in the record containing the trial court’s findings. Rather, the trial court only
entered a lengthy recitation of its findings in the Chronological Case Summary. For this reason, we will cite
to the Zollmans’ proposed findings contained within the Appellants’ Appendix.

Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016                 Page 7 of 25
        as Lisa Renee Costello removed the same in April, 2014, as well
        as portions erected and paid for by the Zollmans.
        ***
        23. Wayne Zollman farmed the Zollman Real Estate . . . since
        the mid to late 60’s and continuously occupied that in some
        manner since that date. Zollman occupied and controlled the
        Zollman Real Estate, either through the leasing of the Zollman
        Real Estate to farm or his ownership, and the same was all the
        way over to the fence, as it had historically existed when he first
        entered the property in the mid 60’s.
        24. Zollman testified the historical fence had never been moved
        from its location since he occupied the Zollman Real Estate
        through lease or ownership until Lisa removed the same in April,
        2014.
        ***
        26. Zollman repaired and replaced the fence through the time
        period they occupied the property. Zollman paid taxes on all of
        the real estate during the time period of their ownership from
        1978 forward and had not been delinquent with the taxes and
        believed in good faith the taxes paid included all real estate over
        to the historic fence observed as the boundary line.
        27. Zollman entered into evidence photographs reflecting the
        removal of the fencing by Costello. Said photos depicted the
        holes that would identify the historic line. Zollman also showed
        photos of the historic fence line and old fence post with rusted
        woven wire that is not even made anymore. Zollman testified
        Costello destroyed this fence line, removing all fenceposts,
        including all historical markers and all posts and woven wire he
        had replaced and paid for. Lisa admitted to the removal of the
        posts and cutting of Zollmans’ woven wire, and to taking the
        posts and fencing.
        28. The taking by Lisa was wrongful.
        29. Zollman testified, without objection, the cost to replace the
        posts would be at Eighteen and No/100 ($18.00) Dollars per post
        and spaced at appropriate intervals would require fifty (50) posts
        or Nine Hundred and No/100 ($900.00) Dollars; woven wire of
        One Thousand Fifty and No/100 ($1,050.00) Dollars plus labor

Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 8 of 25
        and latches; and the Court finds it strikingly coincidental this
        amount is only about One Hundred ($100.00) Dollars different
        than what the County paid to Costellos in the settlement of the
        underlying action in 2009.
        30. The posts which Zollman placed in are currently wrongfully
        in the possession of the Costellos and the Costellos had destroyed
        his woven wire fence by cutting the same off of the posts.
        ***
        39. One of Costello’s counts was for damages relating to “toxic
        chemicals and harmful herbicides” flowing from the Zollman
        Real Estate to the Costello Real Estate, and to support such
        claim Costello produced Gregory Mills (hereinafter Mills), a
        certified arborist to appraise trees alleged to have been removed
        from the Costello Real Estate.
        40. Mills could have done an analysis, rather than an appraisal,
        to determine issues and/or causes of tree damage, but Lisa had
        requested he only appraise the trees (or what was left of rotted
        trees) on the Costello Real Estate. Mills indicated an analysis
        would have determined the actual cause, or would have
        narrowed the cause of the loss of the trees. He was not asked to
        do that so he could only speculate as to what caused the trees to
        die, and this was done over the objection of Zollmans’ counsel.
        41. [O]ver the objection of Zollmans’ counsel Mills speculated
        the damage may have been caused from lime dust on the
        Zollman Real Estate, but on cross examination when shown
        pictures entered into evidence of rotted stumps of trees alleged to
        be on the Costello Real Estate from the late 90’s or early 2000’s
        he recanted on what may have caused damage to the trees.
        ***
        43. Costello presented no evidence of “toxic chemicals” or
        “harmful herbicides” only speculation concerning lime dust.
        44. At the conclusion of presentation of evidence, the Zollmans
        moved to amend the pleadings to conform to the evidence
        presented.


                                          [Conclusions]

Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 9 of 25
        10. The survey conducted by Robert Isgrigg is not a “legal
        survey” and does not establish the boundary line between the
        Costello Real Estate and the Zollman Real Estate, thus, the
        claims of trespass by Costello premised on the same must fail.
        ***
        12. On its face the survey conducted by Robert Isgrigg it [sic]
        states it is a “retracement survey” defined as being “a survey of
        real property that has been previously described in documents
        conveying an interest in real property.”
        13. The Surveyor’s Report on the Isgrigg retracement survey at
        Note #6 states in pertinent part, “However, a plat is recorded in
        Misc. Record 22-3147, which shows a fence at that time (1-10-
        1957), is the line, creating some uncertainty.” The fence referred
        to by Note #6 is the historical fence showing it even existed in
        1957, prior to the Zollmans leasing the same for farming in the
        60s.
        14. Zollmans are entitled to all lands east of the historic fence
        line by adverse possession.
        ***
        18. There was no evidence presented to dispute the testimony of
        Wayne Zollman that he had paid the taxes on his real estate since
        1978 and that he believed in good faith he was paying taxes of
        [sic] all real estate east of the historical fence.
        ***
        20. Zollmans’ title to all the Zollman Real Estate over to the
        historical fence was established and vested in 1988, prior to
        Costello, or her parents, ever taking title to the Costello Real
        Estate in 1993.
        21. In addition to proving Zollmans showed they believed in
        good faith they had paid the taxes, they can also satisfy the intent
        or notice requirements—and did exercise control over the land as
        required for every adverse possession claim. In the 2003 . . .
        retracement survey the fence remained at its historical location,
        and is so noted—Costello did nothing in 2003 to dispute the
        fence as being the boundary line.
        22. Costello never excluded Zollmans from using all of the
        Zollman Real Estate east of and over to the historical fence line,

Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 10 of 25
               and Zollmans did it openly—even the Costello pictures put into
               evidence from the late 90’s early 2000’s reflect the historical fence
               line, and its location.
               23. Zollmans exercised control of all portions to the east of the
               historical fence line, and Zollmans (and their predecessors), prior
               to Lisa taking title, had already established the requisite elements
               for adverse possession for more than the requisite time period of
               ten (10) years.
               24. Once title vests at the conclusion of the ten-year possessory
               period, the title may not be lost, abandoned, or forfeited . . . even
               when the party agrees to a survey to attempt to find the true
               boundary line.
               25. Zollmans are entitled to damages for the replacement of the
               fence removed by Costello, and the wrongful taking of the
               Zollmans’ property.
               26. I.C. 34-24-3-1 provides for recovery of damages for one that
               suffers a pecuniary loss as the result of I.C. 35-43 up to three (3)
               times the amount of actual damages and a reasonable amount to
               compensate for loss of time to file papers and attend court
               proceedings.
               27. The actions of Lisa removing and destroying the fence of the
               Zollmans violate I.C. 35-43-2-2.


       Appellants’ App. at 53-66 (emphasis and citations omitted). This appeal

       ensued.



                                 Discussion and Decision
                                      I. Standard of Review
[10]   Where, as here, the trial court enters special findings and conclusions thereon

       pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled:



       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 11 of 25
               First, we determine whether the evidence supports the findings
               and second, whether the findings support the judgment. In
               deference to the trial court’s proximity to the issues, we disturb
               the judgment only where there is no evidence supporting the
               findings or the findings fail to support the judgment. We do not
               reweigh the evidence, but consider only the evidence favorable to
               the trial court’s judgment. Challengers must establish that the
               trial court’s findings are clearly erroneous. Findings are clearly
               erroneous when a review of the record leaves us firmly convinced
               a mistake has been made. However, while we defer substantially
               to findings of fact, we do not do so to conclusions of law.
               Additionally, a judgment is clearly erroneous under Indiana Trial
               Rule 52 if it relies on an incorrect legal standard. We evaluate
               questions of law de novo and owe no deference to a trial court’s
               determination of such questions.


       Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011) (emphasis and

       citation omitted), trans. denied.


                                     II. Adverse Possession
[11]   The Costellos contend the trial court erred in concluding the Zollmans proved

       the elements of adverse possession by clear and convincing evidence.


               [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);


       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 12 of 25
        (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,


        (4) Duration—the claimant must satisfy each of these elements
        continuously for the required period of time (reflecting the former
        “continuous” element).


Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005). 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 the elements noted above, our

legislature 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.” Ind. Code § 32-21-7-1(a). “[O]nce

a party establishe[s] the elements of adverse possession, 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.” Knauff v. Hovermale, 976 N.E.2d

1267, 1270 (Ind. Ct. App. 2012) (citation and internal quotation marks

omitted).




Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 13 of 25
[12]   The Costellos first argue the evidence does not support the trial court’s findings

       regarding the notice and intent elements.5 Specifically, the Costellos contend

       after they moved onto the Costello Real Estate in 1993, the Zollmans neither

       used the Disputed Property nor took action to exclude the Costellos from the

       Disputed Property. Such contentions, however, carry no weight considering

       the trial court concluded the Zollmans established adverse possession of the

       Disputed Property in 1988—five years prior to the Costellos first occupying the

       Costello Real Estate. Wayne testified he began farming the Disputed Property

       in 1978. In 1983, Wayne ceased farming on the Disputed Property, connected

       additional fencing to the Fence, and began housing animals on the Disputed

       Property. In addition, Wayne testified the Fence remained on the Historical

       Fence Line from 1978 until Lisa removed the Fence in 2014. We conclude the

       trial court’s conclusions that the Zollmans satisfied the notice and intent

       elements are not clearly erroneous.


[13]   The Costellos also argue the trial court’s conclusion that the Zollmans satisfied

       the tax payment requirement is clearly erroneous. In concluding the Zollmans

       satisfied the requirement, the trial court found “Zollman paid taxes on all of the

       real estate during the time period of their ownership from 1978 forward and had

       not been delinquent with the taxes and believed in good faith the taxes paid

       included all real estate over to the historic fence observed as the boundary




       5
        The Costellos do not challenge whether the evidence supports the trial court’s findings in regard to the
       control and duration elements.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016                Page 14 of 25
       line[,]” Appellants’ App. at 57, and “[t]here was no evidence presented to

       dispute the testimony of Wayne Zollman that he had paid the taxes on his real

       estate since 1978 and that he believed in good faith he was paying taxes of [sic]

       all real estate east of the historical fence[,]” id. at 65. The Costellos

       acknowledge Wayne testified he paid taxes on the Zollman Real Estate since

       1978 and he believed such taxes included the taxes on the Disputed Property,

       but argue the Zollmans did not present evidence indicating their tax obligation

       actually included the taxes on the Disputed Property. Brief of Appellants at 25.

       However, such evidence is not needed to support a finding of compliance with

       Indiana Code section 32-21-7-1(a).


[14]   In Celebration Worship Center, a property dispute arose between a church and

       neighboring homeowners; the church owned lot 3, and immediately to the east,

       the homeowners owned lot 4. The church filed a complaint to determine the

       boundary line between lots 3 and 4 and attached to the complaint a survey

       indicating the boundary line extended to the edge of a gravel driveway along

       the eastern border of lot 3. In their answer, the homeowners argued “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 . . . .” 35 N.E.3d at 253. In their motion for

       summary judgment, the homeowners designated sworn affidavits indicating

       they believed in good faith the taxes they had always paid on lot 4 included all

       of the grassy portions of the yard over to the gravel’s edge; the homeowners

       also designated county tax records showing no tax arrearages on lot 4. The trial


       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 15 of 25
       court concluded the homeowners satisfied the tax requirement for the statutory

       time period and granted summary judgment to the homeowners. In affirming

       the trial court’s decision, our supreme court stated,


               [T]he 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.


       Id. at 255 (emphasis in original).


[15]   Similar to Celebration Worship Center, Wayne testified under oath he began

       paying taxes on the property in 1978, he believed he owned the Disputed

       Property, he had a good faith belief he continually “pa[id] taxes on every bit of”

       the Disputed Property, and those taxes had never been delinquent. Tr. at 262.

       Such evidence is sufficient to show the Zollmans substantially complied with

       the tax requirement. See Celebration Worship Ctr., 35 N.E.3d at 255. In addition,

       the Costellos have not cited to any evidence in the record rebutting this

       conclusion. Therefore, we conclude the evidence supports the trial court’s

       findings regarding the Zollmans’ satisfaction of the tax payment requirement.




       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 16 of 25
       Accordingly, the trial court’s conclusion that title to the Disputed Property

       vested in the Zollmans by adverse possession in 1988 is not clearly erroneous. 6


[16]   Although title to the Disputed Property vested in the Zollmans in 1988, there is

       no evidence indicating the Zollmans held title to the Fence. Specifically, the

       Fence was constructed prior to 1957 and there is no evidence indicating who

       originally constructed the Fence, but both parties testified to making repairs to

       the Fence. The surveys conducted by Isgrigg do not show the Fence acted as a

       boundary fence or a partition fence between the two properties; rather, the

       surveys indicate (1) the entirety of the Fence rested upon the Costello Real

       Estate, and (2) the Costello Real Estate extended into the Disputed Property

       east of the Fence prior to 1988 when the Zollmans gained title to the Disputed

       Property. The Zollmans did not admit into evidence their own survey showing

       they held title in the Fence and the Disputed Property, which is likely why they

       claimed title to the Disputed Property by adverse possession. Further, we note




       6
         The Costellos also challenge the trial court’s findings regarding the deficiencies in Isgrigg’s 2010 Survey.
       Specifically, they argue the trial court erred in allowing the Zollmans to collaterally attack the 2010 Survey
       and in concluding the 2010 Survey did not satisfy the statutory requirements of a legal survey. Regardless of
       whether the 2010 Survey met the statutory requirements set forth in Indiana Code section 36-2-12-10 and
       regardless of whether the Zollmans could collaterally attack the validity of the 2010 Survey, title to the
       Disputed Property vested in the Zollmans as a matter of law in 1988 and such title cannot be lost,
       abandoned, or forfeited by a subsequent legal survey. See Fraley, 829 N.E.2d at 487 (noting once an
       individual gains title to property by adverse possession, the title may not be abandoned, lost, 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”); see also Snowball Corp. v. Pope, 580 N.E.2d
       733, 734 (Ind. Ct. App. 1991) (“Once a party has acquired title through adverse possession, that party does
       not lose title based upon acts committed or circumstances existing after title is established.”). As a result, we
       need not address the merits of the legal survey issues.



       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016                   Page 17 of 25
       the fact the Township Trustee constructed a portion of the Fence does not

       dictate that this Fence portion is a boundary fence when faced with other

       evidence: the surveys indicate it was constructed on the Costello Real Estate,

       the Costellos sued the Township Trustee for trespass, the Township Trustee

       settled the suit against it and paid the Costellos $1,815.00, and the Costellos

       testimony that it always believed the Fence was on the Costello Real Estate.

       Accordingly, there is no evidence in the record to contradict the Costellos’

       position that the Fence, including the portion erected by the Township, rested

       entirely upon the Costello Real Estate. Because the Zollmans only gained title

       to the Disputed Property by adverse possession, we conclude the Zollmans did

       not have a property interest in the Fence.


                            III. Costellos’ Claims of Trespass
[17]   The Costellos argue the trial court erred in concluding the Zollmans did not

       commit common law or criminal trespass in allowing lime to flow onto the

       Costello Real Estate. The trial court only entered four findings relevant to the

       Costellos’ trespass claim:

               40. Mills could have done an analysis, rather than an appraisal,
               to determine issues and/or causes of tree damages, but Lisa had
               requested he only appraise the trees (or what was left of rotted
               trees) on the Costello Real Estate. Mills indicated an analysis
               would have determined the actual cause, or would have
               narrowed the cause of the loss of the trees. He was not asked to
               do that so he could only speculate as to what caused the trees to
               die, and this was done over the objection of Zollman’s counsel.
               41. [O]ver the objection of Zollmans’ counsel Mills speculated
               the damage may have been caused from lime dust on the

       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 18 of 25
               Zollman Real Estate, but on cross examination when shown
               pictures entered into evidence of rotted stumps of trees alleged to
               be on the Costello Real Estate from the late 90’s or early 2000’s
               he recanted on what may have caused damage to the trees.
               42. Zollman makes his living at farming and testified the
               appropriate ideal PH [sic] level for soil to farm is at a level
               equivalent to that as shown by Costello to be harmful.
               43. Costello presented no evidence of “toxic chemicals” or
               “harmful herbicides” only speculation concerning lime dust.


       Appellants’ App. at 61. The Costellos argue the trial court’s findings are clearly

       erroneous because Mills did not speculate, but rather testified in his professional

       opinion the piles of lime dust on the Zollman Real Estate ran off downhill

       towards the trees, thereby raising the pH levels in the soil surrounding the trees

       and causing the trees to die.


[18]   Indiana Code section 35-43-2-2 provides the elements of criminal trespass:


                       (b) A person who:
                              (1) not having a contractual interest in the property,
                              knowingly or intentionally enters the real property
                              of another person after having been denied entry by
                              the other person or that person’s agent;
                              (2) not having a contractual interest in the property,
                              knowingly or intentionally refuses to leave the real
                              property of another person after having been asked
                              to leave by the other person or that person’s agent;
                              ***
                              (4) knowingly or intentionally interferes with the
                              possession or use of the property of another person
                              without the person’s consent;
                              ***
                       commits criminal trespass . . . .


       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 19 of 25
       At common law, a plaintiff bringing a trespass action must establish two

       elements: (1) the plaintiff must show he possessed the land when the alleged

       trespass occurred, and (2) the plaintiff must demonstrate the alleged trespasser

       entered the land without legal right. Holland v. Steele, 961 N.E.2d 516, 525 (Ind.

       Ct. App. 2012), trans. denied. It is a general rule of tort law that


               [o]ne who recklessly or negligently, or as a result of an
               abnormally dangerous activity, enters land in the possession of
               another or causes a thing or third person so to enter is subject to
               liability to the possessor if, but only if, his presence or the
               presence of the thing or the third person upon the land causes
               harm to the land, to the possessor, or [to] a thing or a third
               person in whose security the possessor has a legally protected
               interest.


       Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 582 (Ind. Ct. App. 1995) (quoting

       Restatement (Second) of Torts § 165 (1965)).


[19]   In Lever Brothers Company, a residential landowner brought suit under a trespass

       theory after heavy rains flooded the landowner’s basement and the landowner

       observed a white fatty substance floating in the water. On appeal, we were

       tasked with determining whether a trespass could occur as a result of the entry

       of noxious materials onto another’s property. Despite no Indiana case

       previously considering the issue of whether the entry of noxious material onto

       another’s property could constitute a trespass, we agreed with other

       jurisdictions which found a trespass could occur if there was a direct causal

       relation between the actor’s conduct and the intrusion of the foreign matter upon

       the possessor’s land that caused the harm. See id.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 20 of 25
[20]   At trial, Wayne acknowledged piles of lime dust were located on the Zollman

       Real Estate for the purpose of disinfecting the barn. Shortly after purchasing

       the Costello Real Estate in 1997, Lisa observed the piles of lime dust near the

       Zollman’s barn. Lisa testified certain trees located on the Costello Real Estate

       near the Fence and downhill from the Zollmans’ barn began to die in the late

       1990s and early 2000s. At some point unclear from the record, the trees died

       and began to rot, and Lisa opted to remove the trees leaving only the stumps.

       Thereafter, Lisa took samples of the soil surrounding the tree stumps. Around

       2004, Lisa had the samples tested by Sure Tech Laboratories (“Sure Tech”).

       Around 2009, Lisa employed A&L Analytical Laboratories (“A&L”) to take

       and test soil samples. Sometime after 2010, Lisa provided the results of the

       Sure Tech and A&L testing to Mills to assist him in assessing the value of the

       tree loss. The Costellos did not admit the reports into evidence.


[21]   Mills, an International Society of Arboriculture certified arborist, testified the

       field of arboriculture focuses on all facets of plant care, including the plant’s

       soil, which Mills indicated contributes to a plant’s health. Mills claimed

       arborists also conduct landscape evaluations, which requires the arborist to

       appraise the value of a tree. When Mills arrived at the Costello Real Estate,

       Lisa had already removed the dead trees. Mills then measured the tree stumps

       to get an appraisal, as Lisa requested; Mills did not need to know the cause of

       the trees’ death to conduct an appraisal. During trial, however, the Costellos

       asked Mills if, based on the results of the laboratory testing, he formed an

       opinion in regard to the soil composition. The trial court overruled the


       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 21 of 25
Zollmans’ objection to this questioning, but noted a continuing objection. Mills

then testified the 2004 Sure Tech results indicated a high level of pH in the soil

and the 2009 A&L results indicated the pH level returned to normal.


        [Costellos:] So the condition that you recognize relative to the
        pH in the Sure Tech results, what types of things could cause
        that?
        [Mills:] Uh, anything with limestone in it. Gravel, agriculture
        lime, there’s a lot of things that could cause it but we always drop
        back to it being some deviant of lime. You know there are
        different forms of lime. There’s basic aglime, there’s maglime
        but that’s [sic] all just has to do with how finely the stuff’s [sic]
        ground up. It’s still lime in the end.


Id. at 113-14. The Costellos asked Mills whether a lime dust pile located

outside of the Zollmans’ barn could pose a risk to trees:

        [Mills:] Well it depends if it’s uphill or downhill from it you
        know runoff.
        [Costellos:] Okay how about Mrs. Costello’s trees?
        [Mills:] Well Mrs. Costello’s trees, yes Sir because they were
        downhill from it.
        [Costellos:] Okay and would uh a runoff from that lime pile be a
        cause for the soil conditions that you recognized?
        [Mills:] It certainly can be.
        [Costellos:] Can be?
        [Mills:] Sure.
        [Costellos:] Is it?
        [Mills:] Yes it is.
        [Costellos:] Can you say with any degree of certainty?
        [Mills:] Uh rain water dissolves lime.
        [Costellos:] I’m sorry. Pardon me?
        [Mills:] I said rain water dissolves lime and lime stone. You see
        rocks wear from rain fall.

Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 22 of 25
               ***
               [Costellos:] Have you formed any professional opinion about the
               cause of the pH levels in the soil on Costello’s land?
               [Mills:] Yes.
               [Costellos:] And that cause being?
               [Mills:] Well the increased soil pH would be the only possible
               causal changing factor is the pile of lime dust.
               [Costellos:] And your basis for that conclusion is?
               [Mills:] Simple, uphill, downhill, raining water goes downhill.
               I’ve never seen water run uphill yet.
               [Costellos:] Is that conclusion uh, impacted at all by the location
               of the stumps that you saw relative to the topography of the—
               [Mills:] It’s not impacted by it, it’s the whole reason for it.
               [Costellos:] Now just to be clear Mr. Mills—
               [Mills:] Okay.
               [Costellos:] A second ago you said “could be” but then I asked
               you, “is it” and I guess you clarify for us whether that, how much
               speculation is involved?
               [Mills:] Very little speculation.


       Id. at 117-18.


[22]   At the outset, we note the trial court adopted the Zollman’s proposed findings

       verbatim and such a practice “weakens our confidence as an appellate court

       that the findings are the result of considered judgment by the trial court.” Cook

       v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003). As noted above, the

       trial court only entered four findings relevant to Costello’s common law and

       criminal trespass claims and much of those findings pertain to Mills’

       “speculation” as to the cause of the trees’ deaths and the lack of evidence

       showing lime is a harmful or toxic material. We acknowledge the evidence

       supports the findings that Lisa only hired Mills to appraise the trees, but we


       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 23 of 25
       cannot conclude the evidence supports the remaining findings. At trial, it was

       undisputed the Zollmans stored lime dust piles near their barn, the trees were

       downhill from the barn, the Costellos had never used lime on their property,

       lime increases the pH levels in soil, and high pH levels harm trees. Based on

       these undisputed facts, the laboratory results Lisa provided to Mills, and Mills’

       experience as a certified arborist, Mills concluded—in his professional

       opinion—there was a causal connection between the lime on the Zollman Real

       Estate and the death of the Costellos’ trees. See Lever Bros. Co., 655 N.E.2d at

       582. Because we conclude the trial court’s findings are clearly erroneous,

       coupled with the fact the trial court made no other findings pertaining to the

       issue, we remand to the trial court to enter further findings on this issue

       consistent with the evidence presented.



                                               Conclusion
[23]   The Zollmans gained title to the Disputed Property east of and up to the Fence

       in 1988 as a matter of law. However, because the Fence rested entirely upon

       the Costello Real Estate and there is no evidence the Zollmans maintained a

       property interest in the Fence, the Zollmans did not gain title to the Fence when

       they gained title to the Disputed Property and their claim of trespass entitling

       them to damages for removal of the Fence fails. As to the Costellos’ claim of

       trespass, the evidence does not support the trial court’s findings regarding the

       testimony of Mills, who testified in his professional opinion to a direct causal

       connection between the Zollmans’ lime dust piles and the death of the


       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 24 of 25
       Costellos’ trees. Accordingly, we affirm in part, reverse in part, and remand to

       the trial court with instructions.


[24]   Affirmed in part, reversed in part, and remanded.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A05-1503-PL-97 | May 31, 2016   Page 25 of 25
