Angel v. Powelson

• Decision Date: 29 October 2012
• Docket Number: No. 82A04–1205–PL–292.,82A04–1205–PL–292.
• Citation: 977 N.E.2d 434
• Parties: Betty J. ANGEL, Appellant–Plaintiff, v. Kent H. POWELSON and Marjorie A. Powelson, Appellee–Defendant.
• Court: Indiana Appellate Court

977 N.E.2d 434

Betty J. ANGEL, Appellant–Plaintiff,

v.Kent H. POWELSON and Marjorie A. Powelson, Appellee–Defendant.

No. 82A04–1205–PL–292.

Court of Appeals of Indiana.

Oct. 29, 2012.

Robert R. Faulkner, Evansville, IN, Attorney for Appellant.

Thomas P. Norton, Evansville, IN, Attorney for Appellee.

OPINION

PYLE, Judge.

STATEMENT OF THE CASE

This case involves a dispute between neighbors—Betty J. Angel (“Angel”) and Kent H. Powelson (“Kent”) and Marjorie A. Powelson (“Marjorie”) (collectively, “the Powelsons”)—regarding two pieces of property in Vanderburgh County: (1) an 80–acre parcel of land, which was owned by Kent's grandmother, divided in 1964, and conveyed to the parties at different periods in time; and (2) a 20–foot wide strip of land that passes over a 60–acre tract of land (“the Roadway”) that serves as a roadway to access the divided parcels. Angel received a deed to 73 acres “more or less” of the 80–acre parcel and an easement to use the Roadway in 1964, and Kent received a deed to 7 acres “more or less” of the 80–acre parcel and an easement to use the Roadway in 1978.

The parties used the Roadway and appear to have lived without major problems on their respective parcels until Kent gave a cell phone company a public utility easement, allowing it permission to come onto and put a cell phone tower on Kent's parcel. Forty-six years after Angel received the deed to her parcel, Angel sued Kent, claiming that the legal description of the property boundaries in her 1964 deed should be changed or reformed because Kent's grandmother misinformed Angel that she was receiving 73 acres and claiming that she had established ownership to the Roadway through adverse possession.

After the parties filed cross-motions for summary judgment, the trial court denied Angel's partial motion for summary judgmentand granted part of the Powelsons' motion for summary judgment on Angel's claims of reformation of a deed and adverse possession. Angel now appeals the trial court's order granting part of the Powelsons' summary judgment motion.¹

We affirm.

ISSUE

Whether the trial court erred by granting part of the Powelsons' motion for summary judgment on Angel's claims of reformation of a deed and adverse possession.

FACTS²

Nora Powelson (“Nora”), Kent's grandmother who died in 1980, owned the property at issue. On April 29, 1964, Nora executed a warranty deed (“1964 Warranty Deed”), in which she conveyed and warranted a portion of the eighty-acre parcel to Angel and her husband Samuel Angel. Specifically, the 1964 Warranty Deed provided:

THIS INDENTURE WITNESSTH THAT NORA C. POWELSON, widow and unmarried, Grantor of Los Angeles County and State of California, CONVEYS AND WARRANTS to SAMUEL M. ANGEL and BETTY JUNE ANGEL husband and wife, Grantees of Vanderburgh County and State of Indiana, for the sum of One Dollar ($1.00) and other good and valuable considerations, the following described real estate in Vanderburgh County in the State of Indiana, to-wit:

Part of the East half of the Northwest Quarter of Section Twenty-three (23), Township Five (5) South, Range Eleven (11) West, described as follows, to wit:

Commencing at the Northwest corner of said half quarter section, thence East along the North line thereof a distance of Seven Hundred Ninety-eight (798) feet to a point, which point is also on the center line of an existing twenty (20) foot roadway, thence South and parallel with the West line of said half quarter section of a distance of seventy-five (75) feet to a point, thence East and parallel with the North line of said half quarter section a distance of eighty-six (86) feet to a point, thence South and parallel with the West line of said half quarter section a distance of seven hundred fifty (750) feet to a point, thence East and parallel with the North line of said half quarter section a distance of four hundred thirty-six (436) feet, more or less, to a point on the East line of said half quarter section, which point is eight hundred twenty-five (825) feet South of the North line thereof; thence South along the East line of said half quarter section a distance of one thousand, eight hundred and fifteen (1,815) feet, more or less, to the Southeast corner of said half quarter section, thence West along the South line of said half quarter section a distance of one thousand, three hundred and twenty (1,320) feet, more or less, to the Southwest corner thereof, thence North along the West line of said half quarter section a distance of two thousand, six hundred and forty (2,640) feet, more or less, to the place beginning and containing seventy-three (73) acres, more or less.

ALSO: An easement for roadway purposes across the following described real estate, to-wit:

A strip of land twenty (20) feet in width through and over a tract of sixty (60) acres off the South side of the East half of the Southwest quarter of Section Fourteen (14), Township Five (5) South, Range Eleven (11) West, the center line of which strip of land is as follows:

Commencing on the South line of the East half of the Southwest quarter of said Section Fourteen (14), seven hundred ninety-eight (798) feet East of the Southwest corner thereof; thence North 31 degrees 5 minutes West 134.1 feet; thence North 26 degrees 53 minutes West 109.4 feet; thence North 23 degrees 39 minutes West 82.7 feet; thence North 21 degrees 41 minutes West 134 feet; thence North 23 degrees 50 minutes West 135.8 feet; thence North 11 degrees West 36.1 feet to the center of the road known as the Orchard Road.

By accepting this Deed the Grantees agree that they will maintain the said roadway until another dwelling house is erected on any part of the said East half of the Northwest quarter of Section Twenty-three (23), Township Five (5) South, Range Eleven (11) West, at which time the Grantees agree to share the maintenance of said roadway with the owners of such other tract containing a dwelling house, or such other tracts containing dwelling houses, which may hereafter be sold off from the said half quarter section, or which may be constructed on any sub-divided part of said half quarter section. It being the intention of the Grantor and Grantees that the costs of the maintenance of said roadway shall initially be borne by the Grantees, and shall ultimately be borne by all successors of the Grantees and the Grantor whose places of residence or places or dwelling shall be served by the said roadway.

Grantor reserves to herself, her successors and assigns, an undivided one-half (1/2) interest in the oil, gas and mineral rights in the above described real estate.

(App. 22–23) (emphasis added).³ Thus, Nora conveyed seventy-three acres “more or less” to Angel (“Angel's Parcel”) as well as an easement to use the Roadway. (App. 22). This 1964 Warranty Deed was recorded on August 17, 1964.

On April 13, 1974, Nora executed a warranty deed (“1974 Warranty Deed”), in which she conveyed and warranted the remainder of the eighty-acre parcel to Kent's parents, Charles W. Powelson and Magdelena E. Powelson (“Kent's parents”). Specifically, the 1974 Warranty Deed provided that Kent's parents were receiving “Seven (7) acres, more or less.” (App. 156).⁴ Nora also conveyed to Kent's parents an easement to use the Roadway “for roadway purposes[.]” (App. 156). The 1974 Warranty Deed was recorded on April 18, 1974.

On December 14, 1978, Kent's parents executed a warranty deed (“1978 Warranty Deed”), in which they conveyed the same “7 acres, more or less” to Kent (Kent's Parcel”) as well as an easement to use the Roadway “for roadway purposes [.]” (App. 158).⁵ The 1978 Warranty Deed was recorded on December 15, 1978. In 1998, Kent executed a warranty deed, in which he conveyed his parcel to himself and his wife as tenants by the entireties.

In the 1980s, Angel bought additional parcels of land, which were situated to the north of her parcel and to the east and west of the Roadway (“Northeast Parcel” and “Northwest Parcel”). At some point prior to 2006, Angel sold a portion of Angel's Parcel at issue to a third party.

In December 2008, the Powelsons granted a public utility easement to Powertel/Memphis, Inc. d/b/a T–Mobile USA, Inc. (“T–Mobile”) for the placement of a cell phone tower on their property. While the details are unclear, due to the fact that this case is before us on a partial entry of summary judgment, it appears that this easement for the cell phone tower and the parties' use of the Roadway became a bone of contention between the neighbors and ultimately led to this lawsuit between them.

In June 2010, Angel filed a complaint against the Powelsons. In Count I, Angel sought reformation of the 1964 Warranty Deed, alleging that the deed should be reformed because Angel had just discovered in 2009 that: (1) the property boundaries contained in the 1964 Warranty Deed actually describe 71.6 acres instead of 73 acres; and (2) one of the property boundaries described in the 1964 Warranty Deed would have bisected a “dwelling house” that no longer existed but that Angel used to have on Angel's Parcel in 1964. (App. 16). In Count II, she sought a declaratory judgment that she had title to the Roadway by adverse possession. She also alleged that she had established a prescriptive easement to the Roadway in relation to her Northwest Parcel and Northeast Parcel due to her use of the Roadway to access those two parcels. In Count III, she alleged slander of title, arguing that Kent had “placed a cloud on the title to [her] real estate” by recording a warranty deed and a quit claim deed, in February 2009 and May 2010 respectively, to an eighty-acre tract of land that included her property, and she sought to quiet title and recover damages. (App. 19). Finally, in Count IV, she raised a claim of trespass and alleged the Powelsons' grant of a public utility easement to T–Mobile allowed the cell phone company to place utility lines that encroached and trespassed on her property.

The Powelsons...