Bauer v. Harris

• Court: Indiana Appellate Court
• Writing for the Court: NAJAM
• Citation: Bauer v. Harris, 617 N.E.2d 923 (Ind. App. 1993)
• Decision Date: 13 July 1993
• Docket Number: No. 65A01-9208-CV-267,65A01-9208-CV-267
• Parties: James A. BAUER and Peggy L. Bauer, Appellants-Plaintiffs, v. Keith H. HARRIS and Tammy D. Harris, Appellees-Defendants, v. Laura Lee BARRELL, Third Party Defendant.

Page 923

617 N.E.2d 923

James A. BAUER and Peggy L. Bauer, Appellants-Plaintiffs, v. Keith H. HARRIS and Tammy D. Harris, Appellees-Defendants, v. Laura Lee BARRELL, Third Party Defendant.

No. 65A01-9208-CV-267.

Court of Appeals of Indiana First District.

July 13, 1993.

Rehearing Denied Aug. 19, 1993.

Curt J. Angermeier, Evansville, for appellants-plaintiffs.

Leslie C. Shively, Noffsinger, Price, Bradley & Shively, Evansville, for appellees-defendants.

STATEMENT OF THE CASE

NAJAM, Judge.

James and Peggy Bauer ("Bauers") appeal a judgment in favor of their neighbors, Keith and Tammy Harris (Harrises), following a bench trial on the Bauers' claim of a prescriptive easement across a twelve-foot wide strip of the Harrises' property. The trial court found that the Bauers failed to establish their claim because their use was not exclusive, continuous or under a claim of right. We reverse and remand. ¹

ISSUE

The Bauers present three issues for our review, but because of our resolution of this case, we address only the following issue: whether the trial court erred as a matter of law by concluding that the Bauers had not established a prescriptive easement over the Harrises' property. ²

FACTS

The facts most favorable to the judgment show that since 1883, the Bauer family has owned a one and three-quarters acre tract of land in Vanderburgh County which lies adjacent and contiguous to property presently owned and acquired by the Harrises in March of 1989. Since the early 1900's, the Bauers have used a twelve-foot wide path or driveway ("Driveway") which crossed the extreme, southern tip of the Harris property to gain access to the Bauer property from Darmstadt Road east of the Harris property. During that time, the Bauers have constructed agricultural buildings on their property and used their property for a number of personal and business purposes, including boarding horses, operating a granary, and gardening and farming.

From 1904 to approximately 1940, the Evansville-Princeton traction line ("Railroad") was in service along the east/west boundary between the Bauer and Harris properties, and members of the public used the Driveway for access to the Railroad. Until approximately 1921, the Bauers operated a granary business, and their customers would use the Driveway for access to the granary. Thereafter, the Bauers and their customers used the granary facility as a barn for storing farm implements until the Bauers razed the facility in 1945. From the 1930's until 1979, the Bauers leased a driveway across their property to another neighbor for access by that neighbor to a garage on adjoining property, which also required use of the Driveway across the Harris property. While the Driveway was not the only means of ingress and egress to the Bauer property, the Bauers, their customers and lessees used the Driveway primarily because it provided more convenient access.

In 1987, the Bauers again leased their property, this time to the Peyronnin Construction Company. Peyronnin's vehicles also used the Driveway across the Harris property in order to gain access to the Bauer property. While using the Bauer property, Peyronnin placed gravel on the Driveway to facilitate construction traffic. In early May of 1989, after the Harrises had acquired title to their property but before taking possession, Peyronnin complied with the Harrises' request that it remove the gravel and plant grass over the Driveway.

Also in early May of 1989, the Bauers decided to sell their property at public auction. A representative of the Bauers placed a sign advertising the auction near Darmstadt Road in the Driveway area. The Harrises protested and the sign was relocated farther west off Darmstadt Road on the Bauers' property. That sign apparently awakened the Harrises, because shortly thereafter the Harrises erected a fence which obstructed the Driveway, declaring that the Bauers had no right to cross their property. The Bauers filed suit on August 2, 1989, claiming an easement over the Harris property and the Harrises counterclaimed to quiet title to the disputed area. The trial court entered judgment for the Harrises, and the Bauers appeal. We will state additional facts in our discussion where necessary.

DISCUSSION AND DECISION

The trial court entered judgment accompanied by special findings as requested by the Bauers pursuant to Trial Rule 52(A). When reviewing such findings and conclusions, we first determine whether the evidence supports the court's findings, and second, whether the findings support the judgment. Matuga v. Matuga (1992), Ind.App., 600 N.E.2d 138, 140, trans. denied. The judgment will be reversed only when clearly erroneous, or when it is unsupported by the findings and conclusions entered on those findings. Id. We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Id.

If the special findings do not support the judgment, our review is concluded. In Matter of E.M. (1991), Ind.App., 581 N.E.2d 948, 951, trans. denied. We may not search outside the trial court's findings for evidence which supports the judgment. Data Processing Services, Inc. v. L.H. Smith Oil Corp. (1986), Ind.App., 493 N.E.2d 1272, 1274. To affirm, we must instead determine that the specific findings made are adequate to support the trial court's decision. Id. Special findings are adequate if they disclose a valid basis for the legal result reached by the trial court. Id. Likewise, special findings are inadequate if they fail to disclose a valid basis for the conclusions and judgment. See id.

The Bauers contend that the judgment is erroneous as a matter of law due to the following conclusions entered by the trial court:

"Harris and their predecessors permitted use of their property by Bauer and their predecessors, but the general public and specific others were permitted to use the pathway.

While Baier's [sic] use need not be exclusive, at a minimum their use had to be exclusive as to the public in general and under some claim existing in Bauer's favor. Such was not established by the evidence. DeShields v. Joest ( Ind.App. , 1941), 34 N.E.2d 168

Bauer's use of the pathway was not exclusive and was intermittent and occasional, not continuous and uninterrupted, and was permissive, not under a claim of right."

Record at 21. The Bauers acknowledge that the testimony of Bauer family members generally supports the trial court's findings of fact. See Appellants' Brief at 11. Therefore, our only task is to determine whether the findings of fact support the trial court's conclusions and judgment.

A prescriptive easement is established by actual, open, notorious, continuous, uninterrupted, adverse use for 20 years under a claim of right, or by continuous adverse use with the knowledge and acquiescence of the servient owner. Powell v. Dawson (1984), Ind.App., 469 N.E.2d 1179, 1181; IND.CODE Sec. 32-5-1-1. Continuity of use for the requisite twenty-year period may be established by tacking from the use of predecessors in title. DeShields v. Joest (1941), 109 Ind.App. 383, 387, 34 N.E.2d 168, 170, trans. denied. Thus, we cannot agree with the Harrises' contention that only the period from 1979, during which James and Peggy Bauer have been in title and possession, is relevant and that it is "impossible" for them to have met their burden of proof. See Appellees' Brief at 11-12. 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. DeShields, 109 Ind.App. at 387, 34 N.E.2d at 170; Reder v. Radtke (1961), 132 Ind.App. 412, 417, 177 N.E.2d 669, 672. In other words, a rebuttable presumption that use is adverse arises under those circumstances, and in order to rebut that presumption the owner must explain such use by demonstrating that he merely permitted the claimant to use his land. Bulatovich v. Easton (1982), 435 N.E.2d 997, 998-99, trans. denied.

Exclusivity of Use

The primary dispute between the parties concerns the proper interpretation to be given our decision in DeShields v. Joest, where we discussed what constitutes exclusive use of a prescriptive easement:

" 'By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be exclusive as against the right of the community at large.' "

Id., 109 Ind.App. at 388, 34 N.E.2d at 170 (quoting Cox and Wife v. Forrest (1883), 60 Md. 74) (emphasis added). The Harrises contend that the trial court's interpretation of DeShields is correct, apparently reasoning that DeShields means that use of an easement cannot be exclusive for the required period if the general public also uses the easement. The Bauers, however, urge that the mere fact that the general public also used the easement does not render the Bauers' use non-exclusive. We hold that the trial court misapplied the DeShields decision to the facts of this case. The trial court's conclusion that the Bauers' use was not exclusive is contrary to law because the Bauers did not rely upon the general public's use of the Driveway but instead relied upon their own use of the Driveway for personal and business purposes to establish their claim.

Public use of an easement does not per se deprive a claimant of exclusive use of an easement. Rather, DeShields provides only that, "the right should not depend for its enjoyment upon a similar right in others." Id. In DeShields and in Alsam v. Matthews (1954), 125 Ind.App. 132, 141, 122 N.E.2d 145, 149, a case which follows DeShields, we applied this...