Beaver v. Vandall, 66S03-8912-CV-896

• Decision Date: 07 December 1989
• Docket Number: No. 66S03-8912-CV-896,66S03-8912-CV-896
• Citation: 547 N.E.2d 802
• Parties: William M. BEAVER and Darlene B. Beaver, Appellants, v. John D. VANDALL and Elaine Vandall, Appellees.
• Court: Indiana Supreme Court

Page 802

547 N.E.2d 802

William M. BEAVER and Darlene B. Beaver, Appellants, v. John D. VANDALL and Elaine Vandall, Appellees.

No. 66S03-8912-CV-896.

Supreme Court of Indiana.

Dec. 7, 1989.

Bruce A. Dumas, Valparaiso, for appellants.

Mark E. Wagner, Kizer & Neu, Bremen, for appellees.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Third District Court of Appeals. This cause arose in the trial court in 1985 when William M. and Darlene B. Beaver brought action to quiet title to the disputed property and John D. and Elaine Vandall counterclaimed, alleging the property was theirs by adverse possession. The trial court found the Vandalls had proved right to title by adverse possession of the disputed property and the Beavers appealed that decision to the Court of Appeals. The Court of Appeals affirmed the trial court on all issues and this petition to transfer is brought by the Beavers. ¹

The issues decided by the Court of Appeals concern the finding by the trial court that Beaver was in contempt for action he took on the property during the trial and sufficiency of the evidence in establishing adverse possession by the Vandalls. The only issue raised in the Beavers' petition to transfer concerns the finding of adverse possession.

We find the issue concerning adverse possession demonstrated by Issue III in the Court of Appeals opinion presents insufficient evidence to establish adverse possession in the Vandalls. Accordingly, we vacate the opinion of the Court of Appeals, 532 N.E.2d 627, and reverse the judgment of the trial court on this issue.

The facts show that on January 23, 1973, the Beavers purchased a five (5) acre parcel of land in Starke County, Indiana. The five acres included the parcel ultimately sold to the Vandalls. On February 28 1974, the Beavers sold to the Vandalls a lot and house. The lot sold to the Vandalls measured one-hundred twenty-three feet by three-hundred thirty feet (123' X 330') and these dimensions are contained within the body of the deed. The conflict here involves an eighteen foot (18') strip on the northern boundary of the property which is not within the one-hundred twenty-three foot by three-hundred thirty foot dimension. This eighteen foot strip is contiguous to, and north of, the northern boundary of the lot conveyed. After the transaction was completed and the Vandalls were living on the property, the Vandalls requested Beaver to clear the northern border of the property and Beaver agreed to do it. Beaver removed trees and brush, not only from the northern part of the Vandalls' lot, but on into his own property for a distance of eighteen feet. He testified he cleared trees approximately four to six feet across the northern border so that the property line would be clear to both parties. The Vandalls claim that by clearing this additional property he indicated an intent for them to have and use as their own the entire area cleared. After this was done, John Vandall testified he leveled and seeded the area along the northern boundary but did not enlarge upon the area already cleared by Beaver. A propane gas tank was located on the property when Vandall purchased it from Beaver in 1974. The tank had been used by Beaver during construction of the house. Vandall replaced the original tank with a larger tank and built a fence around the tank. He used this larger tank for approximately one year. After that, Northern Indiana Public Service Company provided natural gas service to his home, so the tank was removed. During the summer of 1977, Vandall erected a utility building on the property on the site previously occupied by the original propane gas tank. The utility building was not considered by any of the parties to be a permanent improvement on the land. It was a small utility shed that sat on the ground. At one time, the Vandalls had a fence on their property which encroached on the eighteen foot area but did not reach or form a northern boundary, either at the lot line or the northernmost boundary of the eighteen foot strip. The utility building and propane tanks, when they existed on the property, were on the eighteen foot strip but were not on the northern boundary of it.

The Vandalls' claim of possession of the entire eighteen foot strip is based on their testimony that they maintained grass, including seeding, mowing and fertilizing, on the eighteen foot strip to its most northern boundary and that they never encroached further in their possession. The Beavers testified they did not become aware the Vandalls were encroaching on their property until a period between 1979 and 1981 when they noticed the Vandalls were encroaching further and further into their property. The Vandalls called as witnesses Richard and Annamae Anderson to testify on their behalf. The Andersons live across the road and west of the Vandall property. Richard Anderson testified he assisted Vandall in leveling and seeding his property. He conceded he did not observe any mowing along the northern property line. Annamae Anderson conceded she did not know if that part of the northern boundary area being mowed conformed to the legal boundaries of the Vandall property. They both testified the dimensions of the Vandall property did not appear to change over the years. When the Beavers became aware of the encroachment they observed beginning in 1979, they hired surveyor Janovic to survey the property. Janovic and his assistant Frankowski surveyed the property and located the boundaries of the original one-hundred twenty-three feet by three-hundred thirty feet (123' x 330') borders, establishing that the eighteen foot strip was north of and outside the description of the lot. Janovic placed stakes evidencing the border of the two pieces of property. In 1984 and 1985, Janovic had occasion to be on the property again and noticed the stakes had been removed. In 1985, the Beavers brought this action.

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