Berrey v. Jean

• Decision Date: 13 March 1980
• Docket Number: No. 1-979A247,1-979A247
• Citation: 401 N.E.2d 102
• Parties: E. W. BERREY and Elberta Berrey, Appellants (Defendants Below), v. William D. JEAN and Harlan D. Jean for themselves and the Williams Cemetery Association, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 102

401 N.E.2d 102

E. W. BERREY and Elberta Berrey, Appellants (Defendants Below), v. William D. JEAN and Harlan D. Jean for themselves and the

Williams Cemetery Association, Appellees (Plaintiffs Below).

No. 1-979A247.

Court of Appeals of Indiana, First District.

March 13, 1980.

Richard W. Lorenz, Hickam & Hickam, Spencer, for appellants.

Charles W. Edwards, Spencer, for appellees.

ROBERTSON, Presiding Judge.

E. W. and Elberta Berrey (Berreys) appeal an adverse ruling in a quiet title action initiated by William D. Jean and Harlan D. Jean, for themselves and the Williams Cemetery Association (hereinafter collectively referred to as Cemetery Association). The real estate in question is a cemetery; the issue at trial concerned its dimensions.

We affirm.

Facts supportive of the judgment are as follows: Systematic burial in the area known as Williams Cemetery, in Jefferson Township, Owen County, Indiana, commenced sometime prior to 1880. Articles of Association of the Williams Cemetery Association were prepared and signed in 1908 but were never recorded. In 1939, a plat of the cemetery was placed in the office of the Veteran's Service Officer of Owen County. The most recent interment occurred in 1969, and there exist gravestones in place for persons still living who desire to be buried there. In the winter of 1977-78 the Cemetery Association was revived, a trust fund was established for the maintenance of the cemetery at a local bank, and a trustee was appointed to care for the grounds.

Lifetime residents and persons long familiar with the area testified at the trial that the cemetery had long been known in the community as Williams Cemetery; that four concrete corner posts defining the perimeter of the cemetery had existed for some sixty years; and that fencing which had once been in place on all four sides connecting the posts, has remained on three sides for some thirty-three years. The unfenced side of the cemetery is bordered by a highway and an access to the cemetery over the Berreys' property has been utilized for approximately forty-five years.

Part of the cemetery land is on a slope, and the existing gravestones are located at the top of the hill. The sloping portion of the land is as yet unencumbered by burial sites. The Berreys purchased acreage surrounding the cemetery in 1975. Prior to their purchase, they secured a title opinion which did not reflect the existence of the cemetery on the property.

In 1978, the Cemetery Association commenced an action to quiet title to the property. The Berreys stipulated the existence of the cemetery, and that the cemetery should be allowed access over the Berreys' property. The contested issue at trial concerned the extent of the cemetery property. The Berreys argued that the boundaries should be restricted to the area encompassing the observable gravesites with a ten-foot perimeter, while the Cemetery Association claimed that the entire area as defined by the cornerposts and fencing belonged to the Association.

Judgment was entered for the Cemetery Association. The trial court ordered a survey to be made of the area so defined, and quieted title in the Cemetery Association to that property. Further, the trial court ordered a survey made of the access lane, and awarded an easement thereover in favor of the Cemetery Association.

The first issue raised by the Berreys is whether the trial court's finding of adverse possession by the cemetery to the entire tract of land, as defined by the cornerposts and fence, was supported by sufficient evidence. The Berreys base this contention upon three grounds. First, the Berreys claim that they had no notice, either actual or constructive, of the cemetery's use of the land to the extent reflected by the trial court's finding. Second, they urge that the cemetery failed to prove adverse possession in the absence of a showing that it paid taxes on the land as required by Ind.Code 32-1-20-1. Finally, the Berreys contend that the finding of adverse possession was error in that the cemetery made no physical use of the disputed land, that the cement posts and fence were installed not to enclose the cemetery but to control the movement of livestock, and that the Berreys had exercised dominion and control over the contested tract by mowing the grass and repairing a portion of the fence.

When the sufficiency of the evidence is questioned on appeal, the reviewing court will not weigh the evidence but will consider only that evidence most favorable to the appellee together with the reasonable inferences to be drawn therefrom. Jones v. Abriani, (1976) Ind.App., 350 N.E.2d 635. The judgment of the trial court must be upheld if it can be sustained on any legal theory which the evidence supports. Tarrant v. Self, (1979) Ind.App., 387 N.E.2d 1349.

The relevant portion of the trial court's judgment reads as follows:

"The Court further finds that Williams Cemetery as fenced and indicated by said corner posts has been in open and visible use, known in that general area as Williams Cemetery, and occupied as such for approximately 100 years."

As we interpret the judgment of the trial court, title to the disputed land was found to have passed to the cemetery by adverse possession at some point in time prior to the purchase of the record title thereto by the Berreys in 1975. In order to establish title by adverse possession, the Cemetery Association had to show that its possession thereof was actual, visible, open and notorious, exclusive, under claim of ownership, hostile, and continuous for the statutory period. Penn Central Transportation Co. v. Martin, (1976) Ind.App., 353 N.E.2d 474. The present statutory period for adverse possession is ten years. Ind.Code 34-1-2-2. Proor to 1951, however, an action to recover possession of realty had to have commenced within twenty years. § 2-602, Burns 1933. The judgment is silent as to the precise date the adverse possession began; it may reasonably be inferred from the facts, that such possession commenced prior to 1965 and that the statutory period had expired. The Berreys offered no evidence at trial, nor do they contend on appeal, that the relationship between the cemetery and the previous owner or owners of the land was of such a nature to render a finding of adverse possession improper. The record contains evidence that: the cemetery began operating sometime before 1880; the corner posts had been in place for sixty years or longer; the fencing had at one time enclosed the entire disputed tract, and has existed around three sides thereof for some thirty-three years. Two long-time residents testified that the cemetery boundaries, as defined by the posts and fences, had not changed in as long as they could remember. There is no evidence in the record to show that the property had ever been used for a different purpose. From the foregoing we may infer that title was found to have vested in the cemetery by adverse possession. This occurred well before the Berreys purchased the record title to the property.

The Berreys insist that they lacked notice of the cemetery's claim to the disputed land. They argue that constructive notice may not be imputed to them because there is nothing in the chain of title reflecting the cemetery's occupation of the property. They urge that the extent of their actual notice of the cemetery's possession was restricted to the area of land at the top of the hill actually covered by the monuments. We do not consider...