Colley v. Carpenter

Decision Date11 April 1977
Docket NumberNo. 2--775A168,2--775A168
Citation172 Ind.App. 638,362 N.E.2d 163
PartiesAlbert C. COLLEY, Madeline Colley, Appellants (Plaintiffs, Below), v. Kenneth E. CARPENTER et al., Appellees (Defendants, Below).
CourtIndiana Appellate Court

John P. Price, Richard J. Darko, Bingham, Summers, Welsh & Spilman, Indianapolis, for appellants.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.

Plaintiff-appellant Colley appeals from a judgment in favor of defendant-appellee Carpenter which awarded a disputed strip of land to Carpenter in Colley's appeal from the findings of a legal survey to the circuit court.

We reverse.

FACTS

A brief outline of all transactions pertinent to the suit in question is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

1945--Opal Lawson owned both Tract #1 and Tract #2.

1945--Lawson sold Tract #1 to Chester Budd by land sale contract.

1947--Budd constructed the fence shown in the diagram above, thereby unknowingly cutting off a portion of the land described in the deed to Tract #1.

1948--Lawson executed the deed to Tract #1 to Budd.

1948--Lawson continued to live on Tract #2 for a few months, then she began to rent Tract #2 to other people, all of whom used the property up to the fence.

1948--1959--Tract #1 was owned and possessed by several people.

1957--1963--Colley ented Tract #2 from Lawson. Colley also used Tract #2 up to the fence.

1959--Carpenter bought Tract #1, still using the fence constructed by Budd as the boundary between Tract #1 and Tract #2.

1963--Lawson sold Tract #2 to Colley by and sale contract.

1969--Lawson executed the deed to Tract #2 to Colley.

1971--Carpenter requested a legal survey of Tract #1. Such legal survey determined that the boundary line did not follow the fence constructed by Budd, but that the boundary described in the deed to Tract #1 was in reality forty feet east of the fence at the lower portion of the tract.

1972--Colley appealed from the legal survey to the circuit court and alleged that the disputed strip of land was his by adverse possession.

1974--A judgment which upheld the determinations made by the legal survey was rendered in favor of Carpenter.

During his period of possession and ownership Colley built two small frame buildings without foundations on the disputed strip, often used the land for pasture, and on occasion maintained a garden plot on the disputed strip of land. Colley paid property taxes on 2.07 acres and Carpenter paid property taxes on 1.99 acres. Inasmuch as the parties stipulated that they paid all taxes which they were assessed respectively, then it follows that no assessments were made on the disputed strip of land. Therefore, neither party paid any taxes on that disputed strip of land.

ISSUE

Was the finding, decision, and judgment of the trial court in favor of Carpenter contrary to the evidence and contrary to the law in that the evidence was without conflict and could lead to but one conclusion, that conclusion being that Colley had established all of the elements necessary to show title by adverse possession, and yet the trial court reached the opposite conclusion?

DISCUSSION AND DECISION

Carpenter has not filed an appellee's brief with this court for the purposes of this appeal. Therefore, Colley need only show that the trial court committed prima facie error to win reversal. Likewise, the statement of facts contained in Colley's brief is deemed by us to be accurate and sufficient for the disposition of this appeal. See In re Sheeks (1976), Ind.App., 344 N.E.2d 872.

In order for Colley to prove a prima facie case of his adverse possession of the disputed strip of land which lies between Carpenter's tract of land and his, he must show that this possession was actual, visible, open and notorious, exclusive, under claim of ownership, hostile, and continuous for the statutory period. He must also show that he paid all the taxes which fell due upon such land during the period which he adversely possessed it. See Penn Central Transportation Company v. Martin (1976), Ind.App., 353 N.E.2d 474.

IC 1971, 34--1--2--2 (Burns Code Ed.) provides:

'The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards.

. . . for the recovery of the possession of real estate, within ten (10) years: Provided, That as to all such . . . causes of action for the recovery of the possession of real estate accrued prior to the effective date of this amendatory act (March 7, 1951), the time in which actions shall be commenced thereon shall be the same as if this amendatory act had not become law.' (Citations omitted) (Our emphasis)

However, in the case at bar the statutory period which is required to determine a change of ownership by adverse possession is twenty years.

Lawson sold Tract #1 to Budd in 1945, Budd erected the fence in 1947, and Lawson executed the deed to Tract #1 to Budd in 1948. Therefore, at the latest Lawson, the predecessor in title to Colley, began to adversely possess the strip of land now in dispute in 1948. Budd's cause of action to recover possession of his land east of his fence accrued prior to March 7, 1951. Therefore, the former statutory limit of twenty years 1 would apply.

On their face the facts show that Colley personally did not comply with the required statutory period. He began buying Tract #2 on contract in 1963, and this action was commenced in 1972. Therefore, he did not comply with the current ten year statutory limit, let alone the former twenty year limit. However, Colley contends that Lawson's period of possession and ownership can be tacked to his, thereby constituting a combined twenty-four years of adverse possession. With this we agree.

In Cooper v. Tarpley (1942), 112 Ind.App. 1, 41 N.E.2d 640, 643, the court said:

'It is settled that the statutory period of possession need not be maintained by one person. Successive periods of tenancy by different tenants may be tacked to constitute the...

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