Contel of Indiana, Inc. v. Coulson, 11A01-9503-CV-74
| Decision Date | 22 December 1995 |
| Docket Number | No. 11A01-9503-CV-74,11A01-9503-CV-74 |
| Citation | 659 N.E.2d 224 |
| Parties | CONTEL OF INDIANA, INC., Appellant-Defendant, v. Lee COULSON, Beverly Coulson and Zoe Coulson, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Contel of Indiana, Inc. ("Contel") appeals from the trial court's grant of partial summary judgment in favor of Lee Coulson, Beverly Coulson and Zoe Coulson (the "Coulsons") on the Coulsons' complaint for trespass. The Coulsons filed suit against Contel after Contel buried fiber optic telephone cable adjacent to a public roadway on property owned by the Coulsons. The parties filed cross-motions for partial summary judgment. Following a hearing, the trial court entered partial summary judgment in favor of the Coulsons and concluded, as a matter of law, that the State of Indiana has no right-of-way or easement beyond the traveled portion of the roadway. 1
We affirm.
The sole issue presented for our review is whether the trial court erred when it held that the State's right-of-way included only the traveled portion of the road.
The Coulsons own property in Sullivan County, the boundary of which extends to the center of State Road 63, which was formerly a county road. No fee or easement for a right-of-way was ever conveyed to the County or the State, but the motoring public has traveled along the roadway for many years. The Indiana Department of Transportation issued a permit to Contel to lay telephone cable in the State Road 63 right-of-way. In its permit, the State did not indicate the width of the right-of-way. Contel dug trenches and buried approximately two and one-half miles of fiber optic telephone cable along the road in areas which at all times were beyond the paved roadway.
The Coulsons filed their complaint against Contel for trespass seeking compensatory and punitive damages for Contel's conduct in burying the cable after the Coulsons had advised Contel that they owned the property in question. Contel moved for partial summary judgment and sought a ruling to determine the width of the State Road 63 right-of-way. The Coulsons filed a cross-motion for partial summary judgment. The trial court concluded that the State of Indiana's right-of-way easement over the Coulsons' property included only the traveled portion of the road, excluding any berm or shoulder and, thus, entered partial summary judgment in favor of the Coulsons. At Contel's request, and finding no just reason for delay, the trial court entered final judgment on its entry of partial summary judgment. Contel now appeals.
Summary judgment may be rendered upon less than all of the issues or claims. Ind.Trial Rule 56(C). In reviewing a trial court's ruling on a motion for summary judgment, the appellate court is required to apply the same standard applied by the trial court. Farm Equip. Store, Inc. v. White Farm Equip. Co. (1992), Ind.App., 596 N.E.2d 274, 275. Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Lucas v. Stavos (1993), Ind.App., 609 N.E.2d 1114, 1116, trans. denied. We resolve any doubt as to fact, or an inference to be drawn therefrom, in favor of the non-moving party. Gilliam v. Contractors United, Inc. (1995), Ind.App., 648 N.E.2d 1236, 1238, trans. denied.
The fact that both parties request summary judgment does not alter our standard of review. Laudig v. Marion County Bd of Voters Registration (1992), Ind.App., 585 N.E.2d 700, 704. Rather, "we must separately consider each motion to determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Id.
Contel contends the trial court erred when it entered partial summary judgment in favor of the Coulsons. Specifically, Contel argues that the court erroneously concluded that the State's right-of-way covered only the traveled portion of the road, excluding the land adjacent to the paved road. We cannot agree.
State Road 63 is a former county road, the maintenance of which was assumed by the State many years ago. No public easement or right-of-way over the Coulsons' property has ever been conveyed by instrument or acquired by condemnation. As with most county roads, the property rights of abutting landowners extend to the center of the roadway subject only to an easement of the public to use the street or highway. See Gorby v. McEndarfer (1963), 135 Ind.App. 74, 82, 191 N.E.2d 786, 791 (citing Street, Indiana Title to Real Property, § 789). The Coulsons do not dispute that the State has a public road right-of-way over a portion of their property. The parties disagree, however, on the extent of that right-of-way.
Since there is no record indicating that the State has acquired a right-of-way over the Coulsons' property by purchase or condemnation, Indiana law dictates that the State Road 63 right-of-way must be determined by public use. In Anderson v. City of Huntington (1907), 40 Ind.App. 130, 81 N.E. 223, our supreme court recognized that the public right-of-way "cannot be greater than the use" and stated:
Where the boundary lines of a road have never been established by any competent authority, but the right of the public to travel over such road has been established by continuous usage, the width of such road is determined by the width of such use.
Id. at 133, 81 N.E. at 224; see Evans v. Bowman (1915), 183 Ind. 264, 267, 108 N.E. 956, 958. More recently, this court has recognized that the width of a road established by use is limited to that portion actually traveled and excludes any berm or shoulder. Bd. of Comm'rs of Monroe County v. Hatton (1981), Ind.App., 427 N.E.2d 696, 699. In Hatton, the plaintiff sought to establish that the County either owned or had assumed responsibility to maintain an area adjacent to a county road and had a corresponding common law duty in negligence in connection with the land. We noted that neither a record of county ownership of the adjacent areas nor any legal description of the road itself could be found, "which is a common situation for highways established by use." Id. at 699. Thus, we determined that there was no evidence to support a reasonable inference of County ownership or responsibility for the areas adjacent to the traveled portion of the roadway. Id.
Similar to the present case, in Elder v. Bd. of County Comm'rs of Clark County (1986), Ind.App., 490 N.E.2d 362, trans. denied, a landowner sued the County in inverse condemnation. The County had cut down trees and shrubs on the plaintiff's property adjacent to a public road in an attempt to widen the paved roadway from approximately 20 feet to 40 feet. The County asserted it had a 40 foot right-of-way in the area despite the fact that the width of the paved road had always been 20 feet. In Elder, we noted the longstanding Indiana precedent that the width of the right-of-way is determined by the public use. Id. at 364; Anderson, at 133, 81 N.E. at 224; McCreery v. Fallis (1903), 162 Ind. 255, 67 N.E. 673; Bd of Comm'rs v. Huff (1883), 91 Ind. 333; Hart v. Trustees (1860), 15 Ind. 226; Epler v. Niman (1854), 5 Ind. 459. Although the County produced the testimony of the county surveyor and several survey maps in support of its claimed right-of-way, we held that the evidence presented by the County was insufficient as none was recorded in a proper record which would be brought into the landowner's abstract as notice of the County's claim of a 40 foot right-of-way. Elder, 490 N.E.2d at 365. We decided that a contrary ruling would drastically disturb settled land titles. Id. 2
Here, we agree with the trial court and conclude that the State Road 63 right-of-way is coextensive with the paved roadway. There is no evidence to show that the public has ever "traveled" on the land adjacent to the roadway. See Hatton, 427 N.E.2d at 699. Neither the State nor the County has ever acquired a right-of-way to property adjacent to the roadway by conveyance or condemnation, and no additional right-of-way has been acquired by use. No markers have ever been placed on the Coulsons' property to show that the State claimed a right-of-way beyond the pavement. Indeed, when it granted Contel the permit to bury telephone lines, the State did not indicate the actual extent of its right-of-way. The State merely granted Contel permission to bury its telephone cable within the public road right-of-way, which we have determined includes only the paved road.
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