Downing v. Owens

• Decision Date: 02 June 2004
• Docket Number: No. 48A02-0307-CV-643.,48A02-0307-CV-643.
• Citation: 809 N.E.2d 444
• Parties: Douglas and Mary DOWNING, and Connie and Jeff McKay, Individually and d/b/a Grandma's Treasures, Appellants-Defendants, v. G. Douglass OWENS, Mahoney, Heineman & Co., P.C., Dale Judy d/b/a Donnie's Old Oak Tavern Corp., Morris and Edith McCurty, and John Doe, Business Invitee of Businesses Located on East Side of 100 Block of Pendleton Avenue and North Side of East 100 Block of North Pendleton Avenue, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

809 N.E.2d 444

Douglas and Mary DOWNING, and Connie and Jeff McKay, Individually and d/b/a Grandma's Treasures, Appellants-Defendants, v. G. Douglass OWENS, Mahoney, Heineman & Co., P.C., Dale Judy d/b/a Donnie's Old Oak Tavern Corp., Morris and Edith McCurty, and John Doe, Business Invitee of Businesses Located on East Side of 100 Block of Pendleton Avenue and North Side of East 100 Block of North Pendleton Avenue, Appellees-Plaintiffs.

No. 48A02-0307-CV-643.

Court of Appeals of Indiana.

June 2, 2004.

Norris Cunningham, Barbara A. Killian, Hall Render Killian Heath & Lyman, P.S.C., Indianapolis, IN, Attorneys for Appellants.

Max Howard, Howard & DeLey, Anderson, IN, Attorney for Appellees.

OPINION

BAILEY, Judge.

Case Summary

Appellants-Defendants Douglas and Mary Downing and Connie and Jeff McKay, individually and d/b/a Grandma's Treasures (collectively, "Appellants") appeal the trial court's grant of a prescriptive easement to Appellees-Plaintiffs G. Douglass Owens, Mahoney, Heineman and Company, P.C. (individually, "Company"), Dale Judy d/b/a Donnie's Old Oak Tavern Corporation, Morris and Edith McCurty, and John Doe, business invitee of businesses located on east side of 100 Block of Pendleton Avenue and north side of East 100 Block of North Pendleton Avenue (collectively, "Appellees"). We reverse.

Issue

Appellants raise one issue, which we restate as whether the trial court erred by granting a prescriptive easement to Appellees because Appellees failed to establish that their use of the property at issue was actual, hostile, open, notorious, continuous, uninterrupted, and adverse for a period of twenty years under a claim of right or with Appellants' knowledge and acquiescence.

Facts and Procedural History

This lawsuit is the result of a property dispute between Appellants and Appellees regarding certain property located in downtown Pendleton, Indiana. The property at issue is a paved drive that passes diagonally, i.e., north to northeast, through the center of real property owned by Appellants, and includes parking spaces on both sides of the drive (hereinafter referred to as "Parcel"). Prior to 1977, the Penn Central Transportation Company ("Penn Central") and the Cleveland, Cincinnati, Chicago, and St. Louis Railway Company ("Railroad") were apparently in possession of the Parcel.¹ At that time, the Parcel was used by the public for parking, ingress, and egress.

On August 9, 1977, trustees of Penn Central and the Railroad conveyed the Parcel to Douglas and Mary Downing (the "Downings") via a quitclaim deed, which provides as follows:

ALL THAT PARCEL of land situate [sic] in the Town of Pendleton, County of Madison, and State of Indiana being Lot 37 and part of Lots 35, 36, 38 and 39 and part of an alley in the Original Plat of said Town, bounded and described and designated Parcel # 1 according to a plan of a survey made by John H. Manship & Associates dated June 3, 1977 as follows, viz:

BEGINNING at a point on the West line of Broadway said point being South 90 degrees West, 1,384.85 feet and South 00 degrees and 10 minutes East, 20 feet from the Northeast corner of the Northwest quarter of Section 21, Township 18 North, Range 7 East, and running thence South 00 degrees and 10 minutes East, 369.9 feet along said West line of Broadway, then South 89 degrees and 40 minutes West, 30 feet, thence South 00 degrees and 10 minutes East, 40 feet to the North line of State Street, thence South 89 degrees and 40 minutes West, 198.5 feet along said North line of State Street, thence North 20 degrees, 37 minutes and 40 seconds East, 363 feet to the West line of Lot 36 in the Original Plat of the Town of Pendleton, thence North 00 degrees and 10 minutes West, 38.6 feet along said West line, thence South 68 degrees and 45 minutes East, 24.7 feet, thence North 19 degrees and 55 minutes East, 46.28 feet to a point being 20 feet South of the centerline of Water Street, thence North 90 degrees and 00 minutes East, 59.05 feet to the place of beginning.

* * * * * *

THIS DEED is delivered by Grantor and accepted by Grantee upon the understanding and agreement that should any claim adverse to title hereby quitclaimed be asserted and/or proved, no recourse shall be had against the Grantor.

Appellants' App. at 455 (capitalization in original). This quitclaim deed was recorded on October 21, 1977.

On October 18, 1977, the Downings executed a quitclaim deed to Pendleton Savings and Loan Association ("Bank"), thereby giving Bank a security interest in the Parcel. Pursuant to the quitclaim deed, Bank agreed to return the deed to the Downings "upon payment by them in full of the purchase price."²Id. at 452. On January 3, 1986, Bank's successor-by-merger, First Indiana Federal Savings Bank, conveyed a Corporate Warranty Deed for the parcel to the Downings.

On January 24, 2001, the Downings conveyed a portion of the Parcel, consisting of Lots 38 and 39, to Jeff and Connie McKay (the "McKays"), who operate a business known as "Grandma's Treasures" on property adjacent to the Parcel. Thereafter, the McKays posted "no parking" signs on the Parcel, which provided that:

EFFECTIVE APRIL 1, 2001

THIS PARKING LOT

RESERVED FOR

PATRONS VISITING

GRANDMA'S TREASURES

ALL OTHERS WILL BE TOWED AT

OWNER'S EXPENSE 24 HOURS A DAY

Id. at 463 (emphasis and capitalization in original).

On June 25, 2002, Appellees filed an amended complaint for declaratory relief to establish a prescriptive easement to, and to prevent interference in their use of, the Parcel. On May 8, 2003, the trial court conducted a bench trial to determine whether Appellees acquired a prescriptive easement to the Parcel. On May 28, 2003, the trial court entered judgment in favor of Appellees and ordered the McKays to remove their "signs posted to prohibit parking." Id. at 9. This appeal ensued. Additional facts, including those pertinent to the parties' use of the Parcel, will be provided as necessary.

Discussion and Decision

I. Standard of Review

Our standard of review for findings of fact and conclusions thereon is governed by Indiana Trial Rule 52, which provides that "[o]n appeal of claims tried by the court without a jury ... the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." This Court engages in a two-tiered standard of review when applying this standard. Ballard v. Harman, 737 N.E.2d 411, 416 (Ind.Ct.App. 2000), reh'g denied. First, we consider whether the evidence supports the findings and, in so doing, we construe the findings liberally in support of the judgment. Id. Findings are clearly erroneous only when a review of the record leaves us firmly convinced that a mistake has been made. Id. Next, we determine whether the findings support the judgment. A judgment is clearly erroneous when the findings of fact and conclusions thereon do not support it. Id. In applying this standard, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. Rather, we consider the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. Id.

II. Analysis

On appeal, Appellants argue that the trial court's grant of a prescriptive easement in favor of Appellees was clearly erroneous because Appellees failed to demonstrate that their use of the Parcel satisfied the elements of a prescriptive easement. Prescriptive easements are not favored in the law and, thus, in Indiana, the party claiming one must meet stringent requirements. Corp. for Gen. Trade v. Sears, 780 N.E.2d 405, 410 (Ind.Ct.App. 2002). A prescriptive easement is established by actual, hostile, open, notorious, continuous, uninterrupted, adverse use for twenty years under a claim of right, or by continuous adverse use with the knowledge and acquiescence of the servient owner. Bauer v. Harris, 617 N.E.2d 923, 927 (Ind. Ct.App.1993),abrogated on other grounds, Consol. Rail Corp. Inc. v. Lewellen, 682 N.E.2d 779 (Ind.1997); see also Ind.Code § 32-23-1-1 ("The right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years."). Continuity of use for the requisite twenty-year period may be established by tacking from the use of predecessors in title. DeShields v. Joest, 109 Ind.App. 383, 387, 34 N.E.2d 168, 170 (1941).

The existence of a prescriptive easement is a question of fact. Ballard, 737 N.E.2d at 418. The party asserting the prescriptive easement has the burden of showing each element "as a necessary, independent, ultimate fact, and the failure to establish any one of such elements is fatal." Sears, 780 N.E.2d at 410.

In the present case, Appellants maintain that the trial court's grant of a prescriptive easement to Appellees was clearly erroneous because Appellees failed to establish each of the elements necessary to sustain their claims for a prescriptive easement. We agree. Indeed, there are at least three different theories under which the trial court's grant of a prescriptive easement to Appellees proves to be erroneous.

First, we observe that immediately after the McKays purchased their interest in the Parcel, they posted "no parking" signs in an effort to exclude Appellees' use of a portion of the Parcel. Prior to January 24, 2001, the McKays had no right to restrict or prohibit Appellees' use of the Parcel because the McKays did not have a property interest in the Parcel. Accordingly, the prescriptive period did not even begin to run, as against the McKays, until January 24, 2001. As such, Appellees have failed to demonstrate that they have used the portion of the Parcel owned by the McKays continuously for a period of twenty years.³ Thus, the trial court erroneously granted Appellees' claims for a prescriptive easement.

Second, and assuming...