Fraley v. Minger
Citation | 786 N.E.2d 288 |
Decision Date | 10 April 2003 |
Docket Number | No. 69A01-0208-CV-315.,69A01-0208-CV-315. |
Parties | Clarence E. FRALEY, Appellant-Defendant, v. Clarence K. MINGER and Eva Minger, Appellees-Plaintiffs. |
Court | Court of Appeals of Indiana |
Todd A. Richardson, Matthew S. Tarkington, Lewis & Kappes, Indianapolis, IN, Rita J. Baldwin, Zionsville, IN, Attorneys for Appellant.
Larry L. Eaton, Versailles, IN, Attorney for Appellees.
Appellant-defendant Clarence E. Fraley appeals the trial court's judgment in favor of appellees-plaintiffs Clarence K. Minger and Eva Minger on their adverse possession claim. We reverse.
Fraley raises several issues for review, one of which we find dispositive and restate as whether the Mingers' failure to pay taxes on the property at issue is fatal to their adverse possession claim.
The instant case involves a dispute over a 2.5-acre parcel ("the parcel") that is part of a 5.4471-acre tract in Ripley County ("the tract"). Truman Belew and his wife Margaret purchased the tract in 1954 or 1955, sold it, and regained title to the tract by 1963. The tract's western boundary follows the centerline of County Road 625 East; its northern boundary follows Hogan Creek; its eastern boundary follows the centerline of an abandoned road; and its southern boundary line extends westward from the southern boundary line of an adjacent property to the east owned by Fraley.
In May 1955, the Mingers acquired title to property east of the tract and north of Fraley's property. The Mingers knew that the tract was not included in their deed and believed that it was "unclaimed." Tr. at 19. Beginning in the 1960s, the Mingers and their children pastured cattle, hunted, camped, and rode dirt bikes on the tract, as well as gathered wood and sold timber from the tract. In 1972, the Mingers erected a fence on the tract along County Road 625 East. Several years later, the Mingers installed a culvert from the county road across Hogan Creek to access the tract.
In 1991, the Belews conveyed to Ripley County a right-of-way easement over a portion of the tract in contemplation of the reconstruction of the county road bridge over Hogan Creek. Truman died in 1994. In 1996, the Belews' son Melvin conveyed the tract to Fraley by guardian's deed. On October 25, 1996, the Mingers sued to quiet title to the 2.5-acre parcel, claiming that they had "openly and adversely possessed" this northern portion of the tract for more than twenty years. Appellant's App. at 13. On August 25, 1999, the trial court entered summary judgment in favor of the Mingers. In a memorandum decision, a panel of this court reversed the trial court's judgment and remanded for further proceedings. See Fraley v. Minger, 729 N.E.2d 614 (Ind.Ct.App. 2000). On July 16, 2002, the trial court entered judgment in favor of the Mingers and awarded them fee simple ownership of the parcel. Fraley now appeals.
Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.Ct.App.2001) (citation omitted).
The statutory period for achieving adverse possession is ten years. Ballard v. Harman, 737 N.E.2d 411, 416 (Ind. Ct.App.2000) (citing Ind.Code § 34-11-2-11). The following elements are required to establish adverse possession: "1) actual possession; 2) which is visible; 3) open and notorious; 4) exclusive; 5) under a claim of ownership; 6) hostile to the record owner; and 7) continuous for the statutory period." Id. In its judgment, the trial court concluded that the Mingers had established these elements. See Appellant's App. at 9.
(Emphasis added.) At trial, the Mingers failed to establish that they ever paid taxes on the parcel. On appeal, they rely on Echterling v. Kalvaitis, 235 Ind. 141, 126 N.E.2d 573 (1955), in contending that "[p]ayment of the taxes on the [parcel] was not required where [they] paid the taxes on their land adjacent to the [parcel]." Appellees' Br. at 8; see also Appellant's App. at 6 ( ).
In Echterling, the common ownership of a quarter section of land had been separated in 1906. At that time, an old barbed wire fence ran "north and south ten feet west of the quarter-quarter section line, separating these two tracts of land and extending the full length thereof." Echterling, 235 Ind. at 143, 126 N.E.2d at 574.1 In approximately 1951, when the owners of the quarter-quarter sections conducted a legal survey of the properties "in order to save future dispute as to boundary lines[,]. . . . it was thereby established that a strip of land 10 feet in width, to which the appellants [had] record title, [lay] on the appellees' side of said fence." Id. at 144, 126 N.E.2d at 574. The appellees "claim[ed] title by adverse possession to the 10-foot strip between the property to which they [had] record title and the old north and south fence." Id. The trial court found "for the appellees on their [adverse possession claim] and quieted their title to said 10 foot strip." Id. After our court reversed the trial court's judgment, our supreme court accepted transfer.
Id. at 146-47, 126 N.E.2d at 575-76 (emphases added, citations omitted).
Subsequent opinions of this court have expanded the Echterling court's "gloss" of the tax statute beyond its narrow scope. See, e.g., Connors v. Augustine, 407 N.E.2d 1186, 1189 (Ind.Ct.App.1980)
) , trans. denied; Clark v. Aukerman, 654 N.E.2d 1183, 1187 (Ind. Ct.App.1995) () (citing Echterling); Williams v. Rogier, 611 N.E.2d 189, 193 (Ind.Ct.App.1993) ( ...
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Fraley v. Minger
...acres of land to the adverse possessors, plaintiffs Clarence K. Minger and Eva Minger. The Court of Appeals reversed. Fraley v. Minger, 786 N.E.2d 288 (Ind.Ct.App.2003). We granted transfer, 804 N.E.2d 748. Upon examination of the common law concept of adverse possession in Indiana, we reph......
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