Greenco, Inc. v. May
| Decision Date | 17 February 1987 |
| Docket Number | No. 67A01-8605-CV-128,67A01-8605-CV-128 |
| Citation | 506 N.E.2d 42 |
| Parties | GREENCO, INC., Howard Moore, Defendants-Appellants, v. Nancy MAY d/b/a Monon Grill, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
C. Reid Priest, Larry J. Wilson, Greencastle, for defendants-appellants.
Robert J. Lowe, Greencastle, for plaintiff-appellee.
Defendant-appellants, Greenco, Inc. (Greenco) and Howard Moore (Moore), appeal the decision of the Putnam Circuit Court, which granted an easement in favor of plaintiff-appellee, Nancy May, d/b/a Monon Grill, over the Greenco property.
We reverse.
Nancy May is the current owner of a restaurant known as the Monon Grill and the property on which it is situated. Howard Moore is the principal agent for Greenco, 2 and situated on the Greenco property is a three-story brick commercial building and a parking lot. Nancy May's property and Greenco's property are contiguous; the parking lot is to the north of the Greenco building and shares a common boundary with the south end of Nancy May's property. This boundary line runs approximately 90 feet in length from east to west. The south wall of the Monon Grill Building is between four to five feet north of this boundary line. Customers of the Monon Grill had routinely used the Greenco parking lot to park their cars along and straddling the boundary line, and Nancy May sought a prescriptive easement for Monon Grill customer parking and for suitable ingress and egress.
The facts in the record reveal that both the Monon Grill property and the Greenco property changed ownership several times since the Monon Grill was built in 1938. The evidence related to ownership and use of the Monon Grill property from 1938-1951 is scant. At trial, two longtime patrons of the Monon Grill testified they had always parked along the north end of the Greenco parking lot for 30 years. However, they also acknowledged that the general public and Greenco customers had parked along that area as well. No witness or title was produced attesting to ownership of the Monon Grill from 1938-1951.
Leone Deem testified that she and her husband owned the Monon Grill from 1951-1957. She acknowledged that patrons of the Monon Grill regularly used the parking lot. There was never a demand for the Monon Grill to pay rent for parking, but the Deems never claimed the right to use the lot or posted a sign directing patrons of the Monon Grill to park there. The Deems sold the Monon Grill to Cliff Torr in 1954.
The next owner to testify was Charles Shuee, who stated he owned and operated the Monon Grill from 1962-1968. He stated he had a 99-year lease with the train depot immediately behind the Monon Grill and was required to keep the restaurant open 24 hours for train crews. He recalled that both patrons of the Monon Grill and the previous owner of the current Greenco property, a curtain factory, had used the parking lot. During his ownership, the city banned automobile parking on the street, and Mr. Shuee stated he did not need the parking lot before this happened. He knew the parking lot did not belong to him and that his customers were encroaching, so he made a verbal agreement with Ben Hoover, the manager of the curtain factory. In consideration for the right to permit the Monon Grill customers to use the north end of the parking lot, Mr. Shuee agreed to put in rock and grade the parking lot, remove snow in the winter, and provide Mr. Hoover with free coffee and a free lunch every day. Moore took title to the Greenco property in 1969. However, he testified that he received money from Mr. Shuee in return for maintenance of the parking lot.
Joyce York testified that she and her husband owned and operated the Monon Grill from the mid-1970's to 1981, or a period of approximately six and one-half years. She testified they bought the property from CPC Music. She was never aware she had rights to the parking lot property, and the question of parking was never raised. Moore asked for rental payments in the early 1980's, but the Yorks refused. The Yorks never posted a sign to direct customers to park in the lot; Joyce York stated the customers just parked there of their own free will. The Monon Grill was closed from August 1979 to March 1980, when the Yorks attempted to sell or lease the property. This attempt was unsuccessful, and they reopened the restaurant for business. The question of parking never came up when the Yorks eventually sold the property to the Logans.
Nancy May and her husband, Charles, purchased the Monon Grill in June of 1983, and Nancy May stated she was aware of the boundaries when the property was purchased. Mr. May stated he bought the Monon Grill with the understanding that they had parking rights in the Greenco lot, but acknowledged the issue of parking was never discussed. Moore asked the Mays to pay rent, but they refused. Nancy May noticed that cars other than those belonging to Monon Grill customers parked in the north end of the parking lot. She admitted that she does not claim exclusive rights for her customers to park in the lot. Mr. May gave the property to Nancy May in June 1, 1984. Nancy May also testified that she had the parking lot leveled and graded.
After Moore made several attempts to collect rent from the Monon Grill for parking, this dispute arose when Greenco started to construct a fence along the property line on June 23, 1984. Nancy May paid Moore $60.00 to cease and desist fence construction pending the outcome of this cause of action.
All of the above witnesses testified on behalf of the appellant, Nancy May; the only witness who was called to testify for the defense was Nancy May.
Greenco raises four issues for our review, but because of our resolution of this case, we only address the following issue:
Did the trial court err in finding a prescriptive easement.
In this appeal, Greenco primarily challenges the trial court's findings of fact, relying on various facts in the record discussed above. In its judgment, the trial court made very few findings of fact related to the easement in question. Pertinent to this appeal, they are as follows:
"9. That since 1938 the patrons of the Monon Grill have routinely and regularly parked their automobiles along the south side of the building, thus occupying a portion of defendant's property, and have further used so much of the adjacent area of defendant's land as is necessary for ingress and egress to said parking lot.
10. That said use for parking and ingress and egress was done with the knowledge of defendant and his predecessors in title.
11. That there existed no contract or agreement respecting said use, and no rentals or compensation for same were ever paid, or even demanded until defendant requested same sometime in the early 1980's.
12. That defendant made demand on plaintiff for rent for the parking area in early June, 1984, which plaintiff did not pay.
13. That in June, 1984, defendant, Greenco, Inc., or its successor shareholders, by and through its officer/agent Howard Moore, commenced construction of a fence along the parties' boundary line, and informed plaintiff's customers that they could not park there.
14. That thereafter plaintiff paid defendant the sum of $60.00, that being the minimum amount that defendant would accept to cease and desist putting up the fence.
15. That plaintiff's predecessors in title, Burneard and Joyce York, did not intend to abandon the right to use the parking area when they temporarily closed the restaurant for approximately six months in 1979 and 1980.
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17. That plaintiff has met her burden of proof in showing by a preponderance of the evidence that she and her predecessors in title exercised an actual, hostile, open, notorious, continuous, uninterrupted, and adverse use under claim of right, and with the knowledge and acquiescence of defendant and his predecessors, for a period of at least twenty years between the time plaintiff's building was constructed in its present location in 1938 and the filing of this cause, and there is therefore an easement appurtenant to and in favor of plaintiff's real estate and over so much of defendant's real estate as is necessary to park automobiles along the south side of plaintiff's building as now located, and for ingress and egress thereto."
Record at 137-38. When reviewing these findings, we neither weigh the evidence nor judge the credibility of witnesses, but consider only...
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