Jackson v. Board of Com'Rs County of Monroe

• Decision Date: 16 November 2009
• Docket Number: No. 53A05-0901-CV-20.,53A05-0901-CV-20.
• Citation: 916 N.E.2d 696
• Parties: Jerold JACKSON and Virginia Jackson, Appellants-Plaintiffs, v. The BOARD OF COMMISSIONERS OF the COUNTY OF MONROE, Appellee-Defendant, Vova Johnson, Robert John, Harry Breedlove and Charles Breedlove, Appellees-Third Party Plaintiffs.
• Court: Indiana Appellate Court

916 N.E.2d 696

Jerold JACKSON and Virginia Jackson, Appellants-Plaintiffs, v. The BOARD OF COMMISSIONERS OF the COUNTY OF MONROE, Appellee-Defendant, Vova Johnson, Robert John, Harry Breedlove and Charles Breedlove, Appellees-Third Party Plaintiffs.

No. 53A05-0901-CV-20.

Court of Appeals of Indiana.

November 16, 2009.

Geoffrey M. Grodner, Kendra G. Gjerdingen, Stacy F. Thompson, Mallor Clendening Grodner & Bohrer LLP, Bloomington, IN, Attorneys for Appellants.

David B. Schilling, Monroe County Attorneys' Office, Bloomington, IN, for Appellee, Bd. Of Comm. of Monroe County.

OPINION

MAY, Judge.

Jerold and Virginia Jackson appeal the trial court's determination that a road running through their property is a public road. We reverse.

FACTS AND PROCEDURAL HISTORY

Moores Creek Road is a public road that ends near the northern shore of Lake Monroe. From the southern end of Moores Creek, a road known locally as Baxter Branch Road extends toward the northeast. Maps dating as early as 1897 show Baxter Branch extending from Moores Creek to State Road 446 or to other roads that connect with State Road 446. However, the eastern portion of the road has not been maintained and has fallen out of use.

For many years, the Pennington family owned land that was bounded on the west by Moores Creek, and Baxter Branch ran through their property near its southern border. In 1964, Gene Adams purchased the property just east of the Penningtons' property and built a campground on it. To the south of the campground is an open field owned by the federal government. Baxter Branch runs through the campground property close to the border between the campground property and the government property.

Adams built a campground, store, and private residence on his property. The residence was located off of Baxter Branch near the western edge of the property. The campground had three camping areas, called (from west to east) hill one, hill two, and hill three. The store was located near hill three. In 1977, Adams sold his property to Ron and Kay St. Martin. The St. Martins continued to operate the campground, but they converted the store into a game room for their campers. In 2003, the St. Martins sold the property to the Jacksons, who are the current owners. The Jacksons built a new residence, which is located east of hill three.

For purposes of argument, the parties have divided the contested road into three segments: AB is the segment from Moores Creek to the western edge of the campground property, BC is the segment from the western edge of the campground property to the place where the store had been located, and CD is the segment from the store to the eastern edge of the campground property.¹

Paul Pennington, who was seventy-six at the time of trial, had lived in the area longer than any other witness. When Pennington was growing up, Baxter Branch was a dirt road used by the Penningtons and some neighboring farmers. From the earliest time he could remember, there was one gate across the west end of the road where it connected to Moores Creek, (at Point A), and a second gate on the eastern border of the Penningtons' property (which is Point B). Landowners to the east also had gates across the road. Pennington's father kept the gates closed at all times. The Penningtons permitted neighboring farmers to use the portion of the road located on their land. Anyone who used the road would open and shut the gates. These gates rotted away around the time Adams bought the campground.

When Adams built the campground, Pennington widened Segment AB, which is the portion on his property, and covered it with stone. Adams also made improvements to at least a portion of Segment BD, as it passed through the campground property.

On August 29, 1964, Adams prepared a document that read, "I do hereby give my consent for the road over and to Section 30 to be traveled by the public."² (Defendants' Ex. 10.) It was signed by Pennington.³ When asked whether he intended by this to make the road a public road, Pennington responded, "I didn't stop nobody from going in, the road was there and, uh, at that time, it was no concern to me. . . . I didn't intend, at the time being, it didn't even enter my mind. It was there . . . as long as I can remember and it didn't concern me one way or the other what became of it." (Tr. at 98) (errors in original).

At some point, a dirt pile was placed in the road near Point D at the eastern edge of the campground property. Pennington testified Adams paid him to place it there because Adams did not want people entering his property from the east. He also testified that Adams placed a gate across the read just to the east of his house, but he gave keys to certain people, including Pennington. The St. Martins testified the dirt pile and the gate were there when they purchased the property. The St. Martins later moved the gate to the west side of the house.

When the St. Martins bought the campground property in 1977, Pennington gave permission for them and their campers to use the portion of the road on his property, Segment AB. At the junction of Moores Creek and Baxter Branch, the St. Martins posted a sign that said, "Private Lane, Keep Out, campers, guests, and residents only." (Id. at 37.) In 1986, the St. Martins obtained a formal written easement over Segment AB. Pennington began subdividing his property and sold several lots along Segment AB. In 1994, after he sold the lots, he sold a fifty-foot wide strip containing Segment AB to the St. Martins.

Ron St. Martin testified he believed the road was a private road because Pennington considered it a private road. Kay St. Martin testified Adams told them it was a private road and he stopped people from using it. Pennington had paid taxes on the property where Segment AB was located, as did the St. Martins after Pennington sold it to them. The St. Martins maintained Segment AB after they purchased it. The adjoining property owners held easements over Segment AB and contributed to the cost of its maintenance. The St. Martins placed their mailbox on Moores Creek because they regarded Baxter Branch as a private road.

At first the St. Martins kept the gate locked, but it became an annoyance because too many campers would forget their keys. In later years, the St. Martins kept the gate closed only during the week and all winter.

Ron claimed the dirt pile near Point D was three feet high and blocked access to Baxter Branch from the east. Kay also testified no one ever accessed the road from the east. As of 1977, Segment CD appeared to have not been traveled in years, because there were trees and brush growing up in it. Ron testified Segment CD was impassable during the years he owned the campground property. From 1980 to 2002, the St. Martins allowed Ray Blair, one of their campers, to park a pontoon boat just east of hill three, blocking Segment CD from the west. Blair testified the area behind his boat was full of briars and trees, and no road was visible. Several witnesses testified that anyone who wanted to travel eastward beyond the boat had to drive south from Point C to the federal property.

The St. Martins allowed campers, the Army Corps of Engineers, the Department of Natural Resources, and neighboring landowners, including the Penningtons and the Breedloves, to use the road. The St. Martins would eject anyone they found using the road who they did not believe had any business using it. They testified that no one used the road without their permission.

The Jacksons began renting a campsite in 1990, and they purchased the campground property, including Segment AB, from the St. Martins in 2003. After they purchased the property, the Jacksons kept the gate closed at night and during the winter. Jerold maintained and patrolled the road. If Jerold found people on the road who did not have his permission to be there, he would tell them they were not allowed to use the road.

The Jacksons did not know the roadway continued beyond hill three, except through the government property. Pennington showed the Jacksons where the road had been located, and in 2004, he helped them open up Segment CD to facilitate building a new house. They had to put in four loads of stone to raise the level of the road because it was very marshy. Pennington described the condition of Segment CD as follows:

There was trees, small, I call them bushes. There was trees within this size right here, small ones, briars, and thick. Also, it was swampy where the water came down a holler. And, it was, it was real swampy.... And, it was thickly briared, you could not have walked up it, no way, shape, or form until I opened it up.

(Id. at 106) (errors in original).

Gene Adams had a different recollection of the use of the road. He did not remember asking Pennington to put a dirt pile in the road, and he denied placing a gate across the road. Adams testified he never prevented anyone from using the road, and he wanted it to be open to the public because his store was open to anybody, not just campers. Adams testified the public used the road "[a]ll the time," (id. at 214), and would come from both the east and the west. He stated:

On Sundays it's just like watching a parade because you didn't know which way they was coming. People was coming and what they was going to be driving, whether it was going to be a motorcycles, or horses and wagons, etc. You know, I could, I don't have the names all here with me or anything, but it was dozens and dozens and dozens of people from the late '60's to '77 that used that road and, and the facilities there that I put in.

(Id. at 202) (errors in original). Adams claimed the roadway east of hill three, i.e. Segment CD, was rough, but passable, when he sold the campground property to the St. Martins.

The Breedlove family once owned a large tract of land in the area, but most of it was sold to the federal government for the creation of Lake Monroe. The remaining property...