Lagro Twp. & Karen Pinkerton Tatro v. Bitzer

• Decision Date: 13 February 2014
• Docket Number: No. 85A02–1306–PL–520.,85A02–1306–PL–520.
• Citation: 999 N.E.2d 902
• Parties: LAGRO TOWNSHIP and Karen Pinkerton Tatro, Appellants–Plaintiffs, v. George E. BITZER and Zelma E. Bitzer, Appellees–Defendants.
• Court: Indiana Appellate Court

999 N.E.2d 902

LAGRO TOWNSHIP and Karen Pinkerton Tatro, Appellants–Plaintiffs,

v.George E. BITZER and Zelma E. Bitzer, Appellees–Defendants.

No. 85A02–1306–PL–520.

Court of Appeals of Indiana.

Dec. 9, 2013

Rehearing Denied Feb. 13, 2014

Affirmed.

Mark C. Guenin, Guenin Law Offices, P.C., Wabash, IN, Attorney for Appellants.

Stephen H. Downs, Tiede, Metz & Downs, P.C., Wabash, IN, Attorney for Appellees.

OPINION

MATHIAS, Judge.

Lagro Township (“the Township”) filed an action in Wabash Circuit Court against George E. Bitzer and Zelma E. Bitzer (“the Bitzers”) seeking to exercise control over an area of land referred to as “the Belden Cemetery,” which is located on land owned by the Bitzers. The trial court granted summary judgment in favor of the Bitzers. The Township appeals and claims that the trial court erred in granting summary judgment in favor of the Bitzers.

We affirm.

Facts and Procedural History

In 1872, Solomon and Nancy Fry deeded one acre of their real estate in Wabash County to “the public” to be used as a cemetery. This parcel was located on a larger, 219–acre parcel of land that was eventually purchased by the Bitzers in 1967. There is dispute as to how many deceased persons were buried in the Belden Cemetery over the years, but it is undisputed that there were some gravestones and markers in the Belden Cemetery. The Bitzers designated evidence that there were only two marked graves in the area, whereas the Township designated evidence that there were up to one hundred graves there. From the time the Bitzers purchased the land in 1967, the Township never contacted them about the Belden Cemetery or otherwise attempted to maintain the cemetery.¹ In fact, Mr. Bitzer averred that he contacted the Township Trustee sometime between 2006 and 2009 and asked if the Trustee was aware of the cemetery. He claims that he was told that the Trustee was unaware of the cemetery and did not desire to take care of yet another cemetery.

In September 2006, the Wabash County Assessor was directed by the State to assign a tax identification number to each and every parcel of land in Wabash County. The Assessor did so and, for the first time, the cemetery was given its own tax identification number, showing it as exempt from property tax. However, for some reason, the cemetery was described incorrectly as being east of a center section line, as opposed to its actual location west of the line, and also incorrectly listed the property as consisting of 1.57 acres instead of one acre. Because the cemetery was misidentified on the tax records, no exempt acreage was ever deducted from the Bitzers' property taxes. In other words, since 1967, the Bitzers' property taxes have included assessments for the land on which the cemetery is located.

In December 2009, the Bitzers cleared the cemetery area, save for the two marked graves of Solomon and Nancy Fry, around which they placed a fence. Upon learning of this, the Township Trustee investigated the situation and determined that the Bitzers had desecrated the Belden Cemetery. An investigation by the County Sheriff led to the filing of an affidavit for probable cause, but the County Prosecutor declined to prosecute.

On May 10, 2011, the Township filed a complaint ² against the Bitzers seeking to quiet title, establish the Township's interest in preserving the Belden Cemetery, and recover damages for the Bitzers' actions. Both parties then filed motions for summary judgment. After both parties replied to each other parties' motion for summary judgment, the trial court held a hearing on the matter on May 22, 2013. The trial court entered an order on May 31, 2013, granting the Bitzers' motion for summary judgment and denying the Township's motion for summary judgment. The Township now appeals.

Summary Judgment

Our standard of review of summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party's favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269–70 (Ind.2009) (citations omitted).

Although we are limited to reviewing only the evidence designated before the trial court, we are not constrained to the claims and arguments presented at trial nor the rationale of the trial court ruling. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.2013). Instead, we may affirm a grant of summary judgment on any theory supported by the designated evidence. Id. The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531–32 (Ind.Ct.App.2009). And our standard of review is not altered by the fact that the parties filed cross-motions for summary judgment. Ind. Farmers Mut. Ins. Grp. v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000).

Discussion and Decision

The Township sets out several reasons why it thinks the trial court erred in granting summary judgment in favor of the Bitzers. The Township first claims that, even if it is not the owner of the Belden Cemetery, it at least has the right to exercise authority over the cemetery because of the recording of the 1872 deed whereby the Frys dedicated to “the public” one acre of their land to be used as a cemetery.³ The Township argues that the Bitzers took possession of the land subject to this recorded dedication.

There are two elements of a common-law dedication: (1) the intent of the owner to dedicate and (2) the acceptance by the public of the dedication. Jackson v. Bd. of Comm'rs of Cnty. of Monroe, 916 N.E.2d 696, 704 (Ind.Ct.App.2009), trans. denied; see also 14 Am.Jur.2d Cemeteries § 17 (2013) (“The intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his or her lands for such purpose, are sufficient.”).

Here, it is clear from the language of the Fry's 1872 dedication that they intended to dedicate “to the public” the one-acre portion of their land for use as a cemetery. It is also clear that the land was used at some point as a cemetery, even if it is disputed as to what extent it was used as a cemetery.

Nevertheless, the Bitzers claim that the deed “to the public” is void because it is a designation to a non-existing entity, i.e., the public. In support of this claim, they refer to cases which hold that a transfer of property to a non-existing entity is void. See, e.g., LeRoy v. Wood, 113 Ind.App. 397, 47 N.E.2d 604, 605 (1943) (“A deed naming a nonexistent grantee is a nullity and passes no legal title to anyone.”); Harwood v. Masquelette, 95 Ind.App. 338, 181 N.E. 380, 382 (1932) (“Prior to the instant of delivery [of a deed grating title to a corporation not yet in existence] it may be conceded that it was a nullity, so far as vesting title to the premises was concerned.”).

We do not think that the deed of the land by the Fry's to “the public” to be used as a cemetery is a nullity. Instead of attempting to transfer fee title to a non-existing entity, the Fry deed dedicated land to “the public” for use as a cemetery. Indeed, “[t]here is no such thing as a dedication between the owner (of land) and individuals, and the public must be a party to every dedication. In fact, the essence of a dedication to public uses is that it shall be for the use of the public at large.” 75 A.L.R.2d 591 (1961) (emphasis added). The Bitzers note that there was no evidence designated that the Township ever accepted this dedication. However, it is not necessary for there to have been any formal acceptance by “the public” of the dedication. “While acceptance by the public is necessary to complete the dedication, such acceptance may be implied from acts and from the use of the land.” 14 Am.Jur.2d Cemeteries § 17 (2013); see also Lay v. State, 12 Ind.App. 362, 39 N.E. 768, 769 (1895) (holding that ground set apart and used as a public cemetery for some years was a “cemetery” for purposes of statute criminalizing disturbing cemetery even though the land was not dedicated as a cemetery by means set forth in statute).

Thus, the evidence designated in the present case establishes that the Frys dedicated a portion of their real estate to “the public” as a cemetery and that at least some people were buried in the cemetery. The parties, however, presented contradicting evidence with regard to how many graves were located on the cemetery grounds. Thus, there is a genuine issue of material fact with regard to whether, and to what extent, the public used the cemetery dedicated by the Frys in such a manner as to act as an acceptance. Cf. Lay, 12 Ind.App. 362, 39 N.E. at 769 (noting that cemetery at issue had been set apart and used as a public cemetery for some years). For this reason, to the extent that the trial court's order granting summary judgment held that the Belden Cemetery was, as a matter of law, not a dedicated public cemetery, it went too far.

But whether and to what extent the public accepted the Frys' dedication of the cemetery is not the...