Lane Alan Schrader Trust v. Gilbert

• Decision Date: 30 August 2012
• Docket Number: No. 75A04–1112–PL–676.,75A04–1112–PL–676.
• Citation: 974 N.E.2d 516
• Parties: LANE ALAN SCHRADER TRUST as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self–Declaration of Trust, Appellant–Petitioner, v. Larry GILBERT and Nancy J. Malecki, Appellees–Respondents.
• Court: Indiana Appellate Court

974 N.E.2d 516

LANE ALAN SCHRADER TRUST as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self–Declaration of Trust, Appellant–Petitioner,

v.Larry GILBERT and Nancy J. Malecki, Appellees–Respondents.

No. 75A04–1112–PL–676.

Court of Appeals of Indiana.

Aug. 30, 2012.

Eric C. McNamar, B. Too Keller, Keller Macaluso LLC, Carmel, IN, Attorneys for Appellant.

Kevin C. Tankersley, Winamac, IN, Attorney for Appellees.

OPINION

BAKER, Judge.

In this case, we are presented with a property boundary dispute and how trial courts may settle them through the use of land surveys. Here, a landowner purchased property based on information from a neighbor that a barn on the property had a twenty-foot setback. The landowner required this setback to conduct his business; however, at least two surveys indicated that the setback was less than the required twenty feet. The landowner decided to have a legal survey performed on the property, which indicated that there was a twenty-foot setback. This legal survey was recorded in the county recorder's office.

The landowner's neighbors appealed the legal survey to the trial court, arguing that it should be stricken from the recorder's office. After a bench trial, the trial court determined that the legal survey was defective for failure to use good surveying practices and imposed two previous surveys. We conclude that this was error. The applicable statutory provisions require that strict notice provisions be followed, and there was no evidence that notice was given before the two previous surveys were conducted. Moreover, we think that the proper interpretation of the statute is that the trial court may either accept the survey that is being appealed, order a new survey, or order the county surveyor to locate and mark the boundary lines according to the trial court's findings as supported by the evidence.

Appellant-defendant Lane Alan Schrader as Trustee of the Lane Alan Schrader Trust (the Trust) appeals the trial court's findings of fact and conclusions of law in its order striking a legal survey and imposing two previous retracement surveys. More particularly, the Trust argues that the trial court's findings of fact and conclusions of law are clearly erroneous, inasmuch as they are not supported by facts in the record. Specifically, the Trust asserts that there is no evidence in the record that the legal survey was conducted in derogation of good surveying practices.

Additionally, the Trust maintains that the trial court's order must be vacated because the applicable statute requires that the trial court either affirm the legal survey or set aside the survey and order a new one.

Finally, the Trust contends that a second applicable statute imposes strict notice requirements to establish property lines pursuant to a legal survey. And because appellees-plaintiffs Larry Gilbert and Nancy J. Malecki (collectively, “the Appellees”) failed to present evidence that proper notice was given before the previous retracement surveys were conducted, no legal survey was created, and the trial court erred by imposing those two surveys.

Determining that the trial court did not err by concluding that the legal survey was not conducted through the use of good surveying practices, but finding that the trial court erred by imposing two previous surveys, we reverse and remand to the trial court with instructions that the trial court enter a new order consistent with this opinion.

FACTS

On February 28, 2004, Lane Schrader purchased a parcel of property in Starke County described as:

THE EAST HALF OF THE FOLLOWING TRACT, TO WIT: COMMENCING AT A POINT ON THE SECTION LINE 660 FEET WEST OF THE SOUTHEAST CORNER OF THE SOUTHEAST 1/4 OF SECTION 29, TOWNSHIP 32 NORTH, RANGE 4 WEST OF THE SECOND PRINCIPAL MERIDIAN, STARKE COUNTY, INDIANA. THENCE WEST ON THE SECTION LINE 660 FEET, MORE OR LESS, TO THE SOUTHWEST CORNER OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 29; THENCE NORTH 660 FEET, MORE OR LESS, TO THE NORTH LINE OF THE SOUTH HALF OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 29; THENCE EAST 660 FEET, MORE OR LESS, TO A POINT 660 FEET WEST OF THE EAST LINE OF SAID SECTION 29, THENCE SOUTH 660 FEET, MORE OR LESS, TO THE PLACE OF BEGINNING.

Ex. E. (Warranty Deed in Trust). Approximately three months later, Schrader conveyed the parcel to the Trust.

The Trust property's southeast border was adjacent to Gilbert's property and the Trust property's north border was adjacent to Malecki's property. The Gilbert property had “senior rights” in the quarter section, which means that the parcel has been cut from a parent tract and prevails over other property descriptions. Tr. p. 328. Gilbert's parcel was described as:

A tract of land commencing at the Southeast Corner of Section[ ]29, range 4 West of the 2nd P.M., Starke County, Indiana; thence West 660 feet on The section line; thence North 330 feet; thence East 660 feet to the Section line; thence south 330 feet to the place of beginning.

Appellant's App. p. 10

Before purchasing the property, Steven Schrader, the son of Lane Schrader, visited the property, and a neighbor showed him monument pins that marked the property lines. Lane purchased the property based, in part, on the neighbor's representations. Relying on the monument points, the Schraders believed that they would have a twenty-foot setback on the side of a barn on the property, which was needed to run a business from the back of the property.

Within one month of purchasing the property, the Trust hired Turning Point Surveying, Inc. (Turning Point) to survey the property. Turning Point surveyed the property and recorded its survey with the Starke County Recorder's Office on June 16, 2004, but there was no evidence introduced at trial that Turning Point notified neighboring landowners that the company conducted or recorded the survey. The Turning Point Survey indicated that the setback was less than twenty feet.

Approximately one year later, the Trust hired Progressive Engineering, Inc. (Progressive) to conduct a retracement survey to verify the survey conducted by Turning Point. The Progressive Survey was consistent with the survey completed by Turning Point. Although Progressive completed the retracement survey in December 2005 and provided the Trust with a copy at that time, Progressive did not record the survey until April 21, 2009. And like the Turning Point survey, there was no evidence introduced at trial indicating that Progressive notified neighboring landowners that it had conducted or recorded the survey.

Before Progressive recorded its survey in April 2009, Torrenga Surveying, LLC (Torrenga) was hired to create a legal survey ¹ and set out the lines of occupation on and adjacent to the Trust property. To create a legal survey, Torrenga gathered record descriptions of both the land to be surveyed and the adjoining properties along with copies of prior surveys, maps, documents and field notes relating to the Trust's deeded property. More particularly, Stuart Allen of Torrenga obtained from the Starke County Recorder's Office a 1993 survey of the Gilbert property conducted by Joe Smrt and the Territorial Engineering Survey. Additionally, Allen obtained an opinion letter from Territorial Engineering setting the corner of the southeast quarter; a letter written by Smrt to a property owner west of the Trust property in which Smrt commented that a fence on that property was on or near a boundary line; a survey conducted by former Starke County Surveyor Van Janovic of a parcel just north of the north boundary of the quarter section that contained the Trust property; and other documents. Torrenga, however, was not given a copy of the Progressive Survey by the Trust.

After gathering these documents, Allen and other members of Torrenga's surveying crew, visited the Trust property and located as many monuments and fence lines as they could find. The crew found an iron pipe monument in the northwest corner of the property and another iron pipe monument adjacent to a fence corner in the northeast corner of the property—a fence Progressive had called a line of occupation.² The crew also found two more pipe monuments on the east side of the property.

The Torrenga survey crew then searched beyond the borders of the Trust property and found additional fence lines on parcels to the west running in a similar direction as the fence on the east side of the property. Torrenga also considered monument points in a survey conducted by Janovic of a parcel north of the Malecki property, which was just north of the quarter section containing the Trust property. The points identified by Janovic in his retracement survey were set by surveyor Donald Mason, but it is not known whether Mason created a survey of the parcel. Janovic, however, was not surprised by the reasonable agreement between the so-called “Mason points” and the fences west of the Trust property.

Ultimately, Allen created the “Torrenga Survey” along with a “Theoretical Breakdown” of the quarter section containing the Trust Property and other parcels. Ex. 3; Ex. 1 (Theoretical Breakdown). The Torrenga Survey, the legal survey at issue, set out lines of occupation for the Trust property and surrounding parcels. The Theoretical Breakdown survey was a representation of what the quarter section would look like if certain monument points were used. The Theoretical Breakdown survey was not recorded.

Torrenga recorded the Torrenga Survey with the Starke County Recorder on or about January 22, 2009. Approximately four months later, on May 19, 2009, the Appellees filed an appeal challenging the proposed legal survey, naming the Trust; Dennis Estok, the Starke County Surveyor; Jackie Bridegroom, the Starke County Recorder; Torrenga, and Allen as opposing parties. On July 9, 2009, Allen, Torrenga, and the Trust filed a motion to dismiss, asserting that Allen and Torrenga were not...