McNamara v. Zollman Farms, Inc.

• Decision Date: 13 January 2015
• Docket Number: No. 36A05–1404–PL–180.,36A05–1404–PL–180.
• Parties: Timothy McNAMARA, Tamara Goodfellow, and Teresa Melton, Appellants–Plaintiffs, v. ZOLLMAN FARMS, INC., Testamentary Trust of Jack D. Roller, and Thomas Michael Carr, Appellees–Defendants.
• Court: Indiana Appellate Court

26 N.E.3d 1073 (Table)

Timothy McNAMARA, Tamara Goodfellow, and Teresa Melton, Appellants–Plaintiffs

v.ZOLLMAN FARMS, INC., Testamentary Trust of Jack D. Roller, and Thomas Michael Carr, Appellees–Defendants.

No. 36A05–1404–PL–180.

Court of Appeals of Indiana.

Jan. 13, 2015.

Michael L. Carmin, Gregory A. Bullman, CarminParker, PC, Bloomington, IN, Attorneys for Appellants.

Edward J. Liptak, Carson Boxberger, LLP Bloomington, IN, Attorney for Appellee Zollman Farms, Inc.

MEMORANDUM DECISION—NOT FOR PUBLICATION

CRONE

, Judge.

Case Summary

Timothy McNamara and his sisters, Tamara Goodfellow and Teresa Melton (collectively “Appellants”), own a landlocked forty-acre tract in rural Jackson County that has been in their family for decades. Appellants filed a complaint against nearby landowners, including Zollman Farms, Inc. (“Zollman”), requesting that a path that runs from a county road to their property be declared a public road by virtue of its use for over twenty years before the relevant statute regarding public roads was amended in 1988. After hearing evidence and visiting the site, the trial court found that Appellants and others had used the path for over twenty years before 1988 but concluded that Appellants had failed to establish the existence of a public road by use.

On appeal, Appellants agree with the trial court's factual findings but contend that the court reached the wrong conclusion based on those findings. We agree with Appellants and therefore reverse and remand for further proceedings consistent with this opinion.

Facts and Procedural History

In May 2012, Appellants filed a complaint against nearby landowners requesting that a path leading to Appellants' property be declared a public road by use as well as “all other and proper relief.” Appellee's App. at 3. By the time of trial, all defendants except Zollman, Testamentary Trust of Jack D. Roller, and Thomas Michael Carr had been dismissed from the case. The trial court heard evidence and also visited the site. In March 2014, the court issued an order that reads in pertinent part as follows:

Findings of Fact

1. Plaintiffs are the record owners of a square-shaped, 40–acre tract in Carr Township in southwestern Jackson County. Such ownership is evidenced by a Warranty Deed to the plaintiffs and their brother, Thomas McNamara, Jr., dated July 18, 2005. On July 8, 2011, Thomas McNamara, Jr. quitclaimed his interest in the property to the plaintiffs, who are his sisters and brother.

2. The plaintiffs' 40–acre tract described in paragraph 1 (“McNamara tract”) is bordered on four sides by tracts owned by R L Zollman Farms, Inc. Immediately to the south of the McNamara tract is a 160–acre R L Zollman Farms, Inc. tract. This is a very remote and sparsely populated section of Jackson County, Indiana.

3. Located about a mile to the southeast of the McNamara tract, there is County Road 500 S, which is unimproved. County Road 500 S begins at County Road 925 W (which is a paved county road) and runs directly west for a distance of approximately 1,850 feet, terminating at the southeast corner of a one acre parcel owned by defendant, Thomas Michael Carr.

4. County Road 500 S is a farm lane that was bulldozed by the Jackson County Highway Department in June, 2012 with some gravel being added near its beginning. Additionally, an identifying road sign, a “DEAD END” sign, and a “ROAD ENDS HERE” sign were installed. A view of this county road revealed road that was crossed by drainage creeks or waterways and a road that for the second half of the road was obstructed by tree limbs and branches. The road was not passable [b]y vehicular traffic for half of the distance of the road.

5. In their Complaint for Declaratory Judgment and First Amendment Complaint for Declaratory Judgment, plaintiffs alleged that, for more than 20 years before January 1, 1988, there existed a 12–foot wide gravel road running from County Road 925 W to the west along what is now County Road 500 S and continuing across portions of tracts owned by defendants Carr, Roller, and R L Zollman Farms, Inc., running in a west-northwesterly direction to the south boundary of the McNamara tract. Further, plaintiffs have alleged that the 12–foot wide gravel road is a “public road” that was used continuously by members of the public in general.

6. There was no evidence presented by plaintiffs of a 12–foot wide gravel road as is described in paragraph 10 of their Complaint filings. At most, some gravel and pieces of stone were applied at the beginning of County Road 500 S and a portion of the Roller tract to the east of the 160 acre R L Zollman Farms tract in connection with timber removal and/or to allow the transport of farm equipment.

7. Some witnesses (e.g. Thomas McNamara, Sr.) testified about the existence of a “worn path” running from the end of the lane now called County Road 500 S in a northwesterly direction to the south boundary line of the McNamara tract. Over the years from the 1960s to plaintiffs' ownership in 2005, vehicular traffic of any regular frequency on the path was largely impossible because of soft, wet ground in which vehicles would become stuck.

8. Plaintiffs and their relatives, including Thomas McNamara, Sr ., reside or formerly resided in Bluffton, which is located in Wells County in northeast Indiana. Their visits to the McNamara tract occurred no more frequently than once or twice a year, for the purpose of walking to the trac[t], collecting geodes, and enjoying the peacefulness of the area. These visits often coincided with a camping trip to Starve Hollow State property in Jackson County. Thomas McNamara, Sr. testified that nine (9) out of ten (10) times he and family would walk back to their property. Based upon the frequency of visits this means the family would, at most, only drive back to their property every four (4) or five (5) years.

9. Sometime after he became the owner of the McNamara tract and before he quitclaimed his interest to his siblings, Thomas McNamara, Jr. and others operated motorized vehicles along the path alleged by plaintiffs, and in many other areas of the property of the defendants causing numerous deep ruts and other damage to the property of the Carr, Roller and R L Zollman Farms, Inc. defendants. The ruts and damage clearly extended to areas outside the path of any alleged road or path.

10. With the assistance of Paul Goen, Thomas McNamara, Jr. placed “Private Property” signs and rope on the R L Zollman Farms 160–acre tract parallel to and approximately 400 feet south of the boundary line between the McNamara tract and the 160–acre R L Zollman Farms tract. Motorized vehicles were operated on the 400–foot wide northern-most segment of the R L Zollman Farms 160–acre tract as well as on other areas of that tract, including a portion known as “Back Break Hill”.

11. As vehicular operation crossed the defendants' tracts caused deep ruts, vehicles were moved laterally, causing additional rutting and damage, leading to the installation, on October 15, 2010, of a gate and fence by R L Zollman Farms, Inc. along a portion of the east property line of the 160–acre tract, adjacent to the Roller tract. The gate and fence were installed in an area where the path was drawn by Thomas McNamara, Sr. drew of [sic] Exhibit 3.

12. The gate and fence installed by R L Zollman Farms, Inc. has been effective in reducing vehicular traffic and damage on the defendants' property. The existence of the gate and fence does not prevent a person from gaining access to the McNamara tract by walking to that property, as evidenced by photograph 6 of plaintiffs' Exhibit 10....

13. The path drawn by Thomas McNamara, Sr. that runs in the northwesterly direction from the end of County Road 500 S on plaintiffs' Exhibit 3 is not the only means of gaining access to the McNamara tract. Paul Goen and Richard Brannaman, witnesses called by the plaintiffs, have both entered the McNamara tract from the north, from the Martin tract or otherwise. Such access means that the gate and fence installed by R L Zollman Farms, Inc. does not prevent access to the McNamara tract by persons on foot.

14. Plaintiffs have seen tire tracks along the path drawn by Tom McNamara, Sr. during the years that they visited the property on an annual or bi-annual basis, but they do not know who operated the vehicles—i.e. whether the owners of the property or others.

....

16. Thomas McNamara, Jr.'s placement of the “Private Property” signs, in October, 2010, warning trespassers to stay off what he believed to be the McNamara tract, indicated the belief by at least one of the owners of the McNamara tract that there is no public road running to and through the McNamara tract. Those signs stated that the McNamara tract was private property and that “hunting, fishing, trapping, or trespassing for any purpose is strictly forbidden.”

17. There has never been a school, store, or other establishment that would cause the public to use a road leading from County Road 925 W to the McNamara tract.

18. A U.S.G.S. map dated 1959 (Exhibits 1 and C) show[s] an unimproved dirt road which ran west from County Road 925 W and ended at the “Orchard Farm” located in the southern half of the 160–acre tract of R L Zollman Farms, Inc. While there are a few limited areas where the remains of such a road may be identified, this path has long been abandoned and is impassable. There is no map showing any road to the McNamara tract coming from the south across the Carr, R L Zollman Farms, and Roller properties. The area immediately to the south of the property of the plaintiffs bordering the north half of the Zollman 160 tract is characterized by two fields previously cleared and farmed through which plaintiffs would have accessed their property. While the Jackson County Highway Department has had roads in its inventory which have been abandoned because of non-usage, there has never been a road to the McNamara tract recognized or included in the Jackson County road inventory.

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