Pugh v. Conway

• Decision Date: 19 July 1973
• Docket Number: No. 2--1072A76,2--1072A76
• Citation: 299 N.E.2d 214,157 Ind.App. 44
• Parties: Juel PUGH, Appellant (Plaintiff below), v. Wilson CONWAY et al., Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 214

299 N.E.2d 214

157 Ind.App. 44

Juel PUGH, Appellant (Plaintiff below), v. Wilson CONWAY et al., Appellees (Defendants below).

No. 2--1072A76.

Court of Appeals of Indiana, Second District.

July 19, 1973.

Charles J. Myers, Bolinger, Van Dorn & Myers, Kokomo, for appellant

Horace C. Holmes, R. Richard Pearce, Tipton, for appellees.

BUCHANAN, Presiding Judge.

CASE SUMMARY

This appeal is by plaintiff-appellant Juel Pugh (Pugh) from a judgment declaring an easement in her favor upon the residential property of defendants-appellees Harold and Lucille Lawrence (Lawrence) covering a smaller area than claimed in her Complaint for Declaratory Judgment, and quieting title in Lawrence, subject to the easement declared.

We affirm.

FACTS

The facts and evidence most favorable to Lawrence as appellee(s) are:

In September of 1939, Pugh purchased the east one-half of Lot 4 in Banta's Addition in Windfall, Indiana, the east line of which has a common boundary with Lots 2 and 3 of the same addition.

Late in 1939 or in 1940, Pugh, without a survey or actual knowledge of the boundary line between her Lot 4 and Lots 2 and 3, constructed an additional room onto the existing residence on Lot 4, which new construction encroached approximately 3 feet onto Lot 3.

Until 1954 Pugh and her tenants mowed and cared for a strip of ground extending approximately three feet beyond, or east of, the foundation of the encroaching room and running from north to south along the west end of Lots 2 and 3. This strip of ground is illustrated by the following

drawing, and is hereinafter referred to as the Disputed Area, being that part of Lots 2 and 3 enclosed within points A, B, C and D.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Geographically the Disputed Area is definable by the existence of a natural channel or slope running from the northern boundary of Lot 2 to the southern Boundary of Lot 3.

Pugh testified that she, or those claiming under her, at all times cared for the Disputed Area and at no time did she seek permission of the owners of Lots 2 and 3 to use the Disputed Area, nor did they ever object to her use thereof.

In 1954, Lawrence purchased Lots 2 and 3 and rented the house on Lot 3 to Arlen Bailey (Bailey) who planted a garden on Lot 3 which came within 2 feet of the foundation of the addition to Pugh's house and extended from the northern boundary of Lot 2 to the southern boundary of Lot 3, i.e. covered most of the Disputed Area.

About a year later (1955) Bailey moved out of the house on Lot 3 and Lawrence moved in. Soon after taking possession, he replaced the entire garden with grass and continuously thereafter mowed and maintained the Disputed Area up to the foundation of the addition to Pugh's house--'as close as the mower would go.'

In 1968 a contract buyer of Lot 4 from Pugh planned to install a gas line over Lot 3 in order to service the Pugh house on Lot 4 and asked permission of Lawrence to install the gas line, to which Lawrence responded: 'Why, sure, it won't bother me.'

Not until 1969, was it determined by survey that the addition to Pugh's house encroached on Lot 3. Lawrence testified he never denied Pugh or any of her tenants free access to that part of Lot 3 upon which Pugh's house encroached and was willing to allow the house to remain there.

Thus, only that portion of the Disputed Area which is not encroached upon by Pugh's house is actually contested by this action.

Pugh's action for Declaratory Judgment filed on September 30, 1971, sought a prescriptive easement for the entire Disputed Area. The trial court on April 19, 1972, granted a prescriptive easement only as to that portion of Lot 3 encroached upon by Pugh's house. Title to the remainder of the disputed area was quieted in Lawrence, and Pugh now appeals.

ISSUE

The issues raised by Pugh may be resolved as one question:

Did the trial court properly limit Pugh's prescriptive easement to that portion of the Disputed Area upon which Pugh's house encroached?

Pugh argues that the facts in evidence showed she met the requirements of a prescriptive easement by her continued, uninterrupted, and adverse use of the entire Disputed Area for more than twenty years; and that the easement ripened even though Lawrence acquiesced in the use.

Lawrence elevates acquiescence to permission and apparently contends a license was granted or that by reason of this permission Pugh's use was not adverse or inconsistent with the rights of Lawrence and a prescriptive easement could not result. Also, it is argued that Pugh's use was interrupted in 1955 by the planting of a garden in the Disputed Area and continued use thereafter by Lawrence of the entire Disputed Area so as to stop the running of the 20 year period.

DECISION

CONCLUSION--It is our opinion that the trial court properly limited Pugh's prescriptive easement to that portion of the Disputed Area upon which Pugh's house encroached because Pugh's use was not 'continuous and uninterrupted' as to the remainder of the Disputed Area.

The Indiana statute providing for acquisition of an easement in the land of another by adverse use is Ind.Ann.Stat. § 56--801, (Burns 1961 Repl.) IC 1971, 32--5--1--1:

'56--801 (6314). When Acquired By Adverse Use.--The right of way, air, light or other easement from, in, upon, or over, the land of another, shall not be acquired by adverse use, unless such use shall have been continued uninterruptedly for twenty (20) years. (1 R.S.1852, ch. 30, § 1, p. 259.)' (Emphasis supplied.)

The Indiana cases are more explicit. In order to establish the existence of a prescriptive easement across the land of another, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted, and adverse use for twenty years under claim of right, or such continuous adverse use with the knowledge and acquiescence of the owner of the servient land. Reder v. Radtke, (1961) 132 Ind.App. 412, 177 N.E.2d 669; Hutchinson v. Worley, (1958) 129 Ind.App. 157, 154 N.E.2d 389; Null v. Williamson, (1906) 166 Ind. 537, 78 N.E. 76; De Shields v. Joest, (1941) 109 Ind.App. 383, 34 N.E.2d 168; Monarch Real Estate Co. v. Frye, (1922) 77 Ind.App. 119, 133 N.E. 156; Fankboner v. Corder, (1890) 127 Ind. 164, 26 N.E. 766.

The existence or nonexistence of a prescriptive easement is a question of fact for the trier of facts. Reder v. Radtke, supra; Griffith v. Neff, supra; De Shields v. Joest, supra.

Further, each of the elements of a prescriptive easement must be established by the party asserting the prescriptive right. Failure to prove any one of such elements is fatal. Hutchinson v. Worley, supra; Monarch Real Estate Co. v. Frye, supra.

Once open and continuous use of another's land commences with knowledge on the part of the owner, such use is presumed to be adverse to the owner. Griffith v. Neff, (1963) 135 Ind.App. 674, 196 N.E.2d 757; Smith v. Ponsford, (1915) 184 Ind. 53, 110 N.E. 194.

The presumption of adverse use, however, is a rebuttable presumption which the owner of the servient estate may overcome. Griffith v. Neff,supra.

Null v. Williamson, supra, recognized that the ripening of the prescriptive right may be defeated:

'* * * but, as the doctrine of prescription is founded on the presumption of a grant the person against whom it is asserted may appeal to facts and circumstances for the purpose of showing that the use was not under claim of right . . .'

Defeat of the presumption may also come about by showing that the use was not continuous and uninterrupted. Continuous and uninterrupted...