Rieddle v. Buckner

• Decision Date: 21 February 1994
• Docket Number: No. 06A01-9309-CV-312,06A01-9309-CV-312
• Citation: 629 N.E.2d 860
• Court: Indiana Appellate Court
• Parties: Christian L. RIEDDLE and Debra K. Rieddle, Appellant-Plaintiffs and Counter-Defendants Below, v. John H. BUCKNER and Mary Jane Buckner, Appellee-Defendants and Counterclaimants Below, and William P. Weyhrich and Karen S. Weyhrich, Appellee-Defendants Below. 1

Page 860

629 N.E.2d 860

Christian L. RIEDDLE and Debra K. Rieddle Appellant-Plaintiffs and Counter-Defendants Below, v. John H. BUCKNER and Mary Jane Buckner, Appellee-Defendants and Counterclaimants Below and William P. Weyhrich and Karen S. Weyhrich, Appellee-Defendants Below.

No. 06A01-9309-CV-312. ¹

Court of Appeals of Indiana First District.

Feb. 21, 1994.

Peter D. Cleveland, Johnson, Smith, Densborn, Wright & Heath, Indianapolis, for appellant.

Michael A. Minglin, Hollingsworth, Meek, Miller & Pearson, Indianapolis, for appellee.

BAKER, Judge.

In this boundary line dispute between neighbors, we decide whether an adverse possessor exclusively possesses the real estate upon which the title owner had granted a permissive easement to a third party. We also decide whether the title owner's attorney's fees and expenses incurred in defending title are recoverable from the covenantor for breach of warranty of title. Appellant-plaintiffs Debra K. and Christian L. Rieddle challenge the judgment in favor of the appellee-defendants Mary Jane and John H. Buckner on their adverse possession counterclaim and the denial of certain damages against the defendants Karen S. and William P. Weyhrich.

FACTS

The following facts are not disputed. In 1989, the Rieddles purchased a home from the Weyhriches platted as Lot 140 in the Woodlands subdivision in Carmel, Indiana. The Weyhriches conveyed Lot 140 by a general warranty deed. The Buckners owned Lot 141 along the eastern boundary of Lot 140. A fifteen-foot wide drainage and utility easement is located on the border between the two lots. The Rieddles subsequently learned that the fence which the Buckners' erected when they purchased Lot 141 in August 1977 encroached upon their lot.

The Rieddles filed a quiet title action to determine the boundary between Lots 140 and 141. The Buckners counterclaimed asserting adverse possession. The Rieddles also sought damages from the Weyhriches for breach of warranty of title.

In December 1991, the trial court awarded partial summary judgment in favor of the Buckners, determining that they acquired the real estate within their fence line by adverse possession. The breach of warranty claim against the Weyhriches and the quiet title action for the portion of land outside the Buckners' fence line along the Rieddles' lot remained for trial. On March 1, 1993, the trial court entered a default judgment in favor of the Rieddles on these two claims. At the hearing on damages, the Rieddles sought recovery from the Weyhriches for direct and consequential damages, and for litigation costs and attorney's fees incurred in defending against the Buckners' adverse possession claim. Finding that the approximately 268 square foot strip of land that the Buckners acquired by adverse possession was worth $500, the trial court held that the Rieddles suffered $500 damages for the Weyhriches' breach of warranty.

In sum, the final judgment awarded title of the real estate within the Buckners' fence line to the Buckners by adverse possession; quieted title of the balance of the land outside of the fence line along the Rieddles' lot to the Rieddles; and awarded the Rieddles $500 in damages against the Weyhriches.

DISCUSSION AND DECISION

I. Adverse Possession

The Rieddles challenge the determination of adverse possession in favor of the Buckners, claiming that three of the elements have not been established. To prevail on an adverse possession claim, the claimant must prove actual, visible, notorious, and exclusive possession of the real estate, under a claim of ownership hostile to the true owner for a continuous ten-year period. Snowball Corp. v. Pope (1991), Ind.App., 580 N.E.2d 733, 734. An additional element imposed by statute provides that the adverse claimant must have paid all taxes and assessments on the real estate during the period of adverse possession. Id.; IND.CODE 32-1-20-1 (Supp.1993). However, the statutory element does not apply here because there is a boundary dispute due to the erection of a fence. See Kline v. Kramer (1979), 179 Ind.App. 592, 386 N.E.2d 982, 989-90.

First, the Rieddles claim that the Buckners failed to prove exclusive possession of the real estate. The Rieddles contend that because utility companies have used the easement in the area bordering the lots, the Buckners' use and possession has not been exclusive. Possession is exclusive if only one entity claims possession adversely. Snowball, 580 N.E.2d at 735. Furthermore, the possession must be exclusive as against persons other than the legal owner. Id. (quotation omitted). Where the claimant occupies the land in common with third persons or the public generally, the possession is not exclusive. Id.

Nonetheless, the use of the easement does not affect the element of exclusive possession here. The utilities have an interest in the land, but only for the specific purposes granted in the easement. See Brown v. Heidersbach (1977), 172 Ind.App. 434, 360 N.E.2d 614 (easements are limited to the purpose for which they were created, and their enjoyment cannot be extended by implication). Additionally, while an easement is enjoyed under a deed, the utilities cannot claim the property through adverse possession so as to obtain fee simple ownership. See id.; Naderman v. Smith (1987), Ind.App., 512 N.E.2d 425. Thus, the Buckners' possession is exclusive notwithstanding the utility easement.

In further support of our decision, we note that in Snowball, the presence of licensees on the property did not sever the exclusive possession of the adverse claimant. Snowball, at 736. Similarly, we find that the use of a permissive easement does not negate exclusivity. See generally Schoeller v. Kulawiak, 118 Or.App. 524, 848 P.2d 619 (1993) (although disputed strip was subject to a roadway and utility easement, court held adverse possessor showed exclusivity by exhibiting kind of possession that would characterize an owner's use). The Buckners' actions exhibit an exclusive possession of the property within their fence. See Herrell v. Casey (1993), Ind.App., 609 N.E.2d 1145, 1148 (claimants exclusively possessed property they developed, maintained, built upon, and stored possessions).

Next, the Rieddles argue that the Buckners have not established hostility and notoriety to support adverse possession. Despite the presence of the Buckners' fence, the Rieddles assert that the restrictive covenants allow fences but provide that they must be removed if demanded for the use of easements. Thus, they contend the maintenance of a fence was not notorious or hostile.

Notorious possession is possession so conspicuous that it is generally known and talked of by the public in the vicinity. Snowball, 580 N.E.2d at 735 (quotations omitted). This element essentially alerts the owner that someone is asserting dominion over the owner's land. Id. Possession is hostile so long as the claimant does not disavow his right to possess the property or acknowledge that it is subservient to the title of the true owner. See Kline, 179 Ind.App. at 598-99, 386 N.E.2d at 988.

The Rieddles find it difficult to understand how the presence of the Buckners' fence and landscaping should have alarmed them that the Buckners claimed ownership of that strip of land. Indiana courts have repeatedly held that actions, such as the Buckners, should alert any reasonable title owner that his property is being adversely claimed. See generally Echterling v. Kalvaitis (1955), 235 Ind. 141, 126 N.E.2d 573; Herrell, 609 N.E.2d at 1148; Kline, 179 Ind.App. at 598-99, 386 N.E.2d at 988. Although the restrictive covenants permitted lot owners to build fences, the covenants do not permit a person to erect a fence upon another lot owners' land. The Rieddles' reliance upon the covenants fails. The Buckners' possession was notorious and hostile.

We conclude that the trial court properly granted summary judgment in favor of the Buckners on their adverse possession claim.

II. Damages

The Rieddles also challenge the trial court's denial of consequential damages, litigation costs, and attorney's fees against the Weyhriches. The Rieddles claim that their damages included the value of the land awarded to the Buckners, losses due to their inability to refinance their home because of the pending litigation, litigation costs, and attorney's fees and expenses to defend against the Buckners' counterclaim. The trial court awarded damages only for the value of the land the Rieddles lost by adverse possession. The Rieddles do not contest the $500 award, but argue that they were also entitled to the other requested damages.

The Weyhriches have not filed an appellate brief; therefore, we review the Rieddles' argument under a prima facie standard. We may reverse the trial court's decision if the Rieddles make a prima facie showing of reversible error. See Dusenberry v. Dusenberry, 625 N.E.2d 458, 459 (Ind.App.1993). Prima facie error is that which appears on the face of the argument. Id.

Specifically, the Rieddles seek consequential damages resulting from their inability to refinance their mortgage since they could not show free and clear title due to the boundary line dispute. They expended $2,350 on their application and survey fees. They also maintain that they could not take advantage of a one-time refinancing discount worth $1,910 available through Rieddle's employer and that they incur interest at a higher rate.

A breaching party is liable for damages which are the direct, probable, and proximate result of its breach. Indiana Insurance Co. v. Plummer Power Mower & Tool Rental, Inc. (1992), Ind.App., 590 N.E.2d 1085, 1092. The measure of damages for breach of contract is limited by what is reasonably foreseeable at the time the contract was made. Id. The trial court's rejection of the Rieddles' argument regarding the damages related to refinancing was reasonable. The likelihood of refinancing was not reasonably foreseeable when the...