Shields v. Taylor

• Decision Date: 17 October 2012
• Docket Number: No. 53A04–1202–PL–95.,53A04–1202–PL–95.
• Citation: 976 N.E.2d 1237
• Parties: Earl F. SHIELDS, Larry J. Shields, and Robert L. Shields, Appellants, v. Rodney L. TAYLOR, Appellee.
• Court: Indiana Appellate Court

976 N.E.2d 1237

Earl F. SHIELDS, Larry J. Shields, and Robert L. Shields, Appellants,

v.Rodney L. TAYLOR, Appellee.

No. 53A04–1202–PL–95.

Court of Appeals of Indiana.

Oct. 17, 2012.

Michael O. Ellis, Bloomington, IN, Attorney for Appellants.

Michael L. Carmin, Andrews, Harrell, Mann, Carmin & Parker, P.C., Bloomington, IN, Attorney for Appellee.

OPINION

BROWN, Judge.

Earl Shields, Larry Joe Shields, and Robert Shields (collectively, the “Shields”) appeal the trial court's Findings of Fact, Conclusions of Law and Order, and subsequent denial of the Shields' motion to correct errors, in favor of Rodney Taylor. The Shields raise one issue which we revise and restate as whether the court erred in concluding that their counterclaim was not sufficiently pled to encompass a theory of easement by prescription. We affirm.

FACTS

The relevant facts follow. The Shields and Taylor are owners of adjacent parcels of land in Monroe County, in which Taylor's parcel is situated to the north of the Shields parcel. Taylor's property is bordered on the north side by Earl Young Road. Taylor purchased his property approximately fifteen years ago from John and Phyllis Chuke, who had previously purchased the property from Frank Hudoff. The Shields have owned their property for three generations. The Shields' property is divided into two parts by a steep hill, and they have driven across Taylor's property on a dirt road accessed from Earl Young Road in order to reach the back portion, which they called “the long bottom,” for the last forty or fifty years. Transcript at 166. In the time that Taylor had owned his property, the Shields had not spoken with Taylor about their using it to access the long bottom and felt they had no reason to do so.

In September 2010, a dispute arose between the Shields and Taylor regarding the Shields' use of the dirt road on Taylor's land to access the long bottom. Specifically, the Shields contracted to have logging performed on their property, and the logging company cut a logging trail through Taylor's property to access the Shields' property, including through creek banks. After Taylor told the Shields they could not use his property for their logging activities, the Shields attempted to access the long bottom through another neighbor's property owned by Barrow, whose property was to the west of Taylor's, and Taylor told the Shields that the route they were using still passed upon part of his property and pointed to a marker to show the border of his property.

COURSE OF PROCEEDINGS

On April 4, 2011, Taylor filed a complaint alleging trespass and requesting a restraining order, and on that same day filed a verified petition for temporary restraining order to stop the Shields from entering his property. On May 9, 2011, the court held a hearing on the petition for temporary restraining order, and on May 17, 2011, the court issued a temporary restraining order enjoining the Shields from entry onto Taylor's property. On September 2, 2011, the Shields filed an answer and counterclaim in which their counterclaim asserted as follows:

Defendants, for their counterclaim against plaintiff, state as follows:

1. The Taylor real estate is adjacent to the Shields real estate along the north boundary line of Shields' property and the south boundary line of Taylor's property.

2. The northernmost 20 acres of the Shields' property is accessible only from the northern side of the property because the Shields property is divided by a high, very steep hill, such 20 acres hereinafter referred to as “the Back Twenty Acres.”

3. From the late 1950's and for approximately 50 years thereafter, the Shields family has had continuous, uninterrupted access to their Back Twenty Acres by an easement granted by Frank Hudoff—the former owner of the Taylor property—then by John and Phyllis Chute [sic]—the subsequent owners of the Taylor property—and then, most recently, by plaintiff's own consent or acquiescence.

3. [sic] All of the owners of the Taylor real estate since the late 1950's have agreed with Shields' right to use the easement across the Taylor real estate (Taylor's driveway) to access the Back Twenty Acres, and all the neighbors for the past 50 years have known of this. There has never been a question or controversy about such use until the Shields timbered some of their land in August 2010.

4. Even Taylor himself did not contest defendants' use of the right of way until Taylor saw them cutting timber and taking it out across the easement. At that time, Taylor demanded exorbitant fees from the timbering for use of the easement, which the Shields refused to pay.

5. At such time, Taylor blocked the access to Shields' Back Twenty Acres and the Shields gained permission from the neighbor Barrow to cross his land and then the creek to access the Back Twenty Acres.

6. At this time Taylor began to claim that he owned the creek too, so that any crossing into the Back Twenty Acres would be, he claimed, a trespass and he threatened to prosecute the Shields if they tried to gain such access even across Barrow's land.

7. By such means—and for the first time in 50 years—the Shields were unable to harvest and plant the Back Twenty Acres with hay to feed the Shields' cattle.

8. Due to Taylor's actions without legal justification, the Shields lost a season'sworth of hay for their cattle, at a cost to them of approximately $300.

9. Taylor is liable to the defendants for $300 for last year's hay, together with the costs of this year's hay if Taylor continues to prevent the Shields from planting for the new season.

WHEREFORE, defendants pray the Court find in their favor and against plaintiff in the amount of $300, together with any new damages relating to the planting of this year's hay season.

Appellants' Appendix at 6–7. On October 24, 2011, in advance of trial, Taylor filed a trial memorandum detailing “the applicability of the doctrines of license and easement” and specifically discussed express, written easements. Appellee's Appendix at 18. The Shields did not file a trial memorandum.

On October 28, 2011, the court held a bench trial in which, at the conclusion of the Shields' opening statement, their counsel noted that it would ask the court to “declare that the Shields do in fact have an easement across Taylor's property to access the long bottom....” Transcript at 7–8. At trial, Taylor testified that the Shields “occasionally” asked if they could cross his property, which he later indicated was “every couple months.” Id. at 10, 12. Taylor testified that he posted no trespassing signs on the borders of his property as soon as he purchased it. Id. at 11. Taylor testified that Mary Hampton, who is the Shields' sister and who also is an owner of the Shields' parcel, indicated to him that “she had an easement,” that “it was recorded,” and that she would retrieve a copy for Taylor, but she never produced a copy of a written easement. Id. at 23. When asked about whether Taylor knew if the Shields had historically used his parcel to access the long bottom, Taylor testified that “back before [he] bought it [ ] no one lived there. It was just, they probably took advantage of it, and they probably run in and out of there at, at will,” but that “after I bought it, it just didn't happen. And I went down and I checked all the records to know, nothing saying that they can. There's no easement.” Id. at 52.

Earl Shields, who was sixty-one years old, testified that at least since he was a child of five or six, his family accessed the long bottom by a dirt road which was accessible by Earl Young Road and currently runs across Taylor's property. Earl testified that he, his father, and his grandfather all farmed the long bottom, that he uses a tractor to farm it, that he farms it “[j]ust about every year,” and that in order to use the tractor he approaches the long bottom from the dirt road running across Taylor's property. Id. at 171. Earl testified that he stopped using the route across Taylor's land in the summer of 2010 when Taylor told him to stop.

On cross-examination, Earl testified that the route he has used to approach the long bottom was “a logging road to start” but that it currently is used by Taylor as a driveway. Id. at 173. Earl testified that he has never asked permission of Taylor to use the dirt road to approach the long bottom and he did not have knowledge of either of his brothers doing the same. Earl testified that the prior owners of Taylor's property, beginning with the Hudoffs, gave their consent to use their property to approach the long bottom, and he indicated that Taylor “consented to and approved ... coming through there until the summer Two Thousand Ten when he ... told [the Shields] to stop.” Id. at 176. On redirect, Earl indicated that he did not understand the language contained in Paragraph 3 of the counterclaim, and he reiterated that he had never had a conversation with Taylor about crossing Taylor's property and that he would “just go across” if he wanted to. Id. at 184. Earl indicated that “because [his] family has used that pathway for a long time” he “felt like [he] didn't have to ask for permission.” Id. at 185.

Larry Joe Shields testified similarly to Earl, noting that they have always traversed Taylor's property to approach the long bottom and have farmed it yearly. When asked whether he had ever asked the Chukes for permission to use the dirt road, Taylor objected, the court responded “[y]ou may answer,” and Larry Joe stated that he had not because “we always went, went through there.” Id. at 191. Larry Joe also testified that he had never asked Taylor for permission to cross. He also testified that he had never seen a no trespassing sign on Taylor's property. Also, Michael Sheppard, a surveyor hired by the Shields, testified that he had walked the border of the Shields' and Taylor's property three times and did not recall seeing any posted no trespassing signs.

Taylor called Robert Shields to...