Wetherald v. Jackson

Citation855 N.E.2d 624
Decision Date23 October 2006
Docket NumberNo. 03A01-0511-CV-518.,03A01-0511-CV-518.
PartiesThomas R. WETHERALD, Appellant-Plaintiff, v. Ronald E. JACKSON and, Eileen E. Jackson, Appellees-Defendants.
CourtCourt of Appeals of Indiana

Joyce Thayer-Sword, Columbus, Indiana, Attorney for Appellees.

OPINION

MATHIAS, Judge.

Thomas Wetherald ("Wetherald") and Ronald and Eileen Jackson ("the Jacksons") are owners of adjoining lots on Grandview Lake. After a property dispute arose between the parties, Wetherald filed a complaint to quiet title in Bartholomew Circuit Court. The Jacksons then filed a counterclaim for declaratory judgment of adverse possession. After a hearing, the trial court issued findings of fact and conclusions of law, and found that the Jacksons had established the elements of adverse possession by clear and convincing evidence. Wetherald appeals and raises three issues, which we restate as:

I. Whether fourteen of the trial court's twenty findings of fact are supported by the evidence and whether two conclusions of law are clearly erroneous;

II. Whether the Jacksons established the elements of adverse possession by clear and convincing evidence; and,

III. Whether the Jacksons established that they reasonably believed in good faith that they paid the taxes on the disputed real estate.

Concluding that Wetherald has failed to establish any reversible error concerning his challenge to the trial court's findings of fact and conclusions of law and that the Jacksons established the elements of adverse possession by clear and convincing evidence, we affirm.

Facts and Procedural History

In 1988, the Jacksons purchased Lot 67A on Grandview Lake in Bartholomew County, Indiana.1 At the time of purchase, James and Rosalyn Strahl owned the adjoining lot, Lot 66. The Jacksons have not built a residence on the lot and use the lot and waterfront for recreational purposes only. The Jacksons use their lot approximately once a week during the summer months, generally on Sundays.

At the time of purchase, the lot had a boat dock. There was also a sandy beach area which the Jacksons believed was situated on their lot. On the side of the beach area nearest to Lot 66, a wooden board jutted out into the water. James Strahl told the Jacksons that the board was the boundary line between the two properties. Ex. Vol., Plaintiff's Ex. 3, pp. 8-9.

In 1995, Wetherald purchased Lot 66 from the Strahls. After Wetherald purchased Lot 66, the Jacksons continued to use the waterfront area that they believed to be theirs based on the representation made by Strahl (hereinafter known as the "transfer area").2 Wetherald never objected to the Jacksons' use of the transfer area.

Prior to Wetherald's purchase of Lot 66, the Jacksons made several improvements to Lot 67A. They replaced the dock and built a deck and gazebo. Portions of the Jacksons' dock and beach area are situated within the transfer area. A small section of a corner of the Jacksons' deck also juts out into the transfer area. After Wetherald's purchase of Lot 66, the Jacksons added another section of dock and installed a boat lift in the transfer area. They also built a retaining wall and continued to maintain the sandy beach area.

In 2004, Wetherald installed a jet ski dock near the Jacksons' beach area. The Jacksons believed that the jet ski dock was on their property, and therefore requested that Wetherald move it. Wetherald refused. On August 23, 2004, Wetherald filed a complaint to quiet title alleging that the Jacksons had no legitimate claim to the transfer area and that they were "unlawfully interfering with [Wetherald's] fee ownership and possession of his property." Appellant's App. p. 432. In response, the Jacksons filed a counterclaim for declaratory judgment of adverse possession.

A hearing was held on August 31, 2005. At the hearing, Wetherald testified that he knew that the Jacksons were using his property but never prevented them from doing so because he was trying to be a "good neighbor." Tr. p. 59. All parties conceded that the water of the transfer area was used by Wetherald and the Jacksons for swimming and boating.

On November 7, 2005, the trial court entered the following findings of fact:

1. Per stipulation of counsel, Plaintiff Thomas R. Wetherald is the record owner of Lot 66 in the Third Addition to the Town of Grandview Lake as recorded in Plat Book "D", pages 184-185 in the Office of the Recorder of Bartholomew County, Indiana. He became the owner in August, 1995 by purchase from James H. Strahl and Rosalyn M. Strahl.

2. Per stipulation of counsel, Defendants, Ronald E. Jackson and Eileen E. Jackson are the record owners of Lot 67A in the Third Addition to the Town of Grandview Lake, replat of lots 67 & 68 as recorded Plat Book "P", page 172A in the Office of the Recorder of Bartholomew County, Indiana. They became the owners in August, 1988.

3. The property owned by Wetherald lies adjacent to and abuts the Jacksons' property on Wetherald's north boundary and Jacksons' south boundary. Aerial or overhead depictions of the Wetherald's and Jacksons' property are found in Jacksons' Exhibits B & F.

4. The common boundary line between Wetherald's and Jacksons' property includes some waterfront area. The depiction of the waterfront area of Wetherald's and Jacksons' property is found in Jacksons' Exhibit B and page 1 of Wetherald's Exhibit 1.

5. The area in dispute is referred to as the "transfer area" in Jacksons' Exhibit B and consists of 0.0734 acres of land. Some of the transfer area is at water's edge over dry land and some of it is under the water of Grandview Lake. The parties stipulated that Wetherald is the record owner of the disputed transfer area. The dispute in this case arose in 2004 when Wetherald constructed a portable jet ski dock in the corner of transfer area near the wooden board which had jutted into the water. The Jacksons' believed the land to the east of the wooden board belonged to them. Wetherald constructed the jet ski dock in the water just to the east of . . . where the wooden board entered the water.

6. Certain improvements made by Jacksons since 1988 are in the disputed transfer area. The improvements made by Jacksons in the transfer area are sand beach, retaining block wall with steps, corner of wood deck, jet ski dock and boat dock. All of these improvements are on shore or in the water and are evident in pictures entered as Jacksons' Exhibits A(5), A(7), A(8), A(9), A(10) and A(11) and also Wetherald's Exhibit 6. The sand beach, corner of wood deck and boat dock have been in place for more than ten years prior to the filing of this law suit. The retaining block wall and jet ski dock have been in place less than 10 years.

7. At the time Jacksons purchased their lot in 1988, lot 66 (which is now owned by Wetherald) was owned by James H. Strahl and Rosalyn M. Strahl. Jacksons were told and believed that the boundary between their lot and Strahls' lot, at the water's edge, ran from a board jutting out in the water which was connected to the east end of a wooden retaining wall. From the edge of the wooden board, they believed that their land then ran southeast past the wood deck and boat dock, thence north to a hedge line on the shore. The transfer area is part of what Jacksons believed they purchased in 1988.

8. The board jutting out into the water and the wooden retaining wall were clearly evident in pictures entered as Jacksons' Exhibit A(2), A(4), A(5) and H which were taken from 1988 through 1996. The wooden retaining wall is still in place today and is clearly evident in Wetherald's Exhibit 6 and Defendant's Exhibit A(8), A(9), A(11), and A(12). The board jutting out into the water was removed by Wetherald at or near the time of building his jet ski lift.

9. After the Jacksons' purchase of their lot, then owners of lot 66, Strahl constructed a walkway bridge from a south area of lot 66 over the water to the beach area lying west of the board jutting out into the water and south of the wooden retaining wall. This area is like a giant sand box with a wooden retaining wall to the north and wooden board jutting out into the water to the east. This bridge and beach area are clearly evident in Jacksons' Exhibit A(4) and was in place at the time Wetherald purchased his lot from Strahl's [sic]. This piece of evidence is particularly telling. Strahl build [sic] the bridge to the sand box area west of the transfer area and did not interfere with Jacksons' use of the beach Jacksons constructed east of the wooden board.

10. At all times from 1988 until Strahl's sale of lot 66 to Wetherald in 1995, the area used by Jacksons at the water's edge and into the water included the transfer area shown on Defendant's Exhibit B. Strahl's [sic] did not maintain or exercise any control over the transfer area from 1988 through date of deed to Wetherald in 1995.

11. Jacksons do not reside on their lot. Use of their lot and the transfer area was approximately once a week for the summer months from Memorial Day up to and including September of each year. Jacksons would come during the week only intermittently and during the winter on rare occasions.

12. After Wetherald's purchase of lot 66 from Strahl's [sic] in 1995, Wetherald and Jacksons continued the use of the water and water's edge in the same manner as when Strahl's [sic] had been [the] owner. Wetherald used the water's edge up to the board jutting into the water attached to the retaining wall. The Jacksons continued to use the transfer area to the east of the wooden board.

13. After Wetherald's purchase of lot 66 from Strahl's [sic] in 1995, Wetherald did not attempt to exercise any control over the transfer area used and improved by Jacksons' [sic]. Wetherald had notice when the block retaining wall was being built by Jacksons, but he did not object to the construction or offer to pay for the construction. The block...

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6 cases
  • Garriott v. Peters
    • United States
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    ...and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Wetherald v. Jackson, 855 N.E.2d 624, 632 (Ind.Ct.App.2006) (quoting Ind. Trial Rule 52(A)), trans. denied. Indeed, "it is not within the province of an appellate court to reweigh......
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