Williams v. Rogier

• Decision Date: 31 March 1993
• Docket Number: No. 65A01-9205-CV-140,65A01-9205-CV-140
• Citation: 611 N.E.2d 189
• Parties: Gary W. WILLIAMS and Wilma Sue Williams, Appellants-Defendants, v. Gene ROGIER and Joan Rogier, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 189

611 N.E.2d 189

Gary W. WILLIAMS and Wilma Sue Williams, Appellants-Defendants, v. Gene ROGIER and Joan Rogier, Appellees-Plaintiffs.

No. 65A01-9205-CV-140.

Court of Appeals of Indiana,

First District.

March 31, 1993.

Transfer Denied June 9, 1993.

Leslie C. Shively, Noffsinger, Price, Bradley & Shively, Evansville, for appellants-defendants.

George C. Barnett, Jr., Cedric Hustace, Bowers, Harrison, Kent & Miller, Evansville, for appellees-plaintiffs.

NAJAM, Judge.

STATEMENT OF THE CASE

This is an appeal from a judgment in favor of Gene Rogier and Joan Rogier ("Rogiers") on their complaint to quiet title to approximately 1/4 acre consisting of two strips of land along opposite sides of their one acre residential tract ("disputed area"). In the judgment, the trial court also denied the affirmative defenses and the counterclaim to quiet title to the same area asserted by Gary W. Williams and Wilma Sue Williams ("Williams"). We affirm.

ISSUES

We consolidate and restate the issues on appeal as follows:

1. Did the trial court err in its determination that the Rogiers had acquired title to the disputed area by adverse possession?

2. Is the Rogiers' adverse possession claim barred by laches because they had knowledge of a property line dispute with Williams but did not assert their claim until after Williams had incurred development costs?

3. Did the Rogiers effectively disavow their adverse possession claim?

FACTS

The facts most favorable to the judgment disclose that Marguerite Lannert Elles originally owned a 160 acre tract of land in Vanderburgh County. In 1948, Elles conveyed a 1 1/4 acre parcel from this tract to her sister Mary Lannert Dannenberg and to Mary's husband, Conrad. The Dannenbergs subsequently erected a fence on three sides of their 1 1/4 acre property ("Fence") which fronted on Schlensker Road.

In 1969, the Dannenbergs reconveyed 1/4 acre from the 1 1/4 acre property to Elles, and they and Elles simultaneously conveyed the remaining one acre to Charles and Edna Austill by a separate warranty deed. However, the entire 1 1/4 acre parcel remained enclosed by the Fence along the On November 8, 1989, Williams executed a purchase agreement with the heirs of Marguerite Lannert Elles to purchase the remaining 159 acres of the original 160 acre tract. Williams acquired legal title to the 159 acre tract by warranty deed, dated October 31, 1990.

South, East and West sides. On April 15, 1977, the Austills conveyed their one acre to Alfred and Beverly Render ("Renders"), and on March 7, 1980, the Renders deeded the same one acre to the Rogiers. The Rogiers remained in title and possession of this one acre at all relevant times thereafter to the date of judgment.

Before acquiring title, Williams took steps to subdivide and develop the 159 acre tract. In December, 1989, Williams employed Billy T. Nicholson, a land surveyor, ("Nicholson"), to survey the property, and Nicholson placed a stake inside the Fence near the northeast corner of the Rogiers' property, which was also the northwest corner of Lot 1 in a proposed minor subdivision. After the survey was completed Gary Williams spoke briefly with Joan Rogier in her yard. Williams showed Rogier a map and explained to her that he planned to develop a residential subdivision next to her property. On that occasion, Williams and Rogier did not discuss the survey stake located in the northeast corner of the Rogiers' yard or its significance.

Williams filed an application with the Evansville and Vanderburgh County Area Plan Commission and on December 27, 1989, Williams gave the Rogiers written notice of intent to develop Sycamore Hill Estates, a two lot minor subdivision, on the property located adjacent to and east of the Rogiers' property. Williams included with this notice a survey plat of the proposed minor subdivision. The plat was approved, and on February 2, 1990, the plat was recorded.

Beginning in February 1990, Williams continued with development of a major subdivision on land adjoining the minor subdivision. This site work included field engineering, grading, excavation, installation of water and sewer utilities and other related infrastructure, all at some distance from the disputed area. This work did not involve the disputed area.

In May of 1990, the Rogiers requested their abstract of title from the bank which held their mortgage, "To try and figure out what the stake meant." Record at 450. After reading the abstract they surmised from the chain of title that in 1969 the 1 1/4 acre parcel had been reduced to one acre, and they then sought legal advice. By letter, dated November 26, 1990, the Rogiers' attorney notified Williams that the Rogiers claimed ownership of all of the acreage enclosed within the Fence and offered Williams $750.00 to purchase the disputed area. The price offered also included an easement on the Williams' property for the continued use of the Rogiers' septic system. Williams declined the offer.

On February 4, 1991, the Rogiers filed a complaint to quiet title to the disputed area, and on February 26, 1991, Williams filed an answer, affirmative defenses and counterclaim to quiet title to the same area. Williams requested findings of fact and conclusions of law under Trial Rule 52. Following a bench trial, the trial court found that the Rogiers had acquired title to the 1/4 acre by adverse possession and entered judgment for the Rogiers. Williams appealed. We will state additional facts in our discussion as needed.

DISCUSSION AND DECISION

Standard of Review

When reviewing a judgment accompanied by requested findings of fact and conclusions of law, we are bound by a limited standard of review. Cap Gemini America, Inc. v. Judd (1992), Ind.App., 597 N.E.2d 1272, 1278, trans. denied. Our review is two-tiered: we first determine whether the evidence supports the findings and then determine whether the findings support the judgment. Kaminszky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, 870, trans. denied. We will reverse only if we conclude that the findings are clearly erroneous. Judd, 597 N.E.2d at 1278-79. In deciding whether the special findings are clearly erroneous, we consider only the evidence which supports the judgment, and we will affirm the judgment unless the record is devoid of facts or inferences supporting the trial court's findings. Id. at 1279.

Issue One: Adverse Possession

Williams owned record title to the disputed area. In various respects, Williams claims that the evidence presented by the Rogiers to defeat the record title by adverse possession was insufficient to support the trial court's findings of fact, and that the findings do not support the judgment. We cannot agree.

Record title is the highest evidence of ownership, and is not easily defeated, but record title may be defeated by adverse possession. McCarty v. Sheets (1981), Ind., 423 N.E.2d 297, 300. It is well settled that in order to establish title to real estate by adverse possession, the adverse claimant has the burden of proving that such possession was (1) actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for the statutory period. Penn Central Transportation Co. v. Martin (1976), 170 Ind.App. 519, 524, 353 N.E.2d 474, 476, trans. denied. A party who sustains that burden acquires title to the disputed real estate by operation of law, and the original owner's title is thereby extinguished. Snowball Corp. v. Pope (1991), Ind.App., 580 N.E.2d 733, 734.

Our legislature has imposed an additional requirement upon a party who claims title by adverse possession. The adverse claimant must pay all taxes and special assessments falling due on the real estate during the period adverse possession is claimed. IND.CODE Sec. 32-1-20-1. However, our courts have recognized an exception to this statutory requirement where the disputed real estate lies adjacent and contiguous to other property owned by the claimant and taxes have been paid according to the tax duplicate. Echterling v. Kalvaitis (1955), 235 Ind. 141, 147, 126 N.E.2d 573, 575. In adverse possession cases where boundary disputes arise due to the erection of fences, payment of taxes for the disputed property is not considered an additional element of an adverse possession claim. Connors v. Augustine (1980), Ind.App., 407 N.E.2d 1186, 1189. The erection of a fence or other structure serves as sufficient notice to the adjoining titleholder. Id.

Williams first contends that the findings are not supported by the evidence. Specifically, Williams argues that the Rogiers failed to prove that either their acts of ownership within the disputed area, or the acts of their predecessors, were sufficient to vest title in the Rogiers. Williams asserts that the only possessory acts spanning the entire ten-year statutory period consisted of periodic maintenance of the property up to the fence.

Williams also contends that two specific findings are clearly erroneous. First, Williams attacks the finding that, "title to the entire 1 1/4 acres was probably established in the party possessing the area within the Fence 20 years after Marguerite Lannert Elles conveyed the original parcel in 1948." See Record at 868. We need not address the sufficiency of that finding, however, because it was not dispositive. The term "probably established" used by the trial court does not constitute a finding of fact but a mere suggestion, in the nature of dicta. Similarly, Williams argues that the trial court's finding that, "The Rogier [sic] bought the entire 1 1/4 acres and are the exclusive owners of the entire 1 1/4 acre parcel within the fence" is clearly erroneous. See Record at 869. We agree with Williams but conclude again that the finding was not dispositive.

Setting aside these superfluous findings, we conclude that the trial court's other findings are supported by the evidence. The record shows that the Fence remained in place...