Zakutansky v. Kanzler, 64A05-9208-CV-00298

• Decision Date: 12 May 1994
• Docket Number: No. 64A05-9208-CV-00298,64A05-9208-CV-00298
• Citation: 634 N.E.2d 75
• Court: Indiana Appellate Court
• Parties: David M. ZAKUTANSKY, Appellant-Plaintiff, v. Henry KANZLER, Appellee-Defendant.

Page 75

634 N.E.2d 75

David M. ZAKUTANSKY, Appellant-Plaintiff, v. Henry KANZLER, Appellee-Defendant.

No. 64A05-9208-CV-00298.

Court of Appeals of Indiana Fifth District.

May 12, 1994.

Kathryn D. Schmidt, Burke Murphy Costanza & Cuppy, Merrillville, for appellant-plaintiff.

Matthew D. Soliday, Rice & Rice, Portage, for appellee-defendant.

SHARPNACK, Chief Judge.

David M. Zakutansky appeals the trial court's judgment in favor of Henry Kanzler. The trial court found that a private roadway abutting the parties' properties became a public highway pursuant to Ind.Code § 8-20-1-15. Zakutansky raises three issues on appeal, which we consolidate and restate as whether certain findings by the trial court are clearly erroneous, rendering the judgment contrary to law. We affirm.

The facts most favorable to the judgment show that the roadway at issue, "Marine Avenue," is a 31.5 feet by 1600 feet roadway located in the City of Portage, Porter County, Indiana. The land north of Marine Avenue abuts the Burns Ditch Waterway, which opens to Lake Michigan. The abutting land and roadway parcel were owned originally by Peter Crumpacker. After Peter Crumpacker's death in 1918, the land was placed in a trust of which his son, Edgar D. Crumpacker, was trustee. Edgar Crumpacker divided the property into several parcels around 1939 and sold them to several individuals as recreational home lots. The property owners built small cottages and used the properties for boating, fishing, and scenic river trips. Because Crumpacker owned the property between the lots and the closest public road, Marine Street, the property owners needed access to their properties. The plats of the area from 1939, which were not recorded, show Marine Avenue as an approximately thirty-foot wide "easement for a road."

Upon Edgar Crumpacker's death, William P. Crumpacker became owner of Marine Avenue. During the 1950's and 1960's, William Crumpacker placed signs at the entrance of Marine Avenue indicating that the roadway was private property.

The Crumpacker Estate deeded Marine Avenue to Zakutansky without warranties on January 1, 1990, for $15,000.00. The tax duplicate sent by the auditor's office describes Marine Avenue as a "private road." When Zakutansky bought Marine Avenue, he obtained a title insurance policy insuring his fee ownership of the thirty-foot wide strip, but not insuring over the rights of the public to use Marine Avenue because the title company found nothing of record to show that Marine Avenue was an express easement.

Marine Avenue has no outlet at its west end. Zakutansky's father owns the property at the east entry of Marine Avenue, upon which he operates a business called South Shore Marina. Marine Avenue passes through the middle of his father's property. South Shore Marina stores boats and in so doing moves boats and other equipment back and forth across Marine Avenue. Marine Avenue intersects with Marine Street, which leads out to a main street in the City of Portage, Southport Road. The abutting property owners have no way to get from their properties to Southport Road except by use of Marine Avenue.

In 1941, Kanzler's father, who owned one of the abutting properties, placed a mixture of cinder and stones on Marine Avenue. Although Marine Avenue is 31.5' wide, it is not paved to that width. The City of Portage laid asphalt pavement on all of Marine Avenue except the last four-hundred feet, which was paved by abutting landowner Robert Bucko. Portage's trucks use Marine Avenue to provide garbage and mosquito fogging services to the abutting property owners. In the winter, the City of Portage regularly plows snow off Marine Avenue and Zakutansky does so periodically. School buses in the past serviced the full length of Marine Avenue, but now turn around at Zakutansky's lot.

At different times from the 1940's to the 1980's, other abutting property owners have operated small businesses from their homes for short periods of time. Kanzler operated a boat docking service beginning in 1958 and continuing for five to seven years; Bucko's son operated a pre-cast concrete curb business from 1979 to 1988; Bucko's daughter-in-law operated an interior design business from 1981 to 1983; and Joseph Sablotney built the marina that Zakutansky's father now owns in 1929 and operated it into the late 1940's or early 1950's before selling it to others who continued to operate it as a marina. Sablotney later operated a machine shop in the early 1950's for three or four years and a Mr. Polizatto operated a "tuck point" business from the early 1960's to 1968. All of these businesses were open to the public.

On September 19, 1990, Zakutansky filed a petition for an easement protective order to prevent Kanzler from using Marine Avenue for travel to his property for commercial purposes. A hearing was held on October 10, 1990. On November 21, 1990, the trial court found the abutting landowners to have an easement of necessity which could not be expanded to burden Zakutansky's property. The court entered an order restraining Kanzler from using Marine Avenue for commercial purposes. On December 20, 1990, Kanzler filed a motion to correct errors and a motion for relief from the order.

The trial court entered an order on the motion to correct errors, revising the original order. The trial court found that although Zakutansky would prevail as to the protective order, since that was the only relief requested at the October 10, 1990 hearing, the order was too broad and therefore, the trial court set the cause for a hearing on the merits to determine the status of Marine Avenue. Following a change of judge taken by Kanzler, the Honorable Thomas W. Webber, Jr. was named to hear the cause.

On October 18, 1991, a hearing was held in which the parties incorporated the evidence from the October 10, 1990 hearing and submitted additional evidence. On May 8, 1992, the court entered findings of fact and conclusions thereon, which provide in pertinent part:

"1. That both Plaintiff [Zakutansky] and Defendant [Kanzler] have stipulated, in open Court, that this matter was to be submitted to the Court both for the purpose of determining whether or not injunctive relief should be granted, but also for the further purpose of determining whether or not Marine Avenue had, or had not, become a public road.

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3. The strip of land at issue includes a roadway 1600 feet long and 31 feet wide, running in an East-West direction, terminating in a dead end on the West side, and commencing on the East side, at the north end of Marine Street....

4. The strip of land at issue also includes that portion of the roadway which begins at the East end of the strip of land described above at Paragraph two, and which runs in a Southerly direction between that strip of land and connecting the same with Southport Road, a publicly dedicated road, said portion having been used by the Defendant, all of the other abutting landowners, and the general public, to access the property along Marine Avenue. (These two strips will hereinafter be referred to collectively as "Marine Avenue").

5. The 1600 feet by 31 feet portion of Marine Avenue was created by the Defendant's parents, Anna and Henry Kanzler, among others, in 1942.

6. Title to Marine Avenue was purportedly held by William Crumpacker and conveyed from Mr. Crumpacker to David Zakutansky in 1990, by way of an executor's deed with no warranties, and subject to Marine Avenue's having became [sic] a public road as long ago as the 1960's.

7. No owners of Marine Avenue, past or present, have ever granted the Defendant or any other user of Marine Avenue any easement or right-of-way, and Marine Avenue has never appeared on any legally recorded plat as an easement or right of way, having any legally recorded plat as an easement or right of way, having begun as a private property at the time of its creation in 1942.

8. Beginning in the 1940's, and until the present, the entire length of Marine Avenue has been used by the following persons in the following manner:

a. The general public has accessed Marine Avenue whenever it has had a desire to traverse the road, ever since the road's creation in the 1942 [sic] until the present.

b. The abutting landowners and their guests for ingress and egress to their property, continuously since the land abutting Marine Avenue was divided and sold into plots beginning in 1942.

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g. Abutting landowner Robert Bucko[,] Jr. and his customers for a preform curb business from 1979-1988.

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9. That the above users are members of the general public concerning their use of Marine Avenue, as they had no property interest in Marine Avenue.

10. The controlling statute is Indiana Code § 8-20-1-15, which governs the creation of public rights-of-ways [sic] on previously private property.

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12. Under Ind.Code § 8-20-1-15, use by the public is the sole test to determine whether a public road has been created.

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14. Under Pitser v. McCreery, [ (1909), 172 Ind. 663, 88 N.E. 303] and Discher v. Clapp [Klapp], [ (1954), 124 Ind.App. 563, 117 N.E.2d 753], interpreting Ind.Code § 8-20-1-15, use for 20 years under the statute vests an indefeasible right in the public to continue to use the road as a public highway, and once vested, the owner of the fee can not [sic] divest the public's interest therein. Vacating of the public interest once created can be accomplished only by the governmental authority having jurisdiction and authority to vacate public roads.

15. Under Ind.Code § 8-20-1-15, to interrupt the 20 years use, the owner of the land must physically stop the public from using the road or resort to judicial proceedings to exclude the public; the mere posting of a sign or ineffective physical barriers are insufficient.

16. At no time from the road's creation until the present has Mr. Zakutansky or the previous owner, Mr. Crumpacker, restrained, by physical means or...