Fraley v. Minger

Dis statutory requirements. with all plies that require provisions these Together, satisfy does not window a back play rear inside upon the displayed plate be license requirements.19 these fastened, in a horizon- vehicle, securely at illuminated also be position, tal of the defendant's the display Because as to be light so white by separate a night his car in the rear window plate license fifty feet. from clearly legible that requirement satisfy legal did rear of his Safety upon Standards displayed plate Motor Vehicle his Federal Traffic justified stopping Highway car, by the National the officer issued Standard include Safety Administration in admit- did not err trial court him. The requirements from the traffic specifies resulting which ting No. evidence trial judgment devices, and associated affirm the stop. We lamps, reflective that provides Standard equipment.16 court. activated lamps must be plate license SHEPARD, C.J., and SULLIVAN, headlamps are lampsor parking

whenever RUCKER, JJ., concur. BOEHM, and in also The Standard also activated.17 in color lamps be that forms white or plate top from they illuminate that au knowledge that common It is

sides.18 equip manufacturers vehicles

tomobile a license that bracket such

with a rear illuminated will be thereon fastened plate FRALEY, Appellant E. Clarence result, compliance As a accordingly. (Defendant below), con statutory Indiana requirements illi attachment, secure cerning placement, Minger, Eva K. MINGER Clarence by prop obtained legibility is mination and below). (Plaintiffs Appellees upon the plate mounting of the license er No. 69S01-0308-CV-387. by the vehi provided bracket illuminated method Any other manufacturer. cle Indiana. Supreme Court a basis may display serve plate license 20, 2005. June law enforce suspicion for for reasonable stop to a traffic to make ment officers fully com display whether.

ascertain 18. Id. authority by statutes. these under its Bureau permits under provides issued This rule displayed § shall be fact that cognizant Code 9-18-7-1.5 Indiana Court is 19. The plate as set as a standard same manner into the in the are not built plate brackets license § Code 9-18-2-26. in Indiana forth vehicles. For part of some hindmost absolute utility sport mod- example, minivan or some (1997) (authorizing § 30111 49 U.S.C. 15. See append- or other may back windows els Transporta- Department of States the United fenders, lights, trailer bumpers, tail ages (e.g. tion, authority to the Na- delegated its which tires, etc.) hitches, extend the abso- spare Administration, Safety Highway Traffic tional beyond license the vehicle lute rear of standards). safety vehicle prescribe motor statutory light illumi- plate bracket. Safety Stan- Vehicle Motor See also Federal High- the National requirements nation dards, § 571. 49 C.F.R. however, we specifications, way Safety Act pro- mounting the brackets on conclude (2004). § 571.108 16. 49 C.F.R. satisfies the manufacturer by the vehicle vided requirement. "upon the rear" Indiana Id. Richardson, Todd A. Matthew Tark- S. Lewis & Indianapolis, Rita Kappes, ington, Baldwin, J. Washington, Appellant. for Eaton, Larry Versailles, L. Appellee. Truman 19-20. And Trans. at it. owned DICKSON, Justice. land that Belew, acquired in 1963 who asserting ad action quiet In this told the Fraley, to eventually deeded Clarence the defendant verse tract. Id. own the did not that he Mingers awarding judgment Fraley appeals E. tract was Mingers believed at 35. 2.5 acres approximately simple title fee died Truman unclaimed. plaintiffs possessors, land to the con- in land included tract was this Minger. The Eva Minger and K. Clarence Be- Fraley from Melvin veyed by deed Fraley v. reversed. Appeals Court son, of Luella guardian lew, Truman's (Ind.Ct.App.2008). Minger, 786 The trial court's Belew, Truman's widow. 748. transfer, 804 N.E.2d granted We fact and findings forth judgment sets law con the common examination Upon in relevant including of law conclusions Indiana, we cept of following: part and find elements essential its rephrase In addi here. established those elements title to acquired Mingers 1. The however, fifty-year-old our tion, renewing ... tract disputed adjoining tax of the adverse construction May on statutory that this statute, we conclude the paid taxes on Mingers 2. The requirement additional disputed adjacent to the real estate the case and reverse in this not satisfied tract. court. the trial judgment of ap- tract consists disputed 3. The trial final from a bench appeal This is an ... 2.5 acres proximately the from following remand judgment to the dis- a deed [Fraley] in a memorandum received which 4. Appeals, Court ... real estate and other tract puted of sum- grant the had reversed decision February 1996. on Mingers. in favor mary judgment Minger, 69001-9610-CP-186 Fraley v. and their children Minger The 5. remand, counsel Upon (Ind.Ct.App.2000). disputed tract on the played friends findings of requested written Fraley from 1970. law, parties both fact and conclusions thought the neighbors 6. Friends conclu- findings and proposed submitted tract. disputed the Mingers owned findings included sions, trial court and the their friends Mingers or the 7. Neither its of law with conclusions fact and Belews saw the ever neighbors challenge the Fraley does judgment. on the time] at the owners that titled argues [the findings of fact but trial court's tract. disputed trial court found the explicitly the facts fail trial evidence uncontradicted and the farm to their moved Mingers 8. The a matter as to establish on tract June disputed the adjacent to law. 17, 1955. a 2.5- involves in this case dispute The they pur- when knew Mingers The 9. along rural undeveloped acre tract of disputed that the farm chased their twenty- adjacent to of and the west side deed. in their not described tract was County pur- Ripley rural farm in four-acre disputed the believed Mingers The 10. Raymond and from by Mingers the chased in 1955. was unclaimed tract time, the At the Chaney in 1955. Ada Mingers took 11. The tract owning the 2.5-acre Chaneys denied tract: disputed who not know they did and stated year a. One after Mingers the years prior continuous to February regarded disputed the tract

theirs. By Mingers b. the had built a CONCLUSIONSOF LAW along County fence Road 625 East 1. The continuous use of disputed the to fence disputed the tract. tract the Mingers for more than a c. Mingers pastured The cattle on continuous period in excess of ten disputed tract. years to pasture cattle, wood, their cut d. Mingers The used from wood timber, sell and recreational activities disputed tract from the 1980's to as constitutes the visible and exclusive late as 1998. possession of the disputed tract. e. Minger The children camped and 2. The common perception for more disputed hunted on the tract in the than years ten of the friends and 1960s, 1970s, and 1980s. neighbors of Mingers f. The Mingers sold timber from the Mingers were the owners of the dis- disputed tract. puted tract constitutes notorious pos- g. Minger children and friends rode session of disputed tract. dirt disputed bikes on the tract. The common perception of h. Mingers installed a culvert in neighbors friends and of Mingers the ditch from County Road 625 Mingers were the owners of East on to disputed tract and disputed tract constitutes a claim used it as access to the disputed of ownership hostile to [Fraley and tract. predecessors in his] title. 12. No evidence was offered [Fra- 4. The construction of the fence should ley] to refute testimony the any alerted reasonable title own- [Mingers'] witnesses the Mingers er that property his being is adversely possession exercised and control of claimed. disputed the tract for more than the statutory time required for Open them to and possession visible has obtain title. been in general terms, stated th{uls: it is necessary and sufficient if the 13. The Mingers had the actual posses- nature and character is such as is sion of disputed the tract from 1956 to calculated to apprise the world that the date of trial. occupied the land is and who the occu- 14. Mingers The had visible pant is. of the disputed tract from 1956 to the date of trial. 6. Mingers actual, The exercised visi- ble, 15. Mingers The notorious and posses- had exelusive notorious of disputed sion of the disputed tract tract of real 1956 to estate from trial, under date of a claim of ownership hostile to [Fraley and predecessors in his] 16. Mingers The had the pos- exelusive for a period continuous of more than session of the disputed tract from years ten prior filing the law suit 1956 to the date of trial. herein. 17. Mingers The ownership claimed [Fraley hostile to predeces- and his] 7. Mingers The had established that they (10) were the sors title for more than disputed owners of the ten of an issue in some sense though this is to Feb- years prior many estate real and is sub- law, fact sensitive highly it is 29, 1996. ruary standard."). of discretion ject to an abuse Mingers oust the failed to [Fraley] 8. mischaracter- court the trial event before tract disputed from versa, or vice conclusions findings as izes visible, actual, had exercised Mingers the substance labels to these past look we of exclusive notorious Ins. v. Wausau judgment. Beam under real estate tract of disputed (Ind.2002); State Co., N.E.2d [Fraley ownership hostile a claim "In 1296. Cleave, N.E.2d Van a title for predecessors his] con- finding or that a to determine order ten more than period continuous erroneous, appellate an clearly clusion years. it must leave evidence review of the court's of limitations The statute 9. has a mistake the firm conviction others if the Belews stayed. even at 1262. Yanoff, 688 made." been their owner- unaware in title were ship. de heightened that a Suggesting judg- ato Mingers are entitled ad to establish proof is needed gree of against complaint [Fra- on their ment Fraley argues such verse coun- [Fraley his] on against ley] and clear, strict, posi proof require claims [Mingers]. against the terelaim This as tive, evidence. unequivocal at 6-10. App'x. Appellant's prior opin in some support finds sertion See, Pipe Eastern eg., Panhandle ions. of claims review appellate In the Tishner, 699 N.E.2d judg findings and jury, Company Line without tried ("Each the ele clearly unless (Ind.Ct.App.1998) set aside are not to be ment must be of adverse to ments given to be erroneous, regard is and due clear, that is by evidence strictly proved eredi- ability to assess trial court's v. De unequivocal."); positive, Trial Rule Ind. bility Piel the witnesses. Ind.App. 351N.E.2d witt, 78n. 52(A). clearly errone judgment A will (1976) ("The of estab supporting burden n. 10 there is "no evidence when ous falls by possession adverse lishing title support fail to findings the findings or the must asserter who affirmatively upon the City Ho v. Chidester judgment," the of strict, clear, positive, (Ind.1994), which and adduce 908, bart, 910 N.E.2d proof 631 Brown, 127 wrong v. the Milkhon applies unequivocal."); trial court the when 576 694, 700, N.E.2d 148 facts, Ind.App. Ya 573, found properly standard legal (Ind. 1259, 1262 (Adverse (1957) "must be strict possession N.E.2d Muncy, v. 688 noff by "competent supported ly proved" 1997). fact are reviewed findings of While standard, evidence."); Creek ap clearly erroneous the and substantial under Coal Co., Ry. T.H. & SE. Chicago, v.Co. conclusions Coal defer to courts do not pellate 179, 640, 184 627, 58 N.E.2d Ind.App. 114 Fobar de novo. law, are reviewed which of ("The overcoming the (Ind. (1944) of burden Vonderahe, 59 Til N.E.2d exist favor which presumptions Johnson, 2002); 732 N.E.2d Bader v. upon title rests legal record holder Menard, Dage- (Ind.2000); Inc. v. posses (Ind. by title claiming the one Inc., 726 N.E.2d MTI clear, strict, must proof and the sion 2000). mixed issues present cases Where Philbin law, unequivocal."); described positive fact and we 129 N.E. Carr, Ind.App. of discretion an abuse applying review as facts (1920) ("[Plroof the essential ("Al- of all Fobar, at 59 standard. clear and convincing but must deter- unequivocal."). must be clear and At least one commentator observes that "American mine, by considering only probative state courts in general agreement" are evidence and reasonable sup- inferences the elements of possession porting judgment and without "by must be established clear and convine- weighing evidence or assessing witness ing .evidence." POWELL REAL credibility, whether a reasonable trier of ON § 91-6, PROPERTY 91.012] 91-7 at, fact could conclude that judgment (1999).1 hand, On the other other relative established clear and convincing ' lyrecent cases have omitted reference to evidence. any heightened standard of proof.2 Defer Id. at 288. We will likewise apply this ring to the of cases that have majority appellate standard of review the instant actually quantum discussed proof case and determine whether a reasonable issue, we find that stan heightened trier of fact could conclude from the facts dard is appropriate. Employing current found the trial court that challenged however, terminology, we believe that elements of were estab- "clear and convincing" preferable is a way lished clear and convincing evidence. heightened describe the standard need ed to establish adverse thus Common Law Adverse Possession embracing and variety superseding The common law doctrine and applica- - previously terms used. tion of adverse has a long histo-

Where overcoming a presump ry. early As as 2250 B.C. the Code of tion requires a heightened quantum of Hammurabi discussed adverse however, proof, such determination falls land, the misuse of including provi- within sound discretion of the fact- sions punished waste, rewarded finder, whose discretion is afforded defer long-term development, and allowed one ential review. See In re Guardianship who worked the land of another for three B.H., (Ind.2002). N.E.2d years to take and keep the land. See reviewing a judgment requiring proof by Gardiner, Note, Brian Squatters' Rights clear and convincing evidence: Possession, and Adverse 8 Ind. Int'l &

an appellate may court not impose its (1997) (hereafter Comp. L.Rev. "Gardiner"); own view as to John G. Sprankling, An En- the evidence is whether Among claim, the cases cited therein prop- for this each element of adverse must be possession may met before the osition, ripen however, is Carter v. Malone, (Ind.Ct.App.1989), which contains legal against into the holder of the record no mention convincing "clear evi- title."); Silvers, Roser v. 698 N.E.2d any heightened dence" or other standard of ("Title (Ind.Ct.App.1998) may to real estate be Instead, proof. merely it states: by defeated possession pos- adverse where the highest Record title is the evidence of own- actual, visible, notorious, session has been ership, and easily is not defeated and while exclusive, ownership under a claim of hostile may by be defeated adverse owner, to the true and continuous for a ten possession mere is the lowest evidence of year period."); Corp. Pope, Snowball v. ownership. possession In order for of real 733, ("title 734 (Ind.Ct.App.1991) to title, adverse, ripen estate to into it be must may real estate posses- be defeated adverse actual, notorious, exclusive, open, continu- actual, sion possession where the has been ous and under a right claim of for the visible, notorious, exclusive, a under claim of prescribed statutory period. owner, ownership, hostile to the true and Id. at 6. statutory period.") continuous for the See, Hollar, 586, eg., 626 N.E.2d Coffin ("To (Ind.Ct.App.1993) establish the those punishes of land the use rewards Adverse Posses Critique vironmental of rights). 816, n. 17 sit on their who sion, L.Rev. 79 Cornell (hereafter Eng In (1994) "Critique"). liti were possession of adverse Claims can possession land, history of adverse early years of in Indiana from gated in Conquest the Norman back to traced 183, West, 1 Blackf. In Doe statehood. The common at 125. Gardiner 1066. See (Ind.1821), observed the Court was possession adverse of law doctrine of our sister in some England, "liln disputes between to resolve applied years' that 20 States, decided it has been early as Virginia in as colonists right a which gives possession peaceable help to "in an effort it used where ejectment." maintain sufficient between conflicts proverbial resolve posses of law doctrine common at Critique squatters." speculators in approval legislative received sion of statutory recognition n. 29. The first specific 20- of with the enactment Indiana ap in the New World possession limitation of year statutes limitations statute of in a 1715 peared In n. 1. Id. at 186 ed. in 1823. again Netter, al., M. et Jeffry Carolina. North of title for a claim this Court stated Adverse Posses Analysis An Economic a to defeat in adverse based Statutes, L. & Econ. Int'l Rev. sion must proof "strict property, title to legal (1986) (hereafter "Netter". was, that the only be made migration pioneers, the western With claim of public inception, under from its initially prohibited government federal owner, but the real to that of title adverse lands unless western settlement claim and that both such but that government, from purchased uninterrupted been continuous relaxed; anti- gradually requirement was twenty years." full through period abandoned, were prohibitions squatting (Ind.1853). Brown, 148, 145 4 Ind. Doe v. rights purchase preemptive recognition of Assembly demon the General extended, was distributed and land were the doc approval continued strated its Spran- John G. military See veterans. applicable statute shortening the trine Ameri- Bias in Antiwilderness kling, The to ten twenty years limitations from Law, L.Rev. 63 U. Chi. Property can 801, 2; § see ch. Acts of years. See (1996). Eventually, with the 1852 528-29 Therber, Corp. v. Land also Phar-Crest Act, land was Homestead passage 688-684, 244 N.E.2d 251 Ind. At Id. to such settlers. freely available J., (Ind.1969) (Hunter, concurring); Ber had time, the courts whereas the same (Ind. Jean, 104-105 rey v. example of English followed the originally Ct.App.1980). possesser en- the adverse requiring century, latter nineteenth During the in- notice to an giving gage in activities Indiana adverse many of the residence, cultiva- owner such specting specific elements to articulate began cases improvements, tion, and other fencing, possession. to establish required upon focus acts began to courts American Congres- See, Inhabitants e.g., Hargis v. keeping possessor the adverse (Ind.1867) 70, 71 29 Ind. Township, in- of the land sional character the nature and actual, open, "in claimant be (requiring behind policy Id. at 538-39. volved. notorious, there- possession and exclusive was the same possession favoring adverse fee."). A favoring the of, the owner claiming to be land distribution: as that of ele- of similar 534-40; relatively consistent list land. Id. at productive use possession common law adverse (adverse of ments possession Netter at 219 see also

485 developed and is found thereafter even in permission and in disregard all other of Citing more recent cases. Penn claims, Central conflicting is sufficient to make Martin, Transportation Co. v. 170 Ind. possession adverse. 519, (1976),

App. par- 353 N.E.2d 474 548, 146 Ind. at 45 N.E. at (quoting 782 ties each assert that to establish Board, 27, 34, 21 Collett v. 119 Ind. N.E. the claimant has the Worth, (1889) 329, (emphasis 381 added in (1) proving possession burden of was: )). ley (2) (8) actual; visible; notorious; open and In addition Worthiey, many (4) (5b) exclusive; under claim of owner- early other Indiana recognized cases that a (6) hostile; (7) ship; and continuous for person may claim possession statutory period. Brief Appellant of solely based upon entry and posses actual 5, Fraley at Brief of Appellees Minger at land, sion of any without initial claim of Ross, Marengo See also Cave Co. v. 212 of title. See Longworth, Bell v. 6 (Ind.1937). 624, 630, Ind. 10 N.E.2d 917 color 278, (1855); Ind. 276-77 Vancleave v. Mil Later cases from this Court have used a liken, (1859); Dobbins, 18 May Ind. 105 v. slightly different formulation that omits 331, 333-84, 166 358, Ind. 77 N.E. "adverse," "visible" and "hostile" but adds (Ind.1906); Martin, 524, Ind.App. at and right" substitutes "claim of for "claim 477; 353 N.E.2d at v. New York ownership." of This opinions Court's Swanson Ind.App. Co., 580,583, CentralR.R. Vandall, Beaver v. 802, 858, (1925). N.E. It is not necessary (Ind.1989), Sheets, McCarty and v. possession title; be under color of (Ind.1981), state that ad- required what is right. is claim of In May possession verse by "open, established Dobbins, 166Ind.at 77N.E.at continuous, exclusive, adverse and notori- rejected this an "which, instruction possession property ous of under a claim Court appellant stated that if took of right of statutory period." As title, the land without and authority statement, knew or for this McCarty cit- color had reason to believe rightful who the Burbanks, Worthley ed 146 Ind. was, owner his occupancy would (1897). be N.E. 779 Worthley But lists the good-faith such indispensable occupancy "five under claim of elements" of adverse "1, title, ownership as would It must be confer hostile and however long right; under a claim continued." Id. The recog it must be Court actual; 3, nized that such an instruction "accords notorious; open it must be morals, good but exclusive; it is not sound in it must it must be continuous." 146 Ind. at 45 N.E. at law." Id. acquisition "The of title (emphasis in original). Emphasizing is predicated upon the that the nature and situation disput- limitations, statute and the running of consideration, ed land must be taken into may the statute be instituted without even Worthley cites the following generally title, as a color of and without reference to the accepted proposition: good or bad faith of the adverse claim Id.;

An asserted entry upon occupant." land with see also the intention of Hinkle, 822, 824, asserting it, Moore v. 50 N.E. ownership to continuing visible, (1898). in the Ind. 347-48 exclusive under Where one enters asserting the land with the intention of claim, such exercising those acts own- ership usually practiced by ownership possesses openly owners the land land, such using purposes and exclusively, exercising the usual acts if for to which adapted, it is asking ownership upon without the land for the full "actual," ways » and some of ments limitations, of the statute time under "exclusive," possession); Ind. May, 166 possessor. the pass will to cases at 354-55.3 While at 77 N.E. (2) claimant must demon- Intent-The ownership full of of adverse intent to claim listing the elements strate rights of all superior claimant to the that the adverse the tract frequently recite others, legal of the owner particularly under a claim the land occupy must right can be established that claim of of right, (reflecting the former elements "hostile," "exclusive," land with upon occupying and by entering right," "claim of | © one's own. "adverse"); hold the land as intent to Martin, at Ind.App. See (38) actions with Notice-The claimant's court sue- 477. The Martin N.E.2d at land must be sufficient respect to the may be right a "claim of notice to cinetly that or constructive give stated actual in posses claimant's in- party in favor of the owner of the legal inferred "in (reflecting land party uses the control sion" where the tent and exclusive "visible," "open," "notori- former ordinarily that an owner same manner (citing "hostile," land." Id. Swanson ous," uses his ways and in some Co., Ind.App. R.R. elements); and, New York Central (1925)); 580, 588, 149 N.E. (4) satisfy must claimant Duration-the 328, 337, Love, Ind.App. Abel v. continuously of these elements each (1924)4 (re- of time required period N.E. "continuous" ele- flecting the former rephrasing these Synthesizing and ment). simplified a to reflect varying expressibns case, Fraley does present In the of shared the common set articulation of claim Mingers' challenge the basis the common and the essence of

concerns lacking a basis. ownership as sufficient doctrine, that the doctrine of we hold law law elements historical common As to the person a with possession entitles claims, Fraley rath- of adverse ownership parcel to a title to obtain out er, by the trial court the facts found convincing proof clear upon fail evidence by uncontradicted and shown duration, intent, notice, fol control, hostility and con- requisite to establish lows: possession. He tinuity needed for adverse un- acknowledged Mingers that the argues (1) must exer- -The claimant Control prop- title to the certainty about who held control over degree a of use and cise superior dispute the erty and did not and custom- parcel that is normal Fraley contends legal owners. rights considering the characteristics ary communicated a Mingers neither ele- that the the former the land (reflecting ground justify- on some ship "must be based 53, 56, Ponsford, Ind. 3. See also Smith conclusion," finding at ing (Ind.1915); "[U)se id. which was 110 N.E. 194 knowledge on open demonstrating and continuous for his basis "no evidence subjected there- part of the-land of the owner ownership," id. at right or claim claim acquiescence therein is to and his regard language as obiter dic- We such sufficient proof prima that the use constitute facie however, ta, being issue was not since that right and was a claim of exercised under opinion's hold- presented and the basis of adverse." the evidence to ing the failure of was rather possession was claimant's that the establish Mark, however, note, 4. We that Estate of adverse, hostile, and exclusive. (Ind.1989), language contains NE2d possessor's claim of owner- an ownership property adversely claim hostile to the titled possessed by him (Grim Johns, 514, possessed property owners nor ad- v. 61 Ind.App. 112 N.E. of all versely and to the exclusion others. (1916)), or that he states does not claim (Rennert Mingers' that the activities urges buy He such the land and offers to it v. cattle, Shirk, wood, 542, (1904)). pasturing cutting and en- 163 Tad. 72 N.E. 546 gaging recreational activities on the dis- See also Marathon Petroleum Co. v. Colo- sporadic tract puted periodic were Inc., ac- nial Motel Properties, 550 N.E.2d and thus insufficient to (Ind.Ct.App.1990); tivities establish 179 Ind. Kline, Mingers possessed property that the at App. 386 N.E.2d at 987. The ten- Fraley adversely. argues year also possessory period required for the Mingers' Mingers' activities on the tract were insuf- possession clearly adverse ex- permanent pired ficient to establish continuous long Minger's before Mrs. purchase (which possession requisite ten-year peri- for the inquiry may after merely od. an litigation), been effort to avoid and her inquiry would not any undermine owner- essentially These claims assert that the by ship possession Ming- that the findings are insufficient to establish each gained years ers had earlier. control, intent, requisite elements of notice, and duration. Fraley argues period also sporadic ic or ownership acts of are not Fraley argues Ming- that the sufficient to possession. establish adverse possession ers' was not hostile because While it is true the land must be used Minger "openly acknowledged Mrs. the su continuously: for adverse perior rights record title holder required only use need in keeping inquiry making buying par an about ordinary uses of In the land. McCar Opp. cel." to Pet. for Transfer at 5. Be ty, 4283 at N.E.2d we held that "what tween the time of the death Truman may constitutes of a 'wild' land Belew in 1994 and the deed conveying the constitute of a residential disputed Fraley tract to Keith Eva Corp. lot." v. Pope, Snowball Minger inquired possible pur about the (Ind.Ct.App.1991), the ad chase of about half of the tract from Mel verse claimant did little more with the land Fraley's vin Belew. contention that this question than it treat as an extension of inquiry disproves Mingers' yard, his but the land because was essen is erroneous because title tially swamp, a that use was held to be passes to the claimant sufficient, consistent with its character and possessory law at the end of period. ly posses continuous to establish adverse Kramer, 592, 597, Kline v. 179 Ind.App. sion. (Ind.Ct.App.1979). in party Onee title vests at the Fraley disputed conclusion describes the tract as ten-year possessory period, "undeveloped the title in a rural portion lost, may abandoned, forfeited, Ripley County." not be or Br. Appellant at 8. At trial, even party pays where the rent to the he depicted "[rlough, the tract as (Riggs Riley, titleholder growed up, 118 Ind. wooded hillside" with "a lot of (1888)), agrees serub and brush that would take a number survey N.E. 253 to a attempt to find the boundary years grow," "[rJough ground" true line of and as (Fatic "rough hillside." Trans. at Myer, Ind. 72 N.E. Mingers disputed (1904)), expresses assert that the tract satisfaction with a sur vey whose results are inconsistent with the "was a Br. of patch grownup." briar of evi- despite absence possession adverse is no essential dis- at 2. There

Appellees with a Mingers complied the nature that the parties as to dence between the pute of requiring payment statutory provision tract, that the conclude the and we of tract was consistent Mingers' posses- use of the adverse during period the taxes possesso- throughout character the Ming- with its found that the The trial court sion. ry period. real estate paid taxes on the ers "have tract," Appellant's adjacent disputed to the as to its conclusions Supporting added), made no (emphasis but App'x. at 6 court are the trial element of control the taxes on payment the findings regarding Mingers possession took findings that the itself. disputed the tract rural tract in undeveloped disputed it; 1956; upon cattle pastured fenced tax stat- The Indiana adverse it; and sold timber from used wood and ute, agita- "great in followed enacted hunted, it. dirt bikes on and rode camped, the state part in the northern tion by supported is also The intent element by 'squatters' who were principally caused the dis Mingers that believed findings by to land adverse original titles obtaining they ac tract unclaimed when puted Neu, H. Adverse Pos- James possession." adjacent began residing on the quired and Indiana, 16 Notre Dame Law- session 1955; Mingers used the tract in that (hereafter "). (1941) A "New yer own; they claimed own their tract as large corporations, which owned number of Fraley's predecessors hostile to ership tax- paid property tracts of land and huge title; Mingers' friends and and that them, land to losing were their es on Mingers owned neighbors believed on the land for the "squatters" who settled findings, plus tract. These disputed claimed the twenty years and required in a they a culvert ditch fact that installed Id. at 219-20. possession. tract, to the also enable their access to losses, the General As- prevent To these ele support establishing the notice provide providing: a sembly enacted statute duration, the trial court found ment. As to notorious, actual, visible, any suit to establish title to Hereafter Mingers' that the exclusive, dis no there- ownership and hostile lands or real estate from 1956 to the adverse to the owner tract continued of shall be deemed puted establishing con or trial in thus as to establish title date of in such manner trol, intent, during a continuous estate and notice in and to such land or real rights ten-year statute of period exceeding the or claim- possessor unless such adverse limitations. all discharged paid ant shall have every special assessments taxes that, considering the issues of holdWe on such land or real falling nature due by the trial court and the facts found law to during period he claims estate reasonably drawn the inferences adversely: the same possessed therefrom, a trier of fact could reasonable Provided, however, nothing in this That challenged correctly conclude that possesser any relieve act shall posses- of adverse common law elements all the ele- proving claimant from or convine- were established clear and sion now of title ments ing evidence. required by law. Payment Requiring Taxes Statute (currently § p. ch. Acts challenging the elements In addition to codified, changes, at Ind.Code with minor Fraley law adverse common 32-21-7-1). § finding erred in contends that the court expected noting legal period posses commentators of adverse Some statute,5 tax statute would preceded the adverse sion affirming one a judgment challenged on grounds unrelated regard the kettle" the lid-off "blow[ ] possession. taxes,6 doctrine. of adverse to the reversing judgment and one twenty-four years Neu at 219. In the first findings because the were insufficient tax after the adverse statute possession compliance establish with the pos adverse enacted, however, this Court session tax statute.7 neither upon posses nor relied the adverse cited In the first in case which the adverse tax statute seven decisions involv sion possession actually tax statute was ana- ing possession. adverse See Hare v. Chis Court, lyzed by this v. Echterling Kalvai- man, 333, 340-41, 268, 2830Ind. 101 N.E.2d tis, 141, (Ind. 285 Ind. 126 N.E.2d 573 (Ind.1951) (noting 271 claimant adverse 1955), the statute was applicable. found not paid property finding taxes but evidence This decision undertook to "examine the posses insufficient to establish adverse language of the act and look to the inten- sion), Hydraulics, Elkhart v. Christiana tion of the explaining: Legislature," Inc., 242, 259, 353, 228 Ind. 59 359 N.E.2d The 1927 act was enacted to halt the (Ind.1945) (referring possession to adverse pernicious effect of squatters upon lands Zebec, summarily); v. 219 only Draper where paid holders had taxes on (Ind. 952, 362, 372, 37 N.E.2d 956 Ind. them, lands posses- owned but where 1941) only (referring possession to adverse parts sion of usurped by the land was summarily), grounds by overruled on other squatters years for long without claimof Krneta, 582, 598, v. 288 Ind. 154 O'Donnell payment squat- title or of taxes. These 45, (Ind.1958); Wayne N.E.2d 52 Ft. eventually they ters claimed became Refining Wayne, v. Smelting & Works Ft. through seized with title posses- adverse 454, 459, 464, 556, 559, 214 Ind. 14 N.E.2d © - sion. (Ind.1988) (summarizing findings 560-61 145, Id. 126 at N.E.2d 575. But the at predecessors that adverse claimant and proceeded Court to construe the adverse paid property affirming judg taxes but possession tax "supplemental" statute as possession for adverse without men ment the adverse statute of limita statute); Marengo tion of tax Cave v. Co. "and superseding tions not as it." Id. at Ross, 624, 628, 917, 212 Ind. 10 N.E.2d 919 146, 126 N.E.2d at 575. This construction (Ind.1987) (noting paid adverse claimant policy statute was on the premised property finding taxes but evidence insuffi- the intended effect of the adverse client to establish adverse possession); "not Uhl, 135, statute limitations was Geiger v. 204 180 N.E. 10 Ind. (Ind.1982) to punish neglects one who to assert his (finding possession es adverse right, protect who but those maintained tablished but without mention of tax stat (201 of the land for the time Carr, elements); among ute Hilt v. specified by (quoting the statute." Id. (1928) (same). Ind. 162 N.E. 409 Be Craven, 553, 560, v. 108 tween 1927 and we four Court of Craven 181 Ind. find (1914)). Appeals mentioning pos disput decisions N.E. 105 N.E. 41 The adverse taxes, payment Echterling session and the two ed tract resulted from a 457, 459, Biddle, Norling Bailey, Ind.App. Ind.App. 6. Davis v. 89 166 N.E. (1929). (1951); Cooper Tarpley, N.E.2d 1, 11, Ind.App. 41 N.E2d Stiefel, Ind.App. 7. Sheets v. (1942). (1947). by this Court. feet overruled or reconsidered wire fence constructed ten barbed to a section line and parallel case, west of and H.H. Estate Mark v. Smith One along one side of running for 1320 feet (Ind.1989), Co., recites Noting a section. quarter quarter of a that, to the elements of com addition descriptions of real "complete legal law "the mon dupli- on the tax present estate are taxes on the pay claimant must real estate by county city or treasurers" cates issued at period." for the Id. property statutory they "usually sketchy that instead But Mark makes no mention 799-800. are inaccurate," the concluded: Court in Mark Echterling. dispositive issue continuous, open, paid and notorious claimant was not whether taxes [Where changed of real estate has rather that the claimant never but twenty years to a established for to that of ad permissive occupancy been his adjoining strip of land contiguous and Id. at 801. possession. or hostile verse in where question, as that here such pos interpretation of the adverse The paid according to the taxes have been Echterling in has been session tax statute duplicate did duplicate, although said tax during ensuing fif frequently followed the expressly strip, that include ty years by Ap the Court of decisions strip established to that possession is Aukerman, Clark v. 654 peals. See by though paid the taxes were not even 1188, (Ind.Ct.App.1995); 1187 N.E.2d claimant. the adverse Jones, 776, n. 2 v. 490 N.E.2d 778 Greene 146-47, Ind. at 126 N.E.2d at 575 285 Fleetwood, (Ind.Ct.App.1986); Dowell v. added). illustrated (emphasis The Court (Ind.Ct.App.1981); Colley 420 N.E.2d 1856 regarding application its intention 644, 638, Ind.App. 172 362 v. Carpenter, following: tax with the statute (1977); N.E.2d 167 Pern Cent. example might An be where one has Martin, Ind.App. 170 Transp. Co. v. 1 title to Lot No. and has erected record (1976), Longa 358 N.E.2d lot, which, twenty building on that Johnson, 108, 112, Ind.App. v. baugh later, surveyor years by is found some (1975); Nasser N.E.2d lot, adjoining on an No. be one foot over Stahl, 709, 720, Ind.App. No. 1 fact that the owner of Lot 2-the Brown, (1956); 126 Ind. Smith (the improvements assessed for (1956). 545, 556, 184 N.E.2d App. (Lot 1) No. building) and real estate the comply would be sufficient to however, twenty years, During past the payment as to of taxes. Appeals statute several decisions of the Court of Id. at 126N.E.2dat 575-76. possession tax have construed the adverse interpreted Echterling statute essentially applied the Thus the Court providing that of viewing purpose its be the adverse claimant to require statute to concluding legal notice to the owner substantially comply requirement with the that, pro was otherwise where clear notice Although opin- the payment for of taxes. vided, statutory disregard could the courts expressly ion did not mention payment of taxes requirement on the pay claimant's failure to taxes Kramer, claimant. In Kline v. boundary strip was inadvertent claimed 592, 600, Ind.App. unintentional, this is we believe that (1979), the stated: court implication. the clear requiring pay- the statute Echterting's construction of the adverse Under taxes, who ment of the adverse claimant possession tax statute has never been ... years holding Echterling empha- would have paid had taxes for ten pos- sizes the Indiana view of adverse against the recorded titlehold- good title practical session and the need to ad- cure no action to oust the er took who in the recording property defects de- though the recorded verse claimant even scriptions and other defects of title. paid during had taxes titleholder boundary disputes cireumstances where year period. The intent of the same ten arise to the erection of due fences or purpose of the stat- legislature structures, supplementary other ele- give ute is to titleholder recorded payments inapplicable, ment of tax is an claiming notice that someone is inter- it not serve as to the since does notice may adverse to his. This notice est recorded titleholder the identical tax form of a tax refund or a described land on the tax statement , paid. taxes are statement being adversely claimed another. receiving the recorded Upon this notice The erection of the fence or other struc- action titleholder must to oust take adjoining ture becomes the notice to the or years claimant within ten titleholder. to the land described good forfeit Kline, 386 N.E.2d at 990. on the tax statement. issue,

On this Kline was followed or quoted approval Rogi with Williams v. er, (Ind.Ct.App.1993) 198 611 N.E.2d payment of taxes will not Where the (stating payment of taxes is not neces ags notice to the recorded title serve sary where erection of fence or other in possession that someone is of holder provides structure sufficient notice to ad claiming and an interest ad- his land titleholder); Augustine, joining Connors land, to his interest in the verse (Ind.Ct.App.1980); 407 N.E.2d 1189 requiring payment statute of taxes is (finding possession of 16-acre supplementary rot a element of adverse by requi farmed claimant for openly tract possession. . thereby notice to period, providing site owner, of payment titled and thus taxes 600, 601, N.E.2d at Id. at 386 989.8 The Eckert, required); Ford v. claimant not Kline affirmed a determination of court (Ind.Ct.App.1980); 406 N.E.2d strip of land 309 a exerted (finding for adverse claimant who from one to long varying width feet boundary strip he believed possession on adverse, feet, claimant be four where the billed); and paid his and who taxes as boundary a property lieved his extended to (Ind. Jean, 102, 105 Berrey v. 401 N.E.2d paying fence and assumed that he was (citing approval with Ct.App.1980) Kline parcel. Rejecting taxes on the enclosed deciding grounds). on other but case Echterling Judge the view of Hoffman that Kling, In its since several of decisions plain be overruled and the "should unambiguous meaning of the statute re Appeals appears of thus the Indiana Court contemplated policy preference to it as was a to have favored turned it," language at Legislature adopted application Id. avoided full which (Hoffman, J., tax statute. at 990 dissent the adverse Some 386 N.E.2d this opinions expressly ing), majority the court stated: acknowledged protection legal holder and the Neu, support, Notre the court cited ('The him.") Lawyer at 216 reason for this greater Dame afforded to notice requirement apparent, new is also the further legislative See, e.g., Berrey, substantial inaction for a consid choice. 401 N.E.2d at ("Cases construing pos- time, may [the erable signify be understood to session tax statute] have not demanded its Assembly's acquiescence the General Ford, situations."); rigid application all judicial agreement interpretation. ("[T)his 406 N.E.2d at 1211 rule of reason- Intl, In Durham v. U-Haul N.E.2d ableness in tax applying provision is a (Ind.2001), this Court observed that "if one."). sound a line of given decisions of this Court has statute the same construction leg and the disregard statutory Such of clear sought change islature has not the rele however, language, avoided, should be parts legislation, vant the usual disapprove we progeny Kline and its supporting precedent reasons adherence to understanding application to their are strong probability reinforced the adverse tax statute. This correctly that the courts have interpreted Court emphasized has that "courts must legislature." the will of the Id. at 759. substituting be careful to avoid judg their Baxter, See also Robbins v. 799 N.E.2d ment for politically those of the more re (Ind.2008) (applying legislative branches," State, sponsive Sanchez v. acquiescence legislative response where no (Ind.2001), and that "[iJn years); for ten Halteman Swim Club v. separation powers our democracy, the (Ind.Ct. Duguid, 757 N.E.2d empowers constitution legislative App.2001), citing Department Revenue branch to make law." Reagan, Baldwin v. Corp., Steel U.S. 425 N.E.2d (Ind.1999). 337-38 It is ("When (Ind.Ct.App.1981) the court inter legislature clear that "[the has wide lati prets legislature a statute and the fails to in determining public policy, tude and we change interpretation, take action to do not substitute our belief as to the wis legislature the presumed is to have ac dom of a particular statute for those of the quiesced in the interpretation."). court's Rendleman, legislature." State v. (Ind.1992). Although holding E'chterling our in has repeated not been a series of cases from in a co-equal independent As and Court, it, this we have never repudiated government, branch of judiciary the must applied fifty years and it has been for over empowered to interpret apply and the in numerous Appeals opinions, Court of law. Public trust and confidence in an time, During discussed above. this the however, independent judiciary, is en legislature responded by has not making judges hanced when exercise their authori any changes operative language to the ty respect with restraint and for the role the 1927 statute as construed in Eehterling legislative function of the branch to fifty years ago. That prohibited statute questions public policy. ju decide obtaining by adverse "un diciary respect must the fact that the Gen less such possessor or claimant Assembly eral co-equal is likewise a paid discharged shall have all taxes independent branch. and special every assessments of nature falling due on such land or real estate addition to fmportant these during principles judicial restraint, however, period pos the he claims to have it judicial is sessed interpre adversely." well-established that a the same Such lan statute, tation of a particularly by guage was retained until the verbatim minor Court, Supreme Indiana accompanied by gender verb tense and amendments were that, considering do ment. therefore hold 2002,9 changes these We in and even made by disagreement the issues of law and the facts found any legislative not manifest and the trial court and the inferences reason- Echterling understood way therefrom, strong ably drawn a reasonable trier provides This the statute. applied correctly that intent to fact could conclude legislative of current evidence tax interpretation. compliance with the adverse Echterling abide established, let alone clear statute obligation our to Recognizing evidence. convincing the adverse follow and enforce legislature, our tax statute as enacted Conclusion legisla of the take a restrained view we trial judgment We reverse the Echterling's interpre in acquiescence tive court and remand with instruction to enter hold that Echt- tation of the statute. We judgment appellant, the defendant compliance to erling permits substantial Fraley. E. Clarence of the adverse satisfy requirement boundary in dis possession tax statute SHEPARD, C.J., BOEHM, JJ., claimant has a where the adverse putes concur. faith that the good reasonable and belief SULLIVAN, J., concurs result with during taxes paying claimant is RUCKER, J., separate opinion which But we de possession. of adverse period concurs. permit total Echterling cline to extend re statutory payment tax disregard Justice, SULLIVAN, concurring in re- merely grounds on the le quirement sult. title holder has other clear notice gal Justice Dickson's discussion possession. extremely and a enlightening case, by major property contribution to Indiana present In the as found court, agree on law. I with the Court's result Mingers paid taxes the trial tract, real Mingers are not entitled adjoining disputed their they have not Mingers paid, question that the estate because finding but made no with Indiana Code See- they compliance were shown pay, intended to or believed tract. disputed result, the taxes on the paying, tion 32-21-7-1. To reach this legislative finding during period that Court utilizes the doctrine There is no clear conflict Mingers "paid acquiescence to reconcile the of adverse language of Indiana Code special all as between the discharged taxes in and our decision every falling nature due on Section 32-21-7-1 sessments Instead, I Echterling interpreting it. required by as the adverse such land" statute, Echter- this to overrule possession tax nor is there a find would use occasion and hold that Section 32- compliance. ling altogether This is not ing substantial in accordance due to in a 21-7-1 must be enforced imprecision a case of mistake duplicate terms, ie., tax or other assessment doeu- adverse with its to establish 2002, language 2-2002, (P.L. 6). in now adoption 9. As amended Between its Sec. possessor or claim- amendment, reads "unless the adverse the statute in 1927 and the 2002 discharges special pays ant all taxes and once, change the in was amended due on the land or real estate 16, 1927," assessments May to "After word "Hereafter" during period possessor the adverse or May "as of 1927." and the word "now" to possessed to have the land or claimant claims 1375. Acts P.L. Sec. p. adversely." § real estate Ind.Code 32-21-7- possession, person "palid] must have

discharge[d] POLICE, all FRATERNAL special taxes and ORDER OF assess- al., Appellants ments due on the land or real estate dur- LODGE # et (Plaintiffs ing period possessor below), the adverse or possessed claimant claims to have the land or adversely." real estate EVANSVILLE, Indiana, CITY OF I First, would do so for two reasons. as (Defendants al., Appellees et clear, the Court makes Echterling simply below). comport does not to the mandate of the No. Legislature duty respect and our 82S01-0410-CV-441. this is Second, to follow its I intent. do not think Supreme Court of Indiana. the claim legislative acquiescence Echterling quite is strong as the Court June suggests. While it is true that Legis

lature any steps has not taken sug

gest disapproval with it Echterling,

equally true that this Court's (relatively

few) decisions over the

intervening half-century. uniformly have

rejected claims of such Legislature may well con cluded Echterling precedent was not

at all. I only find three cases presenting

claims of possession adjudicated Echterling, this Court since each cases,

of these unanimously rejected we Vandall,

the claim. See Beaver v. (Ind.1989); N.E.2d 802 Estate Mark v. Co., (Ind.

H.H. Smith 547 N.E.2d 1989); Sheets, McCarty

300-01 (Ind.1981).1 Analogously,we re

jected the claim party of a seeking to

establish a prescriptive easement

recent case of Carnahan v. Prop. Moriah Ass'n, (Ind.1999).

Owners 716 N.E.2d 487

RUCKER, J., concurs. Texaco, Inc., 1. But see Short v. 273 Ind. years, noting minerals not used for 20 "[the (1980) objectives are valid and similar to those (upholding N.E.2d 625 the consti- tutionality Lapse Mineral Act that ter- served acts of limitation and the law of coal, oil, possession""). minated gas, interests and other

Case Details

Case Name: Fraley v. Minger

Court Name: Indiana Supreme Court

Date Published: Jun 20, 2005

Citation: 829 N.E.2d 476

Docket Number: 69S01-0308-CV-387

Court Abbreviation: Ind.