Tоm BONNELL, Appellant (Defendant below), v. Ruby A. COTNER, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson, Appellees (Plaintiffs below).
No. 66S03-1509-PL-530.
Supreme Court of Indiana.
Feb. 16, 2016.
32 N.E.3d 361
Jim J. Brugh, Logansport, IN, Attorney for Appellees.
On Petition to Transfer from the Indiana Court of Appeals, No. 66A03-1410-PL-372.
MASSA, Justice.
Tom Bonnell purchased a 35-foot-wide strip of land from the Pulaski County Board of Commissioners, and Ruby and Douglas Cotner brought this action to quiet title, claiming that they had previously acquired ownership of a section of that land via adverse possession. The trial court disagreed, finding that the prior sale of the Strip by tax deed extinguished any interest the Cotners may have had. Nevertheless, the trial court awarded the Cotners a prescriptive easement on certain outbuildings erected on the Strip, and both parties appealed. We affirm the denial of the Cotners’ adverse possession claim, and reverse the grant of a prescriptive easement, finding that the sale of the Strip by tax deed extinguished any and all interest the Cotners previously possessed.
Facts and Procedural History
In 1948, Leo and Ruth Cottingham subdivided their seven-acre parcel in Pulaski County, Indiana into elеven residential
The Strip was originally included by title with the larger farm field to the east; however, it was divided off via quitclaim deed in 1985. The State subsequently sold the Strip twice via tax sale; the first in 1993 to Jeff Kopkey, and the second in 2011 to the Pulaski County Board of Commissioners, who then sold the Strip to Bonnell in 2012. When he bought it, Bonnell believed the Strip was located on the eastern side of the ancient fence. Upon a subsequent survey, however, he discovered the Strip was located effectively in the backyards of the Cottingham Subdivision owners. Bonnell then proposed a sale of each section of the Strip to the property owner who had been occupying the land, at $890 apiece. All the оwners eventually reached an agreement with Bonnell except the Johnsons and the Cotners, who asserted ownership of their section of the Strip by adverse possession, and filed this suit to quiet title. Bonnell defended on the grounds the Cotners had not demonstrated they paid taxes on the disputed portion of the Strip and thus could not perfect their adverse possession claim under Indiana law. And in any event, the Indiana Tax Deed Statutes,
The trial court agreed with Bonnell, finding since title to the Strip ran separately at all times, the Cotners could not reasonably believe they were paying taxes on their portion of the Strip, and thus had not perfected their claim of adverse possession. The trial court went on to find, as a matter of first impression, that even if the Cotners’ adverse possession claim had been perfected, the subsequent tax sales of the Strip divested the Cotners of their interest. However, the trial court аlso determined sua sponte that the Cotners should receive a prescriptive easement for use of their outbuildings encroaching onto the Strip.
Both parties appealed, and a unanimous panel of our Court of Appeals reversed and remanded. Bonnell v. Cotner, 35 N.E.3d 275, 284 (Ind.Ct.App.2015). The panel found the Cotners showed they paid taxes on the outbuildings that encroached upon the Strip, which was sufficient to
We granted transfer, thus vacating the Court of Appeals opinion below. Bonnell v. Cotner, 37 N.E.3d 493 (Ind.2015) (table); Ind. Appellate Rule 58(A). We now affirm the trial court with respect to the denial of title to the Cotners by adverse possession, but reverse as to granting them a prescriptive easement.
Standard of Review
The parties’ claims were tried without a jury; therefore, we “shall not set aside the findings оr judgment unless clearly erroneous.” Ind. Trial Rule 52(A). “Findings of fact are only clearly erroneous if there is no factual support for them in the record whatsoever, either directly or by inference.” Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind.2013). “A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts.” Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012) (quoting Nichols v. Minnick, 885 N.E.2d 1, 3 (Ind.2008)).
The Cotners Established Their Claim of Adverse Possession of the Disputed Portiоn of the Strip.
As we explained in great detail in Fraley v. Minger, there are four traditional elements to adverse possession at common law: control, intent, notice, and duration. 829 N.E.2d 476, 486 (Ind.2005). Bonnell does not dispute that the Cotners have established all of these elements with respect to the disputed portion of the Strip. Rather, Bonnell relies on our holding in Fraley that, pursuant to
We find the Cotners have satisfied the adverse possession tax statute. In Fraley we expressly upheld our prior interpretation of this statutory adverse possession requirement from Echterling v. Kalvaitis, including the following hypothetical where substantial compliance with the adverse possession tax statute would exist:
An example might be where one has record title to Lot No. 1 and has erected a building on that lot, which, twenty years later, is found by some surveyor to be one foot over on an adjoining lot; No. 2—the fact that the owner of Lot No. 1 was assessed for improvements (the building) and real estate (Lot No. 1) would be sufficient to comply with the statute as to payment of taxes.
Fraley, 829 N.E.2d at 490 (quoting Echterling v. Kalvaitis, 235 Ind. 141, 147, 126 N.E.2d 573, 575-76 (1955)). That precise scenario has occurred here: the Cotners’ predecessors-in-interest were assessed tax
The Subsequent Tax Sales of the Strip Defeat the Cotners’ Claim of Ownership by Adverse Possession.
Perfecting an adverse possessory interеst, however, does not automatically entitle the Cotners to judgment in their favor. “[T]he doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration....” Fraley, 829 N.E.2d at 486 (emphasis added). Acquiring ownership by adverse possession does not render operative all the rights and responsibilities of the record title holder; indeed, as demonstrated by the facts of this case, the adverse possessor would first have to succeed in an action to quiet title in order to become the legally acknowledged owner of the property. See App. at 22-26;
“A purchaser at a tax sale receives a tax certificate evidencing a lien against the property for the entire amount paid. The lien is superior to all other liens which exist at thе time the certificate is issued.” Calhoun v. Jennings, 512 N.E.2d 178, 181 (Ind.1987) (citing
Here, although the Cotners’ predecessors-in-interest acquired ownership of the disputed portion of the Strip in 1978, they did not seek to quiet title and formalize that ownership. Thus, by statute, the Cotners were not entitled to any more than publication notice of the two tax sales in 1993 and 2011. And the very issuance of those tax deeds is prima faсie evidence of the validity of the notice given in those tax sales, evidence that has not been rebutted by the Cotners. See
The Trial Court‘s Award to the Cotners of a Prescriptive Easement in the Barn was Clearly Erroneous.
We nоw turn to the trial court‘s sua sponte award of a prescriptive easement to the Cotners for their continued use of the outbuildings, based on the court‘s conclusion that the cost of their removal would “far exceed the value of the Defendant‘s entire parcel, not just the portion upon which the building encroaches.” App. at 20.
We begin by noting that the trial court was within its authority to consider awarding a prescriptive easement sua sponte. The Cotners pleaded with particularity in their complaint all of the elements of ad
Unfortunately, this attempt by the trial court to craft an equitable remedy was unavailable as a matter of law, again by operation of the Tax Deed Statutes.
Conclusion
After more than three years of litigation and two vigorous appeals, Mr. Bonnell now owns a 35-foot-by-100-foot section of land in the Cotners’ backyard, predominately сovered with a pole barn, which Bonnell values at approximately $890. We affirm the denial of the Cotners’ claim of adverse possession in the disputed portion of the Strip, and reverse the grant of a prescriptive easement in the Cotners’ encroaching outbuildings.
RUSH, C.J., and DICKSON, RUCKER, JJ., concur.
DAVID, J., did not participate.
Notes
(1) the tract or real property described in the deed was not subject to the taxes for which it was sold;
(2) the delinquent taxes or special assessments for which the tract or real property was sold were paid before the sale;
(3) the tract or real property was not assessed for the taxes and special assessments for which it was sold;
(4) the tract or real property was redeemed before the expiration of the period of redemption (as specified in section 4 of this chapter);
(5) the proper county officers issued a certificate, within the time limited by law for paying taxes or for redeeming the tract or real propеrty, which states either that no taxes were due at the time the sale was made or that the tract or real property was not subject to taxation;
(6) the description of the tract or real property was so imperfect as to fail to describe it with reasonable certainty; or
(7) the notices required by