IRBY v. SPEAR (2023)

MEMORANDUM DECISION

[1] Jane C. Irby appeals the trial court's determination that she did not own certain property by adverse possession. We affirm.

Facts and Procedural History

[2] Irby owns real property of approximately 120 acres in Clark County, Indiana. Michael A. Spear owns real property of about 0.918 acre which is surrounded on all sides by Irby's property. When Spear purchased the property in 2009, a two-wire electric fence crossed over his parcel, with approximately 16,909 square feet of his property located north of the fence (the “Disputed Area”) and approximately 22,998 square feet of his property located to the south of the fence. Spear's home was located south of the fence. The fence predominantly followed a break in elevations between a sloping area in the Disputed Area and a relatively level or flatter area to the south of the fence. Spear removed the wire fence in June 2019.

[3] On October 24, 2019, Irby filed a complaint alleging that her predecessors had established a fence along the common boundary with Spear and that Spear had removed the fence and prevented her from accessing part of her property. She alleged counts of trespass, criminal trespass, nuisance, and negligence and requested preliminary and permanent injunctions.

[4] In February 2022, the court held a two-day bench trial at which it admitted recorded instruments, photographs, and property tax statements. Irby claimed there was a boundary dispute and that she owned the Disputed Area by adverse possession. With respect to Spear's property, the court admitted a Special Warranty Deed dated June 3, 2009, and recorded on July 20, 2009, pursuant to which U.S. Bank National Association, as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I, LLC, Asset Backed Certificates, Series 2005-AC2, conveyed the 0.918-acre parcel together with an ingress and egress easement to Spear. It also admitted a deed in Spear's chain of title conveying the 0.918-acre parcel which was recorded in 1973. With respect to instruments related to Irby's property, the court admitted: a Warranty Deed dated January 4, 1996, and recorded on January 10, 1996, pursuant to which Henry R. Snider and Gladys Snider conveyed to Randall N. Snider and Jane I. Snider, husband and wife, certain property consisting of approximately 120 acres ¹ ; an Affidavit of Survivorship signed by “Jane Irby Snider” recorded on October 20, 1999, stating that Randall N. Snider had died and that she was the owner of the property described in the attachment; and a Quit-Claim Deed dated January 20, 2010, and recorded on March 10, 2010, pursuant to which “Jane C. Irby, formerly known as and who acquired title as Jane I. Snider, as Grantor” conveyed the property to “Jane C. Irby, as Grantee.”² Plaintiff's Exhibit 11.

[5] Irby testified a two-wire fence was in place across the 0.918-acre parcel when the approximately 120-acre property was conveyed to her and her husband in January 1996. She testified “[b]ehind the fence is a pasture” and, when Spear removed the fence, she had one horse and three donkeys which used the pasture. Transcript Volume II at 22. When asked if she was paying taxes on the Disputed Area, she replied: “Yes, I believe that I have been paying taxes on [the Disputed Area] because it is part of my farm, the hundred (100) acre farm.” Id. at 29. She indicated she had a survey prepared in 2001 which showed the location of the wire fence.³ She indicated she mowed the land on her side of the fence. On cross-examination, Irby acknowledged she never asked that any part of the Disputed Area be included on her tax bill. When asked “you agree that [ ] Spear's property is .918 acres, that includes the [D]isputed [Area],” she replied “[a]ccording to his Deed,” and when asked “so, if he's paying taxes on .918 acres, then he's paying taxes on the whole thing, is that correct,” she said “I guess so.” Id. at 64. When asked “you say that's your land because you believe it's your land,” she replied “because of Hoosier Indiana Fencing Law,” and when asked “there's no deed that says you own that land, though, is there,” she answered “[a]pparently not.” Id. When asked “in ․ (2001), when you had the survey done, you were talking about a swap, isn't that correct,” Irby replied “[w]e talked about a possible swap,” and when asked “and it turns out that ․ because of something to do with their mortgage company, you never consummated that deal,” she answered “[t]hat is correct.” Id. at 74. Spear's counsel stated “shortly after [Spear] bought the property, he and you had a conversation about where his land was” and “you pointed out some of the property corners to him, is that correct,” and Irby stated “I pointed out where I thought one of the property line, corners was, down in my field.” Id. at 77.

[6] Spear testified that he purchased the 0.918-acre parcel in 2009 and met Irby a few months later. He testified:

I believe the second or third time that I encountered [Irby], I had said something about getting a survey done on the property because I wasn't sure where the pins were. And she told me I didn't need to, that she could just show me where they were, so, which we were standing right next to the ․ southwest pin of my property, and then she walked me back to where the temporary electrical fence was and pointed down to the hill to, she said, asked me if I could see a T-post, she said that's one of your pins, and then we walked a little ways over towards where the telephone pole is ․ in the middle of my property, and then she pointed down to the northeast corner of it and there was a T-post and she told me that T-post was right where that pin was. And then ․ we didn't walk over to the southeast pin, but she just told me the fruit trees that grow along, she said that was the property line and the pin was right in front of a pear tree, right between the pear tree and the gravel.

Id. at 151. He testified “she showed me exactly where three (3) of them were and then she told me where the fourth one was.” Id. Spear further testified:

[D]uring ․ that same conversation where the pins were, she had brought up about, she had told me about a previous land swap with, or trying to do a previous land swap with the previous owner. And she asked me if I would want to do it and I said I have no idea if I would want to do it right now or not, I'd have to talk to a bank or anything like that, but and I was like, I don't think I really want to mess with it because I don't want to spend any, I had already spent so much money, I didn't want to spend any money to get it re-surveyed or do any of this type [of] stuff, so I told her I'd rather not. And then, she's like, well would you be, ask me if I'd be fine with just leaving the fence up for her animals to graze, and which, like they said, it's a decent hill and I was like, yeah, it's fine, there's not a whole lot I can use it for. It's, so I was fine with it, but it was still, I was still under the assumption that it was mine and I never even heard her even claim it, not once, not until I took it down in Two Thousand Nineteen (2019).

Id. at 152. Spear also indicated that he believed his septic system was on both sides of the fence. Spear stated he “maintained the whole part of [his] property” and “when I was on the pasture side, I just mowed along the fence and then I mowed what, to my property, where the pins are for my property.” Id. at 155-156. He indicated that he would go sledding on the property and set up an archery target on the property to shoot. He testified Irby never mentioned that she believed the Disputed Area belonged to her.

[7] Following the presentation of evidence, the trial judge visited the site at Spear's request. On November 21, 2022, the court issued a twenty-two-page order containing findings of fact and conclusions and determined that Irby did not prove the elements of adverse possession by clear and convincing evidence.

Discussion

[8] When a trial court has made findings of fact, we determine whether the evidence supports the findings of fact and whether those findings support the court's conclusions. See Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Findings will be set aside only if they are clearly erroneous. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In order to determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id.

[9] Irby asserts that she demonstrated all of the elements of adverse possession. She argues that “[t]he trial court's conclusion that [she] did not establish a good faith belief that she paid taxes on the Disputed Area is clearly erroneous because it required [her] to disprove all potential doubt that she was paying her taxes rather than looking at the actual facts and [her] mindset.” Appellant's Brief at 13. She argues her property “and the Disputed Area were adjacent to each other – she thought it was part of her yard” and “[t]he topography of the Disputed Area matches that of [her] pastureland and contrasted starkly with the remainder of Spear's real estate.” Id. at 14. She argues that she and her predecessors used the Disputed Area for pasturing horses and donkeys and mowed the Disputed Area. Id. at 18.

[10] Spear argues the electric fence “followed the edge of a break in topography, where a slope began” and it was reasonable for the trial court to conclude “it was merely a fence of convenience to keep pasturing animals from the house, and was not intended as a boundary line.” Appellee's Brief at 16. He maintains evidence was presented from which the court could have concluded that Irby did not have a reasonable and good faith belief that she owned and paid taxes on the Disputed Area.

[11] The Indiana Supreme Court has held:

[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, as follows:

(1) Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);

(2) Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);

(3) Notice—The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and

(4) Duration—The claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).

Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005). “These elements must be satisfied for the statutory period of ten years.” Morgan v. White, 56 N.E.3d 109, 115 (Ind. Ct. App. 2016). “Additionally, the claimant must have a reasonable and good faith belief that they and their predecessors in interest have paid all taxes due on the disputed real estate in accordance with Ind. Code § 32-21-7-1.”⁴ Id. at 116. Substantial compliance satisfies the tax payment requirement. Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015).

[12] The trial court found that Irby did not meet her burden of proving the elements of adverse possession by clear and convincing evidence. The court found that Irby's 1999 affidavit and 2010 deed expressly disclaimed any interest in the Disputed Area. It found that, because the electric fence followed a geographical feature rather than a boundary line of Irby's property, it was reasonable for Spear to believe that the fence was not intended to be a property boundary line. It found that the electric fence was in place when the 1996 deed, the 1999 affidavit of survivorship, and 2010 deed, all of which expressly excluded Spear's parcel, were executed. It found that Irby showed Spear where the surveyed and marked corners of his parcel were located, did not inform him that she intended to claim control or ownership of the Disputed Area, and left the T-posts marking the corners of the Disputed Area in place when the T-posts served no purpose except to mark the property boundaries between Irby's property and Spear's property. It also found that Spear mowed and used the Disputed Area as he wished without interference and that Spear used the Disputed Area for his septic system.

[13] The record reveals the 1996 warranty deed, the 1999 affidavit of survivorship, and the 2010 quitclaim deed related to Irby's property. The legal descriptions of Irby's property in each of these instruments expressly excluded the 0.918-acre parcel. The court heard testimony regarding the characteristics of the parties’ property and the Disputed Area, the location of the wire fence, and the parties’ uses of the Disputed Area. It heard evidence that the fence largely followed the physical features of the property, specifically, a break between a sloping area in the Disputed Area and a more level area to the south of the fence, and that it did not follow the boundary of the 0.918-acre parcel described in Spear's 2009 deed. The court heard testimony that the wire fence existed when Irby acquired her property in 1996 and existed until Spear took it down in 2019 and thus the fence was present when Irby executed the 1999 affidavit of survivorship and the 2010 quitclaim deed. While Irby testified that she had a survey prepared in 2001 which showed the location of the fence, she indicated the survey was prepared in connection with a possible land swap and the swap transaction never occurred. The 2001 survey showed the location of the iron pipes set in 1973 indicating the northwest and northeast corners of the 0.918-acre parcel and showing that the Disputed Area of 16,909 square feet was part of the 0.918-acre parcel. Irby also acknowledged the 2010 quitclaim deed she executed included a legal description of her property which expressly excluded Spear's 0.918-acre parcel. Spear testified that, after he purchased his parcel in 2009, he and Irby discussed the boundaries of his parcel and that Irby pointed to T-posts where the pins identifying the northwest and northeast corners of his property were located. He also testified that Irby told him about the possible land swap with the previous owners and asked him if he was interested in such a swap and that he told her he was not interested. Spear testified he mowed to “where the pins are for [his] property” and used the Disputed Area recreationally. Transcript Volume II at 156.

[14] Further, the court found that Irby offered no good faith, reasonable explanation for why she believed that she had paid real estate taxes on the Disputed Area and noted that the acreage of Irby's property as described in the deeds and affidavit of survivorship, each of which excluded the 0.918-acre parcel, is identical to the acreages listed on her property tax statements. Indeed, the 1996 and 2010 deeds admitted into evidence which named Irby as a grantee and Irby's affidavit of survivorship contain a legal description for her property which expressly excludes Spear's 0.918-acre parcel, the deeds and affidavit describe her property as “[c]ontaining two hundred and six (206) acres, less eighty-five (85) acres” and “excepting therefrom ․ [c]ontaining 0.918 acre, more or less,” see Plaintiff's Exhibits 9-11 (capitalization omitted), which equals about 120.082 acres, and the total of the acreage listed on two of Irby's admitted property tax statements is also 120.082 acres. We also note the Disputed Area did not consist of a narrow boundary strip but rather covered approximately 42.3% of Spear's 0.918-acre parcel. See Dewart v. Haab, 849 N.E.2d 693, 697 (Ind. Ct. App. 2006) (noting “this is not a narrow boundary strip within the margin of ambiguity in the tax records, but rather a several acre tract of land on which only the Dewarts officially paid taxes”).

[15] The trial court was able to consider the recorded instruments, photographs, and tax statements as well as the parties’ thorough testimony, and the trial judge visited the site. Our review of the evidence does not leave us with a firm conviction that a mistake has been made. We cannot say the trial court's judgment that Irby did not acquire the Disputed Area by adverse possession is clearly erroneous.

[16] For the foregoing reasons, we affirm the trial court.

[17] Affirmed.

FOOTNOTES

1.   The legal description of the conveyed property provided in part:A part of Number one hundred and sixty-eight (168) of the Illinois Grant and beginning at ․ to The Place of Beginning, Containing two hundred and six (206) acres, less eighty-five (85) acres conveyed off of the South ․EXCEPTING THEREFROM a part of Survey No. 168 ․ being further described as follows:Beginning at a concrete monument ․ thence S. 40 degrees east along the line ․ to an iron pipe; thence north 34 degrees ․ to an iron pipe ․ thence continuing North 34 degrees ․ to an iron pipe; thence South 55 degrees ․ to an iron pipe; thence South 34 degrees ․ to an iron pipe ․Containing 0.918 acre, more or less.Also, the right to use for ingress and egress to the above described tract a 20 foot wide roadway easement ․Plaintiff's Exhibit 9 (emphasis added).

2.   The legal descriptions in the affidavit of survivorship and the 2010 deed are the same as the legal description in the 1996 deed and expressly exclude the 0.918-acre parcel.

3.   The survey, dated September 24, 2001, and recorded in May 2003, shows the 0.918-acre parcel, that a fence crossed over the parcel, and that the Disputed Area—the approximately 16,909 square feet to the north of the fence—was part of the 0.918-acre parcel. The survey further denoted the location of the iron pipes “found as set ․ in October 1973,” which show the corners of the 0.918-acre parcel. Plaintiff's Exhibit 16.

4.   Ind. Code § 32-21-7-1 provides:[I]n an action to establish title to real property, possession of the real property is not adverse to the owner in a manner as to establish title to the real property unless the adverse possessor pays all taxes and special assessments that the adverse possessor reasonably believes in good faith to be due on the real property during the period the adverse possessor claims to have adversely possessed the real property.

Brown, Judge.

Crone, J., and Felix, J., concur.