Charles F. Busse and Jonathan Busse, Appellants v. Justin Scott Robinson and Charity K. Robinson, Appellees (2026)

MEMORANDUM DECISION

[1] Charles F. Busse and Jonathan Busse appeal the trial court's determination that they did not prove their claim of adverse possession and award of attorney fees. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] Justin Scott Robinson and Charity K. Robinson own real property off of Old State Road 37 in Monroe County, and Charles Busse owns real property to the west of the Robinsons’ parcel as well as a “60-foot wide strip” to access Old State Road 37. Exhibits Volume I at 81. The northern boundary of the 60-foot wide strip abuts the southern boundary of the Robinsons’ parcel.

[3] By way of background, in 1949, Ernest and Inez Robinson conveyed a parcel of real property to Robert Dale Robinson (Justin Robinson's grandfather). In 1973, Charles and Mary Busse entered into a land contract to purchase real property from Donald Robinson (the brother of Robert Dale Robinson) and his wife, and the property included the 60-foot-wide access strip.¹ In the fall of 1973, Charles Busse installed a gravel driveway. The driveway is primarily within the boundaries of the 60-foot-strip, except for an area where “it curves” to the north to avoid a ravine and encroaches upon the southwestern area of the Robinson parcel. Transcript Volume II at 84. Charles Busse did not ask for permission from anyone to install the driveway in the location where he installed it, and he did not receive any complaints from Robert Robinson or his wife about the location of the driveway. The driveway has remained in the same location since it was installed, and Charles Busse has maintained the driveway by replacing and adding stone every couple of years.

[4] Beginning soon after moving to their property and until 1996, the Busses had horses on the property. The Busse family constructed a barn on the property and installed a fence to keep the horses. When installing the fence on the eastern side of his property, Charles Busse started placing the fence where he believed the property line was located, Robert Robinson offered that Charles place the fence further to the east on the Robinson parcel and stated that way he did not need to mow and take care of that area, and Charles installed the eastern portion of the fence on the Robinson property. After the Busses no longer had horses, Charles Busse removed the fence. Charles Busse believed, with respect to the northern boundary of the 60-foot-wide strip, that “there was a string of sassafras trees there that were pretty close to being where the property line was.” Id. at 161. At one point, Robert Robinson requested and obtained Charles Busse's permission to install a septic “finger” on the land south of the sassafras trees. Id.

[5] Robert Robinson passed away in 1992. In 1993, Charles Busse obtained a survey of his property prepared by Steven Archer. The survey appears to show the Busse driveway as located entirely on the Busse property. The survey depicted the boundaries of the Busse property consistent with Charles Busse's understanding. In 2003, Martha Robinson, the surviving spouse of Robert Robinson, conveyed the Robinson parcel to her son Glen Robinson subject to a life estate for herself. Martha Robinson passed away in 2011. In January 2013, Glen Robinson conveyed the parcel to his son Justin Robinson and daughter-in-law Charity Robinson. Meanwhile, Mary Busse passed away in 2012 at which time Charles Busse became the sole owner of the Busse property. Jonathan Busse moved to the Busse parcel in approximately 2020. Jonathan planted a garden and began keeping animals including turkeys, chickens, pigs, and goats on portions of land which the Robinsons believed were part of their parcel.

[6] In 2022, Justin and Charity Robinson obtained a survey of their property prepared by Eric Deckard. The Deckard survey depicted the Robinson parcel, the Busse property to the west of the Robinson parcel, the Busses’ 60-foot-wide access strip to the south of the Robinson parcel, and the driveway installed by Charles Busse. The Deckard survey showed the following:

Tabular or graphical material not displayable at this time.

Exhibits Volume I at 4.² The Robinsons discussed the survey prepared by Deckard with Jonathan Busse. Jonathan Busse showed the Robinsons the parts of the property he believed belonged to his father Charles Busse.

[7] In October 2023, the Robinsons filed a complaint alleging that the survey prepared by Deckard correctly describes their property and requesting an order quieting title, damages for trespass, attorney fees, and a permanent injunction. The Busses filed a counterclaim asserting that they satisfied the requirements of adverse possession.

[8] In April 2025, the court held a bench trial. Charles Busse testified that he mowed the grass in the disputed area on the western side of the Robinson parcel and the area south of the line of sassafras trees. He also testified that they had a large garden and maintained compost piles. Jonathan Busse testified that his family would cut dead trees for firewood. When asked “you talked about firewood and cutting trees” and “you were pointing to the area ․ southwest of the bend of the driveway,” he answered “[t]hat is correct.” Transcript Volume II at 214. He also indicated that, when he was a child, he dug a small pond in the area. Alan Robinson, who is the son of Robert Robinson and the brother of Glen Robinson, testified that his father “maintain[ed] the back part of that property” and, “[w]hen the fence was removed, my brother and I maintained it. We mowed it and maintained it. I, at one time, started a garden on that piece of property.” Id. at 68.

[9] In September 2025, the trial court issued findings and conclusions. The court found, “[o]ver the years, Robert Robinson allowed Busse to keep his horses on portions of the Robinson Parcel.” Appellants’ Appendix Volume II at 14. The court found, “[t]here was never any boundary line fence between the Busse Parcel and the Robinson Parcel, and all activities that occurred on the Robinson Parcel were with the Robinsons’ permission,” “[a]fter Busse removed his fencing, the Robinsons resumed maintaining the property and mowing,” and “Alan Robinson also had a personal garden on the south slope of the Robinson Parcel.” Id. It found that, “[f]ollowing the 1993 survey, the Busses and Robinsons did not materially change their activities on the property.” Id. at 16. It also found that the survey prepared by Archer is not reliable and that the survey prepared by Deckard correctly depicts the boundaries between the Robinson and Busse parcels. The court concluded the Busses “have exercised limited control over certain portions of the property, but their control was not exclusive,” “Charles Busse, with permission from the Robinsons, kept horses on portions of the disputed area of property at the suggestion and with the permission of Robert Robinson,” and “Robinson also permitted Charles Busse to have his gravel driveway encroach onto the southwest corner of the Robinson Parcel.” Id. at 26. It also concluded that, “[e]xcept for the permitted drive, Charles Busse ceased activity in the disputed area after he stopped owning horses in 1996.” Id. at 27. The court entered judgment in favor of the Robinsons on all claims and ordered the Busses to “remove all personal property, materials, fences, obstructions, animals, driveways, or any other items that interfere with the use of the Robinson Parcel by Justin and Charity Robinson.” Id. at 31. The court stated, “[b]ecause the Busses committed criminal trespass upon the Robinson Parcel, the Robinsons are entitled to attorney's fees and costs.” Id. at 30.

Discussion

[10] We will not set aside the findings or judgment unless clearly erroneous. Bonnell v. Cotner, 50 N.E.3d 361, 364 (Ind. 2016). Findings of fact are clearly erroneous if there is no factual support for them in the record either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id.

[11] The Busses argue the trial court erred (A) in finding that they did not prove their claim of adverse possession, and (B) in finding they committed criminal trespass and ordering them to pay attorney fees and costs.

A. Adverse Possession

[12] 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. Thalls, Tr. of M. Todd Thalls Revocable Tr. v. Draving, 182 N.E.3d 260, 268 (Ind. Ct. App. 2022) (citing 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.”³ Id. (citing Morgan, 56 N.E.3d at 116). Substantial compliance satisfies the tax payment requirement. Id. (citing Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 254 (Ind. 2015)). “Once title vests in a party at the conclusion of the ten-year possessory period, the title may not be lost, abandoned, or forfeited, even where the party ․ agrees to a survey to attempt to find the true boundary line, expresses satisfaction with a survey whose results are inconsistent with the property adversely possessed by him, or states that he does not claim the land and offers to buy it.” Fraley, 829 N.E.2d at 487 (citations omitted).

[13] With respect to the Busses’ driveway, the record reveals Charles Busse's testimony that he did not ask Robert Robinson or anyone else for permission to install his driveway in the location where he installed it in 1973 and where it has remained until the present. As depicted in the survey prepared by Deckard, the driveway was installed primarily within the boundaries of the 60-foot-wide access strip, except for an area where, to avoid a ravine, it curves onto the southwestern area of the parcel deeded to the Robinsons. Charles Busse has maintained the driveway by replacing and adding stone every few years. Also, Jonathan Busse testified regarding his family cutting dead trees for firewood in the area southwest of the driveway. We also observe that Charles Busse obtained the survey prepared by Archer in 1993, which showed the location which Archer determined was the southwestern corner of the Robinson parcel and indicated that the Busse driveway and the area southwest of the driveway were located on the Busse property. Further, Deckard indicated that he did not locate any pin or marker at the location which he determined to be the southwest corner of the Robinson parcel and that he located existing monuments consistent with the 1993 Archer survey. These facts support Charles Busse's reasonable belief that he owned the driveway and the area southwest of the driveway and that Charles Busse took open and visible actions consistent with full ownership of those areas.

[14] The evidence establishes that the Busse family exercised control over the driveway and the area to the southwest of the driveway, that their acts showed an intent to claim full ownership of that area, that they provided sufficient notice of their intent, and that their activities were sufficiently regular for the prescribed period. Further, Charles Busse paid the property taxes on the property which he and his spouse purchased from Donald Robinson and his spouse, and he testified that the Archer survey, which showed the driveway on his property, did not change his belief regarding the location of the boundaries of his property.⁴ The record supports the conclusion that Charles Busse had a reasonable and good faith belief that he had paid the property taxes due on the property he had purchased and that he believed that area included the land upon which his driveway was located. See Boyland v. Castle Farms, Inc., 71 N.E.3d 81, 91 (Ind. Ct. App. 2017) (“Castle Farms had a reasonable and good faith belief that it had paid the property taxes due on the property it had purchased from Corner Grove ․”), trans. denied. The Busses satisfied the elements of adverse possession with respect to the area containing the driveway they have used since 1973 and the area to the southwest of the driveway.

[15] As for the remaining disputed areas, while the Busse family kept horses in an area on the western portion of the Robinson parcel, they did so with the express permission of Robert Robinson, and after the Busses no longer kept horses, Charles Busse removed the fencing located on the Robinson property. Further, although the Busses may have mowed portions of the disputed areas, installed a garden, or maintained compost piles, the Busses did not present sufficient evidence regarding how extensive or permanent these activities were, where the activities occurred relative to the property boundaries, and the extent to which these activities occurred in areas and at times by permission, especially in light of the testimony that the Busses kept horses on the Robinson property for many years with permission. Alan Robinson testified that his family mowed and maintained the property after the fence was removed. The Busses did not establish by clear and convincing proof that they exercised control over the areas north of the driveway, that their actions showed an intent to claim full ownership of those areas, that they provided sufficient notice of their exclusive control, or that their activities in those areas were sufficiently regular for the prescribed period.

[16] Based upon the record, we reverse and remand for an amended order that the Busses satisfied the elements of adverse possession with respect to the area containing their driveway and the area to the southwest of the driveway and did not satisfy the elements of adverse possession with respect to the remaining disputed areas.

B. Criminal Trespass and Attorney Fees

[17] Ind. Code § 35-43-2-2(b) provides that a person who, “(1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person” or “(4) knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent,” commits criminal trespass. Ind. Code § 34-24-3-1 provides that, if a person “suffers a pecuniary loss as a result of a violation of IC 35-43,” the person may bring a civil action for “(1) [a]n amount not to exceed three (3) times: (A) the actual damages of the person suffering the loss ․ (2) [t]he costs of the action. (3) [a] reasonable attorney's fee.”

[18] This Court has held that, “if a party has a fair and reasonable foundation for believing that it has a right to be present on the property, there is no criminal trespass.” Shepard Wrex Mgmt., LLC v. Est. of Scott, 272 N.E.3d 224, 234 (Ind. Ct. App. 2025), reh'g denied. We have also held that, “[i]t has long been the law in this state ․ that the penal statute relating to criminal trespass was not designed to try disputed rights in real estate, but such law was intended to punish those who willfully and without a bona fide claim of right commit acts of trespass on the lands of others.” Card v. Sprinkle, 194 N.E.3d 627, 637 (Ind. Ct. App. 2022) (citations omitted), trans. denied.

[19] This case involves a bona fide dispute regarding the location of the boundary between the parties’ parcels and the extent to which the Busses have a valid claim for adverse possession. We reverse the determination that the Busses committed criminal trespass and direct the trial court on remand to vacate its judgment awarding attorney fees and costs to the Robinsons. See id. (“This case simply involves a real estate dispute between parties with overlapping deeds. The Cards have a bona fide claim to the disputed property and have proven that they purchased a portion of the disputed property from Kern, who obtained his title via adverse possession. For these reasons, we reverse, and on remand, we direct the trial court to vacate its judgment awarding attorney fees to the Sprinkles.”).

[20] For the foregoing reasons, we reverse and remand for the entry of an amended order consistent with this opinion.

[21] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   The Busses received a warranty deed from Donald Robinson and his wife in 1978.

2.   In his testimony, Deckard indicated, with respect to the legal description for the Robinson parcel, that “we started running into ambiguous terms found in the deed description,” “[w]e also had found an ambiguity along the south line that just describes a distance more or less to the center line of the road and then a northeasterly direction along the center of the road to the point of beginning,” and “[s]o it was very vague.” Transcript Volume II at 12-13. He testified that his interpretation was that the western boundary of the parcel “is at an angle ․ versus a straight north-south line,” resulting in the southwest corner of the Robinson Parcel being located further west than the northwest corner, and that the parcel “basically create[ed] a parallelogram.” Id. at 16. Deckard testified that he did not locate any pin or marker at the location which he determined to be the southwest corner of the Robinson parcel and that he located existing monuments consistent with the 1993 Archer survey.

3.   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.

4.   The record includes property tax receipts for several tax parcels, and the sum of the acreages listed in the receipts is 67.48 acres. The legal description in the 1978 deed by which Donald Robinson and his spouse conveyed the property to Charles Busse and his spouse indicates that the property “Contain[ed] in all 67.48 acres, more or less.” Exhibits Volume I at 86.

Brown, Judge.

Altice, J., and DeBoer, J., concur.