Preview:

ATTORNEYS FOR APPELLANT
Todd A. Richardson Matthew S. Tarkington Lewis & Kappes Indianapolis, Indiana Rita J. Baldwin Washington, Indiana

ATTORNEY FOR APPELLEE
Larry L. Eaton Versailles, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
______________________________________________________________________________ No. 69S01-0308-CV-387 CLARENCE E. FRALEY, v. CLARENCE K. MINGER AND EVA MINGER, Appellees (Plaintiffs below). _________________________________ Appeal from the Ripley Circuit Court, No. 69C01-9610-CP-136 The Honorable Carl H. Taul, Presiding Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 69A01-0208-CV-315 _________________________________ June 20, 2005 Dickson, Justice. Appellant (Defendant below),

In this quiet title action asserting adverse possession, the defendant Clarence E. Fraley appeals a judgment awarding fee simple title to approximately 2.5 acres of land to the adverse possessors, plaintiffs Clarence K. Minger and Eva Minger. The Court of Appeals reversed. Fraley v. Minger, 786 N.E.2d 288 (Ind. Ct. App. 2003). We granted transfer, 804 N.E.2d 748. Upon examination of the common law concept of adverse possession in Indiana, we rephrase its essential elements and find those elements established here. In addition, however, renewing our fifty-year-old construction of the adverse possession tax statute, we conclude that this statutory

additional adverse possession requirement is not satisfied in this case and reverse the judgment of the trial court.

This is an appeal from a bench trial final judgment following remand from the Court of Appeals, which in a memorandum decision had reversed the grant of summary judgment in favor of the Mingers. Fraley v. Minger, 69C01-9610-CP-136 (Ind. Ct. App. 2000). Upon remand, counsel for Fraley requested written findings of fact and conclusions of law, both parties submitted proposed findings and conclusions, and the trial court included findings of fact and conclusions of law with its judgment. Fraley does not challenge the trial court's findings of fact but argues that the facts explicitly found by the trial court and the uncontradicted trial evidence fail to establish adverse possession as a matter of law.

The dispute in this case involves a 2.5-acre tract of undeveloped rural land along the west side of and adjacent to a twenty-four-acre farm in rural Ripley County purchased by the Mingers from Raymond and Ada Chaney in 1955. At the time, the Chaneys denied owning the 2.5-acre tract and stated that they did not know who owned it. Trans. at 19-20. And Truman Belew, who in 1963 acquired the land that was eventually deeded to Fraley, told the Mingers that he did not own the tract. Id. at 35. The Mingers believed the tract was unclaimed. Truman died in 1994, and in 1996, this tract was included in land conveyed by deed to Fraley from Melvin Belew, Truman's son, as guardian of Luella Belew, Truman's widow. The trial court's judgment sets forth findings of fact and conclusions of law including in relevant part the following: 1. The Mingers acquired title to the land adjoining the disputed tract . . . on May 21, 1955. 2. The Mingers have paid taxes on the real estate adjacent to the disputed tract. 3. The disputed tract consists of approximately 2.5 acres . . . 4. [Fraley] received a deed to the disputed tract and other real estate . . . on February 28, 1996. 5. The Minger children and their friends played on the disputed tract from 1970. 6. Friends and neighbors thought the Mingers owned the disputed tract. 7. Neither the Mingers or their friends and neighbors ever saw the Belews [the titled owners at the time] on the disputed tract. 8. The Mingers moved to their farm adjacent to the disputed tract on June 17, 1955. 9. The Mingers knew when they purchased their farm that the disputed tract was not described in their deed. 10. The Mingers believed the disputed tract was unclaimed in 1955. 11. The Mingers took possession of the disputed tract:

2

a. One year after 1955, the Mingers regarded the disputed tract as theirs. b. By 1972, the Mingers had built a fence along County Road 625 East to fence the disputed tract. c. The Mingers pastured cattle on the disputed tract. d. The Mingers used wood from the disputed tract from the 1980's to as late as 1993. e. The Minger children camped and hunted on the disputed tract in the 1960s, 1970s, and 1980s. f. The Mingers sold timber from the disputed tract. g. Minger children and friends rode dirt bikes on the disputed tract. h. The Mingers installed a culvert in the ditch from County Road 625 East on to the disputed tract and used it as access to the disputed tract. 12. No evidence was offered by [Fraley] to refute the testimony of the [Mingers'] witnesses that the Mingers exercised possession and control of the disputed tract for more than the statutory time required for them to obtain title. 13. The Mingers had the actual possession of the disputed tract from 1956 to the date of trial. 14. The Mingers had visible possession of the disputed tract from 1956 to the date of trial. 15. The Mingers had notorious possession of the disputed tract from 1956 to the date of trial. 16. The Mingers had the exclusive possession of the disputed tract from 1956 to the date of trial. 17. The Mingers claimed ownership hostile to [Fraley and his] predecessors in title for more than ten (10) continuous years prior to February 29, 1996. CONCLUSIONS OF LAW 1. The continuous use of the disputed tract by the Mingers for more than a continuous period in excess of ten years to pasture their cattle, cut wood, sell timber, and recreational activities constitutes the visible and exclusive possession of the disputed tract. 2. The common perception for more than ten years of the friends and neighbors of the Mingers that the Mingers were the owners of the disputed tract constitutes notorious possession of the disputed tract. 3. The common perception of the friends and neighbors of the Mingers that the Mingers were the owners of the disputed tract constitutes a claim of ownership hostile to [Fraley and his] predecessors in title. 4. The construction of the fence should have alerted any reasonable title owner that his property is being adversely claimed. 5. Open and visible possession has been stated in general terms, th[u]s: it is necessary and sufficient if the nature and character is such as is calculated to apprise the world that the land is occupied and who the occupant is. 6. The Mingers exercised actual, visible, notorious and exclusive possession of the disputed tract of real estate under a claim of ownership hostile to [Fraley and his] predecessors in title for a continuous period of more than ten years prior to filing the law suit herein. 7. The Mingers had established that they were the owners of the disputed real estate

3

many years prior to February 29, 1996. 8. [Fraley] failed to oust the Mingers from the disputed tract before the Mingers had exercised actual, visible, notorious and exclusive possession of the disputed tract of real estate under a claim of ownership hostile to [Fraley and his] predecessors in title for a continuous period of more than ten years. 9. The statute of limitations was not stayed even if the Belews and others in title were unaware of their ownership. 10. The Mingers are entitled to a judgment on their complaint against [Fraley] and against [Fraley on his] counterclaim against the [Mingers]. Appellant's App'x. at 6-10.

In the appellate review of claims tried without a jury, the findings and judgment are not to be set aside unless clearly erroneous, and due regard is to be given to the trial court's ability to assess the credibility of the witnesses. Ind. Trial Rule 52(A). A judgment will be clearly erroneous when there is "no evidence supporting the findings or the findings fail to support the judgment," Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994), and when the trial court applies the wrong legal standard to properly found facts, Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). While findings of fact are reviewed under the clearly erroneous standard, appellate courts do not defer to conclusions of law, which are reviewed de novo. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002); Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). Where cases present mixed issues of fact and law, we have described the review as applying an abuse of discretion standard. Forbar, 771 N.E.2d at 59 ("Although this is in some sense an issue of law, it is highly fact sensitive and is subject to an abuse of discretion standard."). In the event the trial court mischaracterizes findings as conclusions or vice versa, we look past these labels to the substance of the judgment. Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002); State v. Van Cleave, 674 N.E.2d 1293, 1296. "In order to determine that a finding or conclusion is clearly erroneous, an appellate court's review of the evidence must leave it with the firm conviction that a mistake has been made." Yanoff, 688 N.E.2d at 1262.

Suggesting that a heightened degree of proof is needed to establish adverse possession, Fraley argues that such claims require proof by strict, clear, positive, and unequivocal evidence. This assertion finds support in some prior opinions. See, e.g., Panhandle Eastern Pipe Line Company v. Tishner, 699 N.E.2d 731, 736 (Ind. Ct. App. 1998) ("Each of the elements of ad-

4

verse possession must be strictly proved by evidence that is clear, positive, and unequivocal."); Piel v. Dewitt, 170 Ind.App. 63, 73 n.10, 351 N.E.2d 48, 55 n.10 (1976) ("The burden of establishing title by adverse possession falls affirmatively upon the asserter who must adduce proof which is strict, clear, positive, and unequivocal."); Milhon v. Brown, 127 Ind.App. 694, 700, 143 N.E.2d 573, 576 (1957) (Adverse possession "must be strictly proved" and supported by "competent and substantial evidence."); Coal Creek Coal Co. v. Chicago, T.H. & S.E. Ry. Co., 114 Ind.App. 627, 640, 53 N.E.2d 179, 184 (1944) ("The burden of overcoming the presumptions which exist in favor of the holder of the legal record title rests upon the one claiming title by adverse possession and the proof must be strict, clear, positive and unequivocal."); Philbin v. Carr, 75 Ind.App. 560, 582, 129 N.E. 19, 27 (1920) ("[P]roof of all the essential facts must be clear and unequivocal."). At least one commentator observes that "American state courts are in general agreement" that the elements of adverse possession must be established "by clear and convincing evidence." 16 POWELL ON REAL PROPERTY

Download Clarence E. Fraley v. Clarence and Eva Minger.pdf

Indiana Law