James Albert Costello and Lisa Renee Costello v. Wayne Zollman and Teresa Zollman (mem. dec.)

FILED
MEMORANDUM DECISION May 31 2016, 8:16 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
Court of Appeals
this Memorandum Decision shall not be and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Mark J. Crandley John A. Kraft
Barnes & Thornburg LLP Young, Lind, Endres & Kraft
Indianapolis, Indiana New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Albert Costello and Lisa May 31, 2016
Renee Costello, Court of Appeals Case No.
Appellants-Plaintiffs, 10A05-1503-PL-97
Appeal from the Clark Circuit
v. Court
The Honorable Joseph P. Weber,
Wayne Zollman and Teresa Judge
Zollman, Trial Court Cause No.
Appellees-Defendants. 10D03-0901-PL-1
Robb, Judge.
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Case Summary and Issues
[1] James and Lisa Costello appeal from the trial court’s judgment against them in
their action against Wayne and Teresa Zollman regarding a dispute over the
ownership of land in Clark County, Indiana. The Costellos raise five issues for
our review, which we consolidate and restate as (1) whether the trial court’s
decision declaring the Zollmans acquired title to the property by adverse
possession is clearly erroneous; (2) whether the trial court’s decision awarding
the Zollmans damages is clearly erroneous; and (3) whether the trial court’s
decision rejecting the Costellos’ claim for trespass is clearly erroneous. We
conclude the trial court did not err in finding the Zollmans gained title to the
property by adverse possession. However, we further conclude the trial court
erred in awarding the Zollmans damages and in rejecting the Costellos’ claims
for trespass. Therefore, we affirm in part, reverse in part, and remand.
Facts and Procedural History 1
1
The Brief of Appellees contains a few errors and we take this opportunity to remind counsel of our appellate
rules. Appellate Rule 46(B) requires an appellee’s brief conform with Appellate Rule 46(A) with certain
exceptions inapplicable here. First, Rule 46(A)(5) requires the Statement of Case include citations to the
Record on Appeal or Appendix. Here, the Statement of Case does not contain a single citation to the record
or the appendix. Second, Rule 46(A)(6)(a) requires the Statement of Facts be “supported by page references
to the Record on Appeal or Appendix . . . .” Here, the Statement of Facts does not contain a single citation
to the record or the appendix. Third, Rule 46(A)(8) requires the party’s contentions “be supported by
citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”
Here, the Argument section is replete with factual assertions lacking proper citation. Considering the size of
the record and the case’s complexities, the failure to properly cite to the record has made this Court’s task
that much more difficult. Finally, Rule 43(E) states, “All text shall be double-spaced, except that footnotes,
tables, charts, or similar material and text that is blocked and indented shall be single-spaced.” Here, the text
of the brief is not double-spaced.
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[2] The Costellos and the Zollmans live on neighboring lands in Clark County,
Indiana. The Costello Real Estate is immediately west of, and runs adjacent to,
the Zollman Real Estate. At some point prior to 1957, a fence (“Fence”) was
constructed between the two properties. It is unknown who constructed the
Fence. In the 1960s, Verlon and Myrtle Morgan owned the Zollman Real
Estate and the Zollmans began renting the Zollman Real Estate for the purpose
of hunting and farming. During this time, Wayne believed the Fence acted as
the boundary line between the northeastern portion of the Costello Real Estate
and the southwestern portion of the Zollman Real Estate (“Historical Fence
Line”). Over the next several years, Wayne often repaired the Fence for the
Morgans. In 1978, the Morgans conveyed fee simple title in the Zollman Real
Estate to the Zollmans. Over the next five years, the Zollmans used the land
immediately east of the Fence (“Disputed Property”) for farming; the Disputed
Property does not include the Fence. In 1983, the Zollmans built additional
fencing on the Disputed Property and attached it to the Fence in order to
contain their farm animals.
[3] In 1993, Lisa’s parents purchased the Costello Real Estate and the Costellos
often resided on the property. At the time, Lisa did not know whether the
Fence acted as the legal boundary line between the two properties but did not
observe the Zollmans housing animals on the Disputed Property. In 1997,
Lisa’s parents deeded Lisa fee simple title in the Costello Real Estate. Shortly
thereafter, Lisa observed the Zollmans stored piles of lime dust near the
Zollman’s barn, which is located 100 feet east of the Fence.
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[4] At some point over the next several years, the Zollmans again attached
additional fencing to the Fence to enclose their animals. The Costellos claimed
the Zollmans’ animals damaged the Fence, began entering the Costello Real
Estate, and required the Costellos to often fix and replace portions of the Fence.
Around the same time, a cluster of thirty-one trees located on the Costello Real
Estate and immediately west of the Fence started “to die and rot out” at the
base; no other trees on the Costello Real Estate were rotting or dying.
Transcript at 28. Lisa removed the dead trees, leaving only stumps. Lisa then
had samples of the soil surrounding the tree stumps tested by an environmental
laboratory. The results indicated an increased pH level in the soil.
[5] In 2003, Lisa employed the Clark County Surveyor, Robert Isgrigg, to conduct
a retracement survey in order to determine the boundary line between the
Costello Real Estate and the Zollman Real Estate (“2003 Survey”). The survey
revealed the entire length of the Fence was located on the Costello Real Estate,
the Costello Real Estate included a portion of the Disputed Property, and a
strip of land immediately east of the “true” boundary line was unowned. In
other words, portions of the Disputed Property were either a part of the
Costello Real Estate or unowned.
[6] At some point, the Township Trustee removed and replaced a portion of the
Fence. The cost was assessed against the Costellos’ property taxes. In October
2005, the Costellos filed a complaint against Wayne and several township
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officials, including the Township Trustee. 2 In his answer, Wayne asserted a
counterclaim against the Costellos, alleging the lawsuit was frivolous and
requesting attorney’s fees. After the parties participated in mediation, the
Costellos dismissed their claims against the township officials in consideration
of a $1,815.00 payment, but did not settle their claims against Wayne.
[7] In 2009, Lisa employed another environmental laboratory to take a sample of
the soil surrounding the tree stumps along the Fence and test the soil’s pH level;
the results showed the pH had returned to normal. On September 10, 2010,
Lisa again employed Isgrigg to conduct a legal survey (“2010 Survey”). On
October 13, 2010, Isgrigg returned to the properties and ultimately adopted his
2003 Survey findings, specifically stating the entirety of the Fence was located
on the Costello Real Estate, the Costello Real Estate extended approximately
1.33 feet into the Disputed Property, and a 5.88-foot-wide strip of land further
east was unowned. On the same day, Isgrigg recorded the survey at the Clark
County Surveyor’s Office.
[8] In May 2011, the Costellos filed a complaint amending their 2005 complaint.
In August 2011, the Costellos filed a Third Amended Complaint for Damages
and Request for Declaratory Judgment and added Teresa as a defendant.
Specifically, the complaint requested the trial court adopt the findings of the
2010 Survey and declare the Costellos the owners of the Disputed Property,
2
The initial complaint is not a part of the record, but based on the trial court’s findings, it appears the
Costellos sued the Township Trustee for trespass relating to the construction of that portion of the Fence.
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award damages to the Costellos under a theory of common law trespass, and
award treble damages and attorney’s fees under a theory of criminal trespass
pursuant to Indiana Code section 34-24-3-1.3 The Zollmans’ answer did not
include any counterclaims.
[9] After the parties participated in discovery, a bench trial was held in August
2014. Prior to trial, the Zollmans made a motion for specific findings of fact
and conclusions, which the trial court granted. Also prior to trial, Lisa removed
the Fence. Following the trial, each party submitted its proposed findings of
fact and conclusions. The Zollmans’ proposed findings included findings that
Lisa committed criminal trespass in removing the Fence and that the Zollmans
were entitled to treble damages in the amount of $5,850.00. On October 28,
2014, the trial court entered a general order stating the Zollmans held title to the
Disputed Property, the Costellos were not entitled to damages, and the
Zollmans were entitled to a personal judgment against the Costellos in the
amount of $1,950.00 for damages suffered by the removal of the Fence.
However, the trial court did not enter specific findings of fact and conclusions.
3
The Costellos alleged numerous acts of trespass. However, on appeal, the Costellos only challenge the trial
court’s finding that the Zollmans committed trespass in storing lime dust piles near the Fence thereby
allowing “toxic chemicals and harmful herbicides to flow” onto the Costello Real Estate. Appellants’
Appendix at 30.
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After the Costellos filed a motion to correct error, the trial court adopted the
Zollmans’ proposed findings and conclusions verbatim4:
[Findings of Fact]
6. The Zollmans, prior to their purchase of the Zollman Real
Estate leased the same from their predecessors Verlon Morgan
and Myrtle Morgan from the mid to late sixties until they
purchased the same in 1978, and occupied and farmed all the
property over to a fence which was observed by Zollmans and
their predecessors as the common boundary line with the
Costello Real Estate.
7. [P]rior to Lisa removing the fence between the Costello Real
Estate and the Zollman Real Estate in April, 2014 the fence
remained at that same location—in fact the fence was the original
basis for this litigation when the “boundary fence” was
constructed by the Township Trustee pursuant to Indiana’s fence
law (I.C. 32-26-9 et. seq.).
8. The current litigation originally commenced on October 20,
2005, between Costello and other named Defendants, including
the Owen Township Trustee, Leroy Graebe and the Clark
County Auditor, Barbara Bratcher-Haas, concerning a fence line
constructed by the Township Trustee in accordance with [the
fence law] . . . .
9. On October 5, 2009 Costello, in consideration of a payment of
$1,815.00 by the County, dismissed all parties, except Wayne
Zollman and waived any claim of trespass of the Township
Trustee relating to the fence erection. The fence constructed by
the Trustee was along the historically observed boundary line
between Costello and Zollman.
10. The fence erected by the Township Trustee no longer exists
4
There is no signed order in the record containing the trial court’s findings. Rather, the trial court only
entered a lengthy recitation of its findings in the Chronological Case Summary. For this reason, we will cite
to the Zollmans’ proposed findings contained within the Appellants’ Appendix.
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as Lisa Renee Costello removed the same in April, 2014, as well
as portions erected and paid for by the Zollmans.
***
23. Wayne Zollman farmed the Zollman Real Estate . . . since
the mid to late 60’s and continuously occupied that in some
manner since that date. Zollman occupied and controlled the
Zollman Real Estate, either through the leasing of the Zollman
Real Estate to farm or his ownership, and the same was all the
way over to the fence, as it had historically existed when he first
entered the property in the mid 60’s.
24. Zollman testified the historical fence had never been moved
from its location since he occupied the Zollman Real Estate
through lease or ownership until Lisa removed the same in April,
2014.
***
26. Zollman repaired and replaced the fence through the time
period they occupied the property. Zollman paid taxes on all of
the real estate during the time period of their ownership from
1978 forward and had not been delinquent with the taxes and
believed in good faith the taxes paid included all real estate over
to the historic fence observed as the boundary line.
27. Zollman entered into evidence photographs reflecting the
removal of the fencing by Costello. Said photos depicted the
holes that would identify the historic line. Zollman also showed
photos of the historic fence line and old fence post with rusted
woven wire that is not even made anymore. Zollman testified
Costello destroyed this fence line, removing all fenceposts,
including all historical markers and all posts and woven wire he
had replaced and paid for. Lisa admitted to the removal of the
posts and cutting of Zollmans’ woven wire, and to taking the
posts and fencing.
28. The taking by Lisa was wrongful.
29. Zollman testified, without objection, the cost to replace the
posts would be at Eighteen and No/100 ($18.00) Dollars per post
and spaced at appropriate intervals would require fifty (50) posts
or Nine Hundred and No/100 ($900.00) Dollars; woven wire of
One Thousand Fifty and No/100 ($1,050.00) Dollars plus labor
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and latches; and the Court finds it strikingly coincidental this
amount is only about One Hundred ($100.00) Dollars different
than what the County paid to Costellos in the settlement of the
underlying action in 2009.
30. The posts which Zollman placed in are currently wrongfully
in the possession of the Costellos and the Costellos had destroyed
his woven wire fence by cutting the same off of the posts.
***
39. One of Costello’s counts was for damages relating to “toxic
chemicals and harmful herbicides” flowing from the Zollman
Real Estate to the Costello Real Estate, and to support such
claim Costello produced Gregory Mills (hereinafter Mills), a
certified arborist to appraise trees alleged to have been removed
from the Costello Real Estate.
40. Mills could have done an analysis, rather than an appraisal,
to determine issues and/or causes of tree damage, but Lisa had
requested he only appraise the trees (or what was left of rotted
trees) on the Costello Real Estate. Mills indicated an analysis
would have determined the actual cause, or would have
narrowed the cause of the loss of the trees. He was not asked to
do that so he could only speculate as to what caused the trees to
die, and this was done over the objection of Zollmans’ counsel.
41. [O]ver the objection of Zollmans’ counsel Mills speculated
the damage may have been caused from lime dust on the
Zollman Real Estate, but on cross examination when shown
pictures entered into evidence of rotted stumps of trees alleged to
be on the Costello Real Estate from the late 90’s or early 2000’s
he recanted on what may have caused damage to the trees.
***
43. Costello presented no evidence of “toxic chemicals” or
“harmful herbicides” only speculation concerning lime dust.
44. At the conclusion of presentation of evidence, the Zollmans
moved to amend the pleadings to conform to the evidence
presented.
[Conclusions]
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10. The survey conducted by Robert Isgrigg is not a “legal
survey” and does not establish the boundary line between the
Costello Real Estate and the Zollman Real Estate, thus, the
claims of trespass by Costello premised on the same must fail.
***
12. On its face the survey conducted by Robert Isgrigg it [sic]
states it is a “retracement survey” defined as being “a survey of
real property that has been previously described in documents
conveying an interest in real property.”
13. The Surveyor’s Report on the Isgrigg retracement survey at
Note #6 states in pertinent part, “However, a plat is recorded in
Misc. Record 22-3147, which shows a fence at that time (1-10-
1957), is the line, creating some uncertainty.” The fence referred
to by Note #6 is the historical fence showing it even existed in
1957, prior to the Zollmans leasing the same for farming in the
60s.
14. Zollmans are entitled to all lands east of the historic fence
line by adverse possession.
***
18. There was no evidence presented to dispute the testimony of
Wayne Zollman that he had paid the taxes on his real estate since
1978 and that he believed in good faith he was paying taxes of
[sic] all real estate east of the historical fence.
***
20. Zollmans’ title to all the Zollman Real Estate over to the
historical fence was established and vested in 1988, prior to
Costello, or her parents, ever taking title to the Costello Real
Estate in 1993.
21. In addition to proving Zollmans showed they believed in
good faith they had paid the taxes, they can also satisfy the intent
or notice requirements—and did exercise control over the land as
required for every adverse possession claim. In the 2003 . . .
retracement survey the fence remained at its historical location,
and is so noted—Costello did nothing in 2003 to dispute the
fence as being the boundary line.
22. Costello never excluded Zollmans from using all of the
Zollman Real Estate east of and over to the historical fence line,
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and Zollmans did it openly—even the Costello pictures put into
evidence from the late 90’s early 2000’s reflect the historical fence
line, and its location.
23. Zollmans exercised control of all portions to the east of the
historical fence line, and Zollmans (and their predecessors), prior
to Lisa taking title, had already established the requisite elements
for adverse possession for more than the requisite time period of
ten (10) years.
24. Once title vests at the conclusion of the ten-year possessory
period, the title may not be lost, abandoned, or forfeited . . . even
when the party agrees to a survey to attempt to find the true
boundary line.
25. Zollmans are entitled to damages for the replacement of the
fence removed by Costello, and the wrongful taking of the
Zollmans’ property.
26. I.C. 34-24-3-1 provides for recovery of damages for one that
suffers a pecuniary loss as the result of I.C. 35-43 up to three (3)
times the amount of actual damages and a reasonable amount to
compensate for loss of time to file papers and attend court
proceedings.
27. The actions of Lisa removing and destroying the fence of the
Zollmans violate I.C. 35-43-2-2.
Appellants’ App. at 53-66 (emphasis and citations omitted). This appeal
ensued.
Discussion and Decision
I. Standard of Review
[10] Where, as here, the trial court enters special findings and conclusions thereon
pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled:
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First, we determine whether the evidence supports the findings
and second, whether the findings support the judgment. In
deference to the trial court’s proximity to the issues, we disturb
the judgment only where there is no evidence supporting the
findings or the findings fail to support the judgment. We do not
reweigh the evidence, but consider only the evidence favorable to
the trial court’s judgment. Challengers must establish that the
trial court’s findings are clearly erroneous. Findings are clearly
erroneous when a review of the record leaves us firmly convinced
a mistake has been made. However, while we defer substantially
to findings of fact, we do not do so to conclusions of law.
Additionally, a judgment is clearly erroneous under Indiana Trial
Rule 52 if it relies on an incorrect legal standard. We evaluate
questions of law de novo and owe no deference to a trial court’s
determination of such questions.
Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011) (emphasis and
citation omitted), trans. denied.
II. Adverse Possession
[11] The Costellos contend the trial court erred in concluding the Zollmans proved
the elements of adverse possession by clear and convincing evidence.
[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);
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(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). The requisite period of time
for adverse possession is ten years. Celebration Worship Ctr., Inc. v. Tucker, 35
N.E.3d 251, 254 (Ind. 2015). In addition to the elements noted above, our
legislature imposes a requirement that an “adverse possessor pay[] 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.” Ind. Code § 32-21-7-1(a). “[O]nce
a party establishe[s] the elements of adverse possession, fee simple title to the
disputed tract of land is conferred upon the possessor by operation of law, and
title is extinguished in the original owner.” Knauff v. Hovermale, 976 N.E.2d
1267, 1270 (Ind. Ct. App. 2012) (citation and internal quotation marks
omitted).
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[12] The Costellos first argue the evidence does not support the trial court’s findings
regarding the notice and intent elements.5 Specifically, the Costellos contend
after they moved onto the Costello Real Estate in 1993, the Zollmans neither
used the Disputed Property nor took action to exclude the Costellos from the
Disputed Property. Such contentions, however, carry no weight considering
the trial court concluded the Zollmans established adverse possession of the
Disputed Property in 1988—five years prior to the Costellos first occupying the
Costello Real Estate. Wayne testified he began farming the Disputed Property
in 1978. In 1983, Wayne ceased farming on the Disputed Property, connected
additional fencing to the Fence, and began housing animals on the Disputed
Property. In addition, Wayne testified the Fence remained on the Historical
Fence Line from 1978 until Lisa removed the Fence in 2014. We conclude the
trial court’s conclusions that the Zollmans satisfied the notice and intent
elements are not clearly erroneous.
[13] The Costellos also argue the trial court’s conclusion that the Zollmans satisfied
the tax payment requirement is clearly erroneous. In concluding the Zollmans
satisfied the requirement, the trial court found “Zollman paid taxes on all of the
real estate during the time period of their ownership from 1978 forward and had
not been delinquent with the taxes and believed in good faith the taxes paid
included all real estate over to the historic fence observed as the boundary
5
The Costellos do not challenge whether the evidence supports the trial court’s findings in regard to the
control and duration elements.
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line[,]” Appellants’ App. at 57, and “[t]here was no evidence presented to
dispute the testimony of Wayne Zollman that he had paid the taxes on his real
estate since 1978 and that he believed in good faith he was paying taxes of [sic]
all real estate east of the historical fence[,]” id. at 65. The Costellos
acknowledge Wayne testified he paid taxes on the Zollman Real Estate since
1978 and he believed such taxes included the taxes on the Disputed Property,
but argue the Zollmans did not present evidence indicating their tax obligation
actually included the taxes on the Disputed Property. Brief of Appellants at 25.
However, such evidence is not needed to support a finding of compliance with
Indiana Code section 32-21-7-1(a).
[14] In Celebration Worship Center, a property dispute arose between a church and
neighboring homeowners; the church owned lot 3, and immediately to the east,
the homeowners owned lot 4. The church filed a complaint to determine the
boundary line between lots 3 and 4 and attached to the complaint a survey
indicating the boundary line extended to the edge of a gravel driveway along
the eastern border of lot 3. In their answer, the homeowners argued “they had
acquired title to the disputed real estate—the grassy portion along the east side
of lot 3 contiguous to the west side of lot 4 (their side yard) and the ‘edge of the
gravel’—by adverse possession . . . .” 35 N.E.3d at 253. In their motion for
summary judgment, the homeowners designated sworn affidavits indicating
they believed in good faith the taxes they had always paid on lot 4 included all
of the grassy portions of the yard over to the gravel’s edge; the homeowners
also designated county tax records showing no tax arrearages on lot 4. The trial
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court concluded the homeowners satisfied the tax requirement for the statutory
time period and granted summary judgment to the homeowners. In affirming
the trial court’s decision, our supreme court stated,
[T]he homeowners in the present case argue they and their
predecessor have paid all taxes that they reasonably believed in
good faith to be due on the disputed real estate because they
believed the disputed real estate to be part of the side yard of their
lot 4—for which they actually paid taxes. This reasonable and
good faith belief substantially complies with the statutory tax
payment requirement.
Id. at 255 (emphasis in original).
[15] Similar to Celebration Worship Center, Wayne testified under oath he began
paying taxes on the property in 1978, he believed he owned the Disputed
Property, he had a good faith belief he continually “pa[id] taxes on every bit of”
the Disputed Property, and those taxes had never been delinquent. Tr. at 262.
Such evidence is sufficient to show the Zollmans substantially complied with
the tax requirement. See Celebration Worship Ctr., 35 N.E.3d at 255. In addition,
the Costellos have not cited to any evidence in the record rebutting this
conclusion. Therefore, we conclude the evidence supports the trial court’s
findings regarding the Zollmans’ satisfaction of the tax payment requirement.
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Accordingly, the trial court’s conclusion that title to the Disputed Property
vested in the Zollmans by adverse possession in 1988 is not clearly erroneous. 6
[16] Although title to the Disputed Property vested in the Zollmans in 1988, there is
no evidence indicating the Zollmans held title to the Fence. Specifically, the
Fence was constructed prior to 1957 and there is no evidence indicating who
originally constructed the Fence, but both parties testified to making repairs to
the Fence. The surveys conducted by Isgrigg do not show the Fence acted as a
boundary fence or a partition fence between the two properties; rather, the
surveys indicate (1) the entirety of the Fence rested upon the Costello Real
Estate, and (2) the Costello Real Estate extended into the Disputed Property
east of the Fence prior to 1988 when the Zollmans gained title to the Disputed
Property. The Zollmans did not admit into evidence their own survey showing
they held title in the Fence and the Disputed Property, which is likely why they
claimed title to the Disputed Property by adverse possession. Further, we note
6
The Costellos also challenge the trial court’s findings regarding the deficiencies in Isgrigg’s 2010 Survey.
Specifically, they argue the trial court erred in allowing the Zollmans to collaterally attack the 2010 Survey
and in concluding the 2010 Survey did not satisfy the statutory requirements of a legal survey. Regardless of
whether the 2010 Survey met the statutory requirements set forth in Indiana Code section 36-2-12-10 and
regardless of whether the Zollmans could collaterally attack the validity of the 2010 Survey, title to the
Disputed Property vested in the Zollmans as a matter of law in 1988 and such title cannot be lost,
abandoned, or forfeited by a subsequent legal survey. See Fraley, 829 N.E.2d at 487 (noting once an
individual gains title to property by adverse possession, the title may not be abandoned, lost, or forfeited,
“even where the party pays rent to the titleholder, 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”); see also Snowball Corp. v. Pope, 580 N.E.2d
733, 734 (Ind. Ct. App. 1991) (“Once a party has acquired title through adverse possession, that party does
not lose title based upon acts committed or circumstances existing after title is established.”). As a result, we
need not address the merits of the legal survey issues.
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the fact the Township Trustee constructed a portion of the Fence does not
dictate that this Fence portion is a boundary fence when faced with other
evidence: the surveys indicate it was constructed on the Costello Real Estate,
the Costellos sued the Township Trustee for trespass, the Township Trustee
settled the suit against it and paid the Costellos $1,815.00, and the Costellos
testimony that it always believed the Fence was on the Costello Real Estate.
Accordingly, there is no evidence in the record to contradict the Costellos’
position that the Fence, including the portion erected by the Township, rested
entirely upon the Costello Real Estate. Because the Zollmans only gained title
to the Disputed Property by adverse possession, we conclude the Zollmans did
not have a property interest in the Fence.
III. Costellos’ Claims of Trespass
[17] The Costellos argue the trial court erred in concluding the Zollmans did not
commit common law or criminal trespass in allowing lime to flow onto the
Costello Real Estate. The trial court only entered four findings relevant to the
Costellos’ trespass claim:
40. Mills could have done an analysis, rather than an appraisal,
to determine issues and/or causes of tree damages, but Lisa had
requested he only appraise the trees (or what was left of rotted
trees) on the Costello Real Estate. Mills indicated an analysis
would have determined the actual cause, or would have
narrowed the cause of the loss of the trees. He was not asked to
do that so he could only speculate as to what caused the trees to
die, and this was done over the objection of Zollman’s counsel.
41. [O]ver the objection of Zollmans’ counsel Mills speculated
the damage may have been caused from lime dust on the
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Zollman Real Estate, but on cross examination when shown
pictures entered into evidence of rotted stumps of trees alleged to
be on the Costello Real Estate from the late 90’s or early 2000’s
he recanted on what may have caused damage to the trees.
42. Zollman makes his living at farming and testified the
appropriate ideal PH [sic] level for soil to farm is at a level
equivalent to that as shown by Costello to be harmful.
43. Costello presented no evidence of “toxic chemicals” or
“harmful herbicides” only speculation concerning lime dust.
Appellants’ App. at 61. The Costellos argue the trial court’s findings are clearly
erroneous because Mills did not speculate, but rather testified in his professional
opinion the piles of lime dust on the Zollman Real Estate ran off downhill
towards the trees, thereby raising the pH levels in the soil surrounding the trees
and causing the trees to die.
[18] Indiana Code section 35-43-2-2 provides the elements of criminal trespass:
(b) 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 that person’s agent;
(2) not having a contractual interest in the property,
knowingly or intentionally refuses to leave the real
property of another person after having been asked
to leave by the other person or that person’s agent;
***
(4) knowingly or intentionally interferes with the
possession or use of the property of another person
without the person’s consent;
***
commits criminal trespass . . . .
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At common law, a plaintiff bringing a trespass action must establish two
elements: (1) the plaintiff must show he possessed the land when the alleged
trespass occurred, and (2) the plaintiff must demonstrate the alleged trespasser
entered the land without legal right. Holland v. Steele, 961 N.E.2d 516, 525 (Ind.
Ct. App. 2012), trans. denied. It is a general rule of tort law that
[o]ne who recklessly or negligently, or as a result of an
abnormally dangerous activity, enters land in the possession of
another or causes a thing or third person so to enter is subject to
liability to the possessor if, but only if, his presence or the
presence of the thing or the third person upon the land causes
harm to the land, to the possessor, or [to] a thing or a third
person in whose security the possessor has a legally protected
interest.
Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 582 (Ind. Ct. App. 1995) (quoting
Restatement (Second) of Torts § 165 (1965)).
[19] In Lever Brothers Company, a residential landowner brought suit under a trespass
theory after heavy rains flooded the landowner’s basement and the landowner
observed a white fatty substance floating in the water. On appeal, we were
tasked with determining whether a trespass could occur as a result of the entry
of noxious materials onto another’s property. Despite no Indiana case
previously considering the issue of whether the entry of noxious material onto
another’s property could constitute a trespass, we agreed with other
jurisdictions which found a trespass could occur if there was a direct causal
relation between the actor’s conduct and the intrusion of the foreign matter upon
the possessor’s land that caused the harm. See id.
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[20] At trial, Wayne acknowledged piles of lime dust were located on the Zollman
Real Estate for the purpose of disinfecting the barn. Shortly after purchasing
the Costello Real Estate in 1997, Lisa observed the piles of lime dust near the
Zollman’s barn. Lisa testified certain trees located on the Costello Real Estate
near the Fence and downhill from the Zollmans’ barn began to die in the late
1990s and early 2000s. At some point unclear from the record, the trees died
and began to rot, and Lisa opted to remove the trees leaving only the stumps.
Thereafter, Lisa took samples of the soil surrounding the tree stumps. Around
2004, Lisa had the samples tested by Sure Tech Laboratories (“Sure Tech”).
Around 2009, Lisa employed A&L Analytical Laboratories (“A&L”) to take
and test soil samples. Sometime after 2010, Lisa provided the results of the
Sure Tech and A&L testing to Mills to assist him in assessing the value of the
tree loss. The Costellos did not admit the reports into evidence.
[21] Mills, an International Society of Arboriculture certified arborist, testified the
field of arboriculture focuses on all facets of plant care, including the plant’s
soil, which Mills indicated contributes to a plant’s health. Mills claimed
arborists also conduct landscape evaluations, which requires the arborist to
appraise the value of a tree. When Mills arrived at the Costello Real Estate,
Lisa had already removed the dead trees. Mills then measured the tree stumps
to get an appraisal, as Lisa requested; Mills did not need to know the cause of
the trees’ death to conduct an appraisal. During trial, however, the Costellos
asked Mills if, based on the results of the laboratory testing, he formed an
opinion in regard to the soil composition. The trial court overruled the
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Zollmans’ objection to this questioning, but noted a continuing objection. Mills
then testified the 2004 Sure Tech results indicated a high level of pH in the soil
and the 2009 A&L results indicated the pH level returned to normal.
[Costellos:] So the condition that you recognize relative to the
pH in the Sure Tech results, what types of things could cause
that?
[Mills:] Uh, anything with limestone in it. Gravel, agriculture
lime, there’s a lot of things that could cause it but we always drop
back to it being some deviant of lime. You know there are
different forms of lime. There’s basic aglime, there’s maglime
but that’s [sic] all just has to do with how finely the stuff’s [sic]
ground up. It’s still lime in the end.
Id. at 113-14. The Costellos asked Mills whether a lime dust pile located
outside of the Zollmans’ barn could pose a risk to trees:
[Mills:] Well it depends if it’s uphill or downhill from it you
know runoff.
[Costellos:] Okay how about Mrs. Costello’s trees?
[Mills:] Well Mrs. Costello’s trees, yes Sir because they were
downhill from it.
[Costellos:] Okay and would uh a runoff from that lime pile be a
cause for the soil conditions that you recognized?
[Mills:] It certainly can be.
[Costellos:] Can be?
[Mills:] Sure.
[Costellos:] Is it?
[Mills:] Yes it is.
[Costellos:] Can you say with any degree of certainty?
[Mills:] Uh rain water dissolves lime.
[Costellos:] I’m sorry. Pardon me?
[Mills:] I said rain water dissolves lime and lime stone. You see
rocks wear from rain fall.
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***
[Costellos:] Have you formed any professional opinion about the
cause of the pH levels in the soil on Costello’s land?
[Mills:] Yes.
[Costellos:] And that cause being?
[Mills:] Well the increased soil pH would be the only possible
causal changing factor is the pile of lime dust.
[Costellos:] And your basis for that conclusion is?
[Mills:] Simple, uphill, downhill, raining water goes downhill.
I’ve never seen water run uphill yet.
[Costellos:] Is that conclusion uh, impacted at all by the location
of the stumps that you saw relative to the topography of the—
[Mills:] It’s not impacted by it, it’s the whole reason for it.
[Costellos:] Now just to be clear Mr. Mills—
[Mills:] Okay.
[Costellos:] A second ago you said “could be” but then I asked
you, “is it” and I guess you clarify for us whether that, how much
speculation is involved?
[Mills:] Very little speculation.
Id. at 117-18.
[22] At the outset, we note the trial court adopted the Zollman’s proposed findings
verbatim and such a practice “weakens our confidence as an appellate court
that the findings are the result of considered judgment by the trial court.” Cook
v. Whitsell-Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003). As noted above, the
trial court only entered four findings relevant to Costello’s common law and
criminal trespass claims and much of those findings pertain to Mills’
“speculation” as to the cause of the trees’ deaths and the lack of evidence
showing lime is a harmful or toxic material. We acknowledge the evidence
supports the findings that Lisa only hired Mills to appraise the trees, but we
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cannot conclude the evidence supports the remaining findings. At trial, it was
undisputed the Zollmans stored lime dust piles near their barn, the trees were
downhill from the barn, the Costellos had never used lime on their property,
lime increases the pH levels in soil, and high pH levels harm trees. Based on
these undisputed facts, the laboratory results Lisa provided to Mills, and Mills’
experience as a certified arborist, Mills concluded—in his professional
opinion—there was a causal connection between the lime on the Zollman Real
Estate and the death of the Costellos’ trees. See Lever Bros. Co., 655 N.E.2d at
582. Because we conclude the trial court’s findings are clearly erroneous,
coupled with the fact the trial court made no other findings pertaining to the
issue, we remand to the trial court to enter further findings on this issue
consistent with the evidence presented.
Conclusion
[23] The Zollmans gained title to the Disputed Property east of and up to the Fence
in 1988 as a matter of law. However, because the Fence rested entirely upon
the Costello Real Estate and there is no evidence the Zollmans maintained a
property interest in the Fence, the Zollmans did not gain title to the Fence when
they gained title to the Disputed Property and their claim of trespass entitling
them to damages for removal of the Fence fails. As to the Costellos’ claim of
trespass, the evidence does not support the trial court’s findings regarding the
testimony of Mills, who testified in his professional opinion to a direct causal
connection between the Zollmans’ lime dust piles and the death of the
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Costellos’ trees. Accordingly, we affirm in part, reverse in part, and remand to
the trial court with instructions.
[24] Affirmed in part, reversed in part, and remanded.
Barnes, J., and Altice, J., concur.
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