Patricia M. Jones v. Von Hollow Association, Inc.

FILED
May 25 2018, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Joseph R. Delehanty Steven Knecht
Lafayette, Indiana Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Patricia M. Jones, May 25, 2018
Appellant-Plaintiff, Court of Appeals Case No.
08A02-1709-PL-2175
v. Appeal from the Carroll Circuit
Court
Von Hollow Association, Inc., The Honorable Benjamin A.
Appellee-Defendant. Diener, Judge
Trial Court Cause No.
08C01-1603-PL-4
Altice, Judge
Case Summary
[1] This case involves a dispute between Patricia Jones and the Von Hollow
Association, Inc. (Von Hollow) over land abutting Lake Freeman in Carroll
County. In 2016, Jones filed a complaint against Von Hollow seeking a
declaratory judgment that she had a prescriptive easement over a portion of
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Von Hollow’s property to access a shorefront area and, ultimately, the Lake
Freeman shoreline. She also sought an injunction to prevent Von Hollow from
obstructing or interfering with her use of the claimed easement and for a
judgment of trespass against Von Hollow. Von Hollow filed its answer and a
counterclaim against Jones for trespass. Following a hearing, Jones’s
preliminary injunction motion was denied. After a bench trial, the court denied
Jones’s claims for declaratory judgment and trespass and entered judgment in
favor of Von Hollow on its trespass claim against Jones. On appeal, Jones
raises three issues, which we restate as:
1. Whether the trial court erred when it denied Jones’s claim for
a declaratory judgment that she had a prescriptive easement over
Von Hollow’s property.
2. Whether the trial court erred when it determined that Jones
trespassed on Von Hollow’s property and that Von Hollow did
not trespass on Jones’s property.
3. Whether the trial court erred when it directed an entity that is
not a party to this appeal to issue Jones and Von Hollow joint
rights in a licensed shorefront area.
[2] We affirm in part, reverse in part, and remand.
Facts & Procedural History
[3] Von Hollow was formed in 1986 or 1987. Members of the Conway family (the
Conways) are officers in the association, and Joseph Conway is a major
shareholder. Von Hollow owns 3.446 acres on West Von Hollow Drive that
are part of a residential subdivision and resort located on Lake Freeman in
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Carroll County. Part of the Von Hollow property meets the shoreline of Lake
Freeman while another part abuts a shorefront area that is owned by the Shafer
1
and Freeman Lakes Environmental Conservation Corporation (SFLECC).
SFLECC issues a yearly shorefront license (the SFL) to Von Hollow that
entitles Von Hollow to access the shorefront area and, ultimately, the lake, at
the part where Von Hollow’s property abuts SFLECC’s shorefront area.
[4] Jones owns .566 acres at 11600 North Von Lane, located close to, but not
directly on, Lake Freeman. Jones accessed the lake through the same
SFLECC-owned shorefront area that Von Hollow utilized. SFLECC issues a
separate, yearly SFL to Jones that entitles her to access the shorefront area over
the part of her property that adjoins the shorefront area.
[5] A narrow strip of the Von Hollow property (the tail), that further narrows to a
point (the corner), almost completely separates Jones’s property from the
shorefront area that her SFL entitles her to access. Jones’s property only abuts
the shorefront area at the corner, which measures less than one quarter of an
inch wide.
[6] An asphalt and gravel roadway (the lane) runs along the Von Hollow property,
through the shorefront area, to the lakeshore. Von Hollow controls access to
the lane by means of a locked gate at one end of the lane. Historically, keys
1
In addition to issuing licenses that permit access to the shorefront area, SFLECC dredges the lake and
removes silt material. SFLECC acquired ownership of the shorefront area from Northern Indiana Public
Service Company (NIPSCO).
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were distributed to “[t]enants, renters, owners” within the Von Hollow
subdivision and to some individuals who did not live within the subdivision.
Transcript Vol. 2 at 76.
[7] Jones’s property was previously owned by George and Virginia Fischer. In
1994, the Fischers built stairs and a walkway from the house located on what is
now Jones’s property down to the shorefront area. Part of the walkway crossed
over the tail of the Von Hollow property. Prior to the installation of the stairs
and walkway, there were no steps or developed land access from the back of the
house to the shorefront area.
[8] Two months after the stairs were completed, the Fischers sold the property to
Ronald and Mary Lou Nutt. At the time of the sale, the Nutts received from
the Fischers a key to the gate that provided access to the lane. Ronald Nutt
testified that he used the lane daily to access the lake and that he occasionally
used the stairs and walkway that led from his property, over the Von Hollow
property, to the shorefront area. At times, instead of using his key to the lane
gate, Nutt “would just simply drive [his tractor] around the end of the gate and
drive down [to the shorefront area].” Id. at 44.
[9] The Nutts did not enjoy a good relationship with the Conways. In fall 1996,
Von Hollow changed the lock on the lane gate and chose not to give the Nutts a
key. Ronald, however, continued to use the lane, driving around the gate when
necessary, though he was told by Joseph Conway not to do so.
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[10] In 1998, the Nutts sold their property to Jones and her (then) husband Paul.
The Joneses received a key to the lane gate from the realtor. Unlike the Nutts,
the Joneses enjoyed an amicable relationship with the Conways. Jones testified
that they were friends and often socialized together. Between 1998 and 2015,
the Joneses used both the lane and the stairs and walkway to access the
shorefront area and the lake. The Joneses also could access the shorefront area
from the lake, by boat. In 2006, Von Hollow again changed the lock on the
gate. Von Hollow provided the Joneses with a key to the new lock.
[11] Sometime between 2005 and 2007, the Joneses began to construct a deck at the
bottom of their stairs. One of the Conways saw the construction and told the
Joneses they needed to move the support posts because they were on the tail of
the Von Hollow property. The Joneses complied.
[12] In 2013, Paul and Jones divorced, and their property was transferred to Jones as
sole owner. The good relationship between Jones and the Conways continued,
however, until August 2015, when the relationship deteriorated. During the
first week of August 2015, Jones constructed a retaining wall made of paving
stones to prevent gravel from the lane from spreading. According to Jones, the
wall was erected in the part of the shorefront area that her SFL allowed her to
access; per Joseph Conway, it blocked access to the lane and made it impossible
for the Conways to maneuver their boats to the water. The Conways told her
that the wall needed to be moved, and Jones moved the wall. Shortly before
Labor Day 2015, Von Hollow changed the lock on the lane gate. Jones was not
provided with a key to the new lock.
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[13] On March 11, 2016, Jones filed a complaint and motion for hearing, requesting
(1) a declaratory judgment that she had a prescriptive easement over both the
lane and the tail of the Von Hollow property, (2) a preliminary injunction
against Von Hollow to prevent it from obstructing or interfering with her use of
the claimed easements over the Von Hollow property, and (3) a judgment
against Von Hollow for trespass. Von Hollow filed its answer, requesting that
the court deny Jones’s requests for preliminary injunction and declaratory
judgment. Von Hollow counterclaimed against Jones for trespass on its
property. On May 13, 2016, a hearing was held on Jones’s motion for
preliminary injunction. On June 16, 2016, the court issued an order denying
her motion, determining that Jones’s use of the lane and tail was not adverse;
rather, it was with Von Hollow’s permission. The court further determined that
“Jones does not likely have an easement by prescription over the Von Hollow
Property.” Appellee’s Appendix Volume II at 14.
[14] In the summer of 2016, sometime after the trial court issued its June 16, 2016
order, Jones placed picnic tables and paving stones in the shorefront area and
across a portion of the lane. Eventually, she chained the tables together, placed
“No Trespassing” signs on the tables, and installed security cameras. The
Conways moved the tables and paving stones because they were unable to drive
down the lane to their boat slips.
[15] On May 8, 2017, a bench trial was conducted on Jones’s complaint and Von
Hollow’s counterclaim. At the start of the trial, Jones informed the trial court
that she did not wish to pursue her claim for a prescriptive easement in the lane.
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Following the trial, the parties submitted proposed findings of fact and
conclusions thereon. On August 21, 2017, the court issued its order, along with
findings of fact and conclusions thereon. The court denied Jones’s claim for
declaratory judgment that a prescriptive easement existed over the tail and her
request for injunctive relief. It also found against Jones on her trespass claim
and in favor of Von Hollow on its trespass claim against Jones. Jones now
appeals. Additional facts will be provided as necessary.
Discussion & Decision
[16] The trial court entered findings of fact and conclusions thereon pursuant to
Indiana Trial Rule 52(A). We may not set aside the findings or judgment
unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d
1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence
supports the factual findings. Id. Second, we consider whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the
record contains no facts to support them either directly or by inference.” Quillen
v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it
relies on an incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due
regard to the trial court’s ability to assess the credibility of witnesses. Id. We
do not reweigh the evidence; rather we consider the evidence most favorable to
the judgment with all reasonable inferences drawn in favor of the
judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). 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)
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(citing McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans.
denied), trans. denied.
[17] We also note that Jones appeals from a negative judgment. A party who had
the burden of proof at trial appeals from a negative judgment and will prevail
only if it establishes that the judgment is contrary to law. Helmuth v. Distance
Learning Sys. Ind., Inc., 837 N.E.2d 1085, 1089 (Ind. Ct. App. 2005). A
judgment is contrary to law when the evidence is without conflict and all
reasonable inferences to be drawn from the evidence lead only to one
conclusion, but the trial court reached a different conclusion. Id.
1. Prescriptive Easement
[18] Jones contends the trial court erred when it determined that she failed to
establish she acquired a prescriptive easement over the tail of Von Hollow’s
property. She argues that she acquired a prescriptive easement over the
disputed property because she and “her predecessors in title used a walkway
over [the tail] continuously from 1994 to the present,” and “Von Hollow took
no steps . . . to either affirmatively place [Jones] on notice that it was ending her
use of the walkway [over the tail] or that her use was by permission only.”
Appellant’s Brief at 18, 22. She further argues that the trial court’s findings are
inconsistent and cannot be used to support the conclusions thereon.
[19] Von Hollow maintains the trial court correctly determined Jones’s use of the
tail was not adverse, but permissive. According to Von Hollow, Jones failed to
“demonstrate the intent to claim full ownership of the tail (or the use thereof)
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superior to the rights of others . . . [;]” “[s]he did not attempt to exclude Von
Hollow from the tail; and she [acquiesced] when Von Hollow representatives
told her to move her deck-in-progress.” Appellee’s Brief at 22.
[20] Prescriptive easements are not favored in the law. Carnahan v. Moriah Prop.
Owners Ass’n., Inc., 716 N.E.2d 437, 441 (Ind. 1999). For that reason, “the party
claiming one must meet ‘stringent requirements.’” Id. (citation omitted).
Formerly, a party claiming the existence of a prescriptive easement was
required to provide evidence showing “an actual, hostile, open, notorious,
continuous, uninterrupted adverse use for twenty years under a claim of
right.” Id. (citation omitted). Further, each element had to be “‘established as a
necessary, independent, ultimate fact, the burden of showing which is on the
party asserting the prescriptive title, and the failure to find any one of such
element [is] fatal . . . , for such failure to find is construed as a finding against
it.’” Id. (citations omitted, alteration in original).
[21] In Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005), however, our Supreme
Court modified the traditional elements of prescriptive easements to correspond
to the Court’s reformulated elements of adverse possession as follows:
In our recent decision, Fraley v. Minger, 829 N.E.2d 476 (Ind.
2005), we reviewed the history of the doctrine of adverse
possession in Indiana and reformulated the elements necessary
for a person without title to obtain ownership to a parcel of land.
We held that the claimant in such circumstances must establish
clear and convincing proof of (1) control, (2) intent, (3) notice,
and (4) duration. Id. at 486. This reformulation applies as well
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for establishing prescriptive easements, save for those differences
required by the differences between fee interests and easements.
Wilfong, 838 N.E.2d at 406 (footnote omitted). The Court explained each of the
elements as follows, noting their relationship with the previous requirements:
(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, 829 N.E.2d at 485. The elements must be satisfied for a period of twenty
years. See Ind. Code § 32-23-1-1 (“The right-of-way, air, light, or other
easement from, in, upon, or over land owned by a person may not be acquired
by another person by adverse use unless the use is uninterrupted for at least
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twenty (20) years.”). Whether a prescriptive easement exists is a question of
fact. Capps v. Abbott, 897 N.E.2d 984, 988 (Ind. Ct. App. 2008).
[22] Here, we find the element of intent dispositive. See Corp. for Gen. Trade v. Sears,
780 N.E.2d 405, 410 (Ind. Ct. App. 2002) (party asserting prescriptive
easement has burden of showing each element “as a necessary, independent,
ultimate fact, and the failure to establish any one of such elements is fatal”). In
its findings of fact, the trial court stated in relevant part:
58. Jones and Von Hollow enjoyed friendly relationships with
one another[,] sharing the Shore Front License Area and
engaging in many social activities together from the time
[Jones] and her husband acquired their ownership in 1998
until 2015.
*****
62. Von Hollow was aware of Jones [sic] use of the walkway
across the tail and permitted its use by Jones.
63. Jones has never denied Von Hollow Association access to
the tail.
64. In 2006 or 2007 Jones, at the demand of Von Hollow
Association, removed a deck that she had started building
adjoining the walkway over the tail.
65. Von Hollow Association never denied Jones access across
the tail.
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66. Jones crossed the tail with Von Hollow Association’s
knowledge and permission.
67. Jones can access and use her boat lift, improvements and
the Shore Front License Area by water via Lake Freeman
without using the lane or crossing the tail.
Appellant’s Appendix Vol. 2 at 16. Based on the findings, the trial court
concluded:
F. In the present case the use of the tail by Jones has not been
adverse, rather with permission from Von Hollow as
evidenced by the long standing friendly, cordial
relationship they, historically, had enjoyed with one
another. Von Hollow requested Jones to move a deck
which was being constructed on the tail adjacent to the
walkway, which evidences the permissive nature of her use
of the tail and demonstrates that Von Hollow was aware of
Jones’ use of the walkway and stairs and allowed use of
same, until recently. Jones has failed to establish the
elements of control, intent and notice to establish an
easement by prescription.
Id. at 19.
[23] At trial, Jones described her relationship with the Conways as “[g]reat.”
Transcript Vol. 5 at 76. She testified that she was friends with several members
of the Conway family; that “[w]e just got a long [sic];” and that Jackie Conway,
Joseph Conway’s sister, was her best friend. Id. Joseph testified that his
relationship with Jones was amicable and that she joined the Conways in social
activities. Additional testimony indicated that when Jones learned the deck her
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family was installing needed to be moved because it was on the Von Hollow
property, the deck was moved.
[24] In Wilfong, a case involving a situation similar to that of the instant case, our
Supreme Court found “implied permission grounded in the cordial relationship
between [two] families.” See Wilfong, 838 N.E.2d at 407 (noting the “goodwill”
and “very cordial relationship” between two families supported a finding of
permissive rather than adverse use). Before Wilfong, this court found implied
permission where there was evidence of a friendly relationship between two
sisters. See Searcy v. LaGrotte, 175 Ind. App. 498, 372 N.E.2d 755 (1978). In
Monarch Real Estate Co. v. Frye, 77 Ind. App. 119, 133 N.E. 156, 158-59, (1921),
this court found that there was no inconsistency between the appellee’s
ownership of an alleyway and the permissive use of the same by the appellants,
and that “where there is no inconsistency between the use and the ownership,
there can be no prescriptive right.”
[25] We conclude that the evidence supports the court’s finding that Jones’s use of
the walkway over the tail was permissive, and the findings support the
conclusion that Jones did not acquire a prescriptive easement over the tail. The
trial court properly determined that Jones did not acquire a prescriptive
easement over the tail.
2. Trespass
[26] Next, Jones challenges the trial court’s conclusion that she committed criminal
trespass when she “repeatedly plac[ed] picnic tables and paver stones in the
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Shore Front License Area [and] interfered with Von Hollow’s possession and
use of its Shore Front License and its access to its Shore Front License Area
improvements,” and did so “knowingly, intentionally and without Von
Hollow’s consent.” Appellant’s Appendix Vol. 2 at 21-22.
[27] A person who “knowingly or intentionally interferes with the possession or use
of the property of another person without the person’s consent” commits
criminal trespass, a Class A misdemeanor. Ind. Code § 35-43-2-2(b)(4). “It has
long been the law in this state, as well as of many other states, 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.” Myers v. State, 190 Ind. 269, 130 N.E. 116, 117 (1921); see also, Hughes
v. State, 103 Ind. 344, 2 N.E. 956, 958 (1885) (“the machinery of the criminal
law cannot be properly invoked for the redress of merely private grievances”).
[28] Neither Jones nor Von Hollow owns the shorefront area. By separate one-year
agreements with SFLECC, most recently executed in April 2016, each party
was granted a license to use the shorefront area. The agreements provided, in
relevant part, that at the point their properties touch the shorefront area, they
could cross the shorefront area to gain access to the lake. The agreements also
allowed both Jones and Von Hollow to maintain in the shorefront area an
authorized structure for personal and private use upon written, prior permission
from SFLECC. The agreements further provided that Jones and Von Hollow
were not permitted to place or leave any material in the shorefront area, and
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any installation of equipment in the area must be approved in writing by
SFLECC. Jones was found to have criminally trespassed on the shorefront
area. Under her agreement with SFLECC, however, Jones was permitted to
2
access the shorefront area and did not need Von Hollow’s consent to do so.
[29] Based on the foregoing, we find the trial court properly determined that Von
Hollow did not commit trespass; however, its conclusion that Jones committed
criminal trespass under Ind. Code § 35-43-2-2 is not supported by the record
and is clearly erroneous. Because the trial court erred when it determined that
Jones committed criminal trespass, it also erred when it concluded that Von
Hollow was entitled to costs of the action and reasonable attorney fees under
Ind. Code § 34-24-3-1 (pecuniary loss as a result of property offenses). We,
therefore, reverse the trial court’s judgment on this issue.
3. Joint License
[30] Jones next argues the trial court erred when it directed the shorefront area to be
“licensed jointly to Jones and Von Hollow by the SFLECC.” Appellant’s
2
Jones and Von Hollow argue that the SFL agreements define their specific areas of ownership within the
shorefront area and the areas that each can access. Testimony was presented at trial that the shorefront area
that Jones could access was separate from that of Von Hollow. A previous SFL agreement was admitted into
evidence that included property legal descriptions. Also, evidence was introduced that SFLECC intended to
“redefin[e] the license area” and create boundaries within the shorefront area. Exhibit 8 at 47, 49. However,
these intended boundaries were never created. The previous SFL agreement that included legal descriptions
is no longer in effect, as subsequent agreements have been executed by the parties; and, the most recently
executed SFL agreements (from April 2016) do not define boundaries within the shorefront area or include
property legal descriptions. The most recent agreements state only that each party is permitted to pass from
the party’s land “over such part of the adjoining lands of [SFLECC].” Id. at 74; Exhibit A at 13.
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Appendix Volume 2 at 20. Specifically, in its findings of fact and conclusions
thereon, the trial court concluded, in relevant part, as follows:
I. Contrary to the traditional definition of exclusive, the
evidence clearly shows NIPSCO and its successor the
SFLECC have, since their inception, granted both Jones
and Von Hollow an exclusive Shore Front License to the
very same Shore Front License Area.
J. Jones and Von Hollow have each used the Shore Front
License Area for a long period of time and each has made
substantial improvements within the Shore Front License
Area that should not be disrupted.
K. The Court directs that the Shore Front License Area shall be
licensed jointly to Jones and Von Hollow by the SFLECC . . . .
L. The Court’s grant of a joint or co-license to the Shore
Front License Area does not permit or grant Jones any
right to cross Von Hollow property without its permission.
Jones may gain access to the Shore Front License Area by
receiving Von Hollow’s permission to cross its tail, from
other parcels adjoining to the Shore Front License Area[,]
or via Lake Freeman.
M. This order does not guarantee or ensure either Von
Hollow or Jones will continue to receive Shore Front
Licenses from SFLECC.
N. This order does not prohibit SFLECC from specifically
defining Parties’ license area to mitigate discord and
animosity among quarrelling neighbors.
Id. at 20-21 (emphasis added).
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[31] Recognizing the discord that existed between the parties with respect to the SFL
agreements and each party’s rights within the shorefront area, the trial court
attempted to mitigate the situation by directing SFLECC to issue the parties
joint licenses to use the area. However, SFLECC is not a party to this action.
See Ind. Dep’t of St. Revenue v. Ind. Gamma Gamma of Alpha Tau Omega, Inc., 181
Ind. App. 664, 687, 394 N.E.2d 187, 201 (1979) (judgment cannot properly be
rendered for or against one not a party to the action). Regardless of its good
intentions, the trial court erred by directing SFLECC to issue joint licenses. We
reverse the trial court’s judgment in this regard.
[32] In conclusion, we affirm the trial court’s conclusion that Jones was not entitled
to a declaratory judgment that she had a prescriptive easement over Von
Hollow’s property. However, we reverse the trial court’s conclusion that Jones
committed criminal trespass, and, therefore, also reverse its conclusion that Von
Hollow is entitled to costs and attorney’s fees. Finally, we reverse the trial
court’s conclusion that directed SFLECC to issue joint licenses in the shorefront
area.
[33] The judgment is affirmed in part and reversed in part, and we remand for
further proceedings consistent with this opinion.
Najam, J. and Robb, J., concur.
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