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08/31/87 GEORGE C. NADERMAN v. LAWRENCE A. SMITH

Filed: August 31, 1987.

GEORGE C. NADERMAN, JUSTIN NADERMAN, ROSE M. BAUR, JANE C. REED, EDNA ANN CARDINAL, ALBERT F. NADERMAN, ESTHER D. RUEHL AND ESTATE OF GEORGE J. NADERMAN APPELLANTS,
v.
LAWRENCE A. SMITH, REBECCA M. SMITH, THEIR HEIRS, ASSIGNS AND OTHERS TAKING THROUGH AND BY THEM APPELLEES



APPEAL FROM THE DECATUR CIRCUIT COURT, The Honorable John A. Westhafer, Judge, Cause No. C85-305.

Miller, P.j., Sullivan, J., and Conover, J., Concur.

Author: Miller

MILLER, P.J.

The Appellants (the Nadermans) initiated suit to quiet title to a ten foot wide gravel lane which runs from the County Road on the Appellees' (the Smiths) property to the Nadermans' farmland. The Nadermans claimed fee simple ownership of the lane through adverse possession (Count I); that the Smiths had trespassed on the private road and destroyed a hedge, trees, and gates (Count II); and sought a permanent injunction against the Smiths proscribing use of, and damage to, the private road (Count III). The trial court granted both parties access, use, and joint maintenance of the road. The court declared the Smiths own, subject to the Naderman's easement, the lane to its center line where it abuts their property, and the Nadermans own the lane on the other side, subject to the Smith's easement. The Naderman's appeal, claiming the trial court erred in concluding (1) the Nadermans interest in the lane was an easement and, (2) that the Nadermans did not adversely possess the private road because the evidence showed more than 20 years exclusive and hostile possession.

We affirm.

FACTS

While the evidence in this case does not reveal clear chain of title for either the Smith's or the Nadermans' property, all of the property at issue, located in Decatur County, Indiana, was owned by John Hessler, Sr. and his wife Anna Mary in 1867. John and Anna Mary had at least two sons, John Jr. and Adam. The Nadermans concede that John and Anna Mary conveyed to John Jr. the land now owned by Larry and Rebecca Smith. Record, p. 240-41. As part of the recording of the conveyance, John Hessler, Sr., and his wife, granted the right "to use" a gravel lane located on John Jr's property to their son Adam Hessler and to George Stahl. Defendant's Exhibit A. Adam Hessler owned property contiguous to the gravel lane and to John Jr's land. Adam's land passed, presumably through the family, to the current owner, Clara Hessler Naderman, Adam Hessler's granddaughter. Record, p. 187. The Nadermans concede that the Smiths purchased their property in 1984 from the Blankmans, who were successors in interest to John Hessler, Jr. Record, p. 240-241.

In April 1984 Larry and Rebecca Smith purchased two parcels of land from the Blankmans. Smith began using the lane immediately. The Nadermans put a lock on the gate and told Smith not to use it. Smith cut the chains on the gate three times and used the lane.

After relations between the two neighboring families had degenerated, the Nadermans filed suit: 1) to quiet title, claiming fee simple ownership of the private road through adverse possession (Count I); 2) alleging the Smiths had trespassed on the private road and destroyed a hedge, trees, and gates (Count II; and, 3) seeking a permanent injunction against the Smiths proscribing use of, and damage to, the private road (Count III). After a trial to the court on April 4, 1986, the Judge made the following findings of fact and Conclusions of law, which were requested by the Nadermans pursuant to Ind. Rules of Procedure, Trial Rule 52(a), and entered the following judgment:

"FINDINGS OF FACT

1. Lawrence Smith and Rebecca Smith, husband and wife, own legal title to two parcels of real estate in Marion Township, Decatur County, Indiana, one containing 40 acres and the other approximately 58 acres. They acquired this property in April, 1984 from the estate of Clara M. Blankman.

2. The estate of George J. Naderman owns legal title to land in Marion Township which joins the east boundary of Smiths' 58-acre parcel and is immediately south of Smiths' 40-acre parcel.

3. A gravel lane approximately ten feet wide begins at Decatur County Road 950S and runs east across the north line of Smiths' 58-acre parcel, turning southeast at the Smith-Naderman boundary and running southeast along the two property lines. Approximately one-half of the width of the lane is on Smiths' property.

4. An 1867 contract concerning the sale of the land now owned by the Smiths states that a previous owner, John Hessler, had set apart 'the use of a road' through the land Smiths now own, 'for the use of Adam Hessler and George Stahl.'

5. The records of the auditor of Decatur County do not show to what property owner the lane is assessed.

6. Prior to 1935, the lane was maintained jointly by the Blankman family (Smiths' predecessors) and the Hessler family (Naderman's predecessors). Maintenance included grading and spreading gravel. The Blankman family used the lane in their farm operations prior to 1940.

7. Beginning in the late 1940's, the Naderman family maintained the lane. They did not request assistance from the Blankmans.

8. In 1972 or 1973, the Nadermans erected a gate across the lane approximately sixty feet east of the county road.

9. At the time the gate was built, George Naderman told Clara Blankman that he was building it to keep strangers out, since the lane had been used as a 'lover's lane.'

10. 'No Trespassing' signs were posted from time to time by the Nadermans over the years near the present location of the gate.

11. The gate across the lane was kept closed with a wire but was not locked prior to 1984.

12. Cyril Blankman, Alvin Blankman and Jim Blankman, who grew up on the farm now owned by Smiths, visited the property on a monthly basis or more often until its sale in 1984. They used the lane for access to the 40-acre parcel for hunting and similar recreational purposes. Jim Blankman used the lane in 1983 to haul a load of wood out from part of the Blankman farm.

13. Larry Smith used the lane as a child in 1963 to go hunting. He used it in 1976 or 1977 to drive back to the 40-acre field and deliver chains to the tenant farmer, whose equipment was stuck in the mud. He saw grain being ...


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