APPEAL FROM THE WABASH CIRCUIT COURT. The Honorable Thomas M. Hakes, Special Judge. Cause No. 85C01-1110-PL-812.
FOR APPELLANT: ALBERT C. HARKER, MARTIN A. HARKER, Kiley, Harker, & Certain Marion, Indiana.
FOR APPELLEE: ALFRED H. PLUMMER, III, Wabash, Indiana.
BAILEY, Judge. ROBB, J., and BROWN, J., concur. BAILEY, Judge.
Randy Corn (" Randy" ) appeals, and Junior P. Corn (" Junior" ), Bonnie C. Corn, and Benjamin P. Corn (" Benjamin" ) (collectively, " the Corns" ) cross-appeal the trial court's order finding Randy and the Corns to be tenants-in-common of a thirty foot-wide lane (" the lane" ) running through the Corns' property and into Randy's property.
We conclude that the trial court misconstrued the deed provisions relevant to conveyance of the lane, and that fee simple title to the lane rested solely in Randy. But because there is evidence to suggest the existence of a prescriptive easement
permitting the Corns to use the lane, and because Randy sought a permanent injunction against such use, we accordingly reverse the trial court's finding that Randy and Junior were tenants in common as to the lane and remand for consideration of each party's claims as to 1) the existence and scope of any prescriptive easement, and 2) a permanent injunction.
Randy raises the following issue for our review:
I. Whether the trial court erred when it found a tenancy in common because title to the lane had never been conveyed to the Corns.
The Corns raise the following issues for our review in the cross-appeal:
II. Whether the trial court erred in its construction of the various deeds related to the land owned by Randy and the Corns, and therefore erroneously found that Randy held title in the lane;
III. Whether the trial court erred when it denied the Corns' claim of adverse possession of the lane; and
IV. Whether the trial court erred when it admitted certain testimony into evidence.
Facts and Procedural History
Randy and the Corns are successors in interest to parcels of land in Wabash County originally deeded by a United States government land patent.
By 1897, an 80-acre parcel (" the first parcel" ) of the land originally granted by the patent had been subdivided into a combined 53-acre plot to the north (" the northern parcel" ), and two southern plots: an 8-acre plot on the west (" the western parcel" ) and a 19-acre, " L" -shaped parcel on the east (" the eastern parcel" ). The northern reach of the eastern parcel stretched the entire length of the southern boundary of the northern parcel, so that the eastern parcel wrapped around the northeast corner of the western parcel and divided the western parcel from the northern one.
Fee simple title in the western parcel was held by Mary Bailey (" Bailey" ) subsequent to a conveyance on October 22, 1896. The lane at issue in this case is not mentioned in the 1896 conveyance to Bailey.
The eastern and northern parcels were owned by Priscilla Yeater (" Yeater" ) and Ludlow Sparling (" Sparling" ), a sister and brother who held combined title to the northern and eastern parcels as tenants in common. The lane at issue in this case ran northward toward the northern parcel. One stretch of the lane sat entirely within the northern reach of the eastern parcel as the lane traveled toward the northern parcel. The southernmost portion of the lane lay along a north-south line marking the eastern boundary of the western parcel.
On November 29, 1897, three conveyances of property occurred concerning the first parcel. First, breaking up the common tenancy, Sparling conveyed to Yeater (" the Sparling conveyance" ) title in the eastern parcel. The Sparling conveyance including a provision " [r]eserving [to Sparling] the title in and to a certain lane thirty-feet-wide running parallel with the East-line of said quarter-section." (Joint Ex. 1 at 2.)
Also on November 29, 1897, Yeater conveyed to Sparling (" the Yeater conveyance" ) the northern plot. The Yeater conveyance reserved for Yeater use of the lane, providing that:
Granter herein reserving the right-to use a certain lane extending North and South across the said thirteen-acre tract [part of the northern parcel conveyed to
Sparling], and being the same lane that is now established and being used by both Grantor and Grantee herein for ingress and egress to and from their respective farms lying in the north ...