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Henry v. Liebner

Court of Appeals of Indiana

April 30, 2015

William Arnold Henry and Mary Ann Henry, Appellants-Defendants,
v.
Margo Liebner, Appellee-Plaintiff

Appeal from the Cass Superior Court. Lower Court Cause No. 09D02-1203-PL-9. The Honorable Richard A. Maughmer, Judge.

ATTORNEY FOR APPELLANTS: Jeffry G. Price, Peru, Indiana.

ATTORNEY FOR APPELLEE: Robert Leirer Justice, Logansport, Indiana.

Pyle, Judge. Najam, J., and Bailey, J., concur.

OPINION

Page 259

Pyle, Judge.

Statement of the Case

[¶1] This appeal involves a dispute over a triangular parcel of farm land (" the triangular parcel" ), measuring 1.786 acres. This triangular parcel is located in between parcels of land owned by Appellee-Plaintiff, Margo Liebner (" Liebner" ), and Appellants-Defendants, William Arnold Henry (" Henry" ) and Mary Ann Henry (" Mary Ann" ) (collectively, " the Henrys" ). The dispute arose because Liebner, who believed the boundary of her property was the northern edge of the triangular parcel, rented out the parcel for farming. After the Henrys disputed Liebner's possession and use of the triangular parcel and claimed that they owned it, Liebner filed a

Page 260

complaint for declaratory judgment of adverse possession against the Henrys. Liebner contended that she had established adverse possession of the triangular parcel from March 2004, when she purchased her property and began possessing and using the triangular parcel, to September 2011, when the Henrys challenged her possession and use of the parcel. She tacked this seven-plus-year period onto the period that her predecessors in title, who were not a party to this action, possessed and used the triangular parcel before 2004 in order to meet the ten-year required period to establish adverse possession. The Henrys, however, contended that they owned and had title to the triangular parcel, arguing that the property description in their 2011 quitclaim deed encompassed the triangular parcel. The trial court issued a judgment order, concluding that the Henrys did not have ownership of or title to the triangular parcel because a non-party, Liebner's predecessors in title, had acquired title to the triangular parcel via adverse possession in June 2000, well before the Henrys had purchased their land. The trial court, however, did not conclude that Liebner had obtained title to the triangular parcel by adverse possession; instead, the trial court concluded that the non-party or that non-party's heirs may have an interest in the parcel at issue.

[¶2] The Henrys appeal the trial court's judgment, and their main argument is that Liebner failed to show that she and her predecessors had paid taxes on the triangular parcel or complied with the adverse possession tax statute. We conclude that: (1) the trial court properly determined that the Henrys do not have title to the triangular parcel; (2) the trial court erred by concluding that the non-party predecessors had obtained title via adverse possession where there was no evidence presented regarding their payment of taxes or compliance with the adverse possession tax statute during the relevant ten-year period from June 1990 to June 2000; and (3) the evidence presented supports Liebner's claim of adverse possession because there is evidence regarding her and her predecessor's payment of taxes or compliance with the adverse possession tax statute during the relevant ten-year period from September 2001 to September 2011. Therefore, we affirm in part, reverse in part, and remand to the trial court to enter judgment in favor of Liebner on her adverse possession claim.

[¶3] Affirmed in part, reversed in part, and remand.

Issue

[¶4] Whether the trial court erred in its conclusion regarding Liebner's adverse possession claim.

Facts

[¶5] This appeal involves a boundary dispute over the triangular parcel, which consists of 1.786 acres of farm land contained in the Southeast Quarter of Section Five (5), Township Twenty-Eight (28) North, Range One (1) East of Harrison Township in Cass County. The triangular parcel is located in between and adjacent to Liebner's property and the Henrys' property. It is located immediately north of Liebner's property and immediately south of the Henrys' property. The undisputed description of the triangular parcel, as set forth by the trial court in its judgment order, is as follows:

* * * * *
2. The [triangular] parcel is bounded on the north by a fence line stipulated to have been in existence before the year 1990.
3. Contiguous to and south of the fence line, Indian Creek traverses the length of the northern edge (excepting the fence line) of the [triangular] parcel.

Page 261

4. On the west, the [triangular] parcel is bounded by real estate owned by another not a party to this litigation.
5. Liebner owns the parcel south of the [triangular] parcel.
6. Henry owns the parcel north of the [triangular] parcel.
7. The [triangular] parcel excepting the creek and fence line is farm ground.
8. The Liebner real estate south of the [triangular] parcel is farm ground.
9. The [triangular] parcel has no access to county road frontage, in other words the [triangular] parcel is landlocked.
10. Henry's access to the parcel requires negotiating an established fence line and crossing Indian Creek.
11. Nothing separates the [triangular] parcel from Liebner's real estate.
12. The character of the [triangular] parcel entices one to believe that the parcel is part of the Liebner real estate.

(App. 8).[1]

[¶6] The relevant ownership of the triangular parcel, for purposes of this appeal, dates back to the 1960's. In 1962, Charles Niblock (" Niblock" ) and Marguerite Niblock (" Marguerite" ) (collectively, " the Niblocks" ) purchased 160 acres of land in Cass County that included the triangular parcel. After they purchased the land, the Niblocks rented out their land, including the triangular parcel, to Tommy Powlen (" Powlen" ) to farm.

[¶7] On May 16, 1990, in preparation to convey a portion of their 160-acre-parcel, the Niblocks had a survey conducted. This May 16, 1990 survey, which set out the boundaries for a 31.354-acre parcel, did not include the triangular parcel. A couple of weeks later, on June 5, 1990, the Niblocks had another survey conducted, and this June 5, 1990 survey, which set out the boundaries for a 33.140-acre parcel, included the triangular parcel. Both surveys were recorded.

[¶8] On June 8, 1990, the Niblocks conveyed 33.140 acres of their 160-acre parcel of land to David and Cheryl Ide (collectively " the Ides" ) via a warranty deed. The deed incorporated by reference the boundary description as set out in the June 5, 1990 survey.

[¶9] After the Ides purchased the 33.140 acres of land from the Niblocks, Powlen continued to farm the Niblocks' remaining southern 126.86-acre parcel of land. Powlen also continued to farm the triangular parcel and paid rent or shares to the Niblocks. Powlen treated the triangular parcel as part of the Niblocks' southern parcel. The Ides did not object to Powlen's farming of the triangular parcel.

Page 262

[¶10] In December 1994, the Niblocks conveyed their 126.86 acres of land, via a quitclaim deed, to a trust with their son, John Niblock, as trustee (" Trustee" ). The Niblocks maintained a life estate in the land and conveyed a remainder interest to Trustee. The deed set out that the Niblocks were conveying their 160-acre parcel " [e]xcepting therefrom" a parcel consisting of 33.140 acres. (Supp. App. 62; Plaintiff's Ex. 9 at 2). The deed set out the property boundary description for this 33.140-acre parcel, which was the same description contained in the June 5, 1990 survey. Subsequently, in April 1996, Niblock died.

[¶11] On May 24, 2001, the Ides conveyed 21.861 acres of their 33.140-acre parcel to Kenneth and Kathleen Gibbs (collectively, " the Gibbses" ). The deed for this conveyance included a description of the triangular parcel. After the Gibbs purchased the 21.861 acres, Powlen continued to farm the triangular parcel and pay rent to the Niblocks. The Gibbses did not object to the farming of the triangular parcel, and they believed that the triangular parcel was owned by the Niblocks and that the Niblocks paid taxes on it.

[¶12] Marguerite died in September 2003. Thus, at that time, the Trustee obtained his remainder interest in the Niblocks' 126.86-acre parcel of land under the quitclaim deed. Thereafter, Powlen continued to farm this parcel of land, including the triangular parcel, and he paid rent to the Trustee.

[¶13] In February 2004, the Trustee advertised that he was going to hold an auction to sell four tracts of the Niblocks' land, which included the 126.86-acre parcel of land just south of the triangular parcel. The property location map included with the auction announcement indicated that the triangular parcel was part of the 126.86-acre parcel of land.

[¶14] On March 15, 2004, the Trustee conveyed the 126.86-acre parcel of land to Liebner via a trustee's deed. The deed incorporated by reference a property description, which was the same description as set forth in the Niblocks' quitclaim deed to when they conveyed their land to the trust in 1994.[2] Prior to purchasing the property, Liebner visited it and saw aerial photographs of the land, and the photos showed that the triangular parcel was part of the property being sold. Thus, at the time Liebner purchased the property from the Trustee, she believed that the triangular parcel was part of the conveyance. Liebner rented out the land, including the triangular parcel, to her ...


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