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Jones v. Von Hollow Association, Inc.

Court of Appeals of Indiana

May 25, 2018

Patricia M. Jones, Appellant-Plaintiff,
v.
Von Hollow Association, Inc., Appellee-Defendant.

          Appeal from the Carroll Circuit Court Trial Court Cause No. 08C01-1603-PL-4 The Honorable Benjamin A. Diener, Judge

          Attorney for Appellant Joseph R. Delehanty Lafayette, Indiana

          Attorney for Appellee Steven Knecht Lafayette, Indiana

          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 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 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 and Freeman Lakes Environmental Conservation Corporation (SFLECC).[1]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 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.

         [¶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.

         [¶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 ...


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