Hardin v. McClintic

          Appeal from the Monroe Circuit Court Cause No. 53C01-1605-PL-1113 The Honorable Elizabeth Ann Cure, Judge

          Attorney for Appellant Michael L. Carmin CarminParker, P.C. Bloomington, Indiana

          Attorney for Appellee Robert S. McCrea McCrea & McCrea Bloomington, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] This appeal involves a dispute between adjacent property owners over a property boundary and the use of a gravel driveway located on the boundary of the two properties. Following a bench trial, the trial court determined that: (1) Appellee/Defendant Ruth McClintic ("McClintic") had established her counterclaims for adverse possession to land that was up to the right wheel track of the gravel driveway and her counterclaim for a prescriptive easement to use the remainder of the driveway for ingress and egress to her property;^[1] and (2) Gregory T. Hardin and Kelly T. Hardin (collectively, "the Hardins") had failed to establish their claims for injunctive relief based on trespass and damages. The Hardins argue that the trial court erred by entering judgment in favor of McClintic on her counterclaims and by entering judgment against them on their claims.^[2] Concluding that there was no error, we affirm the trial court's judgment.

         [¶2] We affirm.

         Issues

1.Whether the trial court erred by entering judgment in favor of McClintic on her counterclaims.

2.Whether the trial court erred by entering judgment against the Hardins on their claims.

         Facts

         [¶3] Both McClintic and the Hardins own property that abuts Lake Lemon in Monroe County. McClintic owns a rectangular tract of real estate located at 9161 East Southshore Drive ("McClintic Property"), and this tract measures 49.8 feet wide and 269 feet long and contains 0.30 of an acre "more or less." (Ex. Vol. at 28). The Hardins own an adjacent rectangular tract of real estate located at 9155 East Southshore Drive ("Hardin Property"), which is located to the west of the McClintic Property.^[3] The Hardin Property measures 90 feet wide and 269 feet long and contains 0.56 of an acre "more or less." (Ex. Vol. at 27). A gravel driveway, which is the focus of this appeal, lies on the western border of the McClintic Property and the eastern border of the Hardin Property.

         [¶4] These two property tracts were originally part of a larger tract of real estate owned by Virginia Chitwood ("Chitwood"). Around 1965, Chitwood divided her larger tract of land ("the Chitwood Property") into several rectangular tracts and sold them. Among the tracts of land sold were the McClintic Property and the Hardin Property. The gravel driveway at issue was in existence at the time Chitwood severed and conveyed these two tracts of the Chitwood Property.

         [¶5] On July 20, 1965, Chitwood conveyed the Hardin Property to Norma Ratliff ("Ratliff") as trustee for a group of families, who called themselves the Bloomington Boat Club ("the Boat Club"). The members of the Boat Club put some trailers on the western side of their property and used the property during the weekends. On April 5, 1966, Chitwood conveyed the McClintic Property to Raymond Hacker and Gladys Hacker ("the Hackers"). The Hackers added a cabin on their property and added a parking area by the cabin. The Hackers' cabin is located immediately to the east of the gravel driveway. The Hackers and the members of the Boat Club used the gravel driveway to access their individual properties, and they "always shared the cost on it." (App. Vol. 2 at 158).

         [¶6] On December 24, 1970, the Hackers conveyed the McClintic Property to Lowell Willis and Lauretta Willis ("McClintic's parents"). Shortly thereafter, in 1971, McClintic's parents, after obtaining a permit from the Monroe County Health Department for the approval of a septic system, installed a septic system on the McClintic Property. The septic system is located on the property between the cabin and Southshore Drive, and it encompasses almost the entire width of the property. In August 1987, McClintic's parents obtained a permit to install a mobile home on the McClintic Property. Around that same time, they also obtained a driveway permit, which was for a "pre-existing" driveway, at the McClintic property. (Ex. Vol. at 39). As did their predecessor in title, McClintic's parents always used the gravel driveway for ingress to and egress from the McClintic Property, and they contributed to the maintenance of the gravel driveway by paying for some gravel to add to it.

         [¶7] In 1995, McClintic began living on the McClintic Property, including in the cabin and then in the mobile home. On June 25, 2004, McClintic's parents conveyed the McClintic Property to McClintic. McClintic continued to live on the McClintic Property until 2014 or 2015, and then she rented it out to tenants. Both McClintic and her tenants used the gravel driveway to enter and exit the McClintic Property.

         [¶8] On July 18, 2007, the remaining members of the Boat Club-which included Mary Masters, Garland Guy Robertson, Eugenia M. Goodman, Candra Empson, Claudia Polley, and Sharon Slaughter-conveyed the Hardin Property to the Hardins. The Hardins did not have or review a survey prior to purchasing the property. They had planned to remove the three trailers that the Boat Club had installed on the property, build a house on the lot, and then sell it.

         [¶9] In October 2007, after having a survey done of the Hardin Property, the Hardins learned that McClintic could possibly have some rights to the gravel driveway. At the end of 2007, the Hardins sent McClintic two letters, in which they sought to determine if McClintic had permission or an easement to use the gravel driveway and in which they told her that her use of the driveway would constitute trespass. McClintic did not respond to these letters. At the beginning of 2008, the Hardins sent McClintic two more letters, in which they stated that they wished to avoid any confrontation and that they were granting McClintic permission to continue using the gravel driveway.

         [¶10] The Hardins later removed the trailers from the Hardin Property, but they did not replace them with any other type of structure. Whenever the Hardins went to Lake Lemon, which was about six times per year, they stayed at the home of their friend, Lynn McNamee ...