Gregory T. Hardin and Kelly T. Hardin, Appellants,
Ruth McClintic, Appellee.
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.
Attorney for Appellee Robert S. McCrea McCrea & McCrea
of the Case
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; 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. Concluding that there was no error, we
affirm the trial court's judgment.
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.
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. 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.
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.
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).
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.
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.
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.
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
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 ...