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Presley v. McCain

Court of Appeals of Indiana

October 11, 2019

Stephen J. Presley, Appellant-Plaintiff,
v.
Daniel S. McCain and Joseph D. DeRozier, Appellees-Defendants

          Appeal from the Miami Superior Court Cause No. 52D01-1705-MI-138 The Honorable Richard A. Maughmer, Special Judge

          Attorneys for Appellant Mark A. Frantz Jordan L. Tandy Downs Tandy & Petruniw, P.C. Wabash, Indiana

          Attorney for Appellees Bryce Runkle Peru, Indiana

          BAKER, JUDGE.

         [¶1] Stephen Presley appeals the trial court's order quieting title to two small parcels of land in Daniel McCain and Joseph DeRozier, arguing that the trial court erred because there was insufficient evidence proving that the Appellees had acquired ownership through adverse possession. Finding that the trial court did err, we reverse and remand with instructions.

         Facts

         [¶2] Presley, McCain, and DeRozier own three adjacent properties comprising Lot 164 in Peru, Indiana. DeRozier owns the property at 85 East Fifth Street, and his property is directly west of Presley's property, which is at 87 East Fifth Street. McCain's property lies directly south of DeRozier's and Presley's properties at 16 North Huntington Street. DeRozier purchased his property in 1998 from Mark Allen, who had resided on the property since 1984. DeRozier himself lived on the property for two years before he moved out and started leasing his home to different tenants. Presley purchased his property from Danny Rasner in 2002. McCain purchased his property in 1999.

         [¶3] The two small parcels of land in dispute are as follows: (1) a strip of land, referred to by all parties as "Dog Run," that runs north to south between DeRozier's and Presley's properties; and (2) a small patch, referred to by all parties as the "Flower Bed," that runs west to east between Presley's property to the north and McCain's property to the south. See Appellees' Suppl. App. Vol. III p. 75.

         [¶4] Dog Run is part of an alleyway that is 4.2 to 5.7 feet wide and is enclosed by a gate at the north end of the parcel. Appealed Order p. 1. According to the original 1837 plat, Dog Run is a roughly two-foot-wide strip of land abutting the boundary line separating the two properties on one side and Presley's home on the other. The Flower Bed is a small parcel that is roughly 2.9 feet wide and is approximately 45 square feet. It is located just south of Presley's garage and abuts McCain's property line. A fence runs along the southern border of Presley's garage, with fences bordering the Flower Bed on both its western and eastern perimeters. These fences enclosing the Flower Bed existed at the time McCain purchased his property. Pursuant to the original plat, Presley legally owns both Dog Run and the Flower Bed.

         (Image Omitted)

         [¶5] The following represents a history of the relationships among these different property owners and their interactions with Dog Run and the Flower Bed:

• At some point in time, Allen and Rasner built the northern gate that encloses Dog Run. Allen gave Rasner standing permission to access Dog Run through the gate. The gate had no lock. The gate was installed because Allen had small children.
• Shortly after DeRozier and Presley bought their properties from Allen and Rasner, respectively, DeRozier began requiring Presley-the new owner-to ask for permission to access Dog Run.
• DeRozier stopped regularly visiting the property after he started leasing it to new tenants. During this time, Presley would frequently access Dog Run without ...

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