ILNews

Court decides 2 disputed land cases

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals ruled on two cases today involving disputed tracts of land on lakefront properties and adverse possession in Kosciusko County.

In Daisy Farm Limited Partnership v. Michael and Jill Morrolf, No. 43A04-0707-CV-390, the appellate court reversed the trial court judgment in favor of Michael and Jill Morrolf that a disputed tract of land didn't pass to Daisy Farm by virtue of adverse possession. Daisy Farm and its predecessors owned the lot adjoining the Morrolfs' in a neighborhood located on Lake Tippecanoe. Both maintain piers extending from their property into the lake. At issue in the case is whether Daisy Farm had acquired a portion of the Morrolfs' lot by adverse possession. Daisy Farm claims the Morrolfs' pier mars Daisy Farm's view of the lake and use of its own pier.

The trial court determined the riparian boundaries of the lots using a straight extension method of continuing the properly lines straight into the lake. The Court of Appeals affirmed this method.

The trial court also determined that Daisy Farm and the previous owners of its lot did not acquire by adverse possession a narrow, triangular area located in the platted lines of the Morrolfs' lot that begins between the cottages and runs north to the lake. It found Daisy Farm failed to show exclusivity of the disputed tract of land because other people, including the general public, exercised an easement across the north portion of the Morrolfs' lot. The court also determined as a matter of law Daisy Farm can't prevail on its adverse possession claim because the owners of the lot never paid taxes on the disputed section.

But the trial court erred in determining as a matter of law Daisy Farm and its predecessors were prohibited from acquiring a portion of the Morrolfs' lot on the basis they, along with other homeowners and the general public, had the right to use the northern portion of the lot as a thoroughfare, wrote Senior Judge George Hoffman. Also, the court erred in not considering whether Daisy Farm and its predecessors complied with Indiana Code 32-21-7-1 regulating adverse possession and the adverse possessor paying all taxes he or she believes in good faith to be due on the land during the period which the adverse possessor claims to have possessed the land.

The Court of Appeals reversed the trial court and remanded for further proceedings with instructions.

In Michael A. and Darlene S. Hoose v. William H. and Judith A. Doody, No. 43A03-0708-CV-420, the Court of Appeals affirmed the trial court's findings that Michael and Darlene Hoose didn't prove they possessed record title or adverse possession to the land in question.

Michael Hoose acquired the title from his parents to Lot 8 located in the original plat of Osburn's subdivision of Big Chapman Lake. The Doodys held the title to Lot 9, which is immediately adjacent to the eastern border of Lot 8. North of these two lots is an area that abuts the lake's shoreline that is used as a park by the subdivision's residents. However, the Hooses and Doodys disagree about whether the area directly north of the Hooses' lot has been designated as a dedicated park, as is the case with the area directly north of Lot 9.

The Hooses maintained a pier in the disputed area; when the Doodys installed a pier that encroached on the disputed area, the Hooses filed a verified complaint for declaratory and injunctive relief against the Doodys. The Hooses alleged the original warranty deed conveyed to Hooses' parents the exclusive use of the disputed area to the Hooses. The warranty deed conveyed to Hooses' parents the proprietorship of the land between the lot and the lake and agreed no buildings or occupancy would be allowed there. The deed also stated if the strip of land was ever vacated, the owners of Lot 8 would have priority of purchase.

The Doodys' filed a counterclaim against the Hooses, claiming the disputed area was a park to which every owner in the subdivision had the right to use. The trial court ruled the Hooses didn't prove any official record of ownership of the disputed land, didn't carry their burden of proof under any claim for adverse possession, and didn't satisfy the statutory requirement of paying taxes on the land.

The Court of Appeals affirmed the trial court's ruling, finding the plain language of the warranty deed and extrinsic evidence supports that the signatories of the plat intended for the disputed area to be a park, wrote Judge Terry Crone.

The Hooses argued on appeal that they didn't fail to comply with Section 32-231-7-1 by not paying taxes on the disputed land because the auditor didn't include the land on the tax rolls. This section requires claimants pay all the taxes that he or she reasonably believes in good faith to be due on the land. Because the Hooses owned Lot 8 and paid taxes on it, they couldn't have reasonably believed they in good faith owned Lot 7 and didn't have to pay taxes on it, wrote Judge Crone.

Judge L. Mark Bailey dissented, believing the language of the original warranty deed conveyed the disputed area to Michael's parents in fee simple. He wrote that the deed unambiguously conveyed Lot 8, the disputed area with a restrictive covenant, and provides the first right of refusal to purchase the land.
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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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