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Trial court erred in land survey dispute

August 30, 2012

Although a Starke Circuit Court correctly rejected a legal survey performed on land owned by a trust, the special judge did err by imposing two prior surveys to establish boundary lines of the property, the Indiana Court of Appeals held.

In Lane Alan Schrader Trust as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust v. Larry Gilbert and Nancy J. Malecki, 75A04-1112-PL-676, the Lane Alan Schrader Trust owned land that shared boundaries with land of Larry Gilbert and Nancy Malecki. Schrader wanted to operate a business out of a barn on the property, which required at least a 20-foot setback, and purchased the property based on the belief that the setback was in place. However, after buying the property, the trust had two surveys preformed, with both indicating that the setback was less than 20 feet.

Schrader had a legal survey performed on the property by Torrenga Surveying, which indicated there was a 20-foot setback and this survey was recorded in the county recorder’s office.

The neighbors appealed, arguing that survey should be stricken from the office. The trial court determined the legal survey was defective for failure to use good surveying practices and imposed the two previous surveys. The Court of Appeals affirmed the striking of the legal survey, but reversed the imposition of the previous surveys.

The applicable statutory provisions require that strict notice provisions be followed, and there was no evidence that notice was given before the two previous surveys were conducted, Judge John Baker wrote.

“The trial court had three options: It could either accept the Torrenga Survey, order that a new survey be performed, or order the county surveyor to mark the boundary lines according to the trial court’s findings as supported by the evidence,” he wrote.

The judges ordered the trial court enter a new order consistent with this opinion.

 

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