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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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