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Majority affirms couple didn’t establish element of adverse possession

October 24, 2012

Two Indiana Court of Appeals judges upheld a judgment in favor of landowners on a complaint filed to quiet title in a disputed area of land, finding the couple seeking to quiet title failed to establish the control element of adverse possession.

Harry and Carolyn Knauff filed a complaint against Nathan and Sarah Hovermale, seeking a declaratory judgment, to quiet title in the disputed area of land and a gapland, and sought damages for trespass. The property in dispute, a 2.33-acre parcel, was along the east border of an untitled parcel of land (the gapland) that bordered the Knauffs property. The Knauffs would farm their land, the gapland, and the tillable part of the disputed area west of a broken-down wire fence.

The Hovermales’ parcel lies adjacent to and shares the eastern board of the gapland. They erected a fence on their parcel’s western border, which is the same western border of the disputed area. The Knauffs later learned that they did not own the disputed area and then filed their action.

The trial court denied the Knauffs’ claims on all three counts, and quieted title in the disputed area in favor of the Hovermales. The trial court concluded the Knauffs had not proved the elements of adverse possession of the disputed area. Judges Edward Najam and Melissa May agreed in Harry E. Knauff, Jr. and Carolyn R. Knauff v. Nathan T. Hovermale and Sarah E. Hovermale, 52A05-1111-PL-584, finding the Knauffs did not establish the requisite control.

The trial judge relied on several witnesses’ testimony that mushroom hunters would search along the broken wooden fence and some people hunted in the area.

“We may or may not have considered such occasional use by others to be inconsistent with establishing the control element of adverse possession under the circumstances presented in this case. But we cannot say that the trial court’s conclusion on this point is clearly erroneous, which is our standard of review on appeal,” Najam wrote.

Judge James Kirsch dissented without opinion.

 

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