Justices: Couple not entitled to prescriptive easement

February 16, 2016

The Indiana Supreme Court on Tuesday reversed the holding of a trial court that a couple should receive a prescriptive easement for the use of their outbuildings that encroached onto a strip of land purchased at a tax sale.

Tom Bonnell purchased a 35-foot-by-100-foot section of land from the Pulaski County Board of Commissioners, which acquired the land through a tax sale. The strip of land was next to several parcels in a subdivision. Ruby Cotner purchased Lot 8 in 1997, on which a barn had been constructed in 1968. She and her husband expanded on the barn with a lean-to in 2010; a portion of these buildings encroached some distance onto the strip of land purchased by Bonnell.

Bonnell reached a deal with all of the subdivision property owners to sell each section of the strip to the property owner who had been occupying the land, except the Cotners. The Cotners asserted ownership by adverse possession and filed this lawsuit to quiet title.

The trial court found the Cotners had not perfected their claim of adverse possession because they couldn’t have reasonably believed they were paying taxes on their portion of the strip. The court also ruled that if the adverse possession claim had been perfected, the 1993 and 2011 tax sales of the strip divested them of their interest. The judge did determine sua sponte that the Cotners should receive a prescriptive easement for the use of their outbuildings encroaching onto the strip.

The Supreme Court affirmed in part and reversed in part in Tom Bonnell v. Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson, 66S03-1509-PL-530.

The justices agreed that the Cotners satisfied the adverse possession tax statute, but the subsequent tax sales of the strip of land defeated their claim of ownership by adverse possession under the plain text of the Tax Deed Statutes.

But the award to the Cotners of a prescriptive easement was clearly erroneous, Justice Mark Massa wrote. This attempt by the trial court to craft an equitable remedy was unavailable as a matter of law based on the Tax Deed Statutes. Thus, as with the Cotners’ claim of adverse possession, they cannot claim a prescriptive easement in the outbuilding because that easement was never recorded, and therefore was extinguished with the first tax sale in 1993, he continued.

 Justice Steven David did not participate in the decision.


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