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COA: Couple proved adverse possession of land along fence

June 28, 2016

In a dispute between neighbors over a property line, the Indiana Court of Appeals agreed with the trial court that a Johnson County couple satisfied the elements needed to be successful in their adverse possession and quiet title counterclaim.

Jeffrey and Wendi Morgan own Lot 32, which shares a chain link fence with Lot 33 owned by Andrew and Holly White. The Morgans have maintained the property north of the fence; the Whites maintained the property to the south of it. The fence was in place when both couples purchased their homes.

When the Morgans planted juniper bushes in south end of Lot 32 and north of a line that would extend from the chain link fence to the street, Andrew White trimmed them believing them to be growing over onto his property. This led to the Morgans to sue, claiming trespass and seeking removal of the fence. They believed their land extended approximately two feet beyond the fence line. The Whites counterclaimed, alleging three counts, including adverse possession and quiet title.

Neither party introduced evidence of a staked survey to establish the property line. The trial court ruled in favor of the Whites on their counterclaim for adverse possession.

The Court of Appeals affirmed, noting the trial court applied the factors articulated in Fraley v. Minger, 829 N.E.2d 476, 485 (Ind. 2005)to evaluate the Whites’ adverse possession claim and conclude that the Whites satisfied each of the elements regarding property up to the fence line.

“Whereas a claim for trespass requires establishing that the plaintiff owns the land in question, causes of action for adverse possession are grounded not in the holding of legal title to land, but rather require evidence regarding the use and treatment of a parcel of land in a manner satisfying the doctrine’s elements of control, intent, notice, and duration,” Judge Elaine Brown wrote.

“We agree with the trial court that the location of the existing chain link fence line is sufficient to demarcate the property line between Lot 32 and Lot 33. We cannot say that the court’s judgment in its Order is clearly erroneous.”

The case is Jeffrey B. Morgan and Wendi S. Morgan v. Andrew White and Holly White, 41A05-1512-PL-2267. 

 

 

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