COA: Family can keep title by adverse possession of lakefront walkway

A family that has used and maintained a walkway to access a lake near their home for more than 60 years may keep a newly awarded fee simple title by adverse possession, the Court of Appeals of Indiana has affirmed.

A dispute broke out in Kosciusko County among neighbors regarding the ownership and use of a 6-foot strip of land running between two properties, Lot 19 and Lot 20, that provides access to Big Chapman Lake. In April 2019, Elizabeth Draving filed a complaint for quiet title action, adverse possession and prescriptive easement against Robert Conrad and Todd Thalls, who own Lot 19 and Lot 20, respectively, and against Daniel Robert Shroyer and his heirs or devisees.

Draving alleged her family had owned Lots 19B and 20B, across the street from strip, since 1959 and had used the walkway to get to lake for the past six decades with no objections from anyone. She also argued her family had openly possessed and used the walk since they took title to their lots.

Additionally, Draving alleged her family had made improvements on the walk, used a pier installed at the end of the walk, moored boats on the pier and paid to have the seawall resurfaced at the shoreline of the walk. Finally, she asserted Daniel Robert Shroyer — who took title to the walk in 1945 — and his successors had not made any claim to the walk, and there were no real estate taxes assessed pertaining to the walk.

The Kosciusko Superior Court ruled in favor of Draving in May 2021, finding no conclusive evidence that anyone other than the Draving family regularly used the walk to access the lake. It found Draving had satisfied her burden of having a reasonable and good faith belief that all real estate taxes owed had been paid and that she had satisfied the elements for a prescriptive easement.

Additionally, the trial court noted that while there was some evidence that Conrad and the previous owners of Lot 20 occasionally mowed half of the lower portion of the walk, no one other than the Draving family and their guests had moored a boat to the pier since it was installed in 1966. It also found Conrad gave permission for the Draving family to place a pier at the end of the walkway in 1968, and it wasn’t until 2019 when Thalls became a new owner of Lot 20 that someone objected to the Draving family’s use of the walk or their placement of a pier.

The trial court’s decision was not clearly erroneous, the Court of Appeals concluded in Todd Thalls, Trustee of the M. Todd Thalls Revocable Trust, and Robert Conrad v. Elizabeth A Draving, Co-Trustee of the Leonard R. Draving and Elizabeth A. Draving Joint Revocable Living Trust dated July 26, 2004, 21A-PL-1138.

First, the appellate panel concluded Thalls and Conrad were required to show the intent of the owner to dedicate the walk by acts and declarations that were clear, convincing and unequivocal.

“Based upon the record, including the recorded plats and deeds, we cannot say the court’s finding that Appellants did not make this showing is clearly erroneous, and our review of the evidence does not leave us with the firm conviction that a mistake has been made,” Judge Elaine Brown wrote.

The appellate panel ruled similarly on the adverse possession claim, noting that taxes were never payable with respect to the walk and that Draving met her burden with respect to paying the taxes she reasonably believed to be due.

“The court was able to consider the evidence that the Draving family exercised control over the walk, that their acts showed an intent to claim full ownership, they provided sufficient notice of their intent and exclusive control, and their activities were sufficiently regular for the prescribed period,” Brown wrote. “Based upon the evidence set forth above and in the record, we cannot say the trial court’s judgment that Draving acquired the parcel by adverse possession is clearly erroneous.”

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