Court of Appeals of Indiana | Memorandum Decision 79A02-1409-PL-627 | April 16, 2015 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

Ryan C. Munden

Reiling Teder & Schrier, LLC

Lafayette, Indiana

ATTORNEY FOR APPELLEE

Jason R. Ramsland

Ball Eggleston, PC

Lafayette, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Harry J. Evans, et al.,

Appellants,

v.

Tommy L. Short,

Appellee

April 16, 2015

Court of Appeals Case No.

79A02-1409-PL-627

Appeal from the Tippecanoe 

Superior Court.

The Honorable Thomas H. Busch, 

Judge.

Cause No. 79D02-1305-PL-20

Baker, Judge.
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[1] Harry Evans, Barbara Evans, and Clairana Kallner (collectively, the appellants) 

appeal the trial court’s judgment finding that Tommy Short had acquired 

certain property by adverse possession and that Harry Evans had trespassed 

onto that property.1 Finding no error, we affirm. 

Facts

[2] The Evanses own certain property on 750 East in Lafayette. This property 

abuts Short’s property; the south border of the Evanses’ property touches the 

north border of Short’s property. Kallner also owns property on 750 East in 

Lafayette. Pursuant to deeds for the three properties, Short and Kallner are 

entitled to an easement allowing ingress and egress from the public highway 

(the Easement). The Easement contains a gravel road to allow for such ingress 

and egress. 

[3] This appeal involves a section of land north of the south line of the Evanses’ 

property and abutting the southern end of the gravel road. Short’s father 

acquired the Short property in 1957, and built a house and driveways, which 

abut the gravel road, on the property. When Short inherited the property in 

2002, he believed that the boundary of his property was the southern border of 

 

1 Appellants argue that, if the trial court incorrectly determined that Short had acquired title by adverse 

possession, there is insufficient evidence to determine that Harry Evans committed trespass. As we find that 

the trial court did not err in determining that Short had acquired title to the property, we need not address 

this argument. 
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the gravel lane. Therefore, he placed poles and rocks on the southern border to 

keep others from driving onto it. 

[4] On May 24, 2013, the appellants filed suit seeking a declaratory judgment 

concerning the location of the easement, alleging trespass for Short’s 

encroachment onto the easement, and seeking injunctive relief to enjoin Short 

from blocking or obstructing the easement. On June 20, 2013, Short filed his 

answer and counterclaim, alleging that he had acquired title by adverse 

possession and alleging trespass against Harry Evans. On October 1, 2013, the 

appellants filed a motion for partial summary judgment regarding their request 

for a declaratory judgment and Short’s adverse possession claim. The trial 

court denied the motion on December 13, 2013. 

[5] On June 12, 2014, the trial court held an evidentiary hearing on the matter. It 

entered findings of fact and conclusions of law on August 12, 2014. The 

findings of fact pertinent to this decision are as follows: 

9. Short inherited the Short Property from his parents in 2002. 

10. Short has lived at the Short property without interruption since 

2002. 

11. Short’s father acquired the Short Property from Short’s 

grandparents in approximately 1957. 

12. [The] Evans acquired their property in late 1968. 

* * * 

13. Short’s father erected a house on the Short property in 

approximately 1957. 

14. Short’s two driveways were installed on the property at 

approximately the same time that the house was built. 
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15. Short lived at the property from approximately the time of his 

birth in 1959 until he moved out as a young man 

16. After Short moved out of the home on the property, he 

remained familiar with it because of frequent visits to his 

parents. 

* * * 

20. At the time they acquired their property [the] Evans did not 

know where their property bordered Short’s.

21. At or near the southern edge of the Evans property is a gravel 

lane. 

22. The gravel lane served the Short Property and the properties of 

Short’s two neighbors to the west. 

23. When [the] Evans purchased the Evans Property in 1968, they 

did not measure the distance between the recorded property 

line and the gravel lane. 

24. [The] Evans do not know where the gravel lane was relative to 

the property line in 1968. 

25. The improvements on the Short property, including the home, 

garage, and driveways, were all in place prior to [the] Evans 

taking title to their property. 

26. Short reliably testified that the gravel lane has remained in the 

same place for a period exceeding fifty (50) years. 

* * *

30. Short reliably testifies that he and his father exhibited the 

following indications of ownership over the area bounded by 

the surveyed property border, the gravel driveway, the western 

edge of Short’s westernmost driveway and County Road 750 

East (the “Limited Disputed Area”): 

(d) placement of obstacles, including rocks, posts, and cement 

blocks in the Limited Disputed Area designed and intended to 

prevent others from entering thereupon;

(e) repeatedly demanding that others refrain from driving their 

vehicles upon the Limited Disputed Area unnecessarily; 

(f) installation of driveways in the Limited Disputed Area;
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(g) parking in the Limited Disputed Area;

(h) removing loose gravel from the Limited Disputed Area and 

re-depositing it upon the gravel lane; 

(i) summoning law enforcement when trespassers entered upon 

the Limited Disputed Area;

(k) consistently claiming ownership over the Limited Disputed 

Area. 

* * *

35. Short reliably testified that he believed he was paying property 

taxes on the entire disputed area when he paid the property 

taxes for the Short property. 

36. Short has always held out that the Limited Disputed Area 

belongs to him, and belonged to his father before him. 

37. Short believed that the Limited Disputed Area is rightly part of 

the Short property. 

38. Short’s belief that the Limited Disputed Area is rightly part of 

the Short property was reasonable. 

Appellants’ App. p. 5-8. 

[6] The trial court also concluded that Short had exercised control consistent with 

ownership over the Limited Disputed Area, that such control was inconsistent 

with the appellants’ deeds, and that such control and “intentional exercise of 

dominion” was open and not hidden. Id. at 9. Based on these findings, the trial 

court concluded that Short had established that he had complied with the 

adverse possession tax statute and that he has controlled the Limited Disputed 

Area for a period exceeding ten years. Finally, the trial court found that Short 

had acquired title to the Limited Disputed Area by adverse possession, and 

that, therefore, Harry Evans had trespassed on Short’s land when he drove his 
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car onto the Limited Disputed Area and caused damage. Appellants now 

appeal. 

Discussion and Decision

[7] The appellants argue that the trial court erred in determining that Short had 

acquired title to the limited disputed property by adverse possession. When 

reviewing claims tried without a jury, this Court will not set aside the findings 

and judgment unless clearly erroneous, and due regard will be given to the trial 

court’s ability to judge the credibility of the witnesses. Ind. Trial Rule 52(A). A 

judgment will only be deemed clearly erroneous if there “is no evidence 

supporting the findings or the findings fail to support the judgment.” Chidester 

v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994). “In order to determine that a 

finding or conclusion is clearly erroneous, an appellate court’s review of the 

evidence must leave it with the firm conviction that a mistake has been made.” 

Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). 

[8] In Indiana, the doctrine of adverse possession entitles a person without title to 

obtain ownership of a piece of land upon proof of control, intent, notice, and 

duration. Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005). The adverse 

possessor must also pay all taxes that he reasonably believes in good faith to be 

due on the property during the period he claims to have adversely possessed the 

property. Ind. Code § 32-21-7-1. The burden is on the claimant to establish all 

the elements of a claim of adverse possession by clear and convincing evidence. 

Fraley, 829 N.E.2d at 483.
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[9] In addition, we note that adverse possession claims are necessarily decided on a 

case-by-case basis, for what constitutes possession of one type of property may 

not constitute possession of another. McCarty v. Sheets, 423 N.E.2d 297, 300 

(Ind.1981). In this case, while the Evanses’ litigated interest is in a portion of 

their property, Kallner’s litigated interest is an easement. An easement created 

by grant is not typically lost by mere nonuse. Jeffers v. Toschlog, 178 Ind. App. 

603, 383 N.E.2d 457, 459 (1978). Generally, where an easement is created by 

express written contract, lapse of time and occupation will not extinguish it 

unless there is “an absolute denial of the right to the easement, and the 

occupation was so adverse and hostile that the owner of the easement could 

have maintained an action for obstructing his enjoyment of it.” Seymour Water 

Co. v. Lebline, 195 Ind. 481, 144 N.E. 30, 33 (1924). 

[10] Appellants argue that the trial court’s determination that Short had acquired 

title to the Limited Disputed Area by adverse possession is not supported by 

sufficient evidence. They argue that 1) they were not absolutely denied use of 

the easement within the Limited Disputed Area, 2) explicit and outward 

showings of Short’s claim to the Limited Disputed Area did not appear until 

2008, and 3) there was insufficient evidence to show that Short had a 

reasonable, good faith belief that he was paying taxes on the Limited Disputed 

Area. We will address each of these contentions in turn. 

[11] The appellants first argue that the trial court incorrectly determined that “Short 

and his predecessor in title absolutely denied use of the easement within the 

Limited Disputed Area.” Appellants’ App p. 17. In support of this argument, 
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they point out that the trial court found that Harry Evans drove into the 

Limited Disputed Area and that Short called law enforcement regarding people 

entering the Limited Disputed Area without his permission. Id.; Tr. p. 31, 62. 

They argue that “a reasonable trier of fact could not conclude that if a party has 

committed a trespass upon certain property, repeatedly driven across said 

property, and had law enforcement called for accessing said property, that 

he/she has been ‘absolutely denied use’ of the property.” Appellant’s Br. p. 18. 

[12] While it is true that “generally, where an easement is created by express written 

contract, lapse of time and occupation will not extinguish it unless there is an 

absolute denial of the right to the easement,” here, the trial court could 

reasonably find that Short did deny the Appellants such use. King v. Wiley, 785 

N.E.2d 1102, 1109 (Ind. Ct. App. 2003) (internal quotations removed). Short 

put up rocks and posts to deny access to the Limited Disputed Area and 

requested that no one access the Limited Disputed Area. Further, the fact that 

Short called law enforcement to keep trespassers off the property is evidence 

that he did absolutely deny access to the Limited Disputed Area. The fact that 

the appellants choose not to heed this denial does not mean that it was not, in 

fact, a denial. 

[13] Next, the appellants argue that explicit and outward showings of Short’s claim 

to the Limited Disputed Area did not appear until 2008. They argue that Short 

failed to do more than maintain the gravel path, and that maintenance is not 

sufficient to constitute evidence of dominion over land. Appellants also argue 
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that the evidence at trial did not establish that the rocks and/or posts had been 

placed in the Limited Disputed Area for the statutory time period. 

[14] This is, however, a misstatement of the evidence. The clearest and most 

permanent outward showing of Short’s, and his predecessors, claim to the 

Limited Disputed Area are the driveways that were installed on the Limited 

Disputed Area before the Evanses even took title to their property in 1968. 

Appellants’ App. p. 5. Appellant Kallner admitted that these driveways, as well 

as Short’s action of parking on the driveways, made it difficult to access the 

Limited Disputed Area. The installation of the driveways and the placing of 

obstacles around the Limited Disputed Area by Short, and his predecessor,

establish that Short and his father openly held out that the Limited Disputed 

Area was a part of their property. 

[15] Appellants also argue that there was insufficient evidence to allow the trial 

court to find that Short had a reasonable, good faith belief that he was paying 

the property taxes on the Limited Disputed Area. Pursuant to Indiana Code 

section 31-21-7-1:

[P]ossession of the real property is not adverse to the owner in a 

manner as to establish title to the real property unless the adverse 

possessor pays all taxes and special assessments that the adverse 

possessor reasonably believes in good faith to be due on the real 

property during the period the adverse possessor claims to have 

adversely possessed the real property.

However, substantial compliance may satisfy the requirement of the adverse 

possession tax statute in boundary disputes where the adverse possession 

claimant has a reasonable and good faith belief that the claimant is paying the 
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taxes on disputed parcel during the period of adverse possession. Fraley, 829 

N.E.2d at 492. 

[16] Appellants cite Fraley in support of their argument that a reasonable finder of 

fact could not have found that Short had a reasonable, good faith belief that he 

was paying taxes on the Limited Disputed Area. In Fraley, our Supreme Court 

determined that the trial court made “no finding that during the period of 

adverse possession the Mingers ‘paid and discharged all taxes and special 

assessments of every nature falling due on such land’ as required by the adverse 

possession tax statute, nor is there a finding of substantial compliance.” Id. at 

493. 

[17] The instant case is distinguishable from Fraley. Here, Short testified that he 

believed that he owned the Limited Disputed Area and that he believed that he 

had been paying taxes on the property. Tr. p. 74. Unlike the trial court in 

Fraley, here, the trial court took note of that testimony and specifically found 

that “Short reasonably believed he was paying property taxes on the entire 

disputed area when he paid property taxes for the Short property.” Appellants’ 

App. p. 12. In addition, the area in question is an eight-foot strip that extends 

from the northern border of Short’s property to the gravel lane. Without 

looking at a survey of the property, one would likely assume that the Limited 

Disputed Area is the curtilage to the Short residence. Thus, it is reasonable that 

Short might believe that he owned the Limited Disputed Area, and, therefore,

reasonable that he believed he was paying taxes on the Limited Disputed Area. 
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[18] Finally, Appellants argue that the trial court erred in finding that Short acquired 

ownership of the Limited Disputed Area by acquiescence.2 Appellants 

maintain that the doctrine of acquiesce is arcane and should not be applied to 

easements. However, we need not address this argument today. As 

Appellants concede, “the trial court did not make any conclusions of law based 

on the theory of acquiescence.” Appellants’ Br. p. 19. Further, acquiescence

only applies when adverse possession does not. Garrett, 998 N.E.2d at 304. As 

the trial court found explicitly that Short had taken title to the Limited Disputed 

Area by adverse possession, it did not find that Short has acquired title by 

acquiescence. Appellants’ App. p. 12. 

[19] The judgment of the trial court is affirmed. 

Najam, J., and Friedlander, J., concur.

 

2 The doctrine of acquiescence applies only when: 

two adjoining property owners (1) share a good-faith belief concerning the location of the 

common boundary line that separates their properties and, (2) although the agreed-upon 

location is not in fact the actual boundary, (3) use their properties as if that boundary was the 

actual boundary (4) for a period of at least twenty years. It is the original agreement between the 

adjoining owners that takes this and all other “acquiescence” cases out of the realm of adverse 

possession.

Garett v. Spear, 998 N.E.2d 297, 304 (Ind. Ct. App. 2004).