FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:

ERIC C. McNAMAR KEVIN C. TANKERSLEY

B. TOO KELLER Winamac, Indiana

Keller Macaluso LLC

Carmel, Indiana

IN THE

COURT OF APPEALS OF INDIANA

LANE ALAN SCHRADER TRUST as )

Trustee under the Trust Agreement dated )

16th day of November, 1999, and known as )

LANE ALAN SCHRADER SELF- )

DECLARATION OF TRUST, )

)

Appellant-Petitioner, )

)

vs. ) No. 75A04-1112-PL-676

)

LARRY GILBERT and )

NANCY J. MALECKI, )

)

Appellees-Respondents. )

APPEAL FROM THE STARKE CIRCUIT COURT

The Honorable Patrick B. Blankenship, Special Judge

Cause No. 75C01-0905-PL-17

August 30, 2012

OPINION – FOR PUBLICATION

BAKER, Judge
2

In this case, we are presented with a property boundary dispute and how trial 

courts may settle them through the use of land surveys. Here, a landowner purchased 

property based on information from a neighbor that a barn on the property had a twentyfoot setback. The landowner required this setback to conduct his business; however, at 

least two surveys indicated that the setback was less than the required twenty feet. The 

landowner decided to have a legal survey performed on the property, which indicated that 

there was a twenty-foot setback. This legal survey was recorded in the county recorder’s 

office. 

The landowner’s neighbors appealed the legal survey to the trial court, arguing 

that it should be stricken from the recorder’s office. After a bench trial, the trial court 

determined that the legal survey was defective for failure to use good surveying practices 

and imposed two previous surveys. We conclude that this was error. The applicable 

statutory provisions require that strict notice provisions be followed, and there was no 

evidence that notice was given before the two previous surveys were conducted. 

Moreover, we think that the proper interpretation of the statute is that the trial court may 

either accept the survey that is being appealed, order a new survey, or order the county 

surveyor to locate and mark the boundary lines according to the trial court’s findings as 

supported by the evidence. 

Appellant-defendant Lane Alan Schrader as Trustee of the Lane Alan Schrader 

Trust (the Trust) appeals the trial court’s findings of fact and conclusions of law in its 
3

order striking a legal survey and imposing two previous retracement surveys. More 

particularly, the Trust argues that the trial court’s findings of fact and conclusions of law 

are clearly erroneous, inasmuch as they are not supported by facts in the record. 

Specifically, the Trust asserts that there is no evidence in the record that the legal survey 

was conducted in derogation of good surveying practices. 

Additionally, the Trust maintains that the trial court’s order must be vacated 

because the applicable statute requires that the trial court either affirm the legal survey or 

set aside the survey and order a new one. 

Finally, the Trust contends that a second applicable statute imposes strict notice 

requirements to establish property lines pursuant to a legal survey. And because 

appellees-plaintiffs Larry Gilbert and Nancy J. Malecki (collectively, “the Appellees”) 

failed to present evidence that proper notice was given before the previous retracement 

surveys were conducted, no legal survey was created, and the trial court erred by 

imposing those two surveys. 

Determining that the trial court did not err by concluding that the legal survey was 

not conducted through the use of good surveying practices, but finding that the trial court 

erred by imposing two previous surveys, we reverse and remand to the trial court with 

instructions that the trial court enter a new order consistent with this opinion. 

FACTS

On February 28, 2004, Lane Schrader purchased a parcel of property in Starke 

County described as:
4

THE EAST HALF OF THE FOLLOWING TRACT, TO WIT: 

COMMENCING AT A POINT ON THE SECTION LINE 660 FEET

WEST OF THE SOUTHEAST CORNER OF THE SOUTHEAST 1/4 OF 

SECTION 29, TOWNSHIP 32 NORTH, RANGE 4 WEST OF THE 

SECOND PRINCIPAL MERIDIAN, STARKE COUNTY, INDIANA. 

THENCE WEST ON THE SECTION LINE 660 FEET, MORE OR LESS, 

TO THE SOUTHWEST CORNER OF THE SOUTHEAST 1/4 OF THE 

SOUTHEAST 1/4 OF SAID SECTION 29; THENCE NORTH 660 FEET, 

MORE OR LESS, TO THE NORTH LINE OF THE SOUTH HALF OF 

THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 

29; THENCE EAST 660 FEET, MORE OR LESS, TO A POINT 660 

FEET WEST OF THE EAST LINE OF SAID SECTION 29, THENCE 

SOUTH 660 FEET, MORE OR LESS, TO THE PLACE OF BEGINNING. 

Ex. E. (Warranty Deed in Trust). Approximately three months later, Schrader conveyed 

the parcel to the Trust. 

The Trust property’s southeast border was adjacent to Gilbert’s property and the 

Trust property’s north border was adjacent to Malecki’s property. The Gilbert property 

had “senior rights” in the quarter section, which means that the parcel has been cut from a 

parent tract and prevails over other property descriptions. Tr. p. 328. Gilbert’s parcel 

was described as: 

A tract of land commencing at the Southeast Corner of Section[ ]29, range 

4 West of the 2nd P.M., Starke County, Indiana; thence West 660 feet on 

The section line; thence North 330 feet; thence East 660 feet to the Section 

line; thence south 330 feet to the place of beginning. 

Appellant’s App. p. 10 

Before purchasing the property, Steven Schrader, the son of Lane Schrader, visited 

the property, and a neighbor showed him monument pins that marked the property lines. 

Lane purchased the property based, in part, on the neighbor’s representations. Relying on 
5

the monument points, the Schraders believed that they would have a twenty-foot setback 

on the side of a barn on the property, which was needed to run a business from the back 

of the property. 

Within one month of purchasing the property, the Trust hired Turning Point 

Surveying, Inc. (Turning Point) to survey the property. Turning Point surveyed the 

property and recorded its survey with the Starke County Recorder’s Office on June 16, 

2004, but there was no evidence introduced at trial that Turning Point notified 

neighboring landowners that the company conducted or recorded the survey. The 

Turning Point Survey indicated that the setback was less than twenty feet. 

Approximately one year later, the Trust hired Progressive Engineering, Inc. 

(Progressive) to conduct a retracement survey to verify the survey conducted by Turning 

Point. The Progressive Survey was consistent with the survey completed by Turning 

Point. Although Progressive completed the retracement survey in December 2005 and 

provided the Trust with a copy at that time, Progessive did not record the survey until 

April 21, 2009. And like the Turning Point survey, there was no evidence introduced at 

trial indicating that Progressive notified neighboring landowners that it had conducted or 

recorded the survey. 

Before Progressive recorded its survey in April 2009, Torrenga Surveying, LLC 

(Torrenga) was hired to create a legal survey1and set out the lines of occupation on and 

 

1 A legal survey is typically performed to establish boundary lines between landowners that are in dispute. 

See Ind. Code § 36-2-12-10. By contrast, a retracement survey is a survey of real property that has been 
6

adjacent to the Trust property. To create a legal survey, Torrenga gathered record 

descriptions of both the land to be surveyed and the adjoining properties along with 

copies of prior surveys, maps, documents and field notes relating to the Trust’s deeded 

property. More particularly, Stuart Allen of Torrenga obtained from the Starke County 

Recorder’s Office a 1993 survey of the Gilbert property conducted by Joe Smrt and the 

Territorial Engineering Survey. Additionally, Allen obtained an opinion letter from 

Territorial Engineering setting the corner of the southeast quarter; a letter written by Smrt 

to a property owner west of the Trust property in which Smrt commented that a fence on 

that property was on or near a boundary line; a survey conducted by former Starke 

County Surveyor Van Janovic of a parcel just north of the north boundary of the quarter 

section that contained the Trust property; and other documents. Torrenga, however, was 

not given a copy of the Progressive Survey by the Trust. 

After gathering these documents, Allen and other members of Torrenga’s 

surveying crew, visited the Trust property and located as many monuments and fence 

lines as they could find. The crew found an iron pipe monument in the northwest corner 

of the property and another iron pipe monument adjacent to a fence corner in the 

northeast corner of the property – a fence Progressive had called a line of occupation.

2

 

The crew also found two more pipe monuments on the east side of the property. 

The Torrenga survey crew then searched beyond the borders of the Trust property 

and found additional fence lines on parcels to the west running in a similar direction as 

 

2 Bradley Cramer of Progressive Engineering admitted at trial that the lines of occupation deviated from 

the section lines. Tr. p. 194.
7

the fence on the east side of the property. Torrenga also considered monument points in 

a survey conducted by Janovic of a parcel north of the Malecki property, which was just 

north of the quarter section containing the Trust property. The points identified by 

Janovic in his retracement survey were set by surveyor Donald Mason, but it is not 

known whether Mason created a survey of the parcel. Janovic, however, was not 

surprised by the reasonable agreement between the so-called “Mason points” and the 

fences west of the Trust property. 

Ultimately, Allen created the “Torrenga Survey” along with a “Theoretical 

Breakdown” of the quarter section containing the Trust Property and other parcels. Ex. 3; 

Ex. 1 (Theoretical Breakdown). The Torrenga Survey, the legal survey at issue, set out 

lines of occupation for the Trust property and surrounding parcels. The Theoretical 

Breakdown survey was a representation of what the quarter section would look like if 

certain monument points were used. The Theoretical Breakdown survey was not 

recorded. 

Torrenga recorded the Torrenga Survey with the Starke County Recorder on or 

about January 22, 2009. Approximately four months later, on May 19, 2009, the 

Appellees filed an appeal challenging the proposed legal survey, naming the Trust; 

Dennis Estok, the Starke County Surveyor; Jackie Bridegroom, the Starke County 

Recorder; Torrenga, and Allen as opposing parties. On July 9, 2009, Allen, Torrenga, 

and the Trust filed a motion to dismiss, asserting that Allen and Torrenga were not proper 

parties to the lawsuit and that Malecki had forfeited her right to challenge the accuracy of 
8

the legal survey when she had defaulted in her prior, related lawsuit, Lane Alan Schrader, 

Self Declaration of Trust, by Lane Alan Schrader, Trustee v. Alfred Malecki and Nancy 

Malecki, Husband and Wife et al., 75C01-0507-PL-050. On January 28, 2010, the trial 

court held a hearing on the motion and took the motion under advisement; however, it 

failed to issue a ruling on the motion. 

A bench trial was conducted on the appeal of the Torrenga Survey from November 

16-18, 2010, and the trial court took the matter under advisement. On December 21, 

2010, counsel for the Appellees submitted additional authority to the trial court in support 

of their assertion that the legal survey should be stricken from the record in the Starke 

County Surveyor’s Office. On January 3, 2011, counsel for the Trust responded to the 

submission. 

On November 10, 2011, the trial court entered findings of fact and conclusions of 

law in its order finding the Torrenga Survey defective. More particularly, the trial court 

determined that “while the Court recognizes that it may order a new survey be made by a 

competent person, the [Court] declines to do so for the reason that the evidence is 

overwhelming that the [Trust] already has in its possession two (2) surveys prepared by 

competent persons which clearly show the boundary lines for the Trust property.” 

Appellant’s App. p. 16. The Trust now appeals. 

DISCUSSION AND DECISION 

I. Clearly Erroneous Findings
9

The Trust contends that out of the trial court’s thirty-four findings of fact, fourteen 

are material and clearly erroneous. As stated above, the trial court entered findings of 

fact and conclusions of law. Accordingly, we must conduct a two-tiered standard of 

review. Thompson v. Leeper Living Trust, 698 N.E.2d 395, 397 (Ind. Ct. App. 1998). 

First, we determine whether the evidence supports the findings, and then we determine 

whether the findings support the judgment. Id. This Court will not set aside the trial 

court’s findings unless they are clearly erroneous; in other words, they are unsupported 

by facts in the record or reasonable inferences drawn from the facts. Id. 

When determining whether findings are clearly erroneous, we neither reweigh the 

evidence nor judge the credibility of witnesses and consider only the evidence supporting 

the judgment. Id. We may affirm the judgment on any legal theory supported by the 

findings. Id. 

At the outset, we note that in response to the Trust’s arguments, the Appellees rely 

on broad statements with general citations to over 200 pages of transcript. The Indiana 

Rules of Appellate Procedure require that a party provide a cogent argument with 

adequate citation. See Ind. Appellate Rule 46(B) (providing that the Appellee’s Brief 

shall form to Appellate rule 46(A)); Ind. Appellate Rule 46(A)(8) (requiring that “[e]ach 

contention [] be supported by citations to the authorities, statutes and the Appendix or 

parts of the Record”). This allows the appellant to appropriately respond and prevents 

the court from becoming an advocate when it is forced to search the entire record for

evidence in support of the appellee’s broad statements. Keller v. State, 549 N.E.2d 372, 
10

373 (Ind. 1990). We note that this is also inefficient and caution against this practice in 

the future. 

Proceeding to the merits, Thompson is instructive on this issue. In Thompson, the 

Leeper Living Trust property bordered Jack Thompson’s, Harold Gardner’s, and Syntha 

Salyer’s property on the south. 698 N.E.2d at 396. Thompson and Gardner requested 

that a legal survey be performed by Bradley Cramer, whose results were different from 

the previous survey. Id. 

All parties, except the Trust appealed, arguing that it was improperly conducted 

and inconsistent with prior surveys. Id. The trial court held a hearing and issued findings 

of fact and conclusions of law, rejecting Cramer’s survey. Id. at 397. The trial court 

reasoned that “the legal description is presumed correct and that compelling visual 

evidence at variance with the legal description must exist to support a legal survey which 

varies from the proper legal description.” Id. 

A panel of this Court opined that the “question of the correctness of a survey is 

one of fact.” Id. The panel noted that the evidence regarding the correctness of Cramer’s 

survey was in conflict and that the “trial court was entitled to credit evidence of the 

survey’s inaccuracy and to discount evidence to the contrary.” Id. at 397-98. 

Accordingly, the panel found no error. Id. at 397. 

Likewise, in the instant case, Steve Schrader testified that state law required that a 

commercial building have a twenty-foot setback from any property line. Tr. p. 440-41. 

Schrader stated that according to the Turning Point Survey, Progressive Survey, and the 
11

Smrt Survey, the barn did not have the required twenty-foot setback from the property 

line. Id. at 441. Therefore, Torrenga was hired to perform a legal survey. 

Surveyor Janovic testified that in his “opinion, [Allen from Torrenga] did not use

. . . controlling monuments.” Tr. p. 292. He also testified that some of the points located 

by surveyor Don Mason, who is deceased and whose survey was not admitted into 

evidence, were “a huge blunder.” Id. at 249. This was significant because Allen had 

relied upon some of these points in preparing the Torrenga Survey. 

Perhaps most compelling, Allen testified that he never searched any of the records 

of prior ownership of the real estate or obtain information regarding senior rights. Tr. p. 

598-99. Similarly, Allen stated that he did not inquire as to how certain improvements

got there, who put them there, and how long they had been there. Id. at 598. Thus, 

similar to Thompson, although there was evidence tending to show the Torrenga Survey 

was informative, the correctness of the Torrenga Survey was in conflict, and the trial 

court was entitled to accept the evidence discussed above crediting the survey’s 

inaccuracy. Consequently, we find no error on this issue. 

II. Trial Court’s Judgment Prohibited by Statute

The Trust maintains that the trial court’s judgment that two previous retracement 

surveys control the boundaries between the Trust and the Appellees’ properties is 
12

prohibited by Indiana Code section 36-2-12-14. The interpretation of statute is a question 

of law, which we review de novo. State v. Int’l Bus. Mach. Corp., 964 N.E.2d 206, 209 

(Ind. 2012). Our objective when construing a statute is to determine and give effect to 

the legislative intent of the statute. Chavis v. Patton, 683 N.E.2d 253, 257 (Ind. Ct. App. 

1997). 

When interpreting a statute, the rules of statutory construction apply. Id. The 

express language of the statute controls, and the statute is interpreted as whole, giving 

words their common and ordinary meaning. Family & Social Servs. Admin. v. Calvert, 

672 N.E.2d 488, 491-92 (Ind. Ct. App. 1996). Moreover, we construe statutes in such a 

way as to prevent absurdity and hardship. Id. at 492. Therefore, we interpret provisions 

of an act together so that no part of it is rendered meaningless and to harmonize the 

provision at issue with the remainder of the statute. Pressley v. Newburgh Town 

Council, 887 N.E.2d 1012, 1018 (Ind. Ct. App. 2008). 

Indiana Code section 36-2-12-14 describes the process by which a property owner 

may appeal a survey conducted under Indiana Code section 36-2-12-10. Upon learning 

that an adjacent property owner has appealed a survey, the surveyor who conducted the 

legal survey must transmit copies of the relevant field notes and other papers to the trial 

court. I.C. § 36-2-12-14(b). During the appeal, the trial court may hear evidence of other 

surveys and consider parol evidence. I.C. § 36-2-12-14(c); see Cleveland v. Obenchain, 

107 Ind. 591, 593, 8 N.E. 624, 624 (1886) (“It would produce great confusion, and work 
13

much injustice, if parties could only try the correctness of a survey by the descriptions 

found in the conveyances”). 

Most at issue in this case, however, is Subsection -14(c), which provides, in 

relevant part:

The court may receive evidence of any other surveys of the same premises. 

If the court decides against the original survey, it may order a new survey 

to be made by a competent person other than the person who did the 

original survey, and it shall:

(1) determine the true boundary lines and corners of the lands included in 

the survey; and 

(2) order the county surveyor to: 

(A) locate and perpetuate the boundary lines and corners according 

to the court’s findings by depositing durable markers in the 

proper places, below the freezing point;

(B) mark the boundary lines and corners; and 

(C) enter the boundary lines and corners in his field notes.

(emphasis added). 

The Trust argues that “by the plain language of the statute, the trial court only 

could affirm the survey or order a new one. This is because legal surveys are subject to 

strict rules in Indiana.” Appellant’s Br. p. 12. The Appellees counter that Subsection 

14(c) grants the trial court power to “receive evidence of any other surveys of the same 

premises.” Appellees’ Br. p. 6. Additionally, the Appellees point out that Subsection 

14(c) states that if the trial court rejects the original survey it may order a new a one, but 

that it is not mandatory. Id. at 7.
14

The Trust directs us to Indiana Code section 36-2-12-10, which lists the strict 

requirements that must be met before a legal survey is created. The Trust argues that 

because the requirements of Section 10 were not satisfied by the two surveys that the trial 

court’s order imposed on the parties in its order, Section 14 granted the trial court the 

authority to either accept the Torrenga Survey or order a new survey. 

Indiana Code section 36-2-12-10(b) provides, in relevant part: 

A landowner desiring to establish the location of the line between the 

landowner’s land and that of an adjoining landowner by means of a legal 

survey may do so as follows:

(1) The landowner shall procure a land surveyor registered under IC 

25-21.5 to locate the line in question and shall compensate the 

surveyor. 

(2) The land surveyor shall notify the owners of adjoining lands that 

the land surveyor is going to make the survey. The notice must 

be given by registered or certified mail at least twenty (20) days 

before the survey is started. 

(3) If all the owners of the adjoining lands consent in writing, the 

notice is not necessary. 

(4) The lines and corners shall be properly marked, monumented by 

durable material with letters and figures establishing such lines 

and corners, referenced, and tied to corners shown in the corner 

record book in the office of the county surveyor or to corners 

shown on a plat recorded in the plat books in the office of the 

county recorder. 

(5) The land surveyor shall present to the county surveyor for entry 

in the legal survey record book a plat of the legal survey and 

proof of notice to or waiver of notice by the adjoining 

landowners. The land surveyor shall give notice to adjoining 

landowners by registered or certified mail within ten (10) days 

after filing of the survey. 
15

Landowners seeking to establish property lines pursuant to a legal survey must 

follow the statute to the letter. Leons v. Bloemaker, 649 N.E.2d 1041, 1043 (Ind. Ct. 

App. 1995). In Leons, a panel of this Court held that because notice of a survey had not 

been served on a wife who held property as a tenant by the entirety with her husband, 

who had been provided notice, “the requirements of the legal survey statute were not met. 

Thus, no legal survey was created.” Id. at 1045. 

Here, the Appellees presented no evidence that either the Turning Point Survey or 

the Progressive Survey satisfied the notice requirements of Section 10. Accordingly, 

neither created a legal survey. Moreover, the Turning Point Survey was recorded on June 

14, 2004, and the Progressive survey was recorded on April 21, 2009 – well beyond the 

time limit to appeal these surveys. Thus, by imposing upon the Trust two surveys that 

were recorded beyond the ninety-day time limit to appeal the surveys, the trial court has, 

in effect, stripped the landowner of the right to appeal those surveys as permitted by 

Section 14. And as stated above, when interpreting a statute, we strive to give effect to 

the entire statute. 

Nevertheless, the Appellees essentially argue that the trial court may impose 

boundary lines even in the absence of a valid survey. The Appellees focus on Section 

14(c), which states:

The court may receive evidence of any other surveys of the same premises. 

If the court decides against the original survey, it may order a new survey 

to be made by a competent person other than a person who did the original 

survey, and it shall:
16

(1) determine the true boundary lines and corners of the lands 

included in the survey; and 

(2) order the county surveyor to:

(A) locate and perpetuate the boundary lines and corners 

according to the court’s findings by depositing durable 

markers in the proper places, below the freezing point;

(B) mark the boundary lines and corners; and 

(C) enter the boundary lines and corners in his field notes.

(emphases added). 

The Appellees focus on the fact that Section 14 states that the trial court “may” 

order a new survey if it rejects the original one and that the trial court “shall determine 

the true boundary lines.” 

When reading Section 14 as a whole, the trial court has essentially three options: 

(1) it may accept the original survey; (2) it may reject the original survey and it is 

permitted to order that a new survey be performed by a different surveyor from the

surveyor who performed the original survey; (3) it may reject the original survey and 

order the county surveyor to locate and mark the boundary lines with durable markers in 

the proper places according to the trial court’s findings based upon evidence presented to 

it, including previous surveys. 

This interpretation is consistent with the language used in Section 14 and gives 

effect to the entire section, which we strive to do. Moreover, by requiring the trial court 
17

to order the county surveyor to locate and mark the boundary lines according to its 

findings, in effect, establishes a new legal survey. 

Here, although the trial court was well-intended, it misspoke when it concluded 

that:

while the Court recognizes that it may order a new survey be made by a 

competent person, the [court] declines to do so for the reason that the 

evidence is overwhelming that the Lane Alan Schrader Trust already has in 

its possession two (2) surveys prepared by competent persons which clearly 

show the boundary lines of the Trust property. That no other adjoining 

property owners are disputing the boundary lines of their real estate as their 

property is set out pursuant to the original deed call outs and lies in relation 

to the Trust property as surveyed by both Turning Point Surveying, Inc., in 

2004, and Progressive Engineering in 2005.

Appellant’s App. p. 16. 

It is clear that the trial court did not accept the Torrenga Survey and did not choose 

to order a new survey. Accordingly, in light of the trial court’s findings, which we have 

already determined were not clearly erroneous, the trial court should have ordered the 

county surveyor to locate the boundary lines with durable markers in the proper places 

according to its findings that were based on the evidence. In this case, that evidence was 

the Turning Point Survey and the Progressive Survey. Consequently, the trial court 

should have ordered the county surveyor to mark the boundary lines according to the 

Turning Point Survey and the Progressive Survey rather than simply imposing those two 

surveys. Put another way, the trial court did not err by accepting the two previous 

surveys but skipped a step by imposing them. Therefore, we conclude that the trial court 

erred by imposing the two previous retracement statutes. 
18

CONCLUSION

Although we conclude that the trial court did not err by rejecting the Torrenga 

Survey, it did err by imposing the two prior surveys. Strict notice requirements must be 

satisfied for a legal survey to be conducted, and no evidence was produced to show that 

proper notice was given before the two previous surveys were conducted. The trial court 

had three options: It could either accept the Torrenga Survey, order that a new survey be 

performed, or order the county surveyor to mark the boundary lines according to the trial 

court’s findings as supported by the evidence. This interpretation is consistent with the 

language of Section 14 and harmonizes Section 10 and Section 14. Accordingly, we 

reverse and remand to the trial court with instructions that it enter a new order consistent 

with this opinion. 

The judgment of the trial court is reversed and remanded with instructions.

ROBB, C.J., and BRADFORD, J., concur.