October 9, 2009
Court issues opinion on property dispute at Tippecanoe

For the second time in less than two years, the Indiana Court of Appeals has issued an opinion involving a property dispute on the south shore of Lake Tippecanoe.

The most recent appeal originated when Kosciusko County Circuit Court Judge Rex L. Reed ruled that Daisy Farm Limited Partnership, owner of a lot in Cripplegate Heights, did not acquire title by adverse possession of a triangular-shaped parcel that had been deeded to Michael and Jill Morrolf, owners of an adjoining lot.

The case had been remanded back to the Kosciusko Circuit Court to clarify whether Daisy Farm had presented clear and convincing evidence to prove all elements of an adverse possession claim.

The north end of the parcel that abuts Lake Tippecanoe is a "beach area" and was created when fill was added to the lake many years ago. The area was subject to use as an easement by lot owners in Cripplegate Heights following a court decision in 1938. The south end of the parcel includes a portion of a 30-foot wide strip public easement known as "Lake Boulevard" that runs across many of the platted lots in the area.

Daisy Farm contended that it met all of the elements of adverse possession, including actual controlling the parcel, demonstrating intent to claim control of the parcel, notifying the landowner of intent to claim exclusive control, and doing so continuously for a period of at least 10 years.

Failure to establish any one element of an adverse possession claim, however, can defeat a claim.

Attorneys for Daisy Farm argued that placement of a fence, the planting of a row of hedges and a flower bed, as well as mowing the area by the previous owner of the area demonstrated actual and exclusive possession of the triangular parcel. They also pointed to evidence that suggested the hedges were in place for many years.

A witness, however, testified the hedge was there only four or five years. Evidence also indicated that previous owners of both lots occasionally mowed each other's property as a matter of courtesy and, therefore, mowing was not hostile to the owner of the parcel. And finally, although the fence had been erected in 1968 or 1969, it was located solely on the lot owned by Daisy Farm.

In addition, the Appellate Court had previously stated in its 2008 opinion that the trial court erred in not considering whether Daisy Farm had substantially complied with a section of Indiana Tax Code that requires an adverse possessor to pay, or believe to be paying, taxes on the property.

Because the evidence did not indicate Daisy Farm had exercised exclusive control over the triangular area and had not paid taxes on the parcel, the Appellate Court affirmed the decision that Daisy Farm had not established its claim of adverse possession.

The recent opinion, issued October 9, 2009, can be found at: http://www.in.gov/judiciary/opinions/pdf/10090912ehf.pdf

The earlier opinion dated May 16, 2008 can be found at: http://www.in.gov/judiciary/opinions/pdf/05160803ghs.pdf

In the earlier decision, the Appellate Court also examined how pier rights of adjoining landowners could be determined by extending the property lines of the lots into the lake.

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