Altevogt v Brand (IN)

Summary: A plat that provides easements for “use by owners and their guests,” does not dedicate those easements to the public, but creates a private easement co-owned by all owners in the subdivision.

 Altevogt v Brand, 963 NE2d 1146 (Ind. Ct. App., 2012).

Facts:  Owners of front lots in a lakeshore subdivision brought action against the owners of the back lots, seeking to quiet title to portions of land situated between their homes and the lake shore.  The front lots are along the lake but are separated from the shoreline by “the Indian Trail,” which is an easement for use of all lot owners in the subdivision and their guests.

At the trial court hearing, the owners of the back lots of the subdivision argued on a motion for summary judgment that their access to the lake would be impaired if the front lot owners prevailed. The court ruled for the back lot owners and the front lot owners appealed, arguing that the land had been statutorily dedicated for a public use easement subject to the “underlying fee ownership of each Lakefront owner.” The front lot owners claimed to hold title to the portions of the Indian Trail by way of adverse possession. The front lot owners also argued that the court was wrong to determine that the owners of the lots in the subdivision were co-tenants of the Indian Trail.

Holding:  The court of appeals affirmed the grant of summary judgment to the back lot owners. The facts were insufficient to support a claim for a statutory dedication of the land for public use. The plat and survey clearly stated that “all drives, alleys, and walks are for use of the owners of the lots and their guests.” The court distinguished “public use” from “use by owners and their guests,” and therefore found that the plat’s express statements showed that  those portions of the land were not for “public use.”

The front lot owners were unable to prove the elements of control and intent to claim full and exclusive possession to prove title by adverse possession. While it was disputed who the fee owner of the Indian Trail was vested in, all owners of lots in the subdivision and their guests had an easement to use the property and therefore a determining the fee owner was unnecessary to conclude that the Plaintiffs did not established title by adverse possession. Using land which they had a right to use was not adverse, and there was no attempt to exclude the other owners who also held a right to use the land. 

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By: ATG Underwriting Department | Posted on: Fri, 05/25/2012 - 12:59pm