Hoose v Doody (IN)

886 NE2d 83 (Ind Ct App 2008), trans. den.

Facts: In 1946, William Osborn, Donna Osborn, and Garrett Osborn (collectively the Osborns) recorded the Plat of Osborn's Subdivision (Plat). In 1952, Michael Hoose's parents obtained a warranty deed for real estate located in the Plat. The deed stated that the grantees were granted Lot 8 and the grantors conveyed "proprietorship of the land directly between said lot and lake and agrees that no buildings or occupancy will be allowed thereon…If said strip of land is ever vacated, owners of lot no. Eight (8) shall have priority of purchase." Michael and his wife took title of the property in 1997.

In 2003, the Doodys established a revocable trust that had Lot 9 of the Plat as part of its assets. The parties did not dispute that the area north of Lot 9 is a dedicated park to be used by any and all Osborn's Subdivision residents, and that is designated as such on the Plat. However, the parties did disagree as to whether the area directly north of Lot 8 ("the Disputed Area") is a dedicated park. A faint "7" is barely visible on the copies of the record of the Plat. In 1953, the owners of Osborn's Subdivision attempted to record an amended plat that identified the area directly north of Lot 8 as a dedicated park. This plat was vacated, however, because not all owners had signed the amended plat.

In 2006, the Doodys installed a pier that encroached on the Disputed Area. Later in 2006, the Hooses filed a verified complaint for declaratory and injunctive relief against the Doodys, alleging the warranty deed granted to Michael's parents conveyed exclusive use of the Disputed Area and the right to exclude others. The Hooses also claimed that aside from record title, they owned the Dedicated Area by adverse possession. The Doodys filed an answer to the complaint and a counterclaim against the Hooses, claiming that the Disputed Area was a park to which they, as owners of a lot in Osborn's Subdivision, had a right to use. The trial court held that the Hooses did not own the Disputed Area exclusively. The Hooses appealed.

Holding: Affirmed. The appellate court disagreed with the Hooses that the language of the warranty deed unambiguously conveyed the Disputed Area to Michael's parents. The court found that the grantors of the deed knew how to convey ownership and would have used the same language with regard to the Disputed Area as they used for Lot 8 had they intended to convey ownership.

The court also disagreed with the Hooses' argument that the lower court erred in finding that they did not acquire title by adverse possession. Indiana Code Section 32-21-7-1 requires that a claimant or adverse possessor pay and discharge "all taxes and special assessments that the adverse possessor or claimant reasonably believes in good faith to be due on the land or real estate during the period the adverse possessor or claimant claims to have possessed the land or real estate adversely." The Hooses testified that they did not pay the taxes on the Disputed Area because the auditor did not include it on the tax rolls. The appellate court agreed with the trial court that this admission is an acknowledgment by the Hooses that they knew they were not paying taxes on the Disputed Area, meaning they could not reasonably have believed that they both owned the Disputed Area and did not have to pay taxes on it.

Finally, the appellate court agreed with the Doody's that the Hooses waived argument that the latter acquired a prescriptive easement because this was not raised before the trial court. The appellate court affirmed trial court's judgment.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Thu, 11/06/2008 - 1:23pm