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Friday, June 12, 2015

Ind. Decisions - Supreme Court grants transfer in adverse possession case

The Supreme Court in an order (downloadable PDF only) filed June 11, 2015, granted a petition to transfer in the case of McNamara et al. v. Zollman Farms, et al. This was an 11-page, Jan. 13, 2015 NFP (now vacated) Court of Appeals opinion:

Timothy McNamara and his sisters, Tamara Goodfellow and Teresa Melton (collectively “Appellants”), own a landlocked forty-acre tract in rural Jackson County that has been in their family for decades. Appellants filed a complaint against nearby landowners, including Zollman Farms, Inc. (“Zollman”), requesting that a path that runs from a county road to their property be declared a public road by virtue of its use for over twenty years before the relevant statute regarding public roads was amended in 1988. After hearing evidence and visiting the site, the trial court found that Appellants and others had used the path for over twenty years before 1988 but concluded that Appellants had failed to establish the existence of a public road by use.

On appeal, Appellants agree with the trial court’s factual findings but contend that the court reached the wrong conclusion based on those findings. We agree with Appellants and therefore reverse and remand for further proceedings consistent with this opinion. * * *

Based on the undisputed facts and the relevant caselaw, we conclude that Appellants established the existence of a public road by use and that the trial court erred in concluding otherwise. Therefore, we reverse and remand with instructions to enter judgment in favor of Appellants and for further proceedings consistent with this opinion, such as determining the width of the road and any additional relief to which Appellants may be entitled, such as the removal of Zollman’s gate and fence. See Pitser v. McCreery, 172 Ind. 663, 674, 88 N.E. 303, 308 (1909) (“[T]he width at the end of the 20 years’ user is the width the statute fixes as the width of the highway.”). Reversed and remanded.

Posted by Marcia Oddi on June 12, 2015 06:41 PM
Posted to Indiana Transfer Lists