dissenting.
I respectfully dissent from the majority’s determination that Frys established slander of title. Freiburgers’ statements claiming ownership of the disputed area cannot be considered malicious. The disputed area Freiburgers claimed was within the boundaries of the land conveyed to them by a recorded warranty deed. In contrast, Frys’ claim to the disputed area was not based on any written instrument, but rather on the theory of boundary line estoppel. Neither Freiburgers nor their immediate successor in title had been a party to this agreed boundary line. Based on these circumstances, Freiburgers had reasonable grounds to believe they had a legal claim to the disputed area.
Any titleholder of record ought to be able to dispute another’s claim without risking liability for slander of title. This includes, without limitation, actions involving adverse possession, implied easements, and prescriptive easements. As to the latter, a titleholder has a statutory procedure whereby he may give notice to dispute the prescriptive user’s right over the titled land, such notice being deemed an interruption of such use. IC 32-5-l-(l-4) (Burns Code Ed., 1980 Repl.). Consistent with this statute is the notion that a dispute of an adverse claim is often required to negate any purported acquiescence to the claim or admission of its validity. Freiburgers’ color of title should therefore indicate that their claim to the disputed area was made in good faith.