MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 09 2017, 8:44 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Steven E. Ripstra
Ripstra Law Office
Jasper, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James L. Hochgesang, June 9, 2017
Appellant-Plaintiff, Court of Appeals Case No.
13A01-1608-PL-1944
v. Appeal from the Crawford Circuit
Court
Stanley McLain Sr., The Honorable Kenneth Lynn
Appellee-Defendant. Lopp, Judge
Trial Court Cause No.
13C01-1504-PL-13
Robb, Judge.
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Case Summary and Issue
[1] Following a bench trial, the trial court concluded James Hochgesang failed to
establish the existence of a prescriptive easement by clear and convincing
evidence. Hochgesang now appeals, raising the sole issue of whether the trial
court’s judgment is clearly erroneous. Concluding the trial court’s judgment is
not clearly erroneous, we affirm.
Facts and Procedural History
[2] Hochgesang owns several parcels of real estate in Crawford County, Indiana,
two of which are at issue in this appeal. One parcel, which Hochgesang
acquired in February of 1995, consists of 141 acres; the other parcel, which
Hochgesang acquired in December of 1995, consists of 115 acres and adjoins
the 141 acre parcel (collectively, the “Property”). Hochgesang purchased the
115 acre parcel from Ronald McIntosh. McIntosh owned the property from
approximately 1992 to 1995. Prior to McIntosh’s ownership, the parcel was
owned by Melvin and Alice Buchanan for about twenty years. As to the 141
acre parcel, the prior owner was James Buggs, who purchased the land on
contract from Tash & Souders Auction Service (“T & S Auction Service”).
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T & S Auction Service purchased the land from George and Ethel Patton, who
owned the land since approximately 1930.1
[3] To access his Property, Hochgesang drives on a gravel roadway located on
property owned by Stanley McLain, Sr. The gravel roadway originates from a
public road, leads to McLain’s house, and continues until it reaches the
property line between McLain’s and Hochgesang’s properties.2 Hochgesang
has used this roadway to access his Property since he purchased the Property in
1995 and uses the Property for logging, hunting, and recreational purposes.
Hochgesang often allows his friends and family to hunt on his Property and
utilizes some of the Property for farming.
[4] McLain purchased his home and property in 2011. From approximately 1991
to 2011, the property was owned by several different people, including Ronnie
McLain, Robert Ritter, and Steven Lynch.3 Prior to these owners, Melvin and
Alice Buchanan owned the property for several decades before selling it in the
early 1990s. Originally, McLain had no objections to anyone using his road.
However, in 2012, McLain informed Hochgesang he would no longer be able
to access the roadway. When Hochgesang refused to stop using the road,
1
The record is unclear when the property was sold by the Pattons to T & S Auction Service, and from T & S
Auction Service to Buggs.
2
No other roads exist for Hochgesang to access his Property; however, because Hochgesang owns a third
parcel of real estate that adjoins his Property and a public road, the easement at issue is a prescriptive
easement and not an easement by necessity.
3
The record is also unclear who specifically owned the real estate during that period of time.
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McLain used cables and a bulldozer to block vehicles from using the road.
McLain still permits farmers to use the road to reach their fields. Following
their dispute, Hochgesang purchased an easement from Donald Tucker to
access his Property.
[5] On April 23, 2015, Hochgesang filed a complaint alleging he had established a
prescriptive easement over McLain’s property and that McLain should be
enjoined from blocking his use of the easement. On April 26, 2016, the trial
court held a bench trial. At trial, Hochgesang presented the testimony of David
Buchanan, Virgil Shelton, Donald Tucker, Dexter Eastridge, and McLain.
[6] David Buchanan, the son of Melvin and Alice Buchanan, testified his parents
owned McLain’s property and sold it in 1990 or 1991. He lived at the property
from 1959 to 1978. Concerning the use of the gravel roadway, Buchanan
stated,
[T]here’s two guys of the T&S Auction Service and I don’t
remember which one’s son actually lived back there for a short
period of time and, of course, they used the road. And anybody
that wanted to use the road . . . they just drove up . . . we thought
well they were coming to the house, but they would just go on
past and we just thought well they’re going back to the Patton
farm.
Transcript, Volume 2 at 65-66. Buchanan further stated he was not aware of
whether permission was ever granted to use the gravel road.
[7] Virgil Shelton, a friend of the Buchanans and Hochgesang, testified he has used
the roadway to access the Property for hunting. Shelton also testified he always
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asked permission to hunt, but was unaware of whether permission was ever
granted to use the roadway. Shelton did not state when, or how often he used
the roadway.
[8] Hochgesang also presented the testimony of Donald Tucker, McLain’s
neighbor to the south. Tucker stated the roadway has existed for his entire life
and he always assumed the road was a public road; anyone who wanted to
access the Property had permission, in his opinion. He also testified he saw
James Buggs use the road a couple times, but not very often.
[9] Finally, Hochgesang presented the testimony of Dexter Eastridge, a tenant who
rented McLain’s property when it was owned by Robert Ritter. Eastridge
rented the property from Ritter from 1996 to 1999 and observed Hochgesang
and those who Hochgesang permitted to hunt the Property use the roadway.
[10] On July 22, 2016, the trial court issued its order denying Hochgesang’s
prescriptive easement claim. Specifically, the trial court found:
FINDINGS OF FACT
***
5. The roadway in dispute for which [Hochgesang] seeks a
prescriptive easement is a “two-track” gravel drive located
on the real estate owned by [McLain] that [Hochgesang]
asserts he uses to access [his Property].
6. The first portion of the roadway extends from Belcher
Road to [McLain’s] residence. The second portion of the
roadway runs along the boundary line of [McLain’s] real
estate and real estate owned by Don Tucker.
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***
11. [Hochgesang] asserts that he has used the roadway located
upon [McLain’s] real estate beginning February 1, 1995,
and continuing thereafter until February of 2012, being a
period of Seventeen (17) years, under a claim of right and
adverse to [McLain].
12. [Hochgesang] asserts that the predecessors in title of [the
Property] used the roadway located upon [McLain’s] real
estate for a period of time that exceeds twenty (20) years
....
13. [Hochgesang] did not present specific evidence identifying
the predecessors in title of [his Property], [sic] that
identified the name of the legal owners of the real estate
and the exact period of [t]ime that the predecessors in title
owned the real estate.
14. [Hochgesang] testified that he never asked the prior
owners of [McLain’s] real estate for permission to use the
roadway and that he never asked [McLain] for permission
to use the roadway.
***
19. [Hochgesang] did not present any evidence regarding the
ownership of [McLain’s] real estate for the period of 1991
through 2012.
***
CONCLUSIONS OF LAW
***
7. [Hochgesang] failed to present evidence to support the
element of Intent. . . . [Hochgesang] failed to present any
evidence that his predecessors in title intended to claim full
or exclusive ownership of the roadway on [McLain’s] real
estate . . . .
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8. The evidence presented by [Hochgesang] does not support
the element of Notice. [Hochgesang’s] actions and the
actions of [Hochgesang’s] predecessors in title were not
sufficient to give actual or constructive notice to [McLain]
or [McLain’s] predecessors in title of [their] intent . . . .
9. The evidence presented by [Hochgesang] does not support
the element of Duration. [Hochgesang’s] testimony claims
he was exercising exclusive control of the real estate for
the period of February 1, 1995, through February 2012, a
period consisting of seventeen (17) years. To establish the
element of duration, [Hochgesang] was required to show
and establish the elements of Control, Intent, and Notice
for a period of twenty years, including a period of three (3)
years prior to [Hochgesang’s] ownership of the real estate.
[Hochgesang] failed to present clear and convincing proof
of each of the elements required to establish a prescriptive
easement during the three (3) year period preceding
[Hochgesang’s] ownership . . . .
Appellant’s Appendix, Volume 2 at 6-13. Hochgesang now appeals.
Additional facts will be added as necessary.
Discussion and Decision
I. Standard of Review
[11] At the outset, we note McLain did not file an appellee’s brief. In cases where
an appellee fails to file a brief, we apply a less stringent standard of review but
we will not develop arguments on his or her behalf. Vandenburgh v.
Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App. 2009). If the appellant is able
to establish prima facie error, or error at first sight, we may reverse the trial
court. Id. However, an appellee’s failure to submit a brief does not relieve us of
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our obligation to correctly apply the law to the facts in the record in order to
determine whether reversal is required. Id.
[12] Further, the trial court entered findings of fact and conclusions thereon in its
order denying Hochgesang’s complaint for a prescriptive easement. Our review
is therefore governed by Trial Rule 52(A). First, we consider whether the
evidence supports the factual findings and then consider whether those findings
support the trial court’s judgment. Bass v. Salyer, 923 N.E.2d 961, 964 (Ind. Ct.
App. 2010). We will not set aside the findings or judgment unless they are
clearly erroneous. Id. Findings are clearly erroneous when there are no facts in
the record to support them; a judgment is clearly erroneous if it relies on an
incorrect legal standard. Id. We give substantial deference to the court’s
findings of fact but not to its conclusions, which are reviewed de novo. Id.
II. Prescriptive Easements
[13] As our caselaw has often stated, prescriptive easements are generally not
favored in the law; for that reason, a party claiming a prescriptive easement
must meet stringent requirements. Wilfong v. Cessna Corp., 838 N.E.2d 403, 405
(Ind. 2005). A party seeking to establish the existence of a prescriptive
easement must establish “proof of (1) control, (2) intent, (3) notice, and (4)
duration.” Id. at 406. Each element of a prescriptive easement must be proven
by clear and convincing evidence and “must be established as a necessary,
independent, ultimate fact,” with the burden of proof on the party asserting the
prescriptive easement. Id. at 405-06. If a party successfully demonstrates the
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existence of a prescriptive easement, the rights vest by operation of law.
Downing v. Owens, 809 N.E.2d 444, 452 (Ind. Ct. App. 2004), trans. denied.
[14] As noted above, the trial court concluded Hochgesang failed to demonstrate the
existence of a prescriptive easement by clear and convincing evidence.
Specifically, the trial court noted Hochgesang failed to prove the elements of
intent, notice, and duration. A party’s failure to demonstrate any one element
is fatal to its claim. Wilfong, 838 N.E.2d at 405.
[15] To satisfy the element of intent, “the claimant must demonstrate intent to claim
the right to use the [land] for a specific purpose.” Whitman v. Denzik, 882
N.E.2d 260, 265 (Ind. Ct. App. 2008). With respect to notice, “the claimant’s
actions with respect to the land must be sufficient to give actual or constructive
notice to the legal owner of the claimant’s intent to use and control the tract.”
Id. As to the element of duration, the “right-of-way . . . from, in, upon, or over
land owned by a person may not be acquired by another person by adverse use
unless the use is uninterrupted for at least twenty (20) years.” Ind. Code § 32-
23-1-1.
[16] Finally, in reviewing a judgment requiring proof by clear and convincing
evidence, we are guided by the principle that
an appellate court may not impose its own view as to whether the
evidence is clear and convincing but must determine, by
considering only the probative evidence and reasonable
inferences supporting the judgment and without weighing
evidence or assessing witness credibility, whether a reasonable
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trier of fact could conclude that the judgment was established by
clear and convincing evidence.
Fraley v. Minger, 829 N.E.2d 476, 483 (Ind. 2005) (citation omitted).
III. Element of Intent
[17] Regarding the element of intent, the trial court concluded Hochgesang failed to
establish his predecessors-in-title intended to claim the right to use the gravel
road. In its findings of fact, the trial court noted Hochgesang failed to produce
any specific evidence regarding the predecessors-in-title to his Property and
whether their intent to use the roadway was established from the years 1992 to
1995. After reviewing the record, we agree with the trial court’s findings that
the evidence concerning both Hochgesang’s and McLain’s predecessors-in-title
and their use of the roadway is sparse.
[18] Hochgesang claims he has established the existence of a prescriptive easement
dating back thirty to seventy years, which is more than sufficient to meet the
twenty-year requirement. However, as noted by the trial court in its order,
there is sparse evidence, if any at all, concerning the years needed by
Hochgesang to establish a prescriptive easement. Hochgesang alleges he used
the gravel roadway without interference or permission from the time he
purchased the Property in February of 1995 until McLain prohibited his use of
the road in February of 2012, a period of seventeen years. Therefore,
Hochgesang must tack the use of the gravel road by his predecessors-in-title to
establish the easement. See Wolfe v. Gregory, 800 N.E.2d 237, 240 (Ind. Ct. App.
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2003) (noting “tacking,” or the continuous use of an easement by predecessors-
in-title, may be added to the use of the present claimant to satisfy the twenty-
year requirement). Further, we note prescriptive easements may be abandoned,
Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 258 (Ind. 2015), and we
therefore find it irrelevant whether the roadway was used up to seventy years
prior to Hochgesang’s purchase. The relevant time period needed by
Hochgesang to establish the existence of a prescriptive easement is 1992 to
2012.
[19] From what we can gather from the record, Hochgesang’s predecessors-in-title
from the relevant time period were Ronald McIntosh and James Buggs/T & S
Auction Service. The prior owners of McLain’s property were Ronnie McLain,
Robert Ritter, and/or Steven Lynch.4 None of these people or entities testified
concerning the use of the gravel roadway or whether their permission was
sought or given. See Downing, 809 N.E.2d at 455-56 (noting use is not adverse
or hostile when permission is given). And although David Buchanan, Virgil
Shelton, and Donald Tucker testified generally the road was in use by those
seeking to access the Property, they offered few specific details concerning who
4
To the extent our rendition of the ownership of the properties is incorrect, we note the appellant produced
an inadequate record of who owned the properties during what time period, who used the roadway, and how
often. In addition, we note Hochgesang challenges the trial court’s finding number nineteen, which states,
19. [Hochgesang] did not present any evidence regarding the ownership of [McLain’s]
real estate for the period of 1991 through 2012.
Appellant’s App., Vol. 2 at 10. We note this finding is clearly erroneous as we have recited the
available evidence of the prior ownership of the real estate.
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used the roadway or how often and it was within the trial court’s sound
discretion to weigh that evidence and determine whether it meets the
heightened standard of clear and convincing proof. Fraley, 829 N.E.2d at 483.
We further note Buchanan and Shelton both testified they were unaware
whether any of the prior owners of McLain’s property ever gave anyone
permission to use the road. Given the witnesses’ lack of personal knowledge
about whether permission was ever granted and the lack of specific testimony
concerning use of the roadway during the years of 1992 to 1995, we cannot say
the trial court’s judgment that Hochgesang failed to prove the element of intent
by clear and convincing evidence is clearly erroneous.5
[20] In sum, Hochgesang simply did not present clear and convincing evidence
establishing the existence of a prescriptive easement. It is not our prerogative to
weigh evidence or judge the credibility of witnesses; that task remains within
the trial court’s sound discretion and the trial court determined the evidence
presented by Hochgesang did not meet the heightened standard of clear and
convincing proof. Based on the evidence presented and the “stringent
requirements” necessary to establish a prescriptive easement, we cannot say the
trial court’s findings or judgment are clearly erroneous. See Wilfong, 838 N.E.2d
at 405.
5
Because Hochgesang has not demonstrated the element of intent for the requisite statutory period, he
likewise has not met the element of duration. Further, in light of our conclusion regarding the element of
intent, we need not address Hochgesang’s argument regarding the element of notice.
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Conclusion
[21] The trial court’s judgment that Hochgesang failed to establish the existence of a
prescriptive easement by clear and convincing evidence is not clearly erroneous.
The judgment of the trial court is affirmed.
[22] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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