January-February Vol. 5, No. 1

Casenotes

Indiana

Surveys

Ludban v Burtch, 951 NE2d 846 (Ind Ct App, 2011).

Facts: Three families – the Ludbans, the Burtches, and the Reeds – owned various pieces of property in Wolcottville, Indiana. The three families brought suit against each other to establish boundary lines between their respective properties after different surveys of the land reached varying results. One survey of the land, referred to by the court as the Renkenberger survey, was done first. Then the Burtches commissioned Loralee Taylor to survey their land in October 2008. In November 2008, the Ludbans hired Gerald Teders to perform a legal survey. Two separate surveys were then done of the Ludban and Reed propertyies, one by Duane Brown commissioned by The Reeds to challenge the Teders survey, and another by Gregory Roberts.

When these surveys revealed conflicting descriptions of the boundary lines between the properties, the Ludbans sued the Burtches, the Burtches counterclaimed against the Ludbans, and the Reeds filed a separate complaint against the Ludbans. The two cases were then consolidated for trial.

The trial court found that the Teders survey commissioned by the Ludbans had several problems and was less reliable than the other surveys. The court, therefore, held that the Teders survey was void of any legal effect. It found that the Taylor and Brown surveys correctly established the boundary lines between the three parties. The Ludbans complaint against the Burtches was thus denied. The Ludbans then appealed.

Holding: Affirmed. The Ludbans raised several issues on appeal with regards to their dispute with the Burtches and their dispute with the Reeds. The court of appeals examined and dismissed each of the Ludbans' arguments.

The first argument the Ludbans raised on appeal was that the Taylor survey commissioned by the Burtches should be void because Taylor did not search for controlling physical monuments as required by 865 Indiana Administrative Code Section 1-12-10(1). The Ludbans argued that the survey could not establish a boundary line because Taylor only located the southeast corner of the property and other points along the western boundary line but did not establish the northeast corner. The court dismissed this argument because "the Ludbans cite no authority that two corners must be located in order to establish a line." The court found that it was sufficient to find one corner and then subsequent points along the line, and even quoted the Appellee's brief to make the point that this "is an elementary fact of geometry."

Next, the Ludbans argued that the trial court had erroneously held that a fence separating the Ludban and Burtch properties was the proper boundary line. The fence corresponded with the boundary line as established in the Taylor survey the Renkenberger survey and the plat of the area. The Ludbans themselves had put up the fence. The Ludbans testified at trial that the fence was not meant to represent a boundary but instead was merely "decorative landscaping upon which to plant raspberry bushes." The court dismissed this argument on appeal as a request to reweigh the evidence. The trial testimony had already been evaluated by the trial court and it was held that the fence was the proper boundary line.

The Ludbans' last argument regarding the Burtches was that they had obtained a portion of the Burtches land by adverse possession. The court found this argument to be "without merit." The court found that the Ludbans did not meet the elements of adverse possession because they did not properly control the property in question. The Ludbans conceded that Burtches used the disputed portion of property at the same time that the Ludbans claimed to be using it. Adverse possession cannot occur unless the possession is exclusive.

The Ludbans' first argument on appeal against the adverse judgment against them in the Reeds case was that the court wrongly discredited the Teders survey. The trial court found that the Teders survey erroneously created a new tract of land. The Ludbans argued that the Teders survey was correct and that the Brown and Roberts surveys had both measured the boundary line incorrectly. However, the court held that the Ludbans did not adequately explain why the measurements were incorrect and the issue was dismissed.

The Ludbans also argued that the property line shown in the Teders survey had been established by acquiescence. Under Indiana law, if two adjoining landowners put up a divider between their properties and treat it as a legal boundary, then they are estopped from denying that it is a boundary line. The Ludbans pointed to a stone wall erected by the Reeds predecessors as an example of such a boundary. But the court found that the stone wall had been built to separate the land from a public right of way which previously existed on the property and was not intended to mark the boundary between theirs and the Ludbans land.

The Appellate Court found that the evidence supported the trial court's determination that the Teders survey was unreliable. Among other problems, the survey did not have the monumentation contained in the surveys done by Renkenberger, Taylor and Brown. Thus, the Teders survey was "null and void" and the Brown and Taylor surveys were held to accurately describe the legal boundary lines between the Ludbans and the Reeds and the Ludbans and the Burtches respectively.

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