Grace v. Koch

692 N.E.2d 1009 (1998)

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Nature of the Case

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Facts

P built a house on land that had been given to him by his parents from a larger tract that they owned. P constructed a house and driveway. P and his father built a split-rail fence thirty-four feet to the north of the driveway to keep livestock from straying. The fence did not follow the property line, and a thirty-four-foot strip between the driveway and the fence was wholly inside the parents' parcel. In 1970, P sold to Ds. P obtained an easement from his parents over their parcel so that the D could use the existing driveway, which encroached on by five feet, and conveyed this easement to Ds. Ds knew that they did not own the land between the driveway and the fence, which was part of the parent's parcel. Ds began using the strip as a side yard and continued to use it as such through the time of the current litigation. In 1991, P became the owner of the parent's parcel. At some point in 1970, D sought permission from P to mow the grass on the strip and received express permission. The parents agreed. Ds parked cars on it, installed a swing set, planted a tree, stored oil drums, and erected a carport. There were no disputes over the ownership or use of the strip from 1970 through 1991. P became upset about the noise from a race car belonging to Ds' son. In July 1992, D spread gravel over the strip, and P objected and ordered D to stop trespassing. D refused. { parked on the strip to prevent D from spreading more gravel and P removed the portions of the fence that separated the strip from the remainder of his parcel. P sued D for trespass, seeking an injunction and damages. Ds filed a quiet title action claiming adverse possession. The trial court found that Ds owned the strip by adverse possession and awarded them $577.49 in damages. The court of appeals reversed, in that Ds 'did not prove by clear and convincing evidence, not even by a preponderance, that their use of the strip was sufficiently exclusive, hostile, or notorious for the required twenty-one years to take title to the strip by adverse possession.' Ds appealed.