HOLEWIAK v. JONES

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Docket Number

No. 971A184.

Attorney(S)

Jesse A. Brown, Brown, Brown Rakestraw, of Rochester, for appellants. James O. Wells, Jr., of Rochester, for appellees.

Judges

SHARP, J.

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Smart Summary

Factual and Procedural Background

The Plaintiffs-Appellees, Allabelle Jones and George S. Jones, operating as George S. Jones Company, filed a complaint against the Defendants-Appellants, Gabriel J. Holewiak and Lois F. Holewiak, alleging trespass and seeking injunctive relief. The dispute centered on property boundaries in Fulton County, Indiana. The Plaintiffs alleged ownership of a described parcel of land and that a legal survey was conducted on November 27, 1962, by the Fulton County Surveyor at their request, establishing the north and west boundary lines and corners. This survey was recorded on April 3, 1963, and no appeal was taken within the statutory period. The Defendants constructed and maintained a wire fence approximately ten feet inside the Plaintiffs' west boundary line, constituting trespass. The Defendants denied the allegations and contended that the survey was erroneous, alleging an agreement with the county surveyor to correct it, which was not fulfilled, and that they relied on this agreement to forgo appealing the survey.

The trial court found in favor of the Plaintiffs, holding the survey valid and conclusive, determined that the Defendants trespassed by maintaining the fence on Plaintiffs' land, awarded damages, and enjoined further trespass. The Defendants filed a Motion to Correct Errors, raising eight specifications, but only challenged the sufficiency of evidence and whether the decision was contrary to law on appeal. The Court of Appeals affirmed the trial court's judgment.

Legal Issues Presented

Whether the legal survey conducted by the Fulton County Surveyor, which was not appealed within the statutory period, is conclusive as to the property boundaries between the parties.
Whether the evidence presented supports the trial court's finding that the Defendants trespassed on the Plaintiffs' property by constructing and maintaining a fence within the Plaintiffs' boundary.
Whether the trial court's judgment is contrary to law or unsupported by sufficient evidence.

Arguments of the Parties

Defendants-Appellants' Arguments

The legal survey conducted by the county surveyor was erroneous and the plat itself showed errors in establishing the property lines.
The Fulton County Surveyor agreed to correct the survey but failed to do so, and the original, allegedly incorrect survey was recorded contrary to this agreement.
The Defendants relied on the agreement with the surveyor and therefore did not appeal the survey within the statutory period.

Plaintiffs-Appellees' Arguments

The legal survey was valid, correctly conducted, and duly recorded after proper notice and no appeal was taken within the statutory period, rendering it conclusive.
The Defendants trespassed by constructing and maintaining a fence within the Plaintiffs' property lines as established by the legal survey.
The Defendants' affirmative defenses did not state facts sufficient to constitute a defense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Herbst, et al. v. Smith, 71 Ind. 44 (1880)	Legal survey statutes create a conclusive presumption of correctness for established corners and lines if no appeal is taken within the statutory period.	The court relied on Herbst to affirm that the survey, unappealed and duly recorded, was conclusive between the parties, barring reopening of boundary questions.
Berry v. Town of Fowler, 240 Ind. 443, 166 N.E.2d 333 (1960)	Weight and credibility of conflicting evidence are for the trial court to decide, not for appellate review.	The court applied this principle to defer to the trial court’s resolution of evidentiary conflicts.
Snider v. Truax, 222 Ind. 8, 51 N.E.2d 477 (1943)	In reviewing sufficiency of evidence, appellate courts must consider evidence most favorable to the appellee.	The court applied this standard in affirming the trial court’s findings.
Rowe v. Johnson, 223 Ind. 289, 60 N.E.2d 529 (1945)	A trial court's decision will only be set aside as contrary to law if the evidence is without conflict and leads to but one conclusion opposite to that reached.	The court found conflicting evidence existed and upheld the trial court’s judgment accordingly.

Court's Reasoning and Analysis

The court began by recognizing that the legal survey was conducted pursuant to Indiana statutes governing legal surveys, which require the county surveyor to establish property lines and corners after notice to adjoining owners, with a statutory period for appeal. The survey in this case was properly requested, notice was given, and no appeal was taken within the prescribed ninety days. Under the controlling statute and longstanding precedent in Herbst v. Smith, such a survey becomes conclusive between the parties after the appeal period expires.

The court noted the Defendants' argument that the survey was erroneous and that the county surveyor agreed to correct it but failed to do so. However, the court found that the Defendants did not timely appeal the survey as required by statute and that the agreement alleged did not excuse this failure. The court emphasized that reopening boundary disputes after the appeal period would undermine the certainty the statute intended to provide.

Regarding the evidence, the court deferred to the trial court’s determination of the weight and credibility of conflicting testimony, including the surveyor’s testimony and evidence of longstanding boundary landmarks consistent with the survey. The Defendants admitted to building a fence that encroached upon the Plaintiffs' property as established by the legal survey.

Consequently, the court concluded that the trial court’s findings were supported by sufficient evidence and were not contrary to law, warranting affirmance of the judgment.

Holding and Implications

The Court of Appeals of Indiana affirmed the trial court's judgment.

The court held that the legal survey conducted by the county surveyor, after proper notice and without timely appeal, is conclusive as to property boundaries between the parties. The Defendants' construction and maintenance of a fence within the Plaintiffs' established boundary constituted trespass. The trial court's award of damages and injunction was supported by sufficient evidence and consistent with the law.

The decision directly resolves the boundary dispute between these parties and enforces the finality of legal surveys under Indiana law. No new precedent was established beyond reaffirming existing statutory interpretation and appellate standards.

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GABRIEL J. HOLEWIAK AND LOIS F. HOLEWIAK v. ALLABELLE JONES AND GEORGE S. JONES, D/B/A GEORGE S. JONES CO.

1. STATUTES — IC 1971, 17-3-58-5 and 17-3-67-1 — Property — Legal Surveys. — The statutes providing for legal survey in Indiana are IC 1971, 17-3-58-5 and IC 1971, 17-3-67-1, which provide, in effect, that after corners and lines are established by the county surveyor at the request of an owner, and after prescribed notice to the owners of affected adjoining lands, the lines so established shall be prima facie evidence of the correctness of such lines and corners, and that an appeal may be taken within 90 days as to the correctness of such lines and corners; after the time provided by statute for appealing such survey, the survey becomes conclusive between the parties as to the corners and lines so established. p. 593.

2. APPEAL — Standard of Review. — The weight and credibility of conflicting evidence are questions to be resolved by the trial court and not for a reviewing court on appeal, and in reviewing the sufficiency of the evidence, the Court of Appeals must consider the evidence most favorable to the plaintiff-appellee. p. 594.

3. APPEAL — Verdict Contrary to Law — Standard of Review. — It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law. p. 595.

SHARP, J.

The original complaint in this case was filed by the Plaintiffs-Appellees, Allabelle Jones and George S. Jones, d/b/a George S. Jones Company, against Gabriel J. Holewiak and Lois F. Holewiak, Defendants-Appellants on the 28th of August, 1964. Subsequently an amended complaint for trespass and restraining order was filed in which it was alleged that the Plaintiffs-Appellees were the owners of the following described real estate situated in Fulton County, State of Indiana, to-wit:

Beginning at a point 174 feet West of the Southeast corner of Lot No. 4 in Hamilton Taber's Addition of Out Lots to the Town, now City of Rochester, Indiana, said point being on the North line of Sixth Street in said City; thence West 150 feet; thence North 120 feet; thence East to the West line of Minnow Creek Ditch; thence Southeasterly along said Ditch to the North line of a tract of land owned by Norman Teel; thence West to a point directly North of the place of beginning; thence South to the place of beginning.

Said complaint further alleges that on the 27th day of November, 1962, at the request of the Plaintiffs-Appellees and after due notice was served upon the Defendants-Appellants a legal survey of the above described real estate was conducted by the Surveyor of Fulton County, Indiana. That said survey did set and establish the north and west lines and did perpetuate the corners of the above described real estate.

It is further alleged that said survey was duly recorded in the office of the Recorder of Fulton County, Indiana, on the 3rd day of April, 1963, and that no appeal was made to said survey. Said amended complaint further alleged that the lines so established and the corners so perpetuated had been in existence for a period of more than thirty years. The complaint further alleged that contrary to said survey in the year 1960 the Defendants-Appellants did construct and have since maintained a wire fence which is approximately ten feet within the west boundary line of the real estate owned by the Plaintiff-Appellees. That in the construction of said fence it is alleged that the Defendants-Appellants did trespass on the real estate of the Plaintiffs-Appellees and have, since construction of said fence, used said property of the Plaintiffs-Appellees to their own use and benefit. Said complaint prays for a restraining order and injunction against the continuance of said trespass and encroachment.

The Defendants-Appellants filed an answer in denial and a second paragraph of affirmative answer which states in part as follows:

"2. That the survey, as conducted by said surveyor, is in error and the plat prepared by the surveyor from such survey shows on its face that the same is in error and does not properly establish the lines of the real estate described in rhetorical paragraph 1 hereof."

The Defendants-Appellants for their third affirmative paragraph of answer alleged in part as follows:

"2. That thereafter on or about January 15, 1963, the then surveyor of Fulton County, Indiana, agreed with these defendants that said survey was in error and further agreed to correct the same and relocate the boundaries established.

3. That the surveyor failed to properly correct said survey as agreed and thereafter the survey as originally made was recorded at the office of the recorder of this county on the 3rd day of April, 1963, contrary to the agreement with defendants.

4. That the defendants, relying upon the agreement with said surveyor, failed to take the necessary steps to appeal from said survey."

Thereafter the Plaintiffs-Appellees demurred to the second and third paragraph of answer on the ground that neither of said paragraphs stated facts sufficient to constitute a defense to the Plaintiffs' amended complaint. The trial court overruled said demurrer as to the second paragraph of answer and sustained it as to the third paragraph of answer. (The ruling on this demurrer is not argued here.)

On the 17th day of March, 1971, the trial court entered the following judgment:

"The Court now finds that the allegations of the plaintiffs' complaint are true; that the plaintiffs were owners of the real estate described in the complaint; that on the 27th day of November, 1962, the Surveyor of Fulton County, Indiana, conducted a legal survey of said real estate which did set out and establish the north and west lines and did perpetuate the corners of the real estate described in the plaintiff's complaint of which the plaintiffs were owners; that said survey is valid, correct and final; that the defendants did construct in the year of 1960 and have since maintained a wire fence on the land of the plaintiffs and did commit trespass on the lands of the plaintiffs; that said fence should be removed immediately; and that the plaintiffs were damaged by said trespass in the amount of $500.00, and should recover the costs of this action.

THEREFORE, IT IS ORDERED AND ADJUDGED by the Court that the defendants did commit trespass upon the lands of the plaintiffs; that the fence constructed heretofore should be removed forthwith; that the plaintiffs shall recover from the defendants for damages for said trespass the sum of $500.00 and the costs of this action; and that the defendants are enjoined from further trespassing upon the grounds of the plaintiffs."

Thereafter the Motion to Correct Errors of the Defendants-Appellants was filed and overruled and this appeal resulted. The Motion to Correct Errors contains eight specifications of error. However, the Appellants have only presented argument here on the specifications that the decision of the trial court is not sustained by sufficient evidence and is contrary to law. All other specifications not argued here are therefore waived.

Prior to the submission of the evidence in the trial of this case it was stipulated by all parties that a legal survey was made by the Surveyor of Fulton County, Indiana, of the property described in the Plaintiffs' complaint and, that due notice had been given of the legal survey to the Defendants, and that no appeal was taken of the survey which was duly recorded in the office of the Recorder of Fulton County, Indiana. At no time was there any objection to or evidence entered to contest this stipulation. Lois Sholey, Fulton County Recorder, identified the request for a legal survey made by the Plaintiffs, the notice of survey to the Defendants, together with certificate of service and the survey prepared by the County Surveyor in accordance with said request for survey and notice. These items were admitted into evidence without objection. This exhibit was shown to have been the survey of the lands of the Plaintiffs and Defendants and was recorded in the records of Fulton County, Indiana.

George S. Jones, one of the Plaintiffs, testified that he was the owner of the land described in the legal survey and presented a deed to the court showing himself to be the owner of said land. This deed was admitted into evidence without objection. Gabriel J. Holewiak, one of the Defendants, testified that he was the owner of the land adjacent to the Plaintiffs' land and that he had actual notice of the legal survey when it was made by the County Surveyor. The Defendant further admitted that he had a fence built to separate the Plaintiffs' and Defendants' properties and that the legal survey by the County Surveyor showed this fence to have been placed on the Plaintiffs' property.

Robert E. Cook, the present Fulton County Surveyor, testified that the fence built by Mr. Holewiak was 9.85 feet over onto the Plaintiffs' property. The worksheet used by the Surveyor in preparing the legal survey was entered into evidence and shows that the fence built by the Defendants to be 9.8 feet over onto the Plaintiffs' property.

The pertinent statute providing for legal survey is Ind. Stat. Ann. § 49-3311 (Burns 1964) through § 49-3314. (Sections 1. 49-3311 and 49-3312 were repealed by Acts 1969, ch. 96, Sect. 6.)

The above statute provides, in effect, that after corners and lines are established by the County Surveyor at the request of an owner of land in the State, and after prescribed notice to the owners of affected adjoining lands, the lines so established shall be prima facie evidence of the correctness of such lines and corners and that an appeal may be taken within ninety days as to the correctness of such lines and corners. After the time provided by statute for appealing such survey, the survey, while prima facie evidence of the location of the corners and lines during the time the appeal is permitted by statute, becomes conclusive between the parties as to the survey as to the corners and lines so established.

In this case, after due notice to the Defendants, such a legal survey was made by the County Surveyor. This survey established lines and corners between the Plaintiffs' and Defendants' properties. The Defendants did not appeal the correctness of the corners and lines established by this survey within the time limit prescribed by the statute. The correctness of the lines and corners established by this survey then becomes conclusive as between the Plaintiffs and Defendants.

The Plaintiffs-Appellees urged that there was not sufficient evidence to support the decision in this case. The Deputy Surveyor, who made this survey, and who is now County Surveyor, testified that the procedure used in determining the lines and corners established by this survey was correct and that the lines and corners established by the survey was correct. The evidence shows that the Plaintiffs and Defendants took title from a common chain of title. Landmarks accepted as boundary lines were testified to as having existed as early as 1936. These landmarks were shown to be correct by the legal survey.

In a landmark decision our Supreme Court in Herbst, et al. v. Smith (1880), 71 Ind. 44, in interpreting a survey statute which is identical to the one here involved except for the time limitation on appeal from the survey, stated:

"It is clear to our minds, that the Legislature intended that, when a survey should be made in accordance with that statute, it should be conclusive unless appealed from as herein provided for.

There would not only be little necessity or use of an appeal, but there would be little certainty as to corners, lines and boundaries, if the question could be reopened as often as a new surveyor might come in, or as often as any of the landlords affected by the survey might desire to have the question reopened. The statute says, `The survey of such surveyor shall be prima facie evidence in favor of the corners so established, and the lines so run, but an appeal may be taken,' etc. The object of the statute was, as we think, to make such survey prima facie evidence, etc., during the time in which an appeal could be taken, and perhaps pending an appeal when taken; but, where no appeal is taken, the survey becomes, after the time limited therefor, conclusive. Otherwise, such survey settles nothing that may not, upon a new survey and without any appeal, be unsettled. A new survey may doubtless be had, not for the purpose of establishing the corners, lines or boundaries, as an original survey; but for the purpose of re-locating or perpetuating the corners, lines or boundaries established by such original survey, where they have become obscured or lost."

Herbst v. Smith still represents the law of Indiana. It is authority for us to affirm the decision of the trial court.

The weight and credibility of conflicting evidence are questions to be resolved by the trial court and not for a 2. reviewing court on appeal. See Berry v. Town of Fowler (1960), 240 Ind. 443, 166 N.E.2d 333.

In reviewing the sufficiency of the evidence this court must consider the evidence most favorable to the appellee in this case. Snider v. Truax (1943), 222 Ind. 8, 51 N.E.2d 477.

It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion that the decision of the trial court 3. will be set aside on the ground that it is contrary to law. Rowe v. Johnson (1945), 223 Ind. 289, 60 N.E.2d 529. Such is not the case here.

We find that the decision of the trial court is supported by sufficient evidence and that such decision is not contrary to law. Therefore, such decision should be and hereby is affirmed.

Affirmed.

Hoffman, C.J. and Staton, J., concur.

NOTE. — Reported in 281 N.E.2d 113.