Opinion
No. 85A02-9110-CV-440.
February 24, 1992.
Appeal from the Circuit Court Wabash County, Daniel J. Vanderpool, J.
William M. Bloom, Bloom, Bloom Gage, P.C., Columbia City, for appellants-plaintiffs.
Larry T. Miller, Fort Wayne, for appellee-defendant.
This appeal arises from a property dispute between Roger and Sandra Hossler (plaintiffs) and Michael Hammel (defendant), owners of adjoining lots in Austin's Addition to the original plat of the town of Etna, Indiana.
The facts relevant to the appeal disclose that the Kecks and the Wheelers, the original owners of the lots, had surveys made in 1953, after which they agreed upon a common boundary line. When plaintiffs purchased their lot in 1970, they agreed to the established boundary line without a survey, and when defendant purchased his lot in 1977, he, too, agreed to the established boundary line without a survey. Plaintiffs rented their lot for several years and had a survey made in 1988 in order to sell the lot. The survey indicated the Addition was 9 feet longer east to west than shown in the original plat, and the surveyor allocated the extra footage equally among 6 lots. When defendant became aware of the survey, he insisted that the entire 9 feet be allocated to his lot due to his previous purchase of property in the original plat. After numerous threats from defendant to demolish 8 feet of their garage, plaintiffs filed an action to quiet title in the disputed strip of land. Following a bench trial, the court entered findings of fact and conclusions of law establishing the property line as that which the parties had originally agreed upon but denying damages to plaintiffs for slander of title.
The sole issue for our review is whether plaintiffs failed to meet their burden of proving the elements necessary to prevail on their slander of title claim.
To prevail in a slander of title action, the plaintiff must prove that the defendant made false statements regarding the plaintiff's ownership of the land in question, that the defendant made the statements with malice, and that the statements caused the plaintiff pecuniary loss. Davis v. Sponhauer (1991), Ind. App., 574 N.E.2d 292, 300. As plaintiffs note on page 29 of their brief, "[t]he bone of contention in this case is whether the Defendant uttered statements with malice." Malicious statements are those made with knowledge of their falsity or with reckless disregard for whether or not they were false. Id.
In Freiburger v. Fry (1982), Ind. App., 439 N.E.2d 169, this Court found malice where, despite the description in his deed, the defendant had actual knowledge of an existing fence separating the property and that the owner on the other side refused to move it. Id. at 174. The instant case is similar to Freiburger in that, while defendant may have been relying on the results of plaintiffs' survey in making his statements, he had actual knowledge of the boundary line from the realtor who sold him the lot as well as from the survey. Cf. Davis at 300 (surveys defendant relied upon in making statements concerning ownership of property did not reveal agreed-upon boundary line; therefore, defendant did not act with malice in making statements). Moreover, the evidence was undisputed that the boundary line had been agreed upon for over 30 years, and once a person possesses property for 10 years in a continuous, adverse, notorious and exclusive manner, title vests in that person by operation of law. Id.
As the party with the burden of proof on the slander of title issue, plaintiffs are appealing from a negative judgment. Therefore, to be successful, they must establish that the judgment is contrary to law. Toskos v. Swank (1991), Ind. App., 578 N.E.2d 712, 714. As both parties note, defendant did not testify at trial, and neither of his two witnesses testified as to any statements he made regarding the boundary line. Plaintiffs, on the other hand, presented evidence that defendant threatened to bulldoze their garage, cut holes in their garage with a chainsaw, and keep livestock in their garage. Because this evidence and the evidence of defendant's actual knowledge of the agreed-upon boundary line were without conflict and led to a conclusion opposite that reached by the trial court, the judgment of the trial court is contrary to law and reversed.
Reversed and remanded for determination of damages.
GARRARD and STATON, JJ., concur.