Adverse possession "must be strictly proved" and supported by "competent and substantial evidence."
How later courts described this case
- Adverse possession "must be strictly proved" and supported by "competent and substantial evidence."
Written by the judges who cited it.
The opinion
*701 On Petition For Rehearing
Cooper, P. 3.
Appellee’s petition for rehearing urges that our opinion contravenes the ruling of the Supreme Court of Indiana in the following cases: Pittsburgh, etc. R. Co. v. Stickley (1900), 155 Ind. 312 , 58 N. E. 192 ; Rosenmeier v. Mahrenholz (1913), 179 Ind. 467 , 101 N. E. 721 , and Echterling v. Kalvaitis (1955), 235 Ind. 141 , 126 N. E. 2d 573 .
The cases cited by the appellee do not aid her under the evidence in the case at bar nor does this court’s opinion contravene the rulings of the Supreme Court in said cases.
In the case of Pittsburgh, etc. R. Co. v. Stickley, supra, the evidence shows that a fence had been built or located at a place the parties thought the true line to be; that a house had been built upon the land and other improvements made. Twenty-five years later it was discovered that the fence was not on the true line, the old fence was torn down and a new fence was erected on the true line. In that case the evidence disclosed actual possession, improvements to the land and also all the elements of adverse possession. The pertinent part of the Supreme Court’s ruling under such evidence was, “The possession for twenty-five years was continuous, open, peaceable, and under a claim, established by evidence, that the old fence was the true boundary, a claim that appellant acquiesced in until it was too late to object.”
In the Rosenmeier case, supra, the evidence disclosed that one Meinert and Opperman, landowners, located a line boundary and upon that line a fence was built and maintained for forty years and for that period of time it was recognized as the true line by the parties. Under those circumstances, the Supreme Court stated, “It has been decided many times in this State that the location of a division boundary fence, acquiesced in and *702 acted upon, and the premises improved and used up to the line by each owner for twenty years becomes the true line.” (Our emphasis.)
The Echterling case, supra, is another line-fence case in which the Supreme Court stated, “Substantial evidence shows that the appellees and their predecessors in title had continuous, open, and notorious, adverse possession of land up to an established boundary-line fence for a period of twenty years, which conferred fee-simple title to the strip in question by operation of law, and the original title of the appellants was thereby extinguished.”
The legal principles enunciated by our Supreme Court in the cases referred to are sound and of long standing. But, they are without aid to the appellee in this case as not applicable to the facts and circumstances established by the evidence in the record before us.
Petition for rehearing overruled.
Bowen, J., and Pfaff, J., not participating.
NOTE. — Reported in 143 N. E. 2d 573 .
Rehearing denied, 145 N. E. 2d 307 .