Law School Case Brief
Marengo Cave v. Ross - 212 Ind. 624, 10 N.E.2d 917 (1937)
A record title may be defeated by adverse possession. Before the owner of the legal title can be deprived of his land by another's possession, through the operation of the statute of limitation, the possession must have been actual, visible, notorious, exclusive, under claim of ownership and hostile to the owner of the legal title and to the world at large, except only the government, and continuous for the full period prescribed by the statute.
A landowner brought an action to quiet his title against the cave owner's claim that it owned the entire cave including the portion that extended underneath the landowner's property. The trial court ruled in favor of the landowner. The cave owner claimed it had title to the portion of the cave that extended underneath the landowner's property by adverse possession. On appeal, the court affirmed the trial court's decision and held that the cave owner's possession for 20 years or more of that part of the cave underlying the landowner's property was not open, notorious, or exclusive, as required by the law applicable to obtaining title to land by adverse possession. Moreover, The court held that the statute of limitations did not begin until the landowner discovered that the possession of his property had been invaded.
Are the elements which are essential to establish title by adverse possession present in this case?
The possession by the cave owner was not visible. No one could see below the earth's surface and determine that the cave owner was trespassing upon the landowner's property. This fact could not be determined by going into the cave. Only by a survey could this fact be made known. The same undisputed facts clearly show that the cave owner's possession was not notorious. Not even the cave owner itself nor any of its remote grantors knew that any part of the "Marengo Cave" extended beyond its own boundaries and at no time, even up to the time the landowner instituted this action, did the cave owner make any claim to the lands. The landowner and his predecessors in title at all times have been in possession of the land, which he is now claiming. No severance by deed or written instrument was ever made to the cave, from the surface.
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