Marengo Cave Co. v. Ross
212 Ind. 624, 10 N.E.2d 917 (1937)
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Rule of Law:
To acquire title by adverse possession, the possessor's use of the property must be open and notorious, meaning it must be of such a character as to provide the true owner with notice of the invasion of their rights. Use of a subterranean property, unknown and undiscoverable by the surface owner through reasonable diligence, does not satisfy the open and notorious element of adverse possession.
Facts:
- In 1883, the entrance to Marengo Cave was discovered on land now owned by the appellant.
- Shortly thereafter, the appellant's predecessors in title took possession of the entire cave, operating it as a commercial tourist attraction, charging admission, and making improvements such as building concrete walks and steps.
- The appellee purchased his adjoining parcel of land in 1908 and had lived in the vicinity since 1903.
- For over 46 years, the appellant and its predecessors held exclusive possession of the cave, believing it was entirely under their own land.
- A portion of the cave extended under the land owned by the appellee, but this fact was unknown to either party.
- The subterranean trespass was only discovered in 1932 through a court-ordered survey conducted as part of the present lawsuit.
- The appellant's possession and use of the cave never interfered with the appellee's use and enjoyment of the surface of his land.
Procedural Posture:
- Appellee initiated an action in the Crawford County trial court to quiet his title to the portion of the cave underlying his land.
- Appellant filed a cross-complaint seeking to quiet its title to the entire cave, claiming ownership by adverse possession.
- Following a trial, a jury returned a verdict in favor of the appellee.
- Appellant's motion for a new trial was overruled by the trial court.
- Appellant appealed the trial court's judgment to the Indiana Court of Appeals.
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Issue:
Does the operation of a commercial cave for the statutory period constitute open and notorious possession sufficient to establish title by adverse possession to the portion of the cave that unknowingly extends beneath an adjoining landowner's property?
Opinions:
Majority - Roll, J.
No. The operation of the cave for the statutory period does not constitute open and notorious possession sufficient to establish title by adverse possession. To defeat a record title, possession must be actual, visible, notorious, exclusive, under a claim of ownership, hostile, and continuous for the statutory period. The core purpose of the 'open and notorious' requirement is to provide the legal owner with notice, either actual or constructive, that a stranger is asserting dominion over their land. Here, the appellant's possession was entirely subterranean and clandestine; the appellee had no means of knowing his property was being invaded. An owner cannot reasonably be expected to know of a trespass deep within the earth. Citing cases involving underground mining, the court held that to require an owner to take notice of a subterranean trespass at the time it occurs is to 'require an impossibility.' The statute of limitations for such a hidden trespass does not begin to run until the injured party discovers, or with reasonable diligence might have discovered, the facts. Because the appellant's use was not open or notorious, it failed to meet the essential requirements for adverse possession.
Analysis:
This case clarifies the application of the 'open and notorious' element of adverse possession to unseen, subterranean property. It establishes that for possession to be notorious, it must be discoverable by the true owner through reasonable observation of their property. The decision effectively imports a discovery rule, typically used in tort and fraud cases, into the real property context, tolling the statute of limitations for adverse possession until the owner knows or should have known of the hidden trespass. This precedent is significant for disputes involving subsurface rights, such as mining and underground caverns, where an encroachment is not visible from the surface and cannot be easily detected.
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