Lagro Township filed an action in Wabash Circuit Court against Bitzers seeking to exercise control over an area of land referred to as “the Belden Cemetery,” which is located on land owned by the Bitzers. The trial court granted summary judgment in favor of the Bitzers. The Township appealed and claimed that the trial court erred. The Court of Appeals upheld the trial court. Lagro Twp. vs. Bitzer
In 1872, the Fry’s deeded one acre of their real estate in Wabash County to “the public” to be used as a cemetery. This parcel was located on a larger, 219-acre parcel of land that was eventually purchased by the Bitzers in 1967. There was dispute as to how many deceased persons were buried in the Belden Cemetery over the years, but it is undisputed that there were some gravestones and markers in the Belden Cemetery. From the time the Bitzers purchased the land in 1967, they maintained that Township never contacted them about the Belden Cemetery or otherwise attempted to maintain the cemetery. The Township says differently.
In September 2006, the Wabash County Assessor was directed by the State to assign a tax identification number to each and every parcel of land in Wabash County. The Assessor did so and, for the first time, the cemetery was given its own tax identification number, showing it as exempt from property tax. The cemetery was described incorrectly as being east of a center section line, as opposed to its actual location west of the line, and also incorrectly listed the property as consisting of 1.57 acres instead of one acre. Because the cemetery was misidentified on the tax records, no exempt acreage was ever deducted from the Bitzers’ property taxes. In other words, since 1967, the Bitzers’ property taxes have included assessments for the land on which the cemetery is located.
In December 2009, the Bitzers cleared the cemetery area, save for the two marked graves of Solomon and Nancy Fry, around which they placed a fence. In May 2011, the Township filed a complaint against the Bitzers seeking to quiet title, establish the Township’s interest in preserving the Belden Cemetery, and recover damages for the Bitzers’ actions. Karen Pinkerton Tatro, a relative of someone allegedly buried at the cemetery, also filed a claim for intentional infliction of emotional distress against the Bitzers. Her claim was later dismissed. The trial court granted the Bitzers’ motion for summary judgment and denying the Township’s motion for summary judgment. The Township appealed.
The statute authorizing a Township Trustee to exercise control over cemeteries located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there was no genuine issue of material fact with regard to the Bitzers’ payment of property taxes on the land on which the Belden Cemetery is located for decades. For that reason alone, the Township’s claims of authority over the Belden Cemetery failed.