Opinion
NO. 2016-CA-000881-MR
06-15-2018
LOIS PROWS APPELLANT v. JACKIE BAME AND LEROY BAME APPELLEES
BRIEF FOR APPELLANT: Patrick E. O'Neill Jackson, Kentucky BRIEF FOR APPELLEE: Darrell A. Herald Jackson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WOLFE CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, JUDGE
ACTION NO. 14-CI-00114 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: Lois Prows appeals from the Wolfe Circuit Court's judgment following a bench trial denying her action to quiet title and finding Jackie and Leroy Bame had acquired certain property via adverse possession and further finding Prows' property to be subject to prescriptive easements. Finding no error, we affirm.
Lois purchased two adjoining tracts of land from her parents in 1980. In 1993, Lois and her husband, Dallas Prows, conveyed part of one tract to Lois' brother, Floyd Spencer, and his wife, Mildred. The property was not surveyed, and rough measurements of directional lines comprised the deed description. Shortly after the conveyance, Floyd built a home on his property. Floyd made improvements on his land and on portions of the adjoining land belonging to the Prowses. Floyd treated those portions of land as his own. Floyd paid taxes on 6.5 acres, a much larger acreage than described in the deed, which represented the area he used, maintained, and claimed as his own.
In 1997, Floyd built a garage which extended onto the Prowses' property. The Prowses were aware of the construction and Dallas talked to Floyd about it, but nothing further was done. Later that year, after the garage was built, Floyd filed for divorce. Neither Floyd nor Lois felt Floyd was being treated fairly with respect to the division of property in his divorce. As a result, they concocted a plan to drive down the value of Floyd's land, which was designated for sale by the Master Commissioner. Floyd and Lois fabricated a boundary dispute and the Prowses became party to Floyd's divorce action. As a result, a deed was generated in 1999 with different agreed upon boundary descriptions than the 1993 deed to make the land less appealing to potential bidders. The 1999 deed description was used at the commissioner's sale and in the deed of sale to Floyd, the highest bidder. Floyd continued to use and pay taxes on the land, as he had previously, and lived there until his death.
In 2012, a quitclaim deed was executed by Mildred to Floyd in the interest of "quieting of title and in further consideration of the acceptance to transfer property in the Final Decree" of the parties' divorce action. The property description in the 2012 deed was the same as in the 1993 deed.
In 2013, Floyd died and his daughter, Jackie Bame, inherited his property. In 2014, Lois filed a quiet title action. A bench trial was conducted, and a judgment entered establishing boundary lines and prescriptive easements on Lois' property. Lois appeals, asserting the trial court erred by: (1) allowing the Bames to use fraud as a defense at trial, (2) finding the Bames acquired title to property by adverse possession, and (3) finding the Bames have prescriptive easements on Lois' property.
As a preliminary matter, we note Lois' brief fails to comply with CR 76.12(4)(c)(v), requiring "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." "The importance of this rule is to ensure that 'the trial court should first be given the opportunity to rule on questions before they are available for appellate review.'" Southside Real Estate Developers, Inc. v. Pike County Fiscal Court, 294 S.W.3d 453, 457 (Ky. App. 2009) (quoting Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)). However, one exception to this rule is "when the record sufficiently demonstrates that the issue presented in the appellate court was contested before the trial court[.]" Id. (citing Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 481-82 (Ky. App. 2005)). Additionally, "[i]n actions tried by the court without a jury, the sufficiency of evidence to support the findings of fact may be raised on appeal without regard to whether there was an objection to such findings or whether there was a post-judgment motion." Eiland v. Ferrell, 937 S.W.2d 713, 715-16 (Ky. 1997) (citing CR 52.03). Because the record is brief, and the principal arguments on appeal relate to sufficiency of the evidence presented to the trial court, we will ignore the absence of preservation statements in Lois' brief. However, counsel is cautioned such latitude may not be extended in the future.
Kentucky Rules of Civil Procedure. --------
The standard of appellate review in land dispute actions is well-established:
[s]ince this case was tried before the court without a jury, its factual findings "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A factual finding is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people. "It is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence." With respect to property title issues, the appropriate standard of review is whether the trial court was clearly erroneous or abused its discretion, and the appellate court should not substitute its opinion for that of the trial court absent clear error.Cole v. Gilvin, 59 S.W.3d 468, 472-73 (Ky. App. 2001) (internal footnotes omitted).
The crux of this case is whether the court's findings of adverse possession and prescriptive easements are supported by substantial evidence. On careful review, we hold the trial court's findings are supported by substantial evidence. We further hold the trial court did not clearly err and did not abuse its discretion.
First, Lois alleges the trial court erred in allowing the Bames to use fraud as a defense at trial. We hold fraud as a "defense" is largely irrelevant in this case and the admission of any such evidence at trial was not error because the only fraud alleged was regarding Lois' and Floyd's attempt to defraud Mildred, who neither has an interest in the disputed land nor was otherwise a party to the action. The trial court was entitled to consider testimony regarding the fictitious boundary dispute as it related to possession of the land and the credibility of Lois' testimony. The trial court ultimately found substantial evidence the Bames acquired title via adverse possession as well as prescriptive easements to Lois' property without the need to rely on fraud as a defense to establish the same.
Second, Lois claims the trial court erred in finding the Bames acquired title to property by adverse possession. It is well-established to acquire title by adverse possession the possession must be hostile and under claim of right, actual, open, notorious, exclusive, and continuous for at least fifteen years. Tartar v Tucker, 280 S.W.2d 150 (Ky. 1955). Lois asserts she gave Floyd permission to use the land, which prevented Floyd and his successors (the Bames) from acquiring title via adverse possession. However, the trial court heard Lois testify she gave Floyd permission to use her land and found it not credible. The court further found the five requirements to establish adverse possession outlined in Tartar were met. This finding was supported by substantial evidence and shall not be disturbed.
Third, Lois argues the trial court erred in finding the Bames have prescriptive easements to use her property.
The law of prescriptive easements is derived from the principles underlying adverse possession of property interests generally. As a general matter, in order to obtain a right to a prescriptive easement, a claimant's adverse use must be "actual, open, notorious, forcible, exclusive, and hostile, and must continue in full force . . . for at least fifteen years." A prescriptive easement is a property right in one landowner (dominant tenement) representing a privilege to use the land of another (servient tenement) and is based on a presumed grant that arises from the adverse, uninterrupted, and continued use for a 15-year statutory period. "[T]he adverse possession of a grantee may be tacked on to that of his grantor to complete the statutory period."
In Pickel v. Cornett, [285 Ky. 189, 147 S.W.2d 381 (1941),] the former Court of Appeals noted that while the elements for obtaining a prescriptive easement were similar to those for obtaining a fee simple title to land by adverse possession, the former represented an incorporeal hereditament with a less stringent standard of use.
A private passway may be acquired by prescriptive use although a right of way is not strictly a subject of continuous,
Cole, 59 S.W.3d at 475 (internal citations omitted). Once again, Lois asserts her permission for Floyd to use portions of her land prevented him (and his successors) from procuring a prescriptive easement. However, the trial court heard this testimony and found it not credible. Without credible proof of permissive use, the trial court did not err in finding the Bames met their burden to establish the existence of prescriptive easements. This finding was supported by substantial evidence and shall not be disturbed.exclusive, and adverse possession. It is sufficient if the use exercised by the owner of the dominant tenement is unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period.
For the foregoing reasons, the judgment of the Wolfe Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Patrick E. O'Neill
Jackson, Kentucky BRIEF FOR APPELLEE: Darrell A. Herald
Jackson, Kentucky