Opinion
NO. 2012-CA-000169-MR
02-14-2014
NORMAN H. CLARK AND SHIRLEY ANN CLARK APPELLANTS v. JOE VAN METER AND CARL VAN METER APPELLEES
BRIEF FOR APPELLANT: Alton L. Cannon Elizabethtown, Kentucky BRIEF FOR APPELLEE: Donald W. Cottrell Leitchfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 10-CI-00518
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: Norman H. Clark and Shirley Ann Clark (the Clarks) appeal from the Grayson Circuit Court's order awarding Joe Van Meter and Carl Van Meter ownership of a strip of land that bisects the Clarks' farm. After careful review, we affirm.
The Clarks and the Van Meters are owners of adjacent property. They obtained their respective property from a common predecessor in title, Nettie Armes. Ms. Armes and her husband, T.A. Armes, conveyed a ten-acre tract to Mark J. Cave, a predecessor-in-title to the Van Meter brothers, by deed dated December 17, 1941, and recorded in Deed Book 28, Page 146. Later, Ms. Armes and her husband conveyed property to the Clarks' predecessor-in-title, Cliva Ray Mercer and Anthoinette Mercer (Shirley Clark's mother and father) by deed dated August 8, 1953, and recorded in Deed Book 47, Page 625. In that deed, Ms. Armes failed to exclude or except out the property conveyed to Mark J. Cave in Deed Book 28, Page 146. This ten-acre tract, which we shall refer to as Tract 4, is the root cause of this lawsuit. All conveyances were recorded in the office of the clerk of Grayson County, Kentucky.
Attorney Donald W. Cottrell, who represents the Van Meter brothers in this action, sent a letter dated October 26, 2009, to Norman Clark, demanding that Mr. Clark "quit making false statements" about the ownership of the property. The Van Meter brothers did not institute any legal proceedings against the Clarks at this time, but on September 10, 2010, attorney Thomas H. Goff sent a letter on behalf of the Van Meter brothers to the Clarks, informing them that he intended to charge them with certain criminal offenses, namely "Criminal Trespass, Terroristic Threatening &/or Harassment." Despite this threat, no criminal action was taken.
The Clarks filed the instant action to quiet title to Tract 4. The trial court conducted a bench trial. At that trial, the parties testified, and Doyle Hardin, a registered land surveyor from Grayson County, Kentucky, testified for the Clarks. Steven R. Brown, a registered land surveyor, testified for the Van Meter brothers. The surveyor's plat drawings were entered into the record as exhibits.
Mr. Hardin could not determine where Tract 4 came off or was located. After Mr. Hardin examined the deeds, he determined that Tract 4 had to be an exception that had not been removed from the Clarks' predecessors-in-title's deed.
Mr. Brown testified that he was able to establish the schoolhouse lot corner, that he was able to follow an old fenceline and evidence on the ground, that he followed the fence to the cliff across the creek at the top of a bluff, and that he located another corner post and followed it to a point in the field where an old stump with an embedded fence was located. Based on the evidence he found on the ground, the property showed on his survey is where Tract 4 of the Van Meter's Deed is located and was the property line between the Clarks' and the Van Meter brothers' property. He further stated that Tract 3 was located next to Tract 4 of the Van Meter brothers' property.
Shirley Clark also testified. She discussed the remnants of an old fence that possibly existed sometime in the past; however, she did admit that there was no fence suitable to maintaining livestock enclosing the subject property. In addition, she testified that around 1999, when the Van Meter brothers questioned her concerning her ability to cut timber on property that they claimed they owned, she ceased having the timber cut. She stated that she stopped because she had cut all the timber she wanted. Ms. Clark further discussed various ways her father used the property, but she was not specific about locations. Norman Clark also testified. Mr. Clark tried to establish some boundary line or fence; however he admitted that the fence had not been maintained for a minimum of seventy-five years, possibly longer, to enclose the property. He also testified concerning the fact that the Van Meter brothers had asked the Clarks to quit cutting timber and claimed ownership of that section of the property. Although there was disputed ownership of the property at that time, the Clarks did stop cutting the timber.
At the close of the bench trial, the trial court announced that it was ruling in favor of the Van Meter brothers and instructed their attorney to draft a judgment. That order was entered on December 19, 2011, and this appeal followed.
As their first argument on appeal, the Clarks argue that the trial court's findings of fact should be set aside because they are not supported by substantial evidence. Kentucky Rules of Civil Procedure (CR) 52.01 states that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial judge to judge the credibility of the witnesses." See also A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999). Findings of fact are not clearly erroneous if supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people. Id. at 414. "It is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence." Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118 (Ky. 1991).
In support of their argument that the trial court's findings of fact were not supported by substantial evidence, the Clarks contend that a deed of conveyance must contain an adequate description of the land being conveyed and argue that the Van Meter brothers' deed does not contain an adequate description of Tract 4.
The Van Meter's deed contains the following description:
BEGINNING at the north west corner of the Old School House Lot; thence west with said line to the creek; thence crossing the creek northwest to the Dug Road; thence northwest with the Dug Road Jim Wilson's line; thence northeast to the beginning corner containing 10 acres, more or less.Mr. Brown testified as to how he arrived at the conclusion that the Van Meter brothers owned this particular plot of land based on their deed. Mr. Brown testified that the corner beginning at the northwest corner of the Old School House lot was agreed to by all parties and was a point that was readily able to be discovered. Mr. Brown stated that he followed in a western direction line, being with a row of fence posts, and was able to follow that line to a creek. He continued to cross the creek and went up a bluff and found a corner post on top of the bluff. He then proceeded to the field where he located a stump that had embedded wire, which is another significant point. He explained how he used monuments on the ground and locations of old fences to determine and lay out this tract of land.
Further, as the Van Meter brothers point out, the Clarks hired another surveyor, Larry Johnson, in 1998 to conduct a survey of their property, and Mr. Johnson pointed out the discrepancy regarding Tract 4 and refused to certify or complete the survey of the Clark property. In fact, the Clarks claim that they owned additional property contrary to the opinion of both Mr. Johnson and their own surveyor, Mr. Hardin. Mr. Hardin stated that the Clarks maintained that they owned the property to the creek; however, his survey work showed that their property did not run as far as they said it did.
We agree with the Van Meter brothers that the description of Tract 4 contained in their deed and not excepted from the Clarks' deed was adequate to convey that tract to the Van Meter brothers. When determining whether or not a property description in a deed is adequate, it has been established that:
Courts are liberal in construing descriptions in deeds with a view of determining whether a description is sufficiently definite and certain to identify the land and make the instrument operate as a conveyance. They apply the maxim, 'That is certain which can be made certain,' and if a surveyor with the deed before him can with the aid of extrinsic evidence locate the land and establish its boundaries, the description is held to be sufficient.Ken-Tek Exploration Co., Inc. et al. v .Conner, 251 S.W.2d 280, 281 (Ky. 1952) (citing 16 AmJur. 'Deeds', § 262, p. 585; Casteel v. Pennington, 228 Ky. 206, 14 S.W.2d 753; Culton v. Napier, 272 Ky. 384, 114 S.W.2d 480). The trial court was in the best position to judge the credibility of the surveyors, and Mr. Brown was able to determine the boundaries of the tract at issue in this case. The trial court's findings were supported by substantial evidence, and we will not disturb them on appeal.
The Clarks also argue that the deed for their farm contains an adequate description, and that deed, coupled with their possession of the property since 1953, establishes their ownership of the entire property. The Van Meter brothers respond that the Clarks could only prevail in their ownership of the property in one of two ways: A) that they had title to the property; or B) that they had adversely possessed the property for the requisite amount of time.
As stated above, the Clarks deed was introduced. Neither that document, nor the Clarks' own surveyor, could establish the property lines. Their previous surveyor, Larry Johnson, also could not certify the lines between the Clark and the Van Meter properties. Thus, it was abundantly clear that the Clarks do not have record title to Tract 4.
We agree with the Van Meter brothers and the trial court that the Clarks' claim as to adverse possession also fails. In Kentucky a party "seeking to establish title must sustain his claim either by record title or by adverse possession." Gabbard v. Lunsford, 215 S.W.2d 985, 986 (1948). Here, because the Clarks' deed fails to mention the tract at issue, while the Van Meter brothers' deed specifically establishes the boundaries, the Clarks do not have record title to Tract 4.
Thus, the only possible way the Clarks can obtain ownership of the property is by adverse possession. Five elements must be satisfied before adverse possession will bar record title: 1) possession must be hostile and under a claim of right; 2) it must be actual; 3) it must be exclusive; 4) it must be continuous; and 5) it must be open and notorious. These common law elements of adverse possession must all be maintained for the statutory period of fifteen years, and it is the claimant's burden to prove them by clear and convincing evidence. See Moore v. Stills, 307 S.W.3d 71 (Ky. 2010). The testimony from the parties clearly establishes that the Clarks do not have title by adverse possession. Ms. Clark testified that the last time she had been on the subject part of the farm was more than twenty years ago, and the tract had not been fenced in more than twenty years. Furthermore, Ms. Clark testified that in 1999, when a dispute arose with the Van Meter brothers over having timber cut in this area, the Clarks ceased cutting timber. Thus, the Clarks' possession of the land was not open and notorious and was not hostile and under a claim of right. We agree with the Van Meter brothers that the Clarks cannot establish title by adverse possession.
Discerning no reversible error, we affirm the December 19, 2011, order of the Grayson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Alton L. Cannon
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Donald W. Cottrell
Leitchfield, Kentucky