Opinion
NO. 2012-CA-001582-MR
04-18-2014
FLOYD FRANCIS AND VONDA FRANCIS APPELLANTS v. JOHNNY DEWAYNE GLOVER, BRANDY GLOVER, MANDA GLOVER, DONNY GLOVER, AND MISTY GLOVER APPELLEES
BRIEFS FOR APPELLANTS: Todd Trautwein Morehead, Kentucky BRIEF FOR APPELLEES: Ira S. Kilburn Salt Lick, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 10-CI-90459
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES. MOORE, JUDGE: Floyd and Vonda Francis appeal the Rowan Circuit Court's Findings of Fact, Conclusions of Law and Judgment entered after a bench trial resolving a boundary line dispute quieting title in the Glovers' names, and concluding additionally that the Glovers satisfied the fifteen-year statute of limitations to inure title of the disputed property by adverse possession. After careful review of the record, we affirm.
I. FACTUAL BACKGROUND
This action is a boundary line dispute concerning a small strip of land between the Glover and Francis properties. The disputed property lies along the western boundary of the Glover property adjoining the Francis property. The Glovers assert their property extends to the center of the creek between the properties, and the Francises contend the boundary line lies east of the creek.
The parties' properties can be traced to a common source of title, Lula and Sedith Thompson. The Thompsons acquired approximately 100 acres in 1948. They conveyed 15 acres, more or less, to their great grandson, Johnny Dewayne Glover, in 1973. In 1995, Johnny Dewayne Glover conveyed the same 15 acres of land to Manda Glover. Manda Glover conveyed 14 acres of land back to Johnny Dewayne Glover in 2004, retaining approximately one acre of land where her residence is located.
The Francis property is the remainder of the original parent tract owned by Lula and Sedith Thompson less five exceptions for portions of the property conveyed to others prior to the conveyance of the remainder to the predecessors of the Francises. The Francises acquired their property in 2010 from Gregory and Tresa Hess. The Glovers' land is listed as exception number three in the quit claim deed from Hess to the Francises. When the Francises acquired their property, they also acquired an easement across Manda Glover's property that she had sold to Barry Hamilton in 1997. The terms of the easement also appear in the 2010 Francises' deed. Barry Hamilton owned what is now the relevant portion of the Francis property from 1989 until 1997.
A dispute arose as to the boundary line between the Francis and Glover properties and the Francises' right to use the easement. Floyd Francis stated that the Glovers blocked the easement, but the Glovers insist that Floyd Francis gave them permission to block the right of way. Both parties obtained licensed professional surveyors to survey the Glover property and determine the proper boundary line; however, the surveys and the plats did not agree. The Francises filed an action to quiet title on December 6, 2010. The Glovers answered by stating that they were the rightful owners of the property based upon the language in their deeds and that, in the alternative, they acquired title to the disputed property through adverse possession. A bench trial was held on October 12, 2011. Several witnesses testified, including both surveyors. The Rowan Circuit Court determined that the boundary line in question between the Francis and Glover properties runs with the creek and then the east edge of the gravel drive until it meets with Holly Fork Road. Also, the court found that the Glovers had otherwise gained legal title by adversely possessing the disputed property in excess of the requisite fifteen-year statute of limitations. The Francises filed a motion to alter, amend or vacate the judgment and a motion for a new trial. The motions were denied, and the Francises now appeal.
II. STANDARD OF REVIEW
When a trial court decides a matter without a jury, the findings of the trial judge shall not be set aside unless clearly erroneous with due regard given to the opportunity of the trial judge to consider the credibility of the witnesses. Kentucky Rules of Civil Procedure (CR) 52.01. "A factual finding is not clearly erroneous if it is supported by substantial evidence." Cole v. Gilvin, 59 S.W.3d 468, 472-73 (Ky. App. 2001). "Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people." Id. at 473. This rule has been held to apply to boundary disputes. Webb v. Compton, 98 S.W.3d 513, 517 (Ky. App. 2002); Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). The appropriate standard of review for adverse possession disputes is "whether or not 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." Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 2002).
III. ANALYSIS
We will first discuss the adverse possession issue because it is dispositive of the outcome of this case. Title acquired by adverse possession is equivalent to title acquired by deed. Maloney v. Bedford, 162 S.W.2d 198, 199 (Ky. 1942). The Francises argue that the trial court erroneously granted title to a portion of the Francis property to the Glovers by adverse possession. They contend that the Glovers failed to satisfy the fifteen-year statutory requirement for adverse possession because they did not continuously use the disputed land for the fifteen years preceding this lawsuit.
The Francises also argue on appeal that the description in the Glovers' deed is not ambiguous and, therefore, no extrinsic or parol evidence regarding the boundary lines should have been permitted at trial. Additionally, the Francises take issue with three specific findings in the trial court's judgment: (1) the inclusion of the testimony of Phillip Clark, which the Francises considered stricken in its entirety as hearsay; (2) an alleged statement made during the testimony of Floyd Francis that they maintain is inaccurate and does not exist in the record; and (3) a statement in the judgment regarding the Glovers' deed as having priority over the Francises' deed. As none of these issues alter the outcome of our analysis or merit reversal of the trial court's judgment, they are not discussed in this opinion.
The law of adverse possession in Kentucky requires that "the possession must be shown to be actual, open and notorious, exclusive, and continuous for a period of fifteen years." Phillips v. Akers, 103 S.W.3d 705 (Ky. App. 2002). The claimant bears the burden of proving each element of adverse possession by clear and convincing evidence. Id. at 709.
The court heard testimony from several witnesses, including Manda Glover, Johnny Dewayne Glover, Barry Hamilton, and Johnny Glover, regarding the use of the disputed property. Manda Glover testified that she had lived on the property for 35 to 37 years, and from 1973 to 2000 what is now the 14-acre tract owned by Johnny Dewayne Glover was tended, farmed, or cattle and horses were kept on the property every year from creek to creek. The eastern boundary of the property runs along Camel Branch Creek. The western boundary is the line in dispute with the Francises. The Glovers assert that their property line extends all the way to the center of the creek, and the Francises maintain their property extends east past the creek. Manda Glover testified that she became disabled in 2000, so she rented the property to sharecroppers who then farmed the land from creek to creek until 2009. She also stated that she would clear the brush up along the creek adjoining the Francis property until she became disabled. She testified that if there was ever a year that crops were not grown or animals were not kept, the land was tended, mowed, and maintained all the way to the creek. Manda Glover always took care of the property surrounding her residence as well.
Johnny Dewayne Glover testified that there were crops, cattle, and horses on the property while he was growing up. If there were ever times that crops were not grown or animals were not raised on the property, the land was still tended from creek to creek. He stated that 2009 was the last year that crops were grown.
Barry Hamilton, who owned the relevant tract of land that the Francises now own from 1989 until 1997, testified that he saw the Glovers' crops every year and that the crops extended all the way down to the creek; and that the Glovers took care of the property all the way down to the creek. The Francises argue that Barry Hamilton is not competent to testify regarding the Glovers use of the property during the fifteen years preceding this lawsuit by the Francises. However, Barry Hamilton testified as to his knowledge and observations of the Glover property during the years he was familiar with the property and owned the nearby land.
Johnny Glover, the father of Johnny Dewayne Glover, testified that Lula and Sedith Thompson kept cattle on the property and farmed tobacco, corn, and hay from creek to creek. He stated that his grandparents lived off of the land, even after they conveyed it away to Johnny Dewayne in 1973, until they passed away. Then Johnny Dewayne and Manda took over raising crops. Johnny Glover testified that crops were always grown from creek to creek and the last time the land was farmed was in 2009 by George Glover.
The Francises never attempted to dispute any of these claims or show that anyone besides the Glovers had used the land in question. The Francises argue that the Glovers failed to satisfy the fifteen-year requirement for adverse possession because the use of the property was not continuous for the fifteen-year period leading up to this lawsuit. The Francises cite the testimony of several witnesses referring to recent years in which either no crops were grown or no livestock was maintained on the disputed land. However, we reject the Francises' claim that the Glovers failed to continuously use the disputed property for the requisite period.
The element of adverse possession that is challenged by the Francises is that the possession must be continuous for the fifteen-year statutory period. The claimant of adverse possession is not required to be present on the premises at all times. Thompson v. Ratcliff, 245 S.W.2d 592, 593 (Ky. 1952). The important consideration is whether the physical use of the property by the adverse claimant or his representative, the erection of structures, or the keeping of chattels thereon demonstrates that he is asserting dominion over the property. Id. Once title has been acquired by fifteen years of adverse possession, it cannot be affected by subsequent interruptions by the non-possessory title holder, vacancy, or non-use by the adverse possessor. Culton v. Simpson, 96 S.W.2d 856, 860 (Ky. 1936).
There was evidence supporting the trial court's finding that the Glovers had "continually used, farmed, maintained and held out as their own property along the branch now adjoining the Francis property for a period in excess of fifteen years." The statute requires a claimant to adversely possess property for a fifteen-year period, not necessarily the fifteen-year period immediately prior to a quiet title action. The Glovers presented consistent testimony that the disputed property had been cultivated every year since at least 1973 until 2000 by their predecessors in title and then themselves. Although the Francises dispute the continuous use of the property in the fifteen years preceding this lawsuit, the Glovers, through their activity on the land and that of their predecessors, had already acquired title to the disputed property by adverse possession prior to the most recent years in which the land was not farmed or animals were not raised on it. Title acquired by adverse possession is not abandoned by mere non-use. Meece v. Hale, 678 S.W.2d 796 (Ky. App. 1984). Therefore, we conclude that the trial court's finding that the Glovers attained title through adverse possession of the disputed property was not clearly erroneous or an abuse of discretion. The judgment of the Rowan Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Todd Trautwein
Morehead, Kentucky
BRIEF FOR APPELLEES: Ira S. Kilburn
Salt Lick, Kentucky