Opinion
NO. 2012-CA-001865-MR
10-24-2014
LOUISE SARGENT APPELLANT v. IDA BELL LOWE AND DOUGLAS LOWE APPELLEES
BRIEFS FOR APPELLANT: D. Eric Lycan Lexington, Kentucky BRIEF FOR APPELLEE: Frank H. Warnock Greenup, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT CONLEY, JUDGE
ACTION NO. 09-CI-00684
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: Louise Sargent has appealed from the September 25, 2012, order of the Greenup Circuit Court establishing a boundary line between her farm and the neighboring farm owned by Ida Bell Lowe and Douglas Lowe (collectively "Lowe"). Following a careful review, we affirm.
Two adjacent tracts of land located in Greenup County, Kentucky, are owned by the parties to this action. In 2009, a dispute arose over ownership of a strip of land being less than thirty feet in width lying on the north side of McGuire Cemetery Road. Lowe, claiming ownership of the disputed ground attempted on numerous occasions to construct a fence along the north side of the road. Sargent, believing the fence encroached on her property, caused the newly-set posts to be removed. Lowe filed suit seeking, inter alia, an order quieting title in their favor and setting the property line to the north side of the road. Sargent countersued, alleging her deed line, as surveyed, extended at least to the edge of McGuire Cemetery Road, and in some cases to the centerline of that road. She sought a judgment quieting title in her favor and a permanent injunction to enjoin Lowe from interfering with her access off the road or constructing any fences on her property.
The matter proceeded to a bench trial on June 8, 2012. The trial court took testimony from Lowe, two of Sargent's sons, a disinterested neighbor, and experts Richard Howerton, Professional Land Surveyor and Engineer on behalf of Lowe, and Anthony Keibler, Professional Land Surveyor on behalf of Sargent. In its September 25, 2012, judgment, the trial court succinctly set forth the positions of the parties and the evidence adduced at trial. We quote that language here in the interest of judicial economy.
The dispute herein is over the location of a common boundary line between the farm owned by the Plaintiffs, Ida Lowe and Douglas Lowe, and the farm owned by the
Defendant, Louise Sargent and ownership of a disputed strip as result of the boundary location.
The property in dispute is a strip of land approximately 15 feet to 30 feet in width, located and lying along the northerly edge of McGuire Cemetery Road. It is the position of the Plaintiffs that their farm boundary encompasses the disputed strip of land to the north of McGuire Cemetery Road and it is the position of the Defendant that their boundary line extends southerly to the approximate northern boundary of McGuire Cemetery Road and indeed technically encroaches into the right-of-way of McGuire Cemetery Road, although the Defendants make no claim concerning owning the roadway which has been open to the public and traveled for many years. The ultimate issue is if the Plaintiffs prevail, then because they would own the strip separating the McGuire Cemetery Road from the boundary of the Defendants farm, they would be entitled to restore the previously existing fence and restrict access from a portion of McGuire Cemetery Road to the Defendant's farm. If the Defendant's prevail, then they own to the roadway and have unlimited access along the entire portion of McGuire Cemetery Road adjacent to their farm. The evidence is undisputed that the Defendants have multiple accesses into their farm and fields and are certainly not landlocked and that there is no actual evidence of there being a passage leading from McGuire Cemetery Road into the Defendant's farm, although apparently by recent practice the Defendants have driven farm machinery on McGuire Cemetery Road and then veered off onto their fields in the southerly section of their farm as a convenience but not as a necessity.
The undisputed evidence shows that from the time the Plaintiff, Ida Lowe's father in 1946 bought the first of several farms in or near the disputed area, there was in existence a fence dividing the Plaintiffs and Defendants farms which fence was located northerly of McGuire Cemetery Road. The uncontradicted evidence conclusively shown by Plaintiff's proof locates the original fence line along the northerly edge of the strip of property in dispute. Apparently, sometime in the late
1990's the fence had fallen into disrepair, but portions were still in existence and the remnants of which were conclusively located by Plaintiff's expert, Richard Howerton. (See Plaintiff's Exhibit 3, 4 and 5 - over 25 photos)
The Plaintiffs introduced expert testimony from Richard Howerton, a Professional Land Surveyor, and Professional Engineer, primarily practicing in Greenup County, Kentucky, and the Defendants introduced expert testimony from Anthony Keibler, a Professional Land Surveyor practicing in Greenup County, Kentucky.
Both the Plaintiff's expert, Howerton, and the Defendant's expert, Keibler, agree as to the starting point of the line in question, and further agree that the line and disputed strip of real estate is approximately 1500 feet in length, that both of the deeds of the Plaintiff and Defendant contain identical (although reversed) directional calls and further, both experts admit that at the time they both reviewed the area none of the monumentation called for in the original Plaintiff's deed or Defendant's deed, were still in existence.
Mr. Howerton introduced Plaintiff (Howerton) Exhibit No. 1, 2 and 6 with his testimony and showing the location of the Plaintiff's northernmost boundary is to the north of McGuire Cemetery Road and encompasses the disputed strip. Mr. Howerton also introduced pictures and exhibits both aerials and on the ground photos showing at least 12 instances where he had found fence posts, wire in trees, buried wire remnants, all verifying the exact location of the previous fence which separated the two farms for over 50 years and using the fence line for supporting monumentation with the directional calls.
Mr. Keibler, although starting at the same point as Mr. Howerton, chose to ignore the remnants of the old fence and attempted to reconstruct the line along a southerly totally unmonumented boundary, to ultimately reach a point where there is a depression in the ground which he opines is the former location of a double Beech tree called for in both deeds. Mr. Keibler admitted that a
close inspection of the depression in question revealed no stump, rotten wood, roots or other indication that a Beech tree had, in fact, ever been located at that hole or hollow in the ground.
After considering the evidence presented and the arguments of counsel, the trial court determined Howerton's testimony regarding the correct location of the boundary line was entitled to more weight and set the boundary line along the old fence line on the north side of McGuire Cemetery Road. As an aside, the trial court noted its belief the evidence presented would support a judgment in Lowe's favor on adverse possession grounds. This appeal followed.
Contrary to Sargent's urging, our standard of review is not de novo. With respect to property title issues, the appropriate standard of review is governed by CR 52.01. As stated in Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980),
Kentucky Rules of Civil Procedure.
[t]he law is clear that "findings of fact (of the trial judge) shall not be set aside unless clearly erroneous." CR 52.01; 7 Clay, Kentucky Practice, Rule 52.01, comment 8. This court has applied this rule in boundary disputes. "It is the rule that, where this Court cannot say on an appeal from the decree in an action involving a boundary dispute that the Chancellor's adjudication is against the weight of the evidence, the decree will not be disturbed." Rowe v. Blackburn, 253 S.W.2d 25, 27 (Ky. 1952). See also Story v. Brumley, 253 S.W.2d 24 (Ky. 1952).
Substantial evidence is defined as "that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994). Moreover, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. CR 52.01. With this standard in mind, we now turn to the case before us.
Sargent first alleges the trial court used an incorrect legal standard in deciding the matter because it ignored the language of the deeds, assumed the old fence was a boundary line fence, and relied on Howerton's partial boundary survey rather than Keibler's complete boundary survey. Second, Sargent contends the trial court erroneously disregarded parol evidence regarding the location of the double Beech tree called for in the deed descriptions. Finally, Sargent posits the trial court erroneously determined Lowe had adversely possessed the disputed strip of land.
Sargent's reliance on Camenisch v. City of Stanford, 140 S.W. 3d 1 (Ky. App. 2003), in support of her contention that the trial court erred as matter of law in assessing the evidence is misplaced. Camenisch dealt with the proper construction of technical terms within a deed. No such issue is present in the instant case. The sole issue to be decided by the trial court was where the appropriate dividing line between two neighboring farms should be located in the absence of contrary or overlapping calls in the parties' deeds. As we have previously stated, such boundary disputes are inherently issues of fact rather than law.
The detailed order entered following the bench trial clearly reveals the trial court considered all of the evidence and testimony put before it in reaching the decision that the boundary line should be located along the former fence line location. A careful review of the record reveals substantial evidence to support the trial court's decision, and we discern no abuse of discretion. It is not for us to determine whether we would have reached a different conclusion if faced with the same evidence. See Church & Mullins Corp. v. Bethlehem Minerals Co., 887 S.W.2d 321 (Ky. 1992). It is axiomatic that even where the evidence presented is conflicting, as it was in this case, we may not substitute our judgment for that of the trial court. Truman v. Lillard, 404 S.W.3d 863, 868-69 (Ky. App. 2012). Mere doubt as to the correctness of a trial court's finding is insufficient to justify reversal. Moore v. Asente, 110 S.W.3d 336, 355 (Ky. 2003). Although the testimony by Keibler would have supported the boundary claimed by Sargent, we cannot find the trial court was compelled to accept it over the other evidence.
The same analysis applies with equal force to Sargent's next contention that the trial court erred in disregarding parol evidence of the former location of the double Beech tree called for in the property descriptions. As before, our review of the record reveals the trial court's decision was supported by substantial evidence and will not be disturbed. Nothing further need be said on this point.
Finally, we discern no error in the trial court's short discussion regarding adverse possession of the disputed property. In light of its previous findings and conclusions, we conclude these statements were potentially unwarranted and unnecessary. However, even were we to determine the trial court erred in concluding Lowe had carried the burden of proving title by adverse possession, any such error would be harmless at best. Striking the allegedly offensive findings from the judgment would not change the analysis of the testimony and evidence adduced from the opposing experts, nor would it change the trial court's ultimate decision as to the location of the boundary line. While we believe inclusion of the three sentences regarding adverse possession was unnecessary given the state of the evidence presented on the issue, it is axiomatic that we may affirm a lower court for any reason supported by the record. McCloud v.Commonwealth, 286 S.W.3d 780, 786 (Ky. 2009). We hold that the trial court's alternative basis for its decision based on adverse possession was surplusage but did not render its ultimate conclusions infirm.
Therefore, for the foregoing reasons, the judgment of the Greenup Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: D. Eric Lycan
Lexington, Kentucky
BRIEF FOR APPELLEE: Frank H. Warnock
Greenup, Kentucky