JAMES CLARK AND SHIRLEY CLARK v. GEORGE CRAWFORD AND GENORRA CRAWFORD (2010)

James and Shirley Clark appeal from a judgment and orders of the Knox Circuit Court wherein their neighbors, George and Genorra Crawford, were granted title by adverse possession to a portion of the land the Clarks owned.   The Clarks argue that the trial court improperly refused to grant their motion for a directed verdict and their motion for a judgment notwithstanding the verdict.   We find no error and thus affirm.

James Clark purchased his property in the late 1960s.   He conveyed an interest in that property to his wife, Shirley, in 1996.   The Crawfords purchased their property in 1981.   At that time, a survey was performed at the request of their lender, but it incorrectly established a property line between the Crawfords and the Clarks.   Based on that survey, the Crawfords believed they owned the now-disputed portion of the property, which included a small portion of their driveway.   There was apparently no dispute over the boundary line between the parties between 1981 and 2004.   In 2004, however, the line between the two neighbors was surveyed again, and it was discovered that the Clarks' true property line extended into areas the Crawfords previously believed they owned.

The Crawfords filed a petition to quiet title in the Knox Circuit Court, and the case was tried before a jury on the issue of whether the Crawfords owned the disputed property by adverse possession.   Various family members of both sides who testified described the use of the land in question over a period of decades.   In addition, the 2004 survey was submitted into evidence.   The jury returned a verdict in favor of the Crawfords, and the court entered a judgment granting title to them by means of adverse possession.   After the court denied the Clarks' motion for judgment notwithstanding the verdict, their appeal herein followed.

In reviewing this case on appeal, our role is “limited to determining whether the trial court erred in failing to grant the motion for a directed verdict.”   Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky.1998).  “All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact.”  Id. We then must decide whether the verdict is so “against the evidence ․ as to indicate that it was reached as the result of passion or prejudice.”  Id. at 19.  “If it was not, the jury verdict must be upheld.”  Id.

“One may obtain a perfect title to real property by adverse possession for the statutory period of time of fifteen years even when there is no intention by the adverse possessor to claim land not belonging to him.”  Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878, 879-80 (Ky.1992).   The five elements of adverse possession which must be satisfied before adverse possession will bar record title are:  “1) possession must be hostile and under 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.”   Id. at 880.

The Clarks argue that the Crawfords did not meet their burden of proof because:  1) they only presented evidence of an occasional use of the property rather than continuous use, and 2) they did not maintain exclusive use and control of the property.

In support of their argument that the Crawfords presented only evidence of occasional use of the property, the Clarks state that the Crawfords' evidence merely indicated that they sporadically went onto the disputed portion for purposes of mowing during the mowing season.   They cite Vaughan v. Holderer, 531 S.W.2d 520 (Ky.1975), wherein the appellate court reversed the granting of a summary judgment motion determining adverse possession when the only proof supporting it was that the movant had paid the taxes on the property and had mowed it for a number of years.  Id. at 522.

In its order denying the Clarks' motion for a judgment notwithstanding the verdict, the trial court addressed this issue.   In Noland v. Wise, 259 S.W.2d 46 (Ky.1953), the appellate court held that “[i]n order to acquire title by adverse possession, the possession must be so actual and so continuous as to furnish a cause of action every day during the entire period prescribed by the statute.”  Id. at 48.   In Kentucky Women's Christian Temperance Union v. Thomas, 412 S.W.2d 869 (Ky.1967), however, the court stated that the language in Noland regarding the necessity of furnishing a cause of action every day for 15 years “perhaps should not be applied literally[.]”  Id. at 870.   Rather, the court stated that the seasonal and substantial cultivation of the land every year might be sufficient “to create something in the nature of a constructive continuity” even though the facts in that case were insufficient to do so.  Id.

The court in this case distinguished the facts from those in cases establishing and relying upon the occasional use doctrine.   In denying the motion as it relates to this ground, the court described the continuous nature of the Crawfords' contact with the disputed property.   We agree with this analysis and agree that the conflicting evidence on the issue of occasional versus continuous use was sufficient to submit the matter to the jury.

The other issue relates to the sufficiency of the evidence of exclusive use and control to warrant submission of the case to the jury.   The trial court also addressed this issue in its order denying the Clarks' motion for a judgment notwithstanding the verdict.   In this regard, the court noted the conflicting testimony and concluded that the evidence was sufficient to present the case to the jury.

As stated previously herein, our role is limited to determining whether the trial court erred in failing to grant a directed verdict.  Bierman, supra.   “All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact.”  Bierman, 967 S.W.2d at 18.   We agree with the trial court that the conflicting evidence concerning the issue warranted submitting the case to the jury for its determination.

The judgment of the Knox Circuit Court is affirmed.

ALL CONCUR.

BUCKINGHAM, SENIOR JUDGE: