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Court of Appeals of Kentucky.


NO. 2010–CA–002276–MR

Decided: March 09, 2012




The Appellants, Lannie and Jan Phipps, appeal the November 20, 2010, Final Order of the Fulton Circuit Court, which they assert erroneously established a boundary line between the Phippses and their neighbor, Appellee Daniel Ford, Sr. The Phippses assert that in establishing the boundary line, the court applied incorrect law to erroneous facts and, further, erred in denying their claim for adverse possession and refusing to award a prescriptive easement.   Upon review of the record, the arguments of the parties, and the applicable law, we affirm.

In October of 2009, the Phippses filed a complaint in the Fulton Circuit Court against their next-door neighbor, Ford, alleging trespass upon the Phippses' residential property as well as the intentional infliction of emotional distress.   Ford filed a counterclaim against the Phippses, alleging trespass and intentional infliction of emotional distress.   By agreement of the parties, their respective claims of trespass and intentional infliction of emotional distress were dismissed and the issues of adverse possession, prescriptive easement, and quieting of title were tried before the circuit court without a jury on April 13, 2010.

On June 11, 2010, the court entered an interlocutory judgment, with findings of fact and conclusions of law, wherein the court stated that, “[a]t the present time, a complete judgment cannot be rendered due to the inability of the parties to locate the property line found by the Robert Nichols survey.”   The court concluded its interlocutory judgment by making the following order:

Plaintiffs shall engage Robert Nichols to come to the property and mark the property as described above, and submit to the Plaintiffs a description of the line which divides the property of the parties.   This court will then prepare an order which includes the exact description of the dividing line of the property of the parties.   To allow for scheduling circumstances, the Nichols survey report required by this order should be completed within sixty (60) days.

Thereafter, on November 3, 2010, the court held the second day of its bench trial of this matter.   At that time, the court heard evidence regarding the correct location of the “Nichols survey line.”

The property line in dispute between the parties includes a wooden fence which lies roughly parallel to the Phippses' hard surface driveway.   In some places, the fence is only inches from the pavement of the driveway, while in other places it was as far away as approximately eighteen inches.   Ford asserts that the fence does not extend to the right-of-way of the public street known as Kentucky Highway 125, or “Union City Highway.”   Ford asserts that, instead, the fence stops near the point where the Phippses' driveway angles or bends to the west, so as to make a perpendicular connection across the right-of-way to the street surface.

The Phippses assert that the key testimony in explaining the misunderstandings concerning the boundary line was that from the Phippses' surveyor, Donald McGrew, during the second day of the bench trial on November 3, 2010.   In its final order, the circuit court summarized that testimony by stating that, “McGrew indicated in detail how he came to his decision that the common property line should not be the Nichols line and that the correct line was farther to the east so as to make Plaintiff's east and west property lines parallel and 74 feet apart.”

The Phippses assert that the circuit court erred in failing to recognize that when their property is measured east to west at a 90–degree angle and in a straight line, it measures 74 feet from east to west.   The Phippses assert that the circuit court erred by failing to measure their property line as it fronts the highway at right angle east to west for 74 feet, and instead placed the highway frontage of the property starting at a point on the Phippses' west property line, running along the highway right-of-way in an eastwardly direction for 74 feet at the same angle as the right-of-way on the highway.

The Phippses argue that by locating the frontage of 74 feet at a 45–degree instead of a 90–degree angle, the court located the east boundary line at the edge of the right-of-way at the wrong point.   The Phippses argue that the correct point for their east property line should be along a line that is parallel with the west property line to form a rectangle, not a parallelogram.   Thus, the Phippses assert that according to the measurements adopted by the circuit court, their east property line was erroneously moved to a point west of the border that they shared with Ford.

Ford responds by arguing that the court below was faced with decoding the intent of the grantors when the property was conveyed.   Ford argues that the court considered that these adjoining properties were once owned by the same grantor, and that specific metes and bounds were drafted into the descriptions of each tract.   Ford takes issue with the claim made by the Phippses that the court erred by failing to measure the property as it fronts the highway at a right angle, and notes that the deed description does not call for any of the conveyed property to have right angles or any other angle.

Ford argues that the description in the deed gives only vague directions, but is specific when it states the last two calls, stating, “Thence South 191 feet to the right of way of said road;  thence Southeasterly 74 feet, being the point of beginning.” (sic).  Ford argues that this clearly indicates intent on the part of the grantor for the Phippses to have 74 feet of road frontage because the third call ends at the highway right-of-way and then follows “said road” in the fourth call along the right-of-way which lies in a northwest to southeast direction.   Further, Ford asserts that the deed clearly granted him 157.5 feet of road frontage in its first call. Double Ford thus argues that in order to give deference to both deed descriptions, the court had to consider the deed descriptions of the measurements of the calls as the controlling factor.

On November 20, 2010, the circuit court entered its final order in this matter from which the Phippses now appeal.   In that order, the court determined that the wording in the Phippses' deed was controlling and that the deed called for 74 feet of road frontage.   Further, the court found that after considering all of the testimony and evidence presented, the common property line between the parties was to be the line marked by Nichols on the unrecorded survey plot.   The court also set out the measurements of the boundaries of the Phippses' property Double and determined that the property abutting the east side of the Nichols survey line is the property of Ford, and the property abutting the west side of the Nichols survey line is the property of the Phippses.   Finally, the court found that the Phippses have a prescriptive easement over that portion of the asphalt driveway which lies to the east of the Nichols survey line.   The court directed that both a copy of the order as well as a copy of the Nichols survey plat be filed by Ford in the Fulton County Clerk's office.   Further, it noted that McGrew would locate and mark the point where the Nichols survey plat shows Ford's western boundary intersecting with the highway right-of-way.

On appeal, the Phippses argue that the circuit court erred as a matter of law by concluding that they failed to meet the requirements of adverse possession for reasons of lack of exclusive use and lack of a well-defined boundary.   The Phippses assert that the evidence submitted sub judice concerning the use of the driveway, the fence, and the use of the area by the Phippses on a day-to-day basis meets the adverse possession requirements as defined by the law of the Commonwealth.   The Phippses assert that the boundary line between the Phipps property and the Ford property has been recognized and acquiesced to far in excess of fifteen years.

Accordingly, the Phippses argue that the court also erred as a matter of law in the portion of its interlocutory judgment entered on June 11, 2010, wherein it stated as follows:

(3)The description in the Plaintiff's deed specifically states that the width of their property is 74 feet and that description controls and requires that the disputed property line be set in accordance with the deed description.

The Phippses state that in its final order of November 20, 2010, the court made reference to this interlocutory judgment, and referred to the statement above as its “previous findings.”   The Phippses argue that the court's reliance upon this statement is in error because the court's ruling on the correct location of the boundary line was dictated by the belief that, as a matter of law, the description in the Appellant's deed controlled, when it should have found the boundary line to be based on the adverse possession of the Phippses.

In response, Ford argues that while the Phippses correctly state the law as it pertains to adverse possession in this Commonwealth, they are incorrect in their assertion that they effectively adversely possessed the land in this instance.   Ford argues that the mere presence of a fence near the disputed boundary does not give the Phippses the authority to claim all of the property on “their” side of the partial fence.   Specifically, Ford notes that the Phippses did not build or pay to have the fence built, that the fence did not enclose any area, that the fence did not extend to the highway right-of-way, that the Phippses did not use all of the property to which they claimed entitlement by adverse possession, and that the area which they did use was not used in an exclusive manner.   Ford argues that insufficient evidence was submitted to establish that the grantors intended the Phippses to have more than 74 feet of road frontage as a boundary, and that the Phippses failed to meet their burden of proving adverse possession in this instance. Double

Thus, Ford asserts that the court was correct in looking to the language of the litigants' deeds and making its decision based upon its interpretation and construction of same.   Ford believes the circuit court met its duty in this regard, and argues that its findings of fact as to the wording and interpretation of the deed should control.   Ford argues that the court's findings of fact were supported by the evidence and that, accordingly, it did not abuse its discretion in finding as it did.

In reviewing the arguments of the parties, we note that the appropriate standard of review for adverse possession disputes is whether or not the trial court was clearly erroneous, or abused its discretion.  Phillips v. Akers, 103 S.W.3d 705, 709 (Ky.App.2002).   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.   Furthermore, we note that in actions tried before a court without a jury, findings of fact shall not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the trial court to judge the credibility of the witnesses.   See Kentucky Rules of Civil Procedure (CR) 52.01, and Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.App.2001).

Finally, we note that legal determinations or conclusions of law made by the trial court are subject to de novo review.  A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.1999).   A determination or decision by the trial court is an abuse of discretion if it is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Concerning the Phippses' claims of adverse possession, we note that the requirements to establish title through adverse possession are well understood in this Commonwealth:  “A claimant must show possession of disputed property under a claim of right that is hostile to the title owner's interest.   Further, 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, 708 (Ky.App.2002)(citing Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky.1955).

For possession to be open and notorious, a possessor must openly evince a purpose to hold dominion over the property with such hostility that will give the non-possessory owner notice of the adverse claim.   Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co. Inc., 824 S.W.2d 878, 880 (Ky.1992).   Further, it is the character of the property, its physical nature, and the use to which it has been put, which determines the character of the acts necessary to put the true owner on notice that a hostile claim is being asserted.   See Ely v. Fuson, 297 Ky. 325, 180 S.W.2d 90, 92 (Ky.1944).   A well-established aspect of a successful claim for adverse possession is a well-marked boundary line.  Id.

Likewise, concerning the interpretation of deeds, our courts have consistently held that where the intent of the grantor clearly appears on the face of a deed, effect will be given thereto, unless the repugnancy in its clauses is such as to render the deed utterly void.   See Monroe v. Rucker, 310 Ky. 229, 220 S.W.2d 391 (Ky.1949).

Sub judice, the circuit court was confronted with the task of interpreting and reconciling two deeds which were not prepared with precise metes and bounds.   Having reviewed the records and the arguments of the parties, this Court is of the opinion that the court below acted within its discretion in interpreting the language of the deeds at issue, and in its attempt to rectify the wording of the deed with the physical features of the land, including the public highway and the partial fence, along with the practices of the parties as to their understanding of the boundary between their two properties.   It was within the discretion of the court below to determine that the language of the Phippses' deed was controlling and that the grantor intended the property to include 74 feet of property as measured along the right-of-way.   We find no reason to disturb the court's determination in this regard.

Concerning the Phippses' claim that the court erred as a matter of law by concluding that the Phippses had failed to meet the requirements of adverse possession based on a lack of exclusive use and a lack of a well-defined boundary, we cannot agree.   It was the Phippses who had the burden of proof in this regard.   Implicitly, the court found that the Phippses failed to meet their burden of establishing the elements necessary for adverse possession.   We do not believe that the court abused its discretion in finding as it did.

In order to find facts that would support a claim of adverse possession, the court was limited to the evidence presented below.   The court below was in the best position to determine whether the evidence presented was sufficient to establish adverse possession.   We decline to find otherwise on appeal.   On appeal, the test is not whether we, as an appellate court, would have decided the question in a different way but, rather, whether the trial court's findings were clearly erroneous or constituted an abuse of discretion.   See Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982).   As such is not the case, we affirm.

Wherefore, for the foregoing reasons, we hereby affirm the November 20, 2010, final order of the Fulton Circuit Court.