JEFF MAYS v. DARE ROBERSON AND BESSIE ROBERSON
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RENDERED: September 10, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS. 1998-CA-000775-MR
AND 1998-CA-000805-MR
JEFF MAYS
v.
APPELLANT/CROSS-APPELLEE
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 91-CI-00721
DARE ROBERSON AND
BESSIE ROBERSON
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal and cross-appeal from a
judgment of the Boyd Circuit Court establishing the boundary line
in a property dispute and denying damages to the appellant.
The
property in question is owned by the appellant/cross-appellee,
Jeff Mays (“Mays”), and the appellees/cross-appellants, Dare and
Bessie Roberson (“Roberson”).
The court below established a
boundary line favoring Mays but declined to award him damages
based on his claim that interference by the Robersons prevented
him from completing his obligations under a lease agreement with
a third party for the property in question.
Mays argues the
court below erred in not awarding damages, and the Robersons
argue the court below erred in establishing the boundary line
based upon a survey by Mays’s expert, which was based upon
erroneous right-of-way width and inaccurate property line calls.
We disagree and affirm with regard to both of the appeals
presented.
The facts of the case are as follows:
the parties
owned adjoining tracts of land in Boyd County, Kentucky.
The
dispute over this property first arose in 1991 when Randolph
Steele, Mays’s predecessor in interest, erected a fence on the
property.
The Robersons contended the fence encroached onto
their property, and in 1994 the court awarded the Robersons an
injunction which allowed them to occupy the land and ordered Mr.
Steele to remove his fence from the property.
At that time, the
court left open the determination of the exact boundary line of
the property, but the Robersons subsequently erected a fence of
their own and asserted ownership of the disputed property.
On or
about May 3, 1996, Mays purchased the property from Steele and
subsequently became aware of the dispute between Steele and the
Robersons, which was still being litigated.
On May 29, 1996,
Mays moved the court to intervene in the suit between the
Robersons and Steele since he had become the record owner of the
property, and the motion by Mays was granted.
In his intervening
complaint, Mays asked the court to determine the exact boundary
line so that he might proceed with an agreement to lease the
property to a third party entered into on May 16, 1996.
On April 17, 1997, the court heard testimony concerning
two different surveys of the property.
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A survey conducted by
Kelvin Barker of Tri-State Land Development yielded the same
result as a 1979 survey of the same property by Joseph Harris and
indicated that Mays was correct as to the location of the
boundary line.
The Tri-State survey, according to the record,
began with an iron pin that had been placed on the southwest
corner of the property; on the other hand, a survey by John
Charles indicated that the Robersons were correct as to the
proper location of the boundary.
According to the record,
Charles determined the widths of the right-of-way and began his
survey from the right-of-way using the metes and bounds
description of the property contained in the deed.
Although the
court determined both surveys used the correct numerical calls
from the appropriate deeds, the court ultimately determined the
Tri-State survey reflected the true location of the boundary
line.
The court concluded in pertinent part:
It is clear to this Court that Barker took
the correct approach. The iron pin shown to
Plaintiff by Lyons many years ago is an exact
point which can be located with certainty and
never varies. The method of approximating
the right of way width used by Charles
involves estimations and subjective opinion
and could never yield as accurate a starting
place as the southwest iron pin.
Following the court’s determination of the boundary
line issue in his favor, Mays moved for a hearing on the issue of
damages, since he had been unable to complete his obligations
under the proposed lease agreement of May 16, 1996.
A hearing on
damages was conducted on October 31, 1997, and the court entered
an order denying Mays’s claims for damages on February 17, 1998.
Mays filed a motion to amend, alter or vacate the February 17
order, and on February 27, 1998, the court entered an order
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clarifying the order of February 17, but once again denied Mays’s
claim for damages.
In the order of February 17, the court
indicated Mays knew of the clouded title when he purchased the
property, and the Robersons had occupied the disputed property
under a claim of right as a result of the 1991 legal proceedings
involving Randolph Steele.
The court further indicated Mays had
purchased the property and intervened in the case too close in
time to the date for completion of the lease agreement; thus,
Mays was solely responsible for his failure to complete the terms
of the lease agreement.
In its order of February 27, the court
clarified its position that damages sought by Mays were not
causally related to the encroachment by the Robersons onto the
Mays’s property.
The court did not, however, alter the findings
regarding the proper boundary line determined on April 17, 1997.
Mays’s claim for damages was once again denied, and this appeal
and cross-appeal followed.
Mays appeals the denial of damages in
this case, and the Robersons have filed a cross-appeal on the
issue of the location of the boundary line as determined by the
court below.
With regard to the cross-appeal by the Robersons, the
court below was presented with conflicting testimony from two
surveyors, and after hearing the testimony and reviewing the
exhibits offered by the witnesses, the court found Kelvin
Barker’s survey, which supported the claim of Mays, to be more
credible.
On their cross-appeal, the Robersons simply argue that
the trial court should have accepted the survey supporting their
view.
The standard to be applied in this case is clearly set out
in Croley v. Alsip, Ky., 602 S.W.2d 418, 419 (1980):
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The 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.”
Moreover, “a fact finder may choose between the conflicting
opinions of surveyors so long as the opinion relied upon is not
based upon erroneous assumptions or fails to take into account
established factors.”
Howard v. Kingmont Oil Co., Ky. App., 729
S.W.2d 183, 184-85 (1987).
Our review of the evidence in this case convinces us
that the court below has met the Croley standard.
The trial
court simply found the evidence supplied by Mays, through the
surveyor Barker, to be more credible.
The Robersons have not
established that the survey work by Barker was based on any
“erroneous assumption” or failed to “take into account
established factors.”
As a result, the decision of the Boyd
Circuit Court is affirmed as to the location of the boundary
line.
With regard to the Mays’s appeal of the denial of
damages, there is simply an unsupported claim by the appellant
that the court below erred.
We agree with the appellees and
believe the lease agreement entered into on May 16, 1996, was a
champertous conveyance under KRS 372.070, the so-called champerty
statute, that was void, and the Robersons will not be liable for
Mays’s damages.
KRS 372.070(1) states in pertinent part:
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Any sale or conveyance, including those made
under execution, of any land, or the
pretended right or title thereto, of which
any other person has adverse possession at
the time of the sale or conveyance is
void. . . .
At the time of the lease agreement, it is clear that the
Robersons were in adverse possession of a twelve-foot strip of
land that Mays attempted to include in the lease agreement.
In
fact, the Robersons had erected their own fence to include the
disputed strip in their property and had rejected Mays’s request
to remove the fence.
Although the Robersons had not held the
disputed land long enough to gain title by adverse possession,
“adverse possession” is simply possession that would in the
statutory period ripen into title by adverse possession.
Tankersley v. Sell, Ky., 226 S.W.2d 17 (1950).
Furthermore, a
conveyance (or lease) of land is void to the extent it includes
land held by one other than the grantor, in such a manner that if
held for the statutory period, the holding would ripen into
title, even though the adverse holding originated because of a
mistaken belief by the adverse holder as to the true location of
the boundary line.
(1983).
Johnson v. Kirk, Ky. App., 648 S.W.2d 878
This is exactly what happened in the case at bar.
Although the boundary line had not been determined at the time
Mays sought to enter into the lease agreement, the Robersons
believed they were entitled to the twelve feet in question and
were adverse holders of the disputed property.
Ultimately, the
Robersons were mistaken as to the boundary of their property, but
this mistaken belief does not change the character of Mays’s
attempted conveyance through the lease agreement.
-6-
Id.
The
champerty statute has been satisfied, and the attempted lease by
Mays is void.
We note that the original conveyance between Randolph
Steele and Mays was not champertous.
Steele was already involved
in litigation with the Robersons when he conveyed his interest to
Mays; therefore, this conveyance did not run afoul of the purpose
of the champerty statute--prohibiting one who is not willing to
sue to clear doubtful title to the property from selling it to
another person, thereby encouraging strife.
Mays merely stepped
into the shoes of Steele, who was already a party to the
litigation.
Strunk v. Perry, Ky., 236 S.W.2d 912 (1951).
With
his attempted lease agreement, on the other hand, Mays created a
new action and asserted new rights not derived from Steele, and
we believe his attempted conveyance violated the champerty
statute.
As such, the lease agreement is void, and the Robersons
cannot be held liable for any damage suffered by Mays.
For the reasons stated above, the decision of the Boyd
Circuit Court is affirmed on both the appeal and the crossappeal.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
Jeffrey L. Preston
Catlettsburg, Kentucky
Rodney S. Justice
Ashland, Kentucky
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