ADEROS FRASURE AND ANTHONY FRASURE v. BOBBY WELLS; LOUISE WELLS; AND BOYD COUNTY, KENTUCKY
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001523-MR
ADEROS FRASURE AND ANTHONY FRASURE
APPELLANTS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 98-CI-00924
v.
BOBBY WELLS; LOUISE WELLS;
AND BOYD COUNTY, KENTUCKY
APPELLEES
OPINION
REVERSING
AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND JOHNSON, JUDGES.
DYCHE, JUDGE:
Anthony Frasure and Aderos Frasure appeal from a
judgment of the Boyd Circuit Court determining that appellees
Bobby Wells and Louise Wells are the owners of an area of
disputed property and assessing damages against the Frasures for
trespassing.
Because the trial court applied an erroneous
standard in determining that the Wellses were the owners of the
disputed property, we reverse and remand for additional
proceedings.
In addition, because the trial court did not apply
the correct standard for awarding trespass damages, we reverse
the damages award and remand for a correct calculation of damages
in the event that, upon remand, the Wellses are found to be the
owners of the disputed property.
Anthony Frasure and the Wellses own tracts of property
located on the opposite sides of Sheep Pen Branch, a small
stream.
While Anthony now owns the Frasure tract, during the
time frame relevant to the case, Anthony’s father, Aderos, owned
the tract for a period of time.
A county road, Crystal Lake
Road, runs parallel to the stream on the Wells side of the
stream.
This dispute concerns where the line is located along
the Sheep Pen Branch boundary.
The controversy began when the
Frasures placed a culvert in the branch and began using it as a
means of ingress and egress to their property.
The Wellses
objected and ultimately put up a small fence as a barricade to
prevent the Frasures from using the driveway.
The fence was
subsequently removed by the Frasures.
On September 24, 1998, the Wellses filed a Complaint in
Boyd Circuit Court alleging that the Frasures had trespassed upon
their property by constructing the culvert and destroying the
fence.
The Frasures filed separate answers.
Both denied that
the Wellses were the owners of the disputed property, and Anthony
filed a counterclaim seeking to quiet title in the property in
his favor pursuant to KRS 411.120.
Anthony further sought
trespass damages against the Wellses.
On February 10, 1999, Boyd
County was added as a necessary party to the proceedings on the
basis that it may have an interest in the disputed property.
Upon motion by the Frasures, on July 2, 1999, the trial
court entered an order referring the matter to the Master
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Commissioner.
It appears that an evidentiary hearing was never
held before the Commissioner; however, it further appears that
the parties agreed to have Phil Biggs of Diamond Engineering
review the chain of title of the Wells and Frasure properties
and, following that, to then submit the case to the Commissioner
for decision without an evidentiary hearing.1
On April 24, 2000,
the Commissioner entered his Report and Recommendation.
The
Commissioner’s report recommended that title be quieted in favor
of the Wellses; that the Frasures be required to remove the
culvert and restore the property to its original condition; and
that the Frasures be required to pay, as trespass damages, the
Wellses’ attorney fees, surveyor costs, and court costs.
On May 1, 2000, the Frasures filed exceptions to the
Commissioner’s report objecting to the Commissioner’s failure to
make appropriate detailed findings of fact and conclusions of law
in support of its recommendations; to the Commissioner’s adoption
of the Biggs report; and to the recommendation that the Frasures
be required to pay attorney fees and survey costs.
Following a
hearing, the transcript of which is not included in the record,
on May 30, 2000, the trial court entered an order overruling the
Frasures’ exceptions to the Commissioner’s report and adopting
the Commissioner’s report in its entirety.
1
This appeal followed.
In their brief the Frasures complain that the
Commissioner entered his report without a hearing; however the
Frasures do not cite us to their request for a hearing, and they
did not raise this issue in their exceptions to the
Commissioner’s report. Errors which a party fails to bring to
the attention of the trial court are not preserved for appellate
review. Robinson v. Commonwealth, Ky. App., 572 S.W.2d 606, 608
(1978).
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First, the Frasures contend that the recommendation of
the Commissioner as adopted by the trial court in placing the
boundary between the Frasure and Wells property as the center of
Sheep Pen Branch was clearly erroneous and is not supported by
substantial evidence in the record.
With respect to the positioning of the boundary line,
the Commissioner’s report, as adopted by the trial court, stated,
in relevant part, as follows:
1. The Commissioner hereby adopts the report
of Phil Biggs as the findings of this Court
in regards to the chain of title and the
descriptions contained in said Deed as if
fully set out herein and is made a part
hereof.
2. The Defendants Frasure cannot be the
owner of said property since the description
contained in his [sic] Deed is not an
accurate description of the property
originally conveyed to his [sic] predecessors
in title.
The Deed conveying the property
to the Plaintiffs contains the description
which is an accurate description of the
property conveyed to the Plaintiffs’
predecessors in title and therefore the
Plaintiffs are the owners of said property by
Deed.
CR 52.01 requires the trial court, in all actions tried
upon the facts without a jury, to find the facts specifically and
state separately its conclusions of law.
In this case, the trial
court’s findings consist largely - if not entirely - of certain
findings contained in Phil Biggs’s chain of title report.
The
report prepared by Phil Biggs is not included in the appellate
court record.
The omission of the report hampers our review of
the trial court’s decision in this case.
The burden was upon the
Frasures to ensure that the Biggs report was included in the
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appellate record.
(1968).
Burberry v. Bridges, Ky., 427 S.W.2d 583, 585
“In the absence of the evidence in the record, we must
presume that the judgment of the trial court was supported by the
evidence.”
Miller v. Com., Dept. of Highways, Ky., 487 S.W.2d
931, 933 (1972).
However, despite the Frasures’ fault in failing to
ensure that the Biggs report was contained in the appellate
record and our presumption that the report supports the trial
court’s decision, we note that the trial court adopted the Biggs
report as its findings, as reflected in paragraph one of the
Commissioner’s report, only with respect to the chain of title
and the deed descriptions.
It follows that the trial court did
not adopt as a finding any opinion expressed in the Biggs report
regarding whether the Wells deed description encompassed the
disputed property.
For this reason, we conclude that the
findings of the trial court do not include a finding that the
description contained in the Wells deed encompasses the disputed
property.2
In addition to the above deficiency, the trial court’s
conclusions of law as set forth in paragraph two of the
Commissioner’s report do not correctly apply Kentucky trespass
2
Attached as an exhibit to the deposition testimony of
Bobby Wells is a survey prepared by Phillip Biggs of Diamond
Engineering at the request of the Wellses. The survey reflects
that the disputed property belongs to the Wellses. We have no
way of knowing whether the survey was incorporated into the Biggs
report. If it was, again, the trial court’s adoption of the
Biggs report as its findings was limited to the chain of title
and deed descriptions. The trial court did not purport to adopt
any survey included within the report, nor does it otherwise
adopt or refer to the Biggs survey.
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and quiet title law.
A party plaintiff asserting title to
property has the burden of demonstrating the strength of his own
title and may not prevail merely by pointing out weaknesses in
the title of his adversary.
Coleman Mining Co. v. McClanahan,
Ky., 237 S.W.2d 543 (1951); Stewart Lumber Co. v. Fields, Ky.,
445 S.W.2d 140, 142 (1969). “It is well settled that in an action
for trespass on land, where the title to the land is put into
issue, the plaintiff must recover on the strength of his own
title.”
Burchfield v. Ping, Ky., 284 S.W.2d 818, 820 (1955)
(citing
French v. Childers, 280 Ky. 339, 133 S.W.2d 63 [1939]).
Moreover, the claimant to the property “has the burden of showing
that the land in dispute is embraced within his boundary lines,
which he must locate with persuasive certainty.”
Stewart Lumber,
supra at 142.
Implicit in the trial court’s conclusions of law as set
forth in paragraph two of the Commissioner’s report is a reliance
upon the weakness of Anthony Frasure’s title in concluding that
the Wellses were the owners of the property and that the Frasures
were guilty of trespass.
Moreover, the Commissioner’s statement
“[t]he Deed conveying the property to the Plaintiffs contains the
description which is an accurate description of the property
conveyed to the Plaintiffs’ predecessors in title and therefore
the Plaintiffs are the owners of said property by Deed” is a
fallacious conclusion.
The statement would only be true if the
“accurate description” included the disputed property within its
boundaries.
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In summary, (1) the trial court failed to make a
finding that the description contained in the Wells deed includes
the disputed property, and (2) the trial court’s conclusion that
the Wellses are the owners of the disputed property is premised
upon an erroneous application of quiet title law.
Absent a
proper determination that the Wellses are the owners of the
disputed property, the Frasures cannot be held liable for
trespass to the property.
See Garrett v. Young, Ky., 423 S.W.2d
526 (1968) (cause for damages based on trespass must fail in
absence of proof of trespass).
We therefore reverse the judgment
of the trial court insofar as it quieted title in favor of the
Wellses and concluded that the Frasures were liable for trespass
and remand for additional proceedings.
In its decision following
remand, the trial court shall comply with CR 52.01 and set forth
adequate findings of fact and conclusions of law supporting its
decision.
Next, the Frasures contend that the trial court applied
an incorrect measure of damages by ordering the Frasures to pay
the Wellses’ attorney fees, surveyor costs, and court costs as
damages for an unintentional trespass.
We agree.
It is apparent that the Wellses’ theory of the case was
that the injury caused by appellants’ trespass was a temporary,
as opposed to a permanent, injury.
If the injury to property
caused by the trespass is temporary, the appropriate award of
damages is the cost to return the property to its original state.
Ellison v. R & B Contracting Inc., Ky., 32 S.W.3d 66, 69 (2000).
However, it is now clear that the reduction in the fair market
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value of the property caused by the trespass serves as a cap on
the amount the land owner may recover.
Id. at 70.
Pursuant to Ellison, attorney fees, surveyor costs, and
court costs are not appropriate damages to be awarded for
trespass.
On remand, if the trial court again determines that
the Wellses are the owners of the property and that the Frasures
are liable for trespass, it should award damages consistent with
Ellison, supra.
The judgment of the Boyd Circuit Court is reversed, and
the case is remanded for additional proceedings consistent with
this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Don A. Bailey
Louisa, Kentucky
Jeffrey L. Preston
Catlettsburg, Kentucky
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