BRUNER (ROBERT), ET AL. VS. SIZEMORE (DOUGLAS), ET AL.
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RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000909-MR
AND
NO. 2007-CA-000947-MR
ROBERT BRUNER; AND
GEORGETTE BRUNER, HIS WIFE
v.
APPELLANTS/CROSS-APPELLEES
APPEAL AND CROSS-APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 01-CI-00544
DOUGLAS SIZEMORE; AND
PAMELA MUSTER SIZEMORE,
HIS WIFE
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
GUIDUGLI, SENIOR JUDGE: Robert Bruner and Georgette Bruner appeal from
a determination of the correct location of and proper title to a disputed tract of real
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Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
property. Douglas Sizemore and Pamela Muster Sizemore filed a cross-appeal
arguing that champerty bars the Bruners from claiming a portion of the disputed
property. We affirm.
The Bruners and Sizemores are owners of adjoining property in
Laurel County, Kentucky. The disputed property is a 1.85-acre tract which derived
from a common grantor. The parties agreed that the Bruners have superior paper
title to the 1.85-acre tract. The dispute concerns the correct location of the tract
and the validity of the Sizemores’ adverse possession claim. The Bruners filed suit
in Laurel Circuit Court. The trial court entered a partial summary judgment. This
Court vacated the partial summary judgment and remanded the matter to the trial
court. Sizemore v. Bruner, 2004-CA-000912-MR, (rendered May 27, 2005). Upon
remand, the court held a bench trial and found that the correct location of the
property was the placement made by the Sizemore’s surveyor, Ralph Peters. The
court also found that the Sizemores owned a portion of the disputed property west
of a removed fence line by adverse possession. However, the Sizemores did not
present sufficient evidence of adverse possession to the east of the fence line. Both
parties filed post-judgment motions and the trial court entered amended findings of
fact and judgment. These appeals followed.
The Bruners argue that the trial court erred in its determination of the
correct location of the disputed property in three respects: (1) by placing only two
of the three corners delineated by common calls at the same location; (2) by
ignoring a statutory preference for evidence provided by county surveyors over
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surveyors retained for litigation purposes; and (3) that surveyor Peters relied on a
separate tract owned by the Bruners rather than the parent tract in locating the
property.
The standard of review in cases tried before the court without a jury is
well established. “Findings of fact shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Kentucky Rules of Civil Procedure (CR) 52.01. This
rule applies to boundary disputes. Webb v. Compton, 98 S.W.3d 513, 517
(Ky.App.2002). Further, “[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.” Id.
(quoting Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-5 (Ky.App.1987)).
In its original findings, the trial court found that three of the calls
demarking a corner of the 24.84-acre tract were identical to three of the calls
demarking a corner of the 1.85-acre disputed property. The deeds stated these calls
as follows:
N. 85.15 E. 260 feet to a stone; thence N. 53.45 E. 314
feet to a stone; thence N. 53.45 E. 314 feet to a stone;
thence N. 20.30 W. 196 feet to a pine.
The Bruners argue that there is a discrepancy in the amended findings of the trial
court which places only two of the three common calls in the same location on the
ground. The court also found that “[t]he surveyor for the defendants [Peters]
performed a more appropriate survey and field work in locating the appropriate
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calls set forth in the plaintiff’s deed; and the Court accepts as correct the location
of plaintiff’s tract as determined by surveyor Ralph Peters on the behalf of
defendant and as marked as Defendant’s Plat #3.” The Bruners argue that the trial
court placed the common corner 130 feet south of the location determined in the
original findings. However, in the amended findings, the trial court reiterated its
reliance on the location as determined by Peters. The court further explained the
basis of the more southerly placement as follows:
Mr. Peters, the Defendant’s surveyor, has positioned the
Plaintiff’s tract of land about one hundred and thirty or
forty (130-140) feet south of the site in which Mr.
Alitzer, the Plaintiffs’ surveyor, has positioned the
Plaintiffs’ tract of land. The Defendant’s surveyor
attributes the discrepancy to a mistake in the descriptive
language on the face of the Plaintiffs’ deed which he has
substantiated by tracing the deed back in the chain of
title. In addition, the Defendant’s surveyor has identified
errors in distance as it relates to the language set forth on
the face of the Defendant’s deed.
We have reviewed both the original and amended findings of the trial court as well
as the testimony of surveyor Peters. The findings of the trial court are not
inconsistent and are supported by substantial evidence in the record.
The Bruners next argue that the trial court improperly accepted the
Peters survey because it failed to acknowledge a statutory preference contained in
Kentucky Revised Statutes (KRS) 73.120 for evidence provided by county
surveyors. The Bruners provided evidence from Ace Hensley, a former Laurel
County surveyor. Kentucky Revised Statutes 73.120 does not create a statutory
preference for evidence.
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The apparent purpose of the provision of KRS 73.120
upon which the appellants rely, is to make it clear that
only official surveys (charts, maps, etc.), or copies
thereof, may be admitted in evidence merely upon
authentication as a public record, presumptively regular
and accurate, and that unofficial surveys, unless made by
order of court, require preliminary proof of accuracy by
the surveyor or engineer who made the proffered
documents.
Gannon v. Pearl, 311 S.W.2d 184 (Ky. 1958).
Thirdly, the Bruners argue that Peters improperly determined the
location of the boundary by relying on the location of a separate tract of land rather
than the parent tract. Peters’s testimony indicates that this was not the sole basis of
his determination. Peters also explained the basis of his reliance on the separate
tract. He stated that this separate tract adjoined the Bruner’s first tract. The deeds
in this case also called for lines and corners contained in the deeds of other
adjoining properties. Therefore, Peters traced the title back farther in order to
ascertain the correct location of the boundary within the fuller context. The trial
court’s determination of the boundary is supported by substantial evidence in the
record.
Next, the Bruners argue that there was insufficient evidence to support
the trial court’s finding that the Sizemores acquired a portion of the disputed
property by adverse possession. The Bruners argue that possession by the
Sizemores was not wholly exclusive and that the trial court impermissibly allowed
the Sizemores to tack the period of possession onto the previous owner’s period of
adverse possession.
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In Philips v. Akers, 103 S.W.3d 705, 708 (Ky.App. 2002), this Court
set forth the elements of adverse possession as follows:
In order to establish title through adverse possession, a
claimant must show possession of disputed property
under a claim of right that is hostile to the title owners
interest. Further, the possession must be shown to be
actual, open and notorious, exclusive, and continuous for
a period of fifteen years. “The ‘open and notorious'
element requires that the possessor 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.” Mere intentions or verbal
expressions of a claim to property is not sufficient absent
physical acts appearing on the land evidencing a purpose
to hold the property hostile to the rights of and giving
notice to the title holder. Absent proof that the possessor
made physical improvements to the property, such as
fences or buildings, there must be proof of substantial,
and not sporadic, activity by the possessor.
(Internal citations omitted). Further, “the adverse possession of a grantee may be
tacked on to that of his grantor to complete the statutory period.” Cole v. Gilvin,
59 S.W.3d 468, 475 (Ky.App. 2001)(quoting Martin v. Kaine, 245 S.W.2d 177,
178 (Ky. 1951)).
The evidence demonstrated that the Sizemores’ predecessor in title,
Paul Muster, constructed a stock fence upon a portion of the disputed property.
Between 1979 and 1994, Muster utilized the area west of the stock fence for
livestock grazing. Also during this period, Muster ejected individuals from this
land who were clearing timber on behalf of an adjoining landowner. After the
Sizemores obtained the property from Muster in 1994, they removed the stock
fence and cleared the area of trees and undergrowth in order to construct a
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residence and otherwise landscape the property. The Sizemores also constructed a
driveway and installed a heating and cooling system on the disputed property. No
persons objected to the activities the Sizemores undertook upon this land. The
improvements were completed prior to the Bruners’ acquisition of their property in
2000. The Bruners did not locate the boundaries of their property or ascertain the
extent of the Sizemores’ claim prior to the purchase of their property. The trial
court’s findings are supported by substantial evidence. Further, we cannot
conclude that the trial court’s determination that the Sizemores acquired the area
west of the stock fence by adverse possession was clearly erroneous.
On cross-appeal, the Sizemores argue that the champerty statute bars
the Bruners from claiming the property that lies to the east of the stock fence. KRS
372.070(1) states:
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; but this
section does not render void any devise of land in
adverse possession.
“The words ‘adverse possession’ as used in the statute, mean that the possession
must be shown to be of that character and dignity as would in the statutory period
ripen into title by adverse possession.” Tankersley v. Sell, 311 Ky. 832, 226
S.W.2d 17, 20 (1950).
The trial court found that the activities of Muster and the Sizemores
upon the land east of the stock fence were insufficient to constitute adverse
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possession. The Sizemores first cleared the land in 1996 and only continued to
maintain the land on approximately a yearly basis thereafter. There was no
evidence that Muster undertook any activity to the east of the stock fence. The
trial court found that the activities upon the property were of such a sporadic and
insubstantial nature that possession was not open and continuous. Based on the
substantial evidence in the record, we cannot conclude that the trial court
committed clear error.
Accordingly, the judgment of the Laurel Circuit Court is affirmed in
all respects.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Tommie L. Weatherly
London, Kentucky
John T. Aubrey
Manchester, Kentucky
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