Joseph Taylor v. Judith Smith

• Court: Court of Appeals of Kentucky
• Decided: February 14, 2024
• Docket: 2023 CA 000723
• Status: Unknown

Opinion

RENDERED: FEBRUARY 16, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0723-MR

JOSEPH TAYLOR APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE LISA P. JONES, JUDGE ACTION NO. 22-CI-00315

JUDITH SMITH AND HARRY A. SMITH APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CETRULO, JUDGE: Appellant Joseph Taylor (“Mr. Taylor”) appeals the Daviess

Circuit Court order finding that he had not adversely possessed a portion of

property owned by his neighbors, Appellees Judith Smith (“Mrs. Smith”) and

Harry A. Smith (together, the “Smiths”). Upon review, we affirm the Daviess

Circuit Court. FACTUAL AND PROCEDURAL HISTORY

Mr. Taylor owns property located at 5360 Highway 144, which he

received from his mother in 2011. The Smiths own the neighboring property, 5346

Highway 144, which they purchased in February 2022. A month later, the Smiths

prepared to construct a garage on the property. During that preparation, the Smiths

hired a surveyor to determine and mark the property line between the two

properties. Once the surveyor established the line, the Smiths realized a split rail

fence had been erected a few feet off the line, on their side of the property. The

Smiths removed the split rail fence.1 Mr. Taylor then confronted the Smiths and

claimed ownership of the land between the surveyed line and the line the split rail

fence had made (“Disputed Property”) by adverse possession.

In April 2022, Mr. Taylor filed suit against the Smiths arguing he had

adversely possessed the Disputed Property by placing a fence between the

properties, “such that the [Disputed Property] had been continuously maintained

and enjoyed by [Mr. Taylor].” As such, Mr. Taylor argued the Disputed Property

belonged to him, and the Smiths had no claim to that land. Mr. Taylor requested a

bench trial on the matter, which the trial court held in April 2023.

1 Later, the trial court ordered the Smiths to return the fence to its original position during the course of the lawsuit.

-2- At trial, Mr. Taylor testified and presented four additional witnesses:

Edward Gazelle (“Mr. Gazelle”), who owned the Smiths’ property from 1992 to

2004; Mark Hurt (“Mr. Hurt”), Mr. Gazelle’s stepson, who previously lived on the

Smiths’ property from 1992 to 1993 but was a tenant on Mr. Taylor’s property at

the time of trial; Richard Castlen (“Mr. Castlen”), a local resident familiar with the

properties; and Wesley Yeiser (“Mr. Yeiser”), Mr. Taylor’s friend and a local

farmer who sharecropped Mr. Taylor’s property. Additionally, Mrs. Smith

testified and presented John DeJarnette (“Mr. DeJarnette”), who owned the

Smiths’ property from 2006 to 2022, and Mark Phelps (“Mr. Phelps”), who

surveyed the Smiths’ property in March 2022.

Mr. Gazelle testified that there had been a fence on the Smiths’

property when he resided there from 1992 to 2004. The fence separated the

Smiths’ property from Mr. Taylor’s property. Mr. Gazelle testified that he did not

move, alter, nor maintain the fence while he lived on the property. Mr. Hurt

testified that he had been renting Mr. Taylor’s property for ten years and as part of

the agreement, he mowed the yard. He noted that he sometimes mowed around the

fence, but sometimes Mr. DeJarnette mowed around the fence before the Smiths

bought the property.2 Mr. Hurt testified that since the time he began renting Mr.

2 Later, Mr. Hurt said that he could not recall whether Mr. DeJarnette mowed on Mr. Taylor’s side of the fence.

-3- Taylor’s property, the fence separating the property from the Smiths had been the

same; however, he could not say it was the same fence from 1992 because that one

was painted.

Next, Mr. Castlen explained that he had lived across the street from

the Disputed Property his entire life, starting in 1956. Although he was regularly

on the property as a child, in the last couple of years, he was on the property only

two or three times per year. He recalled a wire fence being on the property when

he was a child and did not recall seeing anyone move or alter that fence. Yet Mr.

Castlen could not recall the current material of the fence. The Smiths’ counsel

showed Mr. Castlen photos of the fence; however, he could not recall whether it

was in the same place as the one from his childhood. Mr. Yeiser explained that he

had been leasing farmland on Mr. Taylor’s property since 1995. Indeed, he was on

the property multiple times in the spring, summer, and fall but did not access the

property in the winter. He noted that there was a wooden fence separating Mr.

Taylor’s and the Smiths’ properties, which he recalled being there since 1995;

however, he could not say for certain whether the fence had ever been moved or

altered.

Mr. Taylor testified that his parents, from whom he acquired the

property, had obtained the property in the late 1950s. Mr. Taylor emphatically

stated that there had been a fence separating that property from what is now the

-4- Smiths’ since the 1920s. He added that the fence had been in the same location

that entire time, but the fence eventually changed from a wire fence to a plastic

fence in the 1990s. He could not recall who replaced the fence or when that

happened. Years later, the fence changed again when Mr. DeJarnette erected a

wooden split rail fence. In terms of maintenance, Mr. Taylor stated that he sprayed

the fence with herbicide and mowed the area. When a larger fix needed to be

made, he recalled that Mr. DeJarnette had fixed it, and Mr. Taylor paid for the

materials.

Mr. DeJarnette testified that around 2008, the boundary between the

properties was overgrown with bushes and trees – so high and thick that he could

not see Mr. Taylor’s house – and there was not a visible fence. The Smiths

presented aerial photos of the property line around 2008, depicting the overgrowth.

Further, Mr. DeJarnette testified that he did not recall tearing down a fence while

he cleared the area, nor did he recall finding any manmade materials. Once

cleared, Mr. DeJarnette testified that he erected the split rail fence along the

boundary line. He used two monuments near the overgrowth to estimate what he

assumed was the property line. Additionally, Mr. DeJarnette testified that he

maintained the fence, mowing and weeding on both sides, and that Mr. Taylor

bushhogged on Mr. Taylor’s side of the fence less than once a month “during the

season.” Occasionally, Mr. DeJarnette even mowed Mr. Taylor’s field to be

-5- “neighborly.” Mr. Taylor’s attorney showed Mr. DeJarnette a photo of the plastic

fence from the 1990s, and Mr. DeJarnette emphasized that when he moved onto

the Smiths’ property in 2006, that fence was not visible if it still existed.

Mrs. Smith testified regarding the hiring of Mr. Phelps to survey their

property and her discussions with Mr. Taylor regarding adverse possession. Mrs.

Smith noted that, although the parties agreed to discuss options concerning the

property line, Mr. Taylor ultimately filed the lawsuit and bushhogged the stakes

the surveyor had placed. Finally, Mr. Phelps testified that he used historical

documents3 and the Smiths’ deed to identify the bounds of the property. Mr.

Phelps had no difficulty finding the monuments described in those documents and

marked the boundary line with stakes. Further, he explained that the historical

documents suggested that there had been a fence along the boundary line at some

time, but when he surveyed the area, there was no fence along that line.4

In May 2023, the trial court entered its judgment and order on the

bench trial (“Judgment”), finding that Mr. Taylor failed to establish all the

elements of adverse possession by clear and convincing evidence. As such, the

court found that the Disputed Property belonged to the Smiths. The next month,

3 These included a 1947 survey of the Smiths’ property. 4 Although there was a fence near the shared driveway of the properties, the split rail fence pulled away from the property line “as it went back.”

-6- Mr. Taylor filed a Kentucky Rule of Civil Procedure (“CR”) 60.02 motion to

modify or amend the Judgment, which the court denied. Mr. Taylor then appealed

the trial court’s Judgment.

STANDARD OF REVIEW

Our standard of review is governed by CR[5] 52.01. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980) (CR 52.01 is applicable in boundary disputes.). When reviewing an action taken by a trial court without a jury, we may not reverse its findings of fact unless they were clearly erroneous. Clear error only occurs when there is not substantial evidence in the record to support the trial court’s findings. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Substantial evidence is that which is “proof sufficient to induce conviction in the mind of a reasonable person.” Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009).

Elsea v Day, 448 S.W.3d 259, 263 (Ky. App. 2014).

ANALYSIS

Mr. Taylor argues that the trial court misapplied the law regarding

adverse possession and that the trial court’s ruling against Mr. Taylor was

significant enough to result in an unfair ruling. We disagree. Kentucky precedent

is clear that to establish a claim for adverse possession, the claimant must prove,

by clear and convincing evidence, that the “1) possession [was] hostile and under a

claim of right, 2) it [was] actual, 3) it [was] exclusive, 4) it [was] continuous, and

5 Kentucky Rules of Civil Procedure.

-7- 5) it [was] open and notorious.” Id. (quoting Appalachian Reg’l Healthcare, Inc.

v. Royal Crown Bottling Co., 824 S.W.2d 878, 880 (Ky. 1992)). “Further, these

common law elements of adverse possession must all be maintained for the

statutory period of fifteen years[.]” Id.

While Mr. Taylor agrees with the trial court’s findings regarding the

“tenancy by the parties of the property in question[,]” he disagrees with the

findings that he did not meet his burden of proof on steps four and five of the rule.

Specifically, he contends that the testimony of his “four witnesses far outweighed

the testimony of [the Smiths’] single witness”6 regarding those issues. However, it

is clear that a trial court’s decisions regarding witness credibility are not

quantitative analyses. Instead, “due regard shall be given to the opportunity of the

trial court to judge the credibility of the witnesses.” Barber v. Bradley, 505

S.W.3d 749, 754 (Ky. 2016) (quoting CR 52.01) (internal quotation marks

omitted). Further, “judging the credibility of witnesses and weighing evidence are

tasks within the exclusive province of the trial court.” Id. (internal quotation

marks and citation omitted). Here, the trial court’s findings regarding steps four

and five of the rule were supported by substantial evidence.

6 It is unclear why Mr. Taylor suggests there was only one witness; Mr. Phelps, Mr. DeJarnette, and Mrs. Smith testified on behalf of the Smiths.

-8- As to step four, continuous possession, Mr. Taylor had the burden to

prove he had continuously asserted “dominion over the property.” Thompson v.

Ratcliff, 245 S.W.2d 592, 593 (Ky. 1952). Continuous possession requires the

claimant to act in a way that would “furnish a cause of action in ejectment or for

trespass every day during the statutory period of fifteen years.” Ballard v. Moss,

268 S.W.2d 35, 37 (Ky. 1954) (citations omitted). Although Mr. Taylor presented

evidence that he mowed the Disputed Property and sprayed for weeds “during the

season,” the Smiths contend that Mr. Taylor’s possession was not continuous

because Mr. Taylor’s upkeep was only occasional and Mr. DaJarnette had testified

that he, too, maintained both sides of the fence. Additionally, most of the

witnesses testified that the location, material, and existence of the fence varied

over the relevant 15-year period.

Indeed, the trial court found that Mr. Castlen and Mr. Taylor’s

testimonies indicated that in the 1960s or 1970s, the fence was made of wire;

however, Mr. Castlen could not say what type of fence was presently on the

property, when it was placed there, or whether it was on “the same footer” as the

wire fence. Further, the trial court found it compelling that Mr. Taylor did not

present evidence “regarding who built the white [plastic] fence, when it was built,

where it was placed, or if the wire fence which is visible in the foreground of the

photo was still in place nearby the white [plastic] fence.”

-9- As such, the trial court concluded that Mr. Taylor “failed to show the

white [plastic] fence marked the same line as the wire fence, and thus” the court

found there was not clear and convincing evidence that there was continuous

possession since Mr. Taylor’s childhood, as he claimed. The evidence the trial

court relied on was “sufficient to induce conviction in the mind of a reasonable

person.” See Rearden, 296 S.W.3d at 441. Therefore, there was substantial

evidence that Mr. Taylor did not act every day in such a manner that would

“furnish a cause of action in ejectment or for trespass.” See Ballard, 268 S.W.2d at

37. The trial court’s finding was not clearly erroneous.

As to step five, open and notorious possession, Mr. Taylor had the

burden to prove that he “openly evince[d] a purpose to hold dominion over the

property with such hostility that w[ould] give the non-possessory owner notice of

the adverse claim.” Phillips v. Akers, 103 S.W.3d 705, 708 (Ky. App. 2002)

(citation omitted). Our precedent has clarified the types of actions that constitute

such possession. In Moore v. Stills, 307 S.W.3d 71, 78 (Ky. 2010), our Supreme

Court explained

[i]t is not enough . . . that one merely stretch one’s boundary to include property beyond one’s deed. One may not, while living on one’s rightful property “acquire title through such a stretching operation to other property about which he might mark a line. . . . He is not in possession of it, if while he is living on another tract, he simply mentally extends his claim over it.”

-10- (Citation omitted.)

There, the Court gave various examples of actions that did not meet

the requisite burden to establish adverse possession: e.g., “the surveying and

marking of a boundary, the payment of taxes, and occasional entries for the

purpose of cutting timber are not sufficient to constitute adverse possession[,]” id.

(citing Flinn v. Blakeman, 71 S.W.2d 961, 969 (Ky. 1934), overruled on other

grounds by Warfield Nat’l Gas Co. v. Ward, 149 S.W.2d 705 (Ky. 1940)); “such

uses as the masting of hogs, the ranging of cattle, the conducting of a sugar camp[,]

the operation of a water mill[,] the cutting of bushes and hay[,] the occasional

sowing of grass . . . [are] insufficient to establish the actual possession of another’s

land[,]” id. at 79; “cutting hay, digging pond, growing crop and similar activities

[are] insufficient[,]” id. (citing Ky. Women’s Christian Temperance Union v.

Thomas, 412 S.W.2d 869 (Ky. 1967)); “establishing worm bed, spraying for

poison ivy, planting clover and trees” were found insufficient, id. at 79 (citing

Pierz v. Gorski, 276 N.W.2d 352 (Wis. App. 1979)); and “the roaming of cattle

and hogs, the posting of signs forbidding trespassing, [and] driving away hunters

from time to time” were insufficient, id. (citing Rowland v. McLain, 70 S.E.2d 918,

920 (Ga. 1952)).

Here, the trial court determined that Mr. Taylor did not meet his

burden of proof because he made no improvements to the Disputed Property to

-11- give notice to the Smiths of his adverse claim. Likewise, the trial court found there

was not clear and convincing evidence that the white plastic fence had remained in

the same location since the 1990s:

Though many witnesses – friends and tenants of [Mr. Taylor] – testified that they observed that the white fence has been in place since the 1990’s [sic], the Court does not find their claims credible. [Mr. Taylor] himself testified that Mr. DeJarnette put up a new fence, and Mr. Hurt noted that the present fence does not look like the fence he recalls from the 1990’s [sic].

Additionally, the trial court noted that the aerial photographs from

2008 showed thick brush and overgrowth in the disputed area, and Mr. DeJarnette

testified that when he cleared the area, he found no evidence of a fence. Although

Mr. Taylor testified that Mr. DeJarnette asked for his permission to build the new

fence and promised Mr. Taylor he would put it in the same place as the old fence,

Mr. DeJarnette testified that he never spoke with Mr. Taylor regarding the fence,

did not find evidence of an old fence, and created the line for his split rail fence

using two monuments and what he “thought” was the property line. The trial court

acknowledged that regardless of whose testimony was accurate, Mr. Taylor failed

to prove that Mr. DeJarnette placed the new fence where the old fence had been.

Finally, the trial court again emphasized the aerial photographs

showing overgrowth and brush along the boundary line. The court acknowledged

that such conditions called “into question the memories of [Mr. Taylor’s]

-12- witnesses.” Therefore, the court found Mr. DeJarnette’s testimony more credible.

As such, there was not sufficient evidence that Mr. Taylor’s possession had been

open and notorious prior to Mr. DeJarnette clearing the area and placing a new

fence along the boundary.

The trial court concluded that

[w]hile the erection of a fence is a good indicator of a claimant’s intent to hold property adversely . . . [Mr. Taylor] did not construct the present fence though he has received the benefit of it. Moreover, that fence has not been in place for fifteen years. Over the years, there have been many fences separating these two properties and, [sic] maybe even no fences for a period. Case law states that “a long-existing fence may serve as a well-defined boundary [Elsea v. Day, 448 S.W.3d at 264], but this fence is not long-existing and [Mr. Taylor] has failed to prove that its present location is the “well-defined boundary” that has defined these two properties over those many years.

The testimony established that Mr. Taylor occasionally mowed the

grass on the Disputed Property and sprayed for weeds. However, there was no

explicit evidence presented at trial that he conducted such activities on a fence in

the same exact location. To the contrary, there was extensive evidence that the

fence had moved over the years, and at times likely did not exist. Moreover, as the

trial court detailed, our caselaw is clear that simply marking a line is not sufficient

to establish an adverse possession claim. Accordingly, the trial court did not err

-13- when it determined the evidence supported a finding that Mr. Taylor had not

openly and notoriously possessed the Disputed Property.

CONCLUSION

The Daviess Circuit Court properly identified the law governing

adverse possession, supported its findings of fact with substantial evidence, and

appropriately applied those facts to the relevant law to determine that Mr. Taylor

did not adversely possess the Disputed Property. As such, we AFFIRM the trial

court’s judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Matthew C. Tierney Marty G. Jacobs Owensboro, Kentucky Owensboro, Kentucky

-14-