RENDERED: SEPTEMBER 18, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000367-MR
ORPHA BISHOP APPELLANT
APPEAL FROM OWEN CIRCUIT COURT v. HONORABLE R. LESLIE KNIGHT, JUDGE ACTION NO. 16-CI-00117
S.T. BROCK, CINDY BROCK, AND JOE BROCK APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Orpha Bishop appeals the Owen Circuit Court’s judgment
finding that S.T. Brock, Cindy Brock, and Joe Brock (the Brocks) acquired a
gravel road by adverse possession. Finding no error, we affirm. BACKGROUND
This appeal addresses a property line dispute between Bishop and the
Brocks. Both landowners claim ownership of a gravel road that runs east to west
into their respective properties. The road in question dead-ends at the Brocks’
property and provides limited access to the Bishop property.
The Brocks bought their land in 1988, and their son has resided at the
property since 1989. When the property was purchased, there was a cable strung
across the entrance of the gravel road; in 1989, the Brocks replaced the cable with
a metal gate. This gate remains on the property today and is closed and locked
most of the time. Only the Brocks have the key to open the gate.
After living on the property for three years, the Brocks installed a
bridge and culverts over a creek near the entrance of the gravel road, costing them
around $10,000. The Brocks also maintained the integrity of the road by re-
graveling it, grading it, cleaning it, and mowing around the area. The Brocks
treated, and believed, the gravel road as part of their property.
On the other hand, the Bishops purchased their property in 1991, two
years after the Brocks.1 They primarily used their property for hunting.2
1 Ted Bishop, Appellant’s son, purchased the land. However, in 1995, Appellant acquired the property by deed from her son. 2 The Bishops allowed all family members, and family friends, to hunt on the property, but only when accompanied by a Bishop family member.
-2- Therefore, the Bishops seldom used the road and rarely maintained it. When they
purchased their land in 1991, the bridge and culverts were already installed. After
owning the property for four years, the Bishops drove the road to the Brocks’
house and spoke about it directly with their neighbors. However, neither party
gave the other permission to use the gravel road.
A controversy arose between the parties when Orpha Bishop
attempted to sell her land. The potential owner wanted to verify legal access to the
lower portion of the property by use of the gravel road. Therefore, Bishop hired a
professional to survey the property.
The surveyor confirmed Bishop owned the property. He said the
Brocks’ deed description was to the south of the gravel road and that no part of
their deed encompassed the gravel road. Upon physical review of the property, he
believed the gravel driveway, then in use, moved from its original location and was
now “more into the Bishops’ property.” Therefore, the entire gravel road was now
situated within Bishop’s property lines. The Brocks contested this ownership,
believing then, and arguing, that they had acquired the gravel road by adverse
possession.
This led Bishop to file a petition for declaratory judgment, seeking a
judicial determination of legal ownership. The circuit court held a bench trial on
November 20, 2017. After hearing testimony, the circuit court found the disputed
-3- road belongs to the Brocks because Bishop did not provide evidence she took any
act to interrupt the Brocks’ possession of the road. This appeal followed.
STANDARD OF REVIEW
Our review of a circuit court’s findings of fact following a bench trial
is to determine whether those findings are clearly erroneous. CR3 52.01. This rule
applies with equal force to matters involving boundary disputes. Croley v. Alsip,
602 S.W.2d 418, 419 (Ky. 1980). Factual findings are clearly erroneous if
unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003). Substantial evidence is defined as “that which, when taken alone or in light
of all the evidence, has sufficient probative value to induce conviction in the mind
of a reasonable person.” Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citations omitted).
Our role as a reviewing court prohibits us from disturbing the circuit
court’s factual findings that are supported by substantial evidence, despite whether
we would have reached a contrary conclusion. Moore, 110 S.W.3d at 354. We
defer to a significant degree to the circuit court, for it had the opportunity to
observe, scrutinize, and assess the credibility of witnesses. CR 52.01.
Notwithstanding the deference due the circuit court’s factual findings, its
3 Kentucky Rules of Civil Procedure.
-4- conclusions of law, reached after making its findings, are reviewed de novo.
Hoskins v. Beatty, 343 S.W.3d 639, 641 (Ky. App. 2011).
ANALYSIS
Five elements must be satisfied before adverse possession will bar
record title: “1) possession must be hostile and under a claim of right, 2) it must be
actual, 3) it must be exclusive, 4) it must be continuous, and 5) it must be open and
notorious.” Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co.,
Inc., 824 S.W.2d 878, 880 (Ky. 1992) (citing KRS4 413.010; Tartar v. Tucker, 280
S.W.2d 150, 152 (Ky. 1955)). Further, “[t]hese common law elements of adverse
possession must all be maintained for the statutory period of fifteen years, and it is
the claimant’s burden to prove them by clear and convincing evidence.” Moore v.
Stills, 307 S.W.3d 71, 77-78 (Ky. 2010) (citations omitted).
Here, the question becomes whether the Brocks could adversely
possess land they mistakenly thought was their own. We conclude that they could,
and they did.
“One may obtain a perfect title to real property by adverse possession
for the statutory period of time of fifteen years even when there is no intention by
the adverse possessor to claim land not belonging to him.” Appalachian Regional
Healthcare, Inc., 824 S.W.2d at 879-80 (citing KRS 413.010; Tartar, 280 S.W.2d
4 Kentucky Revised Statutes.
-5- at 152). In Tartar v. Tucker, Kentucky’s then-highest Court held that “[a]dverse
possession, even when held by mistake, may ripen into a prescriptive right after 15
years of such possession.” 280 S.W.2d at 152. The Court therein concluded that
the claimant’s intention is the controlling factor and where he takes possession
under the “mistaken” belief that the land is his, and he evinces no intention of
surrendering the disputed portion, he is holding adversely. Id.; see also Johnson v.
Dobson, 208 Ky. 401, 270 S.W.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: SEPTEMBER 18, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000367-MR
ORPHA BISHOP APPELLANT
APPEAL FROM OWEN CIRCUIT COURT v. HONORABLE R. LESLIE KNIGHT, JUDGE ACTION NO. 16-CI-00117
S.T. BROCK, CINDY BROCK, AND JOE BROCK APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Orpha Bishop appeals the Owen Circuit Court’s judgment
finding that S.T. Brock, Cindy Brock, and Joe Brock (the Brocks) acquired a
gravel road by adverse possession. Finding no error, we affirm. BACKGROUND
This appeal addresses a property line dispute between Bishop and the
Brocks. Both landowners claim ownership of a gravel road that runs east to west
into their respective properties. The road in question dead-ends at the Brocks’
property and provides limited access to the Bishop property.
The Brocks bought their land in 1988, and their son has resided at the
property since 1989. When the property was purchased, there was a cable strung
across the entrance of the gravel road; in 1989, the Brocks replaced the cable with
a metal gate. This gate remains on the property today and is closed and locked
most of the time. Only the Brocks have the key to open the gate.
After living on the property for three years, the Brocks installed a
bridge and culverts over a creek near the entrance of the gravel road, costing them
around $10,000. The Brocks also maintained the integrity of the road by re-
graveling it, grading it, cleaning it, and mowing around the area. The Brocks
treated, and believed, the gravel road as part of their property.
On the other hand, the Bishops purchased their property in 1991, two
years after the Brocks.1 They primarily used their property for hunting.2
1 Ted Bishop, Appellant’s son, purchased the land. However, in 1995, Appellant acquired the property by deed from her son. 2 The Bishops allowed all family members, and family friends, to hunt on the property, but only when accompanied by a Bishop family member.
-2- Therefore, the Bishops seldom used the road and rarely maintained it. When they
purchased their land in 1991, the bridge and culverts were already installed. After
owning the property for four years, the Bishops drove the road to the Brocks’
house and spoke about it directly with their neighbors. However, neither party
gave the other permission to use the gravel road.
A controversy arose between the parties when Orpha Bishop
attempted to sell her land. The potential owner wanted to verify legal access to the
lower portion of the property by use of the gravel road. Therefore, Bishop hired a
professional to survey the property.
The surveyor confirmed Bishop owned the property. He said the
Brocks’ deed description was to the south of the gravel road and that no part of
their deed encompassed the gravel road. Upon physical review of the property, he
believed the gravel driveway, then in use, moved from its original location and was
now “more into the Bishops’ property.” Therefore, the entire gravel road was now
situated within Bishop’s property lines. The Brocks contested this ownership,
believing then, and arguing, that they had acquired the gravel road by adverse
possession.
This led Bishop to file a petition for declaratory judgment, seeking a
judicial determination of legal ownership. The circuit court held a bench trial on
November 20, 2017. After hearing testimony, the circuit court found the disputed
-3- road belongs to the Brocks because Bishop did not provide evidence she took any
act to interrupt the Brocks’ possession of the road. This appeal followed.
STANDARD OF REVIEW
Our review of a circuit court’s findings of fact following a bench trial
is to determine whether those findings are clearly erroneous. CR3 52.01. This rule
applies with equal force to matters involving boundary disputes. Croley v. Alsip,
602 S.W.2d 418, 419 (Ky. 1980). Factual findings are clearly erroneous if
unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003). Substantial evidence is defined as “that which, when taken alone or in light
of all the evidence, has sufficient probative value to induce conviction in the mind
of a reasonable person.” Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citations omitted).
Our role as a reviewing court prohibits us from disturbing the circuit
court’s factual findings that are supported by substantial evidence, despite whether
we would have reached a contrary conclusion. Moore, 110 S.W.3d at 354. We
defer to a significant degree to the circuit court, for it had the opportunity to
observe, scrutinize, and assess the credibility of witnesses. CR 52.01.
Notwithstanding the deference due the circuit court’s factual findings, its
3 Kentucky Rules of Civil Procedure.
-4- conclusions of law, reached after making its findings, are reviewed de novo.
Hoskins v. Beatty, 343 S.W.3d 639, 641 (Ky. App. 2011).
ANALYSIS
Five elements must be satisfied before adverse possession will bar
record title: “1) possession must be hostile and under a claim of right, 2) it must be
actual, 3) it must be exclusive, 4) it must be continuous, and 5) it must be open and
notorious.” Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co.,
Inc., 824 S.W.2d 878, 880 (Ky. 1992) (citing KRS4 413.010; Tartar v. Tucker, 280
S.W.2d 150, 152 (Ky. 1955)). Further, “[t]hese common law elements of adverse
possession must all be maintained for the statutory period of fifteen years, and it is
the claimant’s burden to prove them by clear and convincing evidence.” Moore v.
Stills, 307 S.W.3d 71, 77-78 (Ky. 2010) (citations omitted).
Here, the question becomes whether the Brocks could adversely
possess land they mistakenly thought was their own. We conclude that they could,
and they did.
“One may obtain a perfect title to real property by adverse possession
for the statutory period of time of fifteen years even when there is no intention by
the adverse possessor to claim land not belonging to him.” Appalachian Regional
Healthcare, Inc., 824 S.W.2d at 879-80 (citing KRS 413.010; Tartar, 280 S.W.2d
4 Kentucky Revised Statutes.
-5- at 152). In Tartar v. Tucker, Kentucky’s then-highest Court held that “[a]dverse
possession, even when held by mistake, may ripen into a prescriptive right after 15
years of such possession.” 280 S.W.2d at 152. The Court therein concluded that
the claimant’s intention is the controlling factor and where he takes possession
under the “mistaken” belief that the land is his, and he evinces no intention of
surrendering the disputed portion, he is holding adversely. Id.; see also Johnson v.
Dobson, 208 Ky. 401, 270 S.W. 815 (1925); Carpenter v. Rose, 186 Ky. 686, 217
S.W. 1009 (1920); Heinrichs v. Polking, 185 Ky. 433, 215 S.W. 179 (1919).
As explained in Elsea v. Day, 448 S.W.3d 259, 264 (Ky. App. 2014):
It has been said that the intention with which possession is taken and maintained is the controlling factor in determining its adverse character. The question as to whether a claimant actually intended to adversely possess the property of another often arises in mistaken boundary line cases. In those and other similar situations, the general view is that the claimant must be able to show that he intended to possess the disputed property as his own against the owner and the world. He must also establish that he intended to appropriate the property to his own use to the exclusion of all others. [I]t is not necessary that the claimant intended to take away property that he knew belonged to another, since it is the claimant’s intention to possess property as the owner thereof, and not his intent to take irrespective of another’s known right, which governs.
(Quoting 39 Am. Jur. Proof of Facts 2d, page 261, § 7 (2013).) Physical
improvements, such as fences, buildings, and the like, are good indicators of a
claimant’s intent to hold property adversely. Phillips v. Akers, 103 S.W.3d 705,
-6- 708 (Ky. App. 2002); see also Appalachian Regional Healthcare, Inc., 824 S.W.2d
at 880 (citation omitted) (“An intent to exercise dominion over land may be
evidenced by the erection of physical improvements on the property.”). In fact, a
long-existing fence may serve as a well-defined boundary even if the property
owner is mistaken as to the location of the true line and does not intend to claim
property beyond the true boundary. A well-defined boundary may serve as notice
of an adverse claim where the claimant was the only person who consistently
attempted to exercise dominion over the property. Walden v. Baker, 343 S.W.2d
797, 798-99 (Ky. 1961); Mudwilder v. Claxton, 301 S.W.2d 3, 4 (Ky. 1957);
Turner v. Morgan, 158 Ky. 511, 165 S.W. 684, 684-85 (1914); Johnson v. Kirk,
648 S.W.2d 878, 879-80 (Ky. App. 1983).
Here, the Brocks constructed a gate with a lock that the circuit court
found was locked at least some of the time. This road was primarily used, for
years, as a driveway. The Bishops even followed the road straight to the Brocks’
residence. Additionally, the Brocks made significant improvements on the land by
adding the bridge and culverts and maintaining the road. All this demonstrates an
“openly evince[d] purpose to hold dominion over the property with such hostility
[to] give the non-possessory owner notice of the adverse claim.” Vick v. Elliot,
422 S.W.3d 277, 280 (Ky. App. 2013) (internal quotation marks and citation
omitted). This open and notorious possession went on for over fifteen years.
-7- The circuit court could not find any evidence that the Brocks intended
to surrender the disputed portion or that the Bishops attempted to halt their use.
From the testimony, Bishop and her guests only used a small portion of the road.
This limited use is not enough to establish possession. Id. That conduct has the
ring of a public pronouncement of hostility to the title of the real owner. The
Brocks remained in possession and must be deemed to have held the land
adversely, even though their claim of title originated in a mistaken belief that the
land was theirs.
In Hotze v. Ring, 273 Ky. 48, 115 S.W.2d 311, 313 (1938), our
highest Court quoted the text in 8 Am. Jur., page 797, § 72, which states:
It is well settled that where the boundary lines of adjoining land-owners are not definitely known or their location is in dispute, such owners may establish the lines either by a written or by a parol agreement; such boundary lines may also be established by their mutual recognition of, and acquiescence in, certain [lines] as the true boundary lines, the courts being reluctant to interfere therewith after the lines have been permitted to exist over such a period of time that satisfactory proof of the true lines is difficult.
It is well-established that if adjoining landowners occupy their
respective premises up to a certain line which they mutually recognize and
acquiesce in for a long period of time – usually the time prescribed by the statute
of limitations – they are precluded from claiming that the boundary line thus
recognized and acquiesced in is not the true one. “In other words, such recognition
-8- of, and acquiescence in, a line as the true boundary line, if continued for a
sufficient length of time, will afford a conclusive presumption that the line thus
acquiesced in is the true boundary line.” Elsea, 448 S.W.3d at 265 (citation
omitted).
We conclude that the circuit court properly found the Brocks
established ownership of the disputed property by adverse possession.
CONCLUSION
For the foregoing reasons, we affirm the Owen Circuit Court’s
December 6, 2018 order finding the Brocks possessed the gravel road by adverse
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Ruth H. Baxter Stephen P. Huddleston Carrollton, Kentucky Warsaw, Kentucky
-9-