RENDERED: DECEMBER 10, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1083-MR
ROBIN RENEE ROBINSON; TOMMY ROBINSON; BRITTANY NICOLE TACKETT; AND TOMMY DWAYNE TACKETT APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 14-CI-00973
TERRY BRYANT AND SHERYL BRYANT APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Joint property owners Robin Renee Robinson, Tommy
Robinson, Brittany Nicole Tackett, and Tommy Dwayne Tackett appeal from the
June 24, 2019 judgment of the Pike Circuit Court determining disputed property
boundaries in favor of Terry Bryant and Sheryl Bryant. Having determined that the trial court’s judgment was supported by substantial evidence and is not
otherwise erroneous, we affirm.
The properties at issue in this appeal are neighboring parcels of land
all of which lie on the north side of Kentucky Route 1469 in Virgie, Pike County,
Kentucky. The appellants asserted joint ownership interests to certain land through
inheritance from the estate of Mildred Jewell Tackett Kelly. Tommy Dwayne
Tackett also personally owns a separate neighboring tract which he obtained by
deed from his mother Mildred Jewell Tackett Kelly and her husband at the time,
Dolph Kelly, in 2011. Terry Bryant and Sheryl Bryant purchased three
neighboring and contiguous tracts of property in the period of 2000 to 2007, at
least one of which was obtained from Sheryl Bryant’s father. Within this litigation
two areas were in dispute, the first being the westernmost border of the Bryants’
property on which two mobile homes and a storage building are located (the
“western” area) and the second being the northernmost boundaries of the Bryants’
tracts (the “hillside” area).
All the designated properties share one common source in their chain
of title, Lackey T. Burke who owned the entirety of the land prior to 1938 and
subsequently began selling tracts of his property. Normally a common source
would be of great assistance in determining the metes and bounds of each of the
parcels later divided from Burke’s original land holdings. In this case however, the
-2- specific boundaries of the successive parcels are complicated by their irregular
shapes, the absence of previously recorded markers (including trees, that are
referenced in the original deeds but no longer exist) and the effects of surface
mining which has altered the former topography of the hillside area.
The appellants alleged in their complaint that the Bryants encroached
onto their property by placing two mobile homes and a smaller storage building
partially over the appellants’ property line. For purposes of clarity, the western
boundary area in question (where the westerly portions of the two trailers and one
storage building lie) is a strip of land approximately 20 feet in width that runs
perpendicular to Kentucky Route 1469. The appellants filed their action in 2014
against the Bryants to quiet title in this disputed western area and to cause the
Bryants to remove their mobile homes and storage building. The Bryants
counterclaimed to quiet title in their own lands, asserting lawful ownership of the
disputed areas, a prior agreement amongst prior owners as to the boundaries of the
varying tracts and, in the alternative, adverse possession.
A two-day bench trial was conducted and in addition to taking the
respective former and current deeds into evidence, the trial court heard testimony
from one party and one surveyor for each side. For the appellants, licensed
surveyor Joe Dean Anderson testified and submitted a survey and Tommy Tackett
-3- testified regarding his personal beliefs as to the properties’ boundaries and his
recollections of his deceased father’s actions with regard to those boundaries.
For the Bryants, Sheryl Bryant testified that a survey had been
performed by licensed surveyor Randall L. Stewart in 1993 when the concerned
property was owned by her father. This survey was conducted after the appellants’
predecessor in interest, Tommy Tackett’s father, voiced concern regarding the
placement of the first, northernmost, mobile home in 1992. Subsequent to that
survey, a post was placed by the then-owners to mark their property line and that
first mobile home was moved approximately 8 feet from the surveyed and agreed
upon property line. In 1994 a small storage building was constructed within the
confines of Bryants’ agreed upon property. Later a second mobile home was
placed in conformity with both the agreed-upon boundary line and the placement
of the prior mobile home and storage building. Importantly, Stewart himself
testified regarding the 1993 survey he had performed and to the placement of the
agreed-upon post by the former land owners. One image accepted by the trial
court showed that all three structures were in place in the disputed area by March
14, 1995.
Based upon the testimony and evidence presented, the trial court
entered its initial findings of fact, conclusions of law, and judgment. The trial
court determined that more than fifteen years had passed since the appellants’
-4- claim for trespass had accrued in reliance on Kentucky Revised Statutes (KRS)
413.010 and awarded the disputed western area to the appellees pursuant to
Kentucky’s doctrine of adverse possession. See White Log Jellico Coal Co., Inc. v.
Zipp, 32 S.W.3d 92 (Ky.App. 2000) (explaining the requirements for adverse
possession in Kentucky). The trial court went on to also rule that “the property
lines of the [Bryants] as indicated by the defendants’ Exhibit #16 correctly reflects
the property lines of the defendants herein.” Exhibit #16 was neither appended to
the trial court’s judgment, nor does the judgment contain a formal legal description
of the boundaries of the Bryants’ properties. However, all trial exhibits referenced
within the judgment are present within the record on appeal and this referenced
survey sets forth not only the boundaries of western area but also the respective
boundaries of the hillside area.
The appellants thereafter filed a motion to alter, amend, or vacate,
stating only that “said Judgment contains a mistake.” The alleged mistake was not
denominated or otherwise described by the appellants in their motion and they did
not file a memorandum or any exhibits in support of their bare motion.
While the trial court did amend its original judgment, careful review
of the amended judgment only reveals one change, that being the recitation of
Tommy Tackett’s testimony regarding his physical location at the time of the
meeting between his father, Sheryl Stewart’s father, and surveyor Stewart in 1993.
-5- On appeal, the appellants do not question the trial court’s
determination of adverse possession regarding the western areas on which portions
of the three structures lie. What the appellants object to is to the findings of the
respective boundaries of the hillside area, that land area which is the most northern
portion of the properties furthest from Kentucky Route 1469. Appellants assert
that such property should have been awarded to them based upon the “clear weight
of the evidence.”
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: DECEMBER 10, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1083-MR
ROBIN RENEE ROBINSON; TOMMY ROBINSON; BRITTANY NICOLE TACKETT; AND TOMMY DWAYNE TACKETT APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 14-CI-00973
TERRY BRYANT AND SHERYL BRYANT APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Joint property owners Robin Renee Robinson, Tommy
Robinson, Brittany Nicole Tackett, and Tommy Dwayne Tackett appeal from the
June 24, 2019 judgment of the Pike Circuit Court determining disputed property
boundaries in favor of Terry Bryant and Sheryl Bryant. Having determined that the trial court’s judgment was supported by substantial evidence and is not
otherwise erroneous, we affirm.
The properties at issue in this appeal are neighboring parcels of land
all of which lie on the north side of Kentucky Route 1469 in Virgie, Pike County,
Kentucky. The appellants asserted joint ownership interests to certain land through
inheritance from the estate of Mildred Jewell Tackett Kelly. Tommy Dwayne
Tackett also personally owns a separate neighboring tract which he obtained by
deed from his mother Mildred Jewell Tackett Kelly and her husband at the time,
Dolph Kelly, in 2011. Terry Bryant and Sheryl Bryant purchased three
neighboring and contiguous tracts of property in the period of 2000 to 2007, at
least one of which was obtained from Sheryl Bryant’s father. Within this litigation
two areas were in dispute, the first being the westernmost border of the Bryants’
property on which two mobile homes and a storage building are located (the
“western” area) and the second being the northernmost boundaries of the Bryants’
tracts (the “hillside” area).
All the designated properties share one common source in their chain
of title, Lackey T. Burke who owned the entirety of the land prior to 1938 and
subsequently began selling tracts of his property. Normally a common source
would be of great assistance in determining the metes and bounds of each of the
parcels later divided from Burke’s original land holdings. In this case however, the
-2- specific boundaries of the successive parcels are complicated by their irregular
shapes, the absence of previously recorded markers (including trees, that are
referenced in the original deeds but no longer exist) and the effects of surface
mining which has altered the former topography of the hillside area.
The appellants alleged in their complaint that the Bryants encroached
onto their property by placing two mobile homes and a smaller storage building
partially over the appellants’ property line. For purposes of clarity, the western
boundary area in question (where the westerly portions of the two trailers and one
storage building lie) is a strip of land approximately 20 feet in width that runs
perpendicular to Kentucky Route 1469. The appellants filed their action in 2014
against the Bryants to quiet title in this disputed western area and to cause the
Bryants to remove their mobile homes and storage building. The Bryants
counterclaimed to quiet title in their own lands, asserting lawful ownership of the
disputed areas, a prior agreement amongst prior owners as to the boundaries of the
varying tracts and, in the alternative, adverse possession.
A two-day bench trial was conducted and in addition to taking the
respective former and current deeds into evidence, the trial court heard testimony
from one party and one surveyor for each side. For the appellants, licensed
surveyor Joe Dean Anderson testified and submitted a survey and Tommy Tackett
-3- testified regarding his personal beliefs as to the properties’ boundaries and his
recollections of his deceased father’s actions with regard to those boundaries.
For the Bryants, Sheryl Bryant testified that a survey had been
performed by licensed surveyor Randall L. Stewart in 1993 when the concerned
property was owned by her father. This survey was conducted after the appellants’
predecessor in interest, Tommy Tackett’s father, voiced concern regarding the
placement of the first, northernmost, mobile home in 1992. Subsequent to that
survey, a post was placed by the then-owners to mark their property line and that
first mobile home was moved approximately 8 feet from the surveyed and agreed
upon property line. In 1994 a small storage building was constructed within the
confines of Bryants’ agreed upon property. Later a second mobile home was
placed in conformity with both the agreed-upon boundary line and the placement
of the prior mobile home and storage building. Importantly, Stewart himself
testified regarding the 1993 survey he had performed and to the placement of the
agreed-upon post by the former land owners. One image accepted by the trial
court showed that all three structures were in place in the disputed area by March
14, 1995.
Based upon the testimony and evidence presented, the trial court
entered its initial findings of fact, conclusions of law, and judgment. The trial
court determined that more than fifteen years had passed since the appellants’
-4- claim for trespass had accrued in reliance on Kentucky Revised Statutes (KRS)
413.010 and awarded the disputed western area to the appellees pursuant to
Kentucky’s doctrine of adverse possession. See White Log Jellico Coal Co., Inc. v.
Zipp, 32 S.W.3d 92 (Ky.App. 2000) (explaining the requirements for adverse
possession in Kentucky). The trial court went on to also rule that “the property
lines of the [Bryants] as indicated by the defendants’ Exhibit #16 correctly reflects
the property lines of the defendants herein.” Exhibit #16 was neither appended to
the trial court’s judgment, nor does the judgment contain a formal legal description
of the boundaries of the Bryants’ properties. However, all trial exhibits referenced
within the judgment are present within the record on appeal and this referenced
survey sets forth not only the boundaries of western area but also the respective
boundaries of the hillside area.
The appellants thereafter filed a motion to alter, amend, or vacate,
stating only that “said Judgment contains a mistake.” The alleged mistake was not
denominated or otherwise described by the appellants in their motion and they did
not file a memorandum or any exhibits in support of their bare motion.
While the trial court did amend its original judgment, careful review
of the amended judgment only reveals one change, that being the recitation of
Tommy Tackett’s testimony regarding his physical location at the time of the
meeting between his father, Sheryl Stewart’s father, and surveyor Stewart in 1993.
-5- On appeal, the appellants do not question the trial court’s
determination of adverse possession regarding the western areas on which portions
of the three structures lie. What the appellants object to is to the findings of the
respective boundaries of the hillside area, that land area which is the most northern
portion of the properties furthest from Kentucky Route 1469. Appellants assert
that such property should have been awarded to them based upon the “clear weight
of the evidence.”
The standard guiding our review is that the trial court’s findings of
fact shall not be set aside unless they are clearly erroneous. Kentucky Rules of
Civil Procedure (CR) 52.01; Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980).
Factual findings are not considered clearly erroneous if they are “supported by
substantial evidence.” Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App. 2005).
Furthermore, due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses. Norwich v. Norwich, 459 S.W.3d 889, 898
(Ky.App. 2015).
In this matter, the trial court determined that the Bryants’ trial exhibit
#16, a boundary survey performed by Stewart, was the accurate representation of
the parties’ respective lawful property boundaries. The appellants do not designate
with any precision which boundary or portion of land is incorrect within that
survey or how such survey does not conform with the legal descriptions found in
-6- prior instruments. Furthermore, neither the appellants’ brief nor their reply cites to
any portion of the record which contains criticism of the boundaries established by
Stewart within his survey. The respective surveys referenced by the appellants
may differ, but there is no argument as to why the appellants’ proffered survey is
correct while the Bryants’ is incorrect factually or as a matter of law. While the
testimony of Tommy Tackett regarding what he believed the boundaries to be was
heard and considered by the trial court, such testimony would not be determinative
of the true boundaries of the properties given the existence of the prior deeds,
recorded with the Pike County Clerk, all of which contain their own respective
legal descriptions.
Property boundaries are expressed in objectively defined and
expressed measurements set forth within recorded instruments of title. Where, as
here, prior boundaries and their markers have been disturbed, the courts must rely
upon experts to survey and define present boundaries within the context of historic
title documentation. The trial court, in a very thorough and well-documented
opinion, adjudicated the respective property interests of the parties.
The trial court as fact finder heard the evidence and saw the witnesses.
When the evidence is conflicting, as here, we cannot and will not substitute our
decision for the judgment of the trial court. Gates v. Gates, 412 S.W.2d 223 (Ky.
-7- 1967). The evidence in the record in this case is clearly sufficient to sustain the
judgment of the trial court.
For the foregoing reasons, the judgment of the Pike Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
James P. Pruitt, Jr. Donald H. Combs Pikeville, Kentucky Pikeville, Kentucky
-8-