Brown v. Gobble, 23173

• Citation: 474 S.E.2d 489,196 W.Va. 559
• Decision Date: 17 May 1996
• Docket Number: No. 23173,23173
• Court: Supreme Court of West Virginia
• Parties: Gary S. BROWN and Mitzi M. Brown, Plaintiffs Below, Appellees, v. David L. GOBBLE and Sue Ann Gobble, Defendants Below, Appellants.

Page 489

474 S.E.2d 489

196 W.Va. 559

Gary S. BROWN and Mitzi M. Brown, Plaintiffs Below, Appellees, v. David L. GOBBLE and Sue Ann Gobble, Defendants Below, Appellants.

No. 23173.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1996.

Decided May 17, 1996.

[196 W.Va. 561] Syllabus by the Court

1. The deference accorded to a circuit court sitting as factfinder may evaporate if upon review of its findings the appellate court determines that: (1) a relevant factor that should have been given significant weight is not considered; (2) all proper factors, and no improper factors, are considered, but the circuit court in weighing those factors commits an error of judgment; or (3) the circuit court failed to exercise any discretion at all in issuing its decision.

2. The burden is upon the party who claims title by adverse possession to prove by clear and convincing evidence all elements essential to such title.

3. In order to permit tacking of successive adverse possession claims, the ultimate fact to be established is the intended and actual transfer or delivery of possession to the grantee as successor in ownership of such area not within the premises, as described in the calls of a deed, but contiguous thereto. Privity means privity of possession. It is the transfer of possession, not title, which is the essential element.

Mark E. Wills, Wills & Sadler, Princeton, for Appellees.

Robert H. Miller, II, Katz, Kantor & Perkins, Bluefield, for Appellants.

CLECKLEY, Justice.

This case involves the doctrines of adverse possession and tacking. David L. Gobble and Sue Ann Gobble, appellants/defendants below, appeal from a final order of the Circuit Court of Mercer County. At the conclusion of a bench trial the circuit court granted judgment for a strip of land to Gary S. Brown and Mitzi Brown, appellees/plaintiffs

[196 W.Va. 562] below. In prosecuting this appeal, the defendants allege two assignments of error: (1) it was error for the circuit court to apply a clear and convincing evidence standard of proof to the doctrine of adverse possession, and (2) the circuit court committed error in finding that the evidence failed to prove adverse possession.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs instituted this action by filing a complaint on August 25, 1994. The complaint sought to have the defendants enjoined from interfering with the plaintiffs' intended use of a two-feet-wide tract of land that formed a boundary running between the adjoining properties of the parties. ¹ The defendants answered the complaint and filed a counterclaim alleging ownership to the tract of land by adverse possession. ²

The record reveals that the defendants purchased their property by deed dated April 24, 1985. ³ At the time of this land purchase a fence was in place which ran along the rear boundary of defendants' property. The two-feet-wide tract of land in question here, was enclosed by the fence and visually appeared to be part of the defendants' property. When the defendants bought their land, they were informed by their real estate agent that their property ran up to and included the fence. The call references in their deed "read" as though the two-feet-wide tract of land was part of the conveyance. ⁴ The defendants believed the two-feet-wide tract of land was part of their property, and utilized it consistent with ownership rights up until the filing of this law suit.

The plaintiffs purchased their property by deed dated April 28, 1989. Shortly before making this purchase, the plaintiffs had a survey of the property done. The survey revealed that the fenced-in two-feet-wide tract of land was part of plaintiffs' property. ⁵ Although the plaintiffs were aware at the time of the purchase of their property that the two-feet-wide tract of land was, in fact, theirs, they did nothing to show ownership to the tract until around August, 1994. It was in August of 1994, that the plaintiffs decided to build a road along the two-feet-wide tract of land. To do this meant cutting down several trees that were along the tract. ⁶ The defendants apparently attempted to prevent the plaintiffs from building the road by asserting that they owned the tract of land. The plaintiffs thereafter instituted the present suit. ⁷ The trial of this matter was held by the circuit court, sitting as factfinder, on December 13, 1994. The trial court made findings of fact and conclusions of law, wherein it held that "the defendants have failed to show by clear and convincing evidence

[196 W.Va. 563] their ownership by way of adverse possession[.]"

II. DISCUSSION

The contentions raised on appeal require us to scrutinize the record and determine whether the evidence was sufficient to prove adverse possession by the clear and convincing standard that we explicitly have adopted today. We note at the outset that the standard of review for judging a sufficiency of evidence claim is not appellant friendly. Following a bench trial, the circuit court's findings, based on oral or documentary evidence, shall not be overturned unless clearly erroneous, and due regard shall be given to the opportunity of the circuit judge to evaluate the credibility of the witnesses. W.Va.R.Civ.P 52(a). Under this standard, if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it, even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. We will disturb only those factual findings that strike us wrong with the "force of a five-week-old, unrefrigerated dead fish." United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 1327, 131 L.Ed.2d 206 (1995). Nor is the scope of our review broadened because the burden of proof is clear and convincing. Indeed, the burden of proof has an impact only if the evidence is in equipoise. See Director, OWCP, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). Under these well established principles, we now review the errors raised by the defendants.

A. Standard of Proof for Adverse Possession Claims

The first argument raised by the defendants is that the circuit court committed error by requiring them to prove adverse possession by clear and convincing evidence. Although neither party presents any binding precedent of this Court, the defendants contend that the proper standard for proving adverse possession is by a preponderance of the evidence, and that this is implicitly established by some of our cases. The defendants cite language in our decision in Naab v. Nolan, 174 W.Va. 390, 392, 327 S.E.2d 151, 154 (1985), wherein we stated:

"The circuit court found by a preponderance of the evidence the existence of facts sufficient to establish title by adverse possession[.] We agree with the court's decision." (Emphasis added.)

The plaintiffs contend that the above language in Naab is not controlling for two reasons. First, the quote is not intended to be a statement of law, but is merely part of the discussion from the court below, and there was no explicit acceptance of this standard by the Court. Second, the standard of proof was not disputed on appeal and, therefore, this Court was not asked to decide the issue. The plaintiffs take the position that we have yet, definitively, to establish a standard of proof for adverse possession, and would further urge that we adopt the clear and convincing standard. ⁸

There is a minority view that a preponderance of the evidence is sufficient to establish adverse possession. See Moore v. Dudley, 904 S.W.2d 496 (Mo.App. E.D.1995) (preponderance of the evidence); Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994) (preponderance of the evidence); Davis v. Konjicija, 86 Ohio App.3d 352, 620 N.E.2d 1010 (1993) (preponderance of the evidence); Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (1979) (preponderance of the evidence). There is little reason given for adopting this standard other than it is the usual rule in civil cases.

On the other hand, the view adopted by a majority of jurisdictions is that adverse possession must be shown by clear and convincing evidence. See Dittmer v. Jacwin Farms Inc., 637 N.Y.S.2d 785 (1996); Davis v It is appropriate, in our opinion, that adverse possession be proved by a more stringent standard than a mere preponderance of the evidence. First, West Virginia appears to have been leaning toward the majority rule. Even before the turn of the century, this Court had indicated that "clear" evidence was needed to establish adverse possession. In Syllabus Point 2 of Boggs v. Bodkin, 32 W.Va. 566, 9 S.E. 891 (1889), this Court explicitly stated: "... whether he has had ten years' adversary possession of the land, he must, ... specifically establish by clear evidence, that he has had such adversary possession for ten years...." (emphasis added). Moreover, we agree with the plaintiffs that it would be inconsistent for this Court to adopt a preponderance of the evidence standard for adverse possession, in light of the fact that we have adopted a clear and convincing standard for proving an easement. See Syl. pt. 3, Norman v. Belcher, 180 W.Va. 581, 378 S.E.2d 446 (1989).

[196 W.Va. 564] Parke, 135 Or.App. 283, 898 P.2d 804 (1995); Hollaway v. Hartley, 668 So.2d 23 (Ala.Civ.App.1995); Harkins v. Fuller, 652 A.2d 90 (Me.1995); Sierens v. Frankenreider, 259 Ill.App.3d 293, 198 Ill.Dec. 444, 632 N.E.2d 1055 (1994); Gorte v. Department of Transp., 202 Mich.App. 161, 507 N.W.2d 797 (1993); Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755 (1992); Blankinship v. Payton, 605 So.2d 817 (Miss.1992); Locke v. O'Brien, 610 A.2d 552 (R.I.1992); East Lizard Butte Water Corp. v. Howell, 122 Idaho 686, 837 P.2d 812 (1991); Grappo v. Blanks, 241 Va. 58, 400 S.E.2d 168 (1991); Williams v. Howell, 108 N.M. 225, 770 P.2d 870 (1989); Yliniemi v. Mausolf, 371 N.W.2d...