Com. Dept. of Parks v. Stephens

• Decision Date: 28 October 1966
• Citation: 18 A.L.R.3d 673,407 S.W.2d 711
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF PARKS, Appellant, v. Morris STEPHENS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 711

407 S.W.2d 711

18 A.L.R.3d 673

COMMONWEALTH of Kentucky, DEPARTMENT OF PARKS, Appellant, v. Morris STEPHENS et al., Appellees.

Court of Appeals of Kentucky.

Oct. 28, 1966.

Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellant.

Homer Ramsey, Whitley City, J. B. Johnson, Sr., J. B. Johnson, Jr., Williamsburg, for appellees.

CLAY, Commissioner.

This suit was brought by the Commonwealth to quiet title to a two-acre tract of land adjoining certain property it owns near Cumberland Falls. It developed that appellees hold the record title to this land, so the claim of the Commonwealth was based solely upon adverse possession for a period of 15 years. The Chancellor determined (1) the Commonwealth could not acquire title by adverse possession, and (2) the required elements of adverse possession had not been proved. While we differ with the Chancellor with respect to his first conclusion, the record amply supports his second finding.

The question of whether the Commonwealth (or one of its agencies, or subdivisions) may acquire title by adverse possession is a new one in this state. Our research indicates there are few pertinent decisions from other jurisdictions on the question. Certain texts state without equivocation that states and other governmental entities may acquire title in this manner the same as any other person. 3 Am.Jur.2d Adverse Prossession, section 139 (page 225); 2 C.J.S. Adverse Possession § 6 (page 518). Most of the cases cited in support of this proposition involve agencies or political subdivisions of the state, but of course they do represent the state in the proceedings. It has been held that the United States may acquire title by adverse possession. Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259. No case to the contrary has been cited nor has one been disclosed by our research.

It was the view of the Chancellor that under sections 13 and 242 of our Constitution the state and other governmental units are prohibited from taking property without paying just compensation therefor, and to permit the acquisition of title by adverse possession would violate these provisions. This overlooks the fact that after the running of the statute of limitation (KRS 413.010), the original owner is no longer in a position to assert title to the property and it has effectively vested in the adverse possessor. See Frazier v. Cox, Ky., 125 S.W. 148; Lyle v. Holman, Ky., 238 S.W.2d 157; and Sweeten v. Sartin, Ky., 256 S.W.2d 524, 525. Thus it may be said that since the original owner has lost his claim of title, the state is no longer taking his property.

The Chancellor in his opinion observed that it would be unfair to permit the Commonwealth to acquire property by adverse possession when the property owner does not have such a reciprocal right, as we held in Ford Motor Co. v. Potter, Ky., 330 S.W.2d 934, 937. The fact that the Commonwealth does not lose title to property by the running of the 15-year statutory period does not deprive it of the right to take advantage of this statute of limitation. Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259.

It has been suggested that the owner is helpless to prevent encroachment on this property by the Commonwealth so as to stop the running of the limitation period against him, particularly in view of Foley Construction Company v. Ward, Ky., 375 S.W.2d 392, wherein we held that the Commonwealth may not be sued without its consent. However, the property owner does at least have a remedy in the form of a reverse condemnation proceeding against the state. This right to sue the Commonwealth has been recognized since Foley in Commonwealth, Dept. of Highways v. Widner, Ky., 388 S.W.2d 583, and Commonwealth, Dept. of Highways v. Gisborne, Ky., 391 S.W.2d 714. This remedy we deem sufficient to protect the landowners' rights.

Having decided that the Commonwealth could have acquired title to the property in controversy by adverse possession, we find it clear from this record that there was a failure to establish such a claim. It was based principally upon the existence of a stable and a parking lot. We can do no better than quote from the Chancellor's well-considered opinion:

'Notwithstanding the above discussed constitutional issue, there is another more basic reason why the defendants should prevail. The plaintiff (the Commonwealth) simply failed to prove several of the elements of adverse possession. And the burden of proving adverse possession must necessarily be upon the party without legal title. ...