Elsea v. Day

• Citation: 448 S.W.3d 259
• Decision Date: 28 February 2014
• Docket Number: No. 2012–CA–000662–MR.,2012–CA–000662–MR.
• Parties: Sharon ELSEA and Harold Elsea, her Husband; Kenneth Eversole and Marsha Eversole, his Wife; and Angela Spicer, Appellants v. Fred DAY and Elsie Day, his Wife; and Other Interested Parties as listed on the Notice of Appeal, Appellees.
• Court: Court of Appeals of Kentucky

448 S.W.3d 259

Sharon ELSEA and Harold Elsea, her Husband; Kenneth Eversole and Marsha Eversole, his Wife; and Angela Spicer, Appellants
v.
Fred DAY and Elsie Day, his Wife; and Other Interested Parties as listed on the Notice of Appeal, Appellees.

No. 2012–CA–000662–MR.

Court of Appeals of Kentucky.

Feb. 28, 2014.
Discretionary Review Denied by Supreme Court Dec. 10, 2014.

448 S.W.3d 260

Matthew L. Bowling, Hazard, KY, for appellants.

448 S.W.3d 261

Leonard H. Brashear, Hyden, KY, Denise M. Davidson, Hazard, KY, for appellees.

Before CAPERTON, DIXON and VANMETER, Judges.

OPINION

DIXON, Judge:

Appellants appeal from a judgment of the Perry Circuit Court finding that Appellees hold title to a disputed parcel of land. Although the sole issue in this matter concerns the proper boundary between the parties' properties, the specific dispute centers around whether the boundary is established by the calls in the parties' deeds, or whether there was sufficient evidence to establish adverse possession of the disputed parcel by Appellees. For the reasons set forth herein, we affirm the trial court.

The parties herein are adjacent land owners of property located in Krypton, Perry County, Kentucky. The parties stipulated to their respective chains of title as to both properties, as well as that the property in dispute can be traced to a common grantor. Appellants, Harold and Sharon Elsea, Kenneth and Marsha Eversole, and Angela Spicer, claim ownership of their property by inheritance from Sharon's father, James Eversole. Appellees, Fred and Elsea Day, the Napier heirs and the Duff heirs, claim ownership of their tract by conveyance from Floyd Napier.

In 2008, while Appellants were preparing to cut timber, a dispute arose concerning the boundary between the properties. Subsequently, on February 13, 2009, Appellants filed a quiet title action in the Perry Circuit Court. The trial court conducted a bench trial in January 2012, wherein both parties presented expert and lay witness testimony. Sharon Elsea testified that her father, James Eversole, acquired the property from his parents, App and Cassie Eversole. Elsea stated that neither she nor her predecessors in interest had ever lived on their property nor had any structures been erected on such. Elsea did recall the property having been augured and timbered.

Fred Day testified that he moved onto his property in the early 1970's. He thereafter contacted App Eversole regarding the boundary line between the respective properties. Day explained that App declared that a drain which ran between the properties to the top of the ridge was the boundary line. App had erected a fence on the left side of the drain and suggested that Day erect a fence on the right side of the drain and run said fence adjacent to App's fence up to the top of the ridge. Day further stated that after he erected a fence, he used his property up to the fence line for cattle and logging purposes. After App died and the property passed to James Eversole, Day and James continued to recognize the fence as the boundary line. Day commented that in all of the years he had lived on the property there had never been any disagreement with either App or James as to the boundary line between the respective properties. In fact, Day testified that it was not until 2008 when Appellants placed logging markers on trees located on his side of the fence that a dispute concerning the boundary line first arose. Fred's children and grandchildren similarly testified that the entire time they lived on the property, the fence was considered to be the boundary between the two properties.

Appellant's expert, Ralph Peters, a licensed land surveyor, testified that he conducted a survey based upon the calls in Appellants' deed. Peters stated that he found no overlap or dispute in the boundary line between the parties' tracts. In

448 S.W.3d 262

fact, Peters testified that each deed called for the line of the other property so there could be no overlap. Peters did acknowledge that he located a fence on Appellants' property but that such was not continuous. Based upon his survey, Peters concluded that the disputed parcel, which he estimated to be approximately nine acres, was within Appellants' property as set forth in their deed.

Appellees' also retained a licensed surveyor, Curtis Whitaker, to conduct a survey of their property. Notably, however, Whitaker was called in Appellant's case-in-chief due to his opinion that based upon the deed calls alone, the respective properties did not overlap. Whitaker agreed with Peters that based upon the deed descriptions, the disputed property fell within Appellants' deed. However, Whitaker testified that he utilized parol evidence provided by Day concerning the boundary agreement with the Eversoles to conclude that the fence line was the correct boundary between the properties, thus placing the disputed tract in Appellees' possession.

Appellees also called Larry Keith, who had worked on a surveying crew for Nesbitt Engineering in the late 1970's. Keith testified that under the direction of Paul Nesbitt, he had surveyed the property in dispute some twenty-five years earlier. During his survey, Keith claimed that he had spoken with James Eversole and Day, who both acknowledged that the fence was the boundary between the respective properties. Further, Keith noted that he had walked the fence line, which at that time was continuous from a point on the lower portion of Appellees' property up to the top of the ridge, except for a portion that had been disturbed due to mining activities.

Finally, Joe Maggard, a master logger, testified that he had first logged Appellees' property in the 1980's, at which time he confirmed with James Eversole that the proper boundary line was the fence. Maggard logged Appellees' property a second time in the 1990's and again logged up to the fence after speaking with James Eversole.

On March 8, 2012, the trial court entered findings of fact and conclusions of law finding:

[T]he Plaintiffs' predecessors in title, App Eversole and James Eversole, established the boundary line between the Eversole and Day property with Fred Day. That boundary line as established by App Eversole and Fred Day was the fence area running along the right side of the drain separating the Eversole and Day property. That this fence line was continuous up to the top of the ridge and was acknowledged by the Plaintiffs' predecessors in title and Fred Day as the property line from the early 1970's up until this dispute in 2008, for a period of more than 15 years.

...

[The Defendants have established ownership of the property based upon an agreed upon line by Plaintiffs' predecessors in title and the Defendant, Fred Day, as established by the lay witnesses, and the surveyors. That the Defendants have held the disputed property openly, notoriously, adversely, hostile and continuous as to the Plaintiffs for a period of more than 15 years and have established ownership by adverse possession.

The Court further concludes that the Plaintiffs have waived and now are estopped and have consented to the location of the properties and agreed to the location of said property by their predecessors in title.

448 S.W.3d 263

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