Johnson v. Kirk

• Decision Date: 22 April 1983
• Citation: 648 S.W.2d 878
• Parties: Doyle JOHNSON and Beulah Johnson, Appellants, v. James KIRK and Lou Kirk, Appellees.
• Court: Kentucky Court of Appeals

Page 878

648 S.W.2d 878

Doyle JOHNSON and Beulah Johnson, Appellants, v. James KIRK and Lou Kirk, Appellees.

Court of Appeals of Kentucky.

April 22, 1983.

William Lawrence Roberts, Randy G. Clark, Pikeville, for appellants.

Phil A. Stalnaker, Burke, Stalnaker & Scott, Pikeville, for appellees.

Before HOWARD, HOWERTON and PAXTON, JJ.

PAXTON, Judge.

Doyle Johnson and Beulah Johnson appeal a judgment of the Pike Circuit Court, sitting without a jury, dismissing their complaint in which they asserted ownership in a parcel of land claimed by James Kirk and Lou Kirk.

The Kirks purchased lot # 4 in the Brierwood subdivision of Forest Hills, Pike County, Kentucky on April 10, 1975. Shortly after purchasing lot # 4 they erected a fence around their house, but not around the entire lot.

The Johnsons purchased lot # 3 in Brierwood on April 18, 1978. The Kirks' south boundary line is the Johnsons' north boundary line. The fence that the Kirks put on their south boundary line was in place when the Johnsons purchased lot # 3 and the fence has not been moved since. By plat entered into evidence through stipulation, it is evident that the fence is actually on the Johnsons' lot. The Kirks did not intend to claim anybody else's property at the time the fence was erected; they simply put it "where the markers were" thinking that was their property line.

The findings of fact entered by the court are not challenged, except the Johnsons complain that the court failed to consider whether the holding of the property by the Kirks was of the character that would ripen into title through adverse possession. Based on its findings of fact and conclusions of law, the trial court entered judgment dismissing the complaint and held that the fence erected by the Kirks would be treated as the boundary line and "so much of the plaintiffs' deed as describes property within said fence line is void". Although not stated in the judgment, it is apparent from the record that the trial court's ruling is based on champerty. The Johnsons appeal this judgment. We affirm.

The Johnsons' sole contention is "The Pike Circuit Court's decision that the appellees were adversely possessing the property and therefore the conveyance to the appellants was champertous is erroneous as a matter of law".

KRS 372.070(1) provides:

Any sale or conveyance ... of any land ... of which any other person has adverse possession at the time of the sale or conveyance, is void.

Kentucky, at statehood, adopted a policy against champertous conveyances of land and KRS 372.070(1), or a statute substantially like it, has been in effect in this Commonwealth since 1824. See Altemus v. Nickell, 115 Ky. 506, 74 S.W. 221 (1903). It is clear that although the adverse possession envisioned by the statute does not have to continue for any specific time, it must be in existence when the conveyance complained about is made and must be of the same character that would cause the possession to ripen into title if held for the statutory period. Deaton v. Morris, 308 Ky. 754, 215 S.W.2d 854 (1948). In order to ripen into title if held for the statutory period, the possession must be open, hostile, and notorious to a well-defined boundary; thus giving the world, and especially those in interest, notice of the extent of the claim. LeMoyne v. Hayes, 145 Ky. 415, 140 S.W. 552 (1911). Although the Kirks did not intend to put their fence on someone else's property they, in fact, did. They put the fence on a line formed by some stakes and held out to all the world that the property so enclosed was theirs. It should have been apparent to the most casual observer, and particularly to the Johnsons and their predecessor in title, that the Kirks were claiming the fenced-in property as their own. The Johnsons acknowledge that when they purchased lot # 3 the Kirks had the disputed property enclosed by a fence and were using it as their own. Their contention is that the holding is not adverse because of the Kirks' admission that they thought they had placed the fence on the true boundary line and had no intention (when the fence was constructed) of claiming anyone else's property.

In Turner v. Morgan, 158 Ky. 511, 165 S.W. 684 (1914), James Turner sued to recover possession of fifteen acres of land from W.T. Morgan. Turner proved the fifteen acres in dispute were included in the calls in his deed; Morgan offered evidence to prove that he had enclosed the fifteen acres with a fence and had so possessed the property for more than fifteen years before Turner purchased his land. The jury found for Morgan and the appellate court, because it could...