Kincaid v. Morgan

• Decision Date: 11 December 1992
• Docket Number: No. 20735,20735
• Citation: 188 W.Va. 452,425 S.E.2d 128
• Court: West Virginia Supreme Court
• Parties: Eugene KINCAID and Lena Kincaid, Plaintiffs Below, Appellees, v. Charles MORGAN and Paul Morgan, Defendants Below, Appellants, v. Johnny WALKER and Barbara Walker, Third-Party Defendants Below, Appellees.

Page 128

425 S.E.2d 128

188 W.Va. 452

Eugene KINCAID and Lena Kincaid, Plaintiffs Below, Appellees, v. Charles MORGAN and Paul Morgan, Defendants Below, Appellants, v. Johnny WALKER and Barbara Walker, Third-Party Defendants

Below, Appellees.

No. 20735.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1992.

Decided Dec. 11, 1992.

Syllabus by the Court

1. "Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong." Syl. pt. 1, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).

2. "An improver of land owned by another, who through a reasonable mistake of fact and in good faith erects a building entirely upon the land of the owner, with reasonable belief that such land was owned by the improver, is entitled to recover the value of the improvements from the landowner and to a lien upon such property which may be sold to enforce the payment of such lien, or, in the alternative, to purchase the land so improved upon payment to the landowner of the value of the land less the improvements and such landowner, even though free from any inequitable conduct in connection with the construction of the building upon his land, who, however, retains but refuses to pay for the improvements, must, within a reasonable time, either pay the improver the amount by which the value of his land has been improved or convey such land to the improver upon the payment by the improver of the landowner of the value of the land without the improvements." Syl., Somerville v. Jacobs, 153 W.Va. 613, 170 S.E.2d 805 (1969).

3. "A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law." Syl., Daily Gazette Co., Inc. v. Canady, 175 W.Va. 249, 332 S.E.2d 262 (1985).

4. " 'When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development.' Syl. pt. 2, South Side Lumber Co. v. Stone Construction Co., 151 W.Va. 439, 152 S.E.2d 721 (1967)." Syl. pt. 3, Heydinger v. Adkins, 178 W.Va. 463, 360 S.E.2d 240 (1987).

Joseph A. Colosi, Welch, for appellants.

Richard G. Rundle, Pineville, for appellees.

David G. Thompson, Pineville, for third-party defendants/appellees.

PER CURIAM:

This case is an appeal from the final judgment of the Circuit Court of Wyoming County, entered May 6, 1991. The trial court ruled that the appellants, Charles Morgan and Paul Morgan, had encroached upon and caused damage to land owned by the appellees, Eugene and Lena Kincaid. Damages were awarded to both the Kincaids and the third-party appellees, Johnny Walker and Barbara Walker. The case was heard by the trial court without a jury, and the appellants assign several errors to the court's judgment. For the reasons that follow, the judgment of the trial court is affirmed in part, reversed in part, and remanded with directions.

I

The Kincaids and Morgans own adjoining parcels of real estate in Wyoming County. The Walkers sold the Morgans their parcel prior to the instigation of litigation in this case. The Morgans built a restaurant on their parcel in 1985. A survey of the boundary between the adjoining parcels performed for the Kincaids showed that the Morgans' restaurant encroached on the land of the Kincaids a total of 99.585 square feet.

In a complaint filed July 15, 1987, the Kincaids complained of the Morgans' encroachment and damage to their property attendant to the encroachment. The Kincaids sought an order requiring the Morgans to remove the restaurant from their property, damages and rent. The Morgans' answer denied the charges in the Kincaids' complaint and counterclaimed that they had acquired the encroached upon property through the adverse possession of the Walkers. The Morgans also filed a complaint against the Walkers alleging that the Walkers had represented that the boundary between the Morgans and Kincaids extended the distance of the encroachment. The Walkers denied the Morgans' allegations and sought a dismissal of the complaint against them and attorney fees and costs.

Trial in this case commenced on April 2, 1990. The Kincaids introduced the testimony of surveyors who testified that the Morgans' restaurant encroached upon their land to the extent of 99.585 square feet. The surveyors testified that, despite inconsistencies in their report, it was nonetheless accurate. ¹ The appellee, Lena Kincaid, testified as to the water damage sustained on her property as a result of the Morgans' encroachment. The trial court also viewed the site of the boundary dispute. Nothing in the record before this Court disputes the Kincaids' assertions of property damage.

Appellant, Charles Morgan, testified that Johnny Walker represented to him that the boundary between his property and the Kincaids was defined by a certain steel peg. ² The surveyors placed this peg several feet over from the boundary and on the Kincaids' property. Furthermore, the appellant Charles Morgan admitted that the restaurant encroached upon the Kincaids' property even if the steel peg accurately defines the boundary.

Charles Morgan also asserted that he built the restaurant on the footer of a "pumphouse" previously constructed by the Walkers. This assertion was made in an attempt to support the appellants' claim of adverse possession. Johnny Walker acknowledged building the pumphouse, but claimed that the restaurant wall was not built on the pumphouse footer, which he asserted was built entirely on his property. He contended the restaurant was built several feet over from the pumphouse footer, encroaching on the Kincaids' property.

In its final order, the trial court found, among other things, that the Morgans' claim of adverse possession had not been established by the evidence; that the Morgans had not established the affirmative defense of estoppel; that the Morgans had not established any right to recover on their counterclaim because, "even by their own evidence, they encroached on the real estate ... belonging to [the Kincaids]"; and that the Morgans' encroachment upon the Kincaids' land had caused water shed damage, a damaged tie wall, wash-out of a ditch, and annoyance and inconvenience to the appellees. Therefore, the trial court came to the following conclusions of law:

1. The [Morgans] knew of or should have known they were encroaching on [Kincaids'] real estate and damages are assessed against [Morgans] in the amount of $4,962.25.

2. [The Morgans] impleaded Johnny Walker, et ux., to establish an implied warranty under a quitclaim deed and that theory of recovery has never been recognized under the law of the State of West Virginia. If Defendants would have relied on the boundary line pointed out by Johnny Walker, this lawsuit would never have taken place. Therefore, Johnny Walker is awarded a judgment for attorney fees against Defendants int he amount of $507.50.

The Morgans contend that the trial court erred by (1) awarding damages to the Kincaids for the entire purchase price of their property but not conveying title to the encroachment to the appellants; (2) finding that the evidence did not support the Morgans' defense of estoppel; (3) finding that the evidence did not support the Morgans' contention that they had acquired the encroached upon land through adverse possession accomplished by the Walkers; (4) awarding attorney fees and survey costs to the Kincaids and Walkers; and (5) finding that the Kincaids' survey was accurate.

II

Several of the assigned errors relate to the trial court's findings of fact. Review of the findings of fact of a final court sitting without a jury is governed by the standard enunciated in syllabus point 1 of McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972): "Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong." ³

The Morgans argue that the survey report was inaccurate and should not have been found to be accurate. Although there was evidence that one of the surveyors' notes slightly conflicted with the survey report, the licensed land surveyor who oversaw the survey and has over thirty years of surveying experience, testified that both the survey notes and the survey report were accurate. He explained that the survey report included the overhang of the roof of the restaurant while the survey notes did not. The trial court was not clearly wrong in relying on this testimony and was therefore not in error.

The Morgans also assert that the trial court erred in finding that the evidence did not support their claims of estoppel and adverse possession. Regarding the estoppel contention, the Morgans contend that the appellee, Mrs. Kincaid, helped third-party appellee, Mr. Walker, set the pipe he relied upon as the boundary when building the restaurant. Indeed, Mr. Walker testified that Mrs. Kincaid aided him in determining where to set the pipe marking the boundary. Mrs. Kincaid, however, testified that she had no knowledge of who set the pipe. Mr. Walker testified that he told Mr. Morgan that the pipe may or may not be an accurate indication of the boundary. Based upon either the testimony of Mrs. Kincaid or Mr. Walker, the trial court was not clearly wrong and did not err in finding insufficient evidence of estoppel.

Similarly, the Morgans' claim of adverse possession was not established by the evidence. Mr. Morgan testified that the restaurant was build upon the "footer" of a previous building construed by Mr. Walker. The Morgans assert that the Walker building constituted the requirements of adverse possession which was transferred to them. Mr. Walker, however, testified that the restaurant building was not...