Moore v. Stills, No. 2008-SC-000193-DG.

Decision Date07 April 2010
Docket NumberNo. 2008-SC-000193-DG.
Citation307 SW 3d 71
PartiesDarrell H. MOORE and Wanda June Moore, his Wife; Lynda L. McAfee; David Ramsey and Linda L. Ramsey, His Wife, Appellants, v. Roy E. STILLS and Shirley Stills, his Wife; Cleveland Winstead; James Dement; Curtis Dement; Pat Vandiver; Emma Lou Yates; Margaret Sue Jones; George Flener; Jerry Flener, Appellees.
CourtUnited States State Supreme Court — District of Kentucky

Thomas E. Turner, Turner & Brantley, Madisonville, KY, Ross Thomas Turner, Louisville, KY, Counsel for Appellants.

Kevin Dane Shields, Dietz, Shields & Freeburger, Henderson, KY, Counsel for Appellees.

Opinion of the Court by Justice ABRAMSON.

In November 2002, the second generation descendants of I.E. Winstead—Cleveland Winstead, James Dement, Curtis Dement, Pat Vandiver, Emma Lou Yates, Margaret Sue Jones, George Flener, Jerry Flener, and Shirley Stills, together with Shirley's husband Roy E. Stills ("Petitioners")—petitioned the Hopkins Circuit Court to quiet their title to an area of wild, formerly strip-mined land adjacent to and east of the 239-acre farm they had acquired through their parents from their grandfather. Petitioners based their claim on adverse possession. A Hopkins County jury found in Petitioners' favor, but the Hopkins Circuit Court, by order entered February 28, 2006, granted a judgment notwithstanding the verdict ("JNOV") to the owners of record—Lynda L. McAfee; David M. and Linda L. Ramsey, husband and wife; and Darrel H. and Wanda June Moore, also husband and wife ("Respondents"). Petitioners appealed, and the Court of Appeals, by opinion rendered September 7, 2007, reversed the trial court's JNOV and reinstated the jury's verdict. This Court then granted Respondents' motion for discretionary review to consider whether Petitioners' use of the disputed land for recreational purposes was sufficient to establish their adverse possession of it, and in particular whether the Recreational Use Statute, KRS 411.190, precluded Petitioners' claim. We also agreed to consider whether Petitioners had sufficiently defined and marked the boundary of their claim for the purposes of adverse possession. Because we agree with Respondents that Petitioners' recreational use was not adequate to establish the adverse possession of another's land under either the common law or KRS 411.190(8) and that Petitioners failed to prove the "well-defined boundary" element of their claim, we reverse the opinion of the Court of Appeals and thereby reinstate the trial court's JNOV.


Although the parties vigorously dispute their legal consequences, the facts in this case are largely undisputed. The land at issue is situated about three miles south of Madisonville and lies between what was and apparently still is known as the I.E. Winstead Farm to the west, and what, until recently, was known as the Walter J. Ruby Blue Valley Farm to the east.1 I.E. Winstead acquired his roughly 239-acre farm in 1936, and until his death in 1972 he farmed a portion of it; left some of it, including much of its eastern side, as wooded spoil land; and operated a small coal mine. The farm passed by deed and inheritance to the four children of I.E. Winstead's first marriage, and from them by deed and inheritance to the present Petitioners.

The Blue Valley Farm comprises several tracts totaling approximately 354 acres. A small acreage is in cultivation, but most of the farm remains unimproved, wooded spoil land. Respondents purchased the Blue Valley Farm from Walter Ruby in 1999, and in the course of having their new property surveyed, they discovered that between their farm and the Winstead Farm lay five relatively small tracts, three owned by Bank One, the successor to the Kentucky Bank and Trust Company of Madisonville, and two owned by the Ruby Construction Company of Smyrna, Georgia (no relation to Walter Ruby). In 2001 Respondents acquired those intervening five tracts, totaling about sixty-five acres, by quitclaim deeds.

In the meantime, Respondents and Petitioners had come into conflict over the boundary between their two holdings. In late 1999 or early 2000, Respondents had confronted a guest of Petitioners trespassing, they believed, on the western portion of the Blue Valley Farm, and again in 1999 Petitioners had sold timber from one or more of the intervening tracts to a lumber company, Snow Enterprises, LLC. Respondents' objection to that sale led both to Respondents' discovery and acquisition of the intervening tracts and to this action by Petitioners to quiet title to the disputed area between the two farms.

The disputed area comprises approximately 125 acres, the sixty-five intervening acres and another sixty acres from the westernmost tracts of the Blue Valley Farm. Although Petitioners claim, and sought to prove at trial, that they adversely possessed this entire 125-acre area, they unilaterally agreed to limit the Blue Valley Farm land actually awarded to them to the approximately twenty-five acres in line with the sixty-five acres of intervening tracts, making their total award in the judgment which the Court of Appeals reinstated approximately ninety acres.

While the actual eastern boundary of the Winstead Farm lies along the western edge of the intervening tracts and along the eastern edge of their easternmost cleared field, Petitioners offered testimony to the effect that their family had long—at least since the 1960s—believed that the Winstead Farm extended eastwardly to a meandering line beginning at a large boulder in the south, about thirty yards north of the Blue Valley Road, and running roughly northeast from there between two small lakes formed from strip mining pits to the intersection of three trails and then along a spoil ridgeline to the bed of an old coal mining rail spur at a point where there once stood a gum tree and where one of the old concrete railroad right-of-way markers bears the remnants of three barbwire fences. Petitioners introduced an aerial photograph of the area on which some of these landmarks are visible, they introduced photographs of the boulder, a video recording depicting the entire eastern line, and testimony by a surveyor to the effect that he had been shown some of the line and that landmarks such as those mentioned could be used to provide a metes and bounds description of the line.

Petitioners also introduced evidence that the purported eastern boundary line had been marked as such. Roy Stills, the husband of Shirley Stills, one of I.E. Winstead's granddaughters, testified that early in his marriage to Shirley, her father and grandfather had taken him hunting on the disputed tract and had pointed out to him the purported boundary line described above. Later, in about 1982, the surviving children and grandchildren of I.E. Winstead had informally made Stills the overseer of the farm, and beginning then, he testified, and continuing until about 2000, when the dispute arose with Respondents, he had regularly marked and remarked that eastern boundary by tying engineering tape to trees that grew along it and by posting "no trespassing" signs on some of the same trees. Several other friends and hunting acquaintances of Stills, and other Winstead family members, also testified that Stills had pointed out to them the boundary line and that they had observed or even assisted in its flagging and posting.

In addition to his testimony concerning the location and marking of what Petitioners claimed was the Winstead Farm's eastern boundary, Stills testified that for as long as he had been connected with the Winstead family, from well before 1982, he and other family members had regularly used the disputed tract for hunting, fishing, hiking, and riding four-wheelers. He described the construction of deer and turkey blinds, the occasional clearing of undergrowth to facilitate shooting, and the expulsion of uninvited hunters from the property. Again, several other witnesses confirmed that Petitioners, a few of them at least and principally Stills and his guests, had regularly used the disputed land in that manner.

On the basis of that testimony and the other evidence summarized above, the jury found that Petitioners "held adverse possession of the real estate in question." The trial court, however, as noted, granted Respondents' motion for judgment notwithstanding the jury's verdict and by order entered February 28, 2006, dismissed Petitioners' suit. The court explained that in its judgment Petitioners had failed to prove with sufficient clarity that they had marked any boundary lines except the purported eastern one. It also noted that "in any event, the mere marking of a boundary without reducing to actual possession the land in question will not amount to an adverse holding."

The Court of Appeals reversed. In its opinion, testimony by a couple of witnesses who had been occasional hunting guests to the effect that they had helped Stills flag and post the eastern boundary line and that the flagging had continued on the farm's other boundary lines as well, was sufficient to satisfy Petitioners' burden of proving that the disputed tract had well-defined north and south boundaries, in addition to the much-discussed eastern boundary. The trial court's concern that Petitioners had not reduced the disputed area to actual possession was addressed in the Court of Appeals' opinion in terms of KRS 411.190(8), which, in pertinent part, provides that the use of land "solely for recreational purposes," will not support a claim of adverse possession. Noting that this subsection of KRS 411.190 did not go into effect until July 15, 2002, well after Petitioners' claim had allegedly ripened, the Court of Appeals ruled that it did not apply retroactively to Petitioners' claim. Otherwise, the Court indicated that because Petitioners' use of the land was consistent with its character, that use sufficed to establish that Petitioners had reduced the disputed area to actual...

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