Wright v. Sourk
| Decision Date | 06 May 2011 |
| Docket Number | No. 102,627,102,627 |
| Parties | Brian Wright and Jody Wright, Appellees, v. Carolyn Kay Sourk, Appellant. |
| Court | Court of Appeals of Kansas |
SYLLABUS BY THE COURT
1.
A party may obtain title to real estate through adverse possession upon proof that he or she openly, exclusively, and continuously possessed the property for 15 years, either under a claim knowingly adverse or under a good-faith belief of ownership.
2.
K.S.A. 60-503 changed the common-law concept of adverse possession by eliminating hostility as an element. As a result, adverse possession can now be acquired either: (1) under a claim knowingly adverse or (2) through occupancy under a good-faith belief of ownership. The possession must still be open, exclusive, and continuous for the 15-year period of time. Further, the party's belief of ownership must be made in good faith and be reasonable.
3.
Generally, whether title is acquired through adverse possession is a question of fact to be determined by the trier of fact. On appeal, an appellate court determines whether the jury's findings of fact are supported by substantial competent evidence. Indoing so, an appellate court does not weigh conflicting evidence, evaluate witness credibility, or redetermine questions of fact.
4.
When a party seeks title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. Kansas law does not allow the property of a person to be taken by another upon slight presumptions or probabilities. Thus, a party seeking title by adverse possession must present clear and convincing evidence of the requisite elements found in K.S.A. 60-503.
5.
In considering a claim that the trial court erred in not granting a motion for judgment as a matter of law, an appellate court resolves all facts and draw reasonable inferences from the evidence in favor of the nonmoving party. If reasonable minds could reach different conclusions under the evidence, an appellate court will uphold the trial court's denial of a motion for judgment as a matter of law.
6.
An appellate court reviews the trial court's denial of a motion for a new trial for any abuse of discretion.
7.
In considering claims of erroneous jury instructions, an appellate court considers all the instructions together as a whole to determine if they fairly instructed the jury on the law governing the case. The court may disregard isolated instructional errors as harmless and will not reverse unless there is a showing of prejudice. If the instructionsare substantially correct and could not reasonably have misled the jury, the appellate court will not find reversible error.
8.
Whether a particular type of land use commences the running of the 15-year period required to establish adverse possession under K.S.A. 60-503 is a question of law over which an appellate court has unlimited review.
9.
To constitute adverse possession of land, it is not absolutely necessary that there be enclosures, buildings, or cultivation on the disputed property, but the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claims of all others, and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken.
10.
The trial court must give an instruction on a party's case theory when that party requests an instruction and there is evidence supporting the theory that would be sufficient to support a jury verdict in favor of that party on the issue.
11.
K.S.A. 58-2222 charges the owner of land with constructive notice of facts disclosed by public records. However, constructive notice does not prevent a possessor of land from claiming a good-faith belief of ownership. If the rule were otherwise the concept of belief of ownership in K.S.A. 60-503 would be obliterated.
12.
Supreme Court Rule 6.09 (2010 Kan. Ct. R. Annot. 48) allows for the submission of supplementing authority in support of issues raised in a brief, but it is not a mechanism for raising new issues.
Appeal from Montgomery District Court; GARY HOUSE, judge. Opinion filed May 6, 2011. Affirmed.
W.J. Fitzpatrick, of Independence, for appellant.
Jeffrey W. Gettler, of Emert, Chubb & Gettler, of Independence, for appellees.
Before STANDRIDGE, P.J., McAnany, J., and KNUDSON, S.J.
Brian and Jody Wright and Carolyn Sourk own adjoining residential properties in Cherryvale. This dispute involves title to a 22.5-foot-wide strip of property at the boundary. Although Sourk was the titled owner of the property, a jury found the Wrights adversely possessed the property for more than 15 years under a good-faith belief in ownership.
In 1956, Sourk's parents bought Lots 9 through 16 in a residential neighborhood and built their home on Lot 13. Sourk was 8 years old at the time the land was purchased. In 1979, Sourk's parents sold Lots 9, 10, and 11 to Wayne Van Dyne. Van Dyne constructed homes on Lots 9 and 11. Van Dyne split Lot 10, assigning half to Lot 9 and half to Lot 11. The house constructed on Lot 11 was well within the confines of Lot 11. In 1985, Sourk acquired title to Lots 12 through 16 from her parents.
In 1992, the Wrights moved into the home on Lot 11, immediately west of and adjacent to Sourk's property. After renting for a year, the Wrights purchased their home under a contract for deed.
According to Brian, shortly after they moved into the home in 1992, Sourk took him into the back yard and pointed out two bricks in the ground that marked the boundary line between their properties (the brick line). Brian testified that Sourk told him, "'That is the property line, and everything to the east of that is what you have to maintain.'" From that point on, Brian testified that he mowed and maintained the property east of the brick line, and Sourk mowed and maintained the property west of the brick line. Brian did not further investigate because the brick line was consistent with the mow line, there was a visible dip or divot along the line, and he assumed Sourk would know where the property line was since she had lived there since 1956. Based on his conversation with Sourk, Brian believed that he owned everything east of the brick line. Sourk denied having a conversation with Brian in 1992 regarding the property line.
In 1993, Brian erected a shed on the disputed strip of property. Brian testified he did not seek Sourk's permission to construct the storage shed because he believed he owned the property upon which the shed was erected. Sourk claims the storage shed was constructed in 1994. Sourk testified that she had a conversation with Brian during the time that the shed was being constructed. According to Sourk, she advised Brian to check his records to determine his property line. Sourk claimed that Brian showed her the brick line and communicated his understanding that it formed the property line. Sourk testified that she did not know about the bricks and she would check with her mother regarding the significance of the brick line. Brian denies that Sourk ever approached him about the location of the shed and the location of the property line.
Both Brian and Sourk claim they mowed the property east of the brick line on Lot 12. William Blair, a neighbor living across the street from the Wrights and Sourk, corroborated Brian's testimony that Brian always mowed east of the brick line. Blair testified that he never saw Sourk mow the disputed strip of property in Lot 12.
Throughout the years, Brian testified that he and Jody exercised use and control of the property east of the brick line on Lot 12 by using things such as a children's slide, a swing set, and a trampoline. Sourk confirmed that the Wrights exercised use of the property east of the brick line for storing bikes, cars, campers, and a boat. Sourk testified she allowed the use of Lot 12 because she was "such a good neighbor." Brian testified that Sourk never objected to their occupancy, use, and maintenance of the property east of the brick line.
In July 2004, the Wrights built a new addition to their home. The Wrights obtained a building permit before construction began. The addition was located on the west side and extended 22.5 feet onto Lot 12. At the time, the Wrights believed the addition was being constructed within their property line so they did not seek Sourk's permission. Prior to constructing the addition, Brian cut some limbs off the pecan tree located on what they believed was the property line. The tree was cut with Sourk present, and Brian testified that Sourk never objected or voiced her concern that the tree or the addition were on her property. Sourk claims that she alerted Brian and the contractors that the addition was being constructed on her property. Sourk testified that she notified the city building inspector of the property-line infraction, but no action was taken.
When the Wrights decided to build a fence around their property in August 2007, Jody discussed the idea with Sourk, who made suggestions about the type and placementof the fence to assure the Wrights mowed on both sides of the proposed fence. Thus, the Wrights decided to research the city's setback requirements for a privacy fence.
Brian obtained a measuring wheel to determine the appropriate distance to place the fence from the property line. After taking some measurements, Brian discovered that the brick line was not consistent with the property line listed on the deed. According to Brian, Sourk was shocked to learn about the property-line discrepancy and agreed to obtain a professional survey to determine the true property line. The survey revealed that some of the improvements the Wrights had made to their property over the years, including a storage shed or garage and addition to their home, encroached upon Sourk's lot by 22.5 feet.
On April 9, 2008, the Wrights sued Sourk to quiet title to the disputed 22.5-foot-wide section of property under three theories:
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