JAMES C. BROWN AND MARTHA BROWN v. CARLOS SMITH AND CAROL SMITH
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RENDERED: APRIL 30, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000617-MR
JAMES C. BROWN AND
MARTHA BROWN
v.
APPELLANTS
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 02-CI-00216
CARLOS SMITH AND
CAROL SMITH
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM AND MINTON, JUDGES.
BUCKINGHAM, JUDGE:
James C. (Jimmy) and Martha Brown appeal
from the findings of fact, conclusions of law, and order of the
Muhlenberg Circuit Court, which rejected their claim to certain
disputed realty located in Muhlenberg County, Kentucky.
The
trial court quieted title to the disputed realty in Carlos and
Carol Smith after finding that the Smiths had obtained title
through adverse possession.
We affirm.
The parties herein dispute the ownership of a tract of
land located in the Bremen area of Muhlenberg County, Kentucky.
This disputed parcel consists of approximately 14.05 acres.1
On
April 30, 2002, the Browns filed their civil complaint with the
trial court to quiet title to the property.
The Browns’ claim
of ownership to the disputed parcel arises from a February 7,
2002 quitclaim deed from Donald and Betty Bowles and Bentley and
Linda Badgett II which conveyed the surface rights of this
realty to the Browns.
In response, the Smiths filed an answer
and counterclaim asserting ownership to the property by adverse
possession.
The evidence contained within the record is largely
uncontroverted.
Prior to 1966, Oscar Jones cultivated the
disputed parcel.
In 1966, Jones turned this tract of land over
to Carlos Smith.2
From 1966 until 1980, Carlos cultivated the
property every year, raising and harvesting beans, peas, and
corn.
He also improved the property by constructing drainage
ditches.
After 1980, Carlos exclusively raised and harvested
hay from this property.
He cut, raked, baled, and removed the
hay from this realty in the spring and autumn of each calendar
1
While the deeds of record indicate that the disputed property consists of
13.87 acres, the parties herein accept the findings of a survey conducted by
Floyd R. Ashby on June 21, 2000, in which Ashby found that the disputed
parcel actually consists of 14.05 acres.
2
There is nothing in the record that indicates Jones claimed ownership to
this disputed parcel of property. Also, it is clear that Jones did not
convey this realty to the Smiths by deed.
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year. Between hay harvestings, Carlos permitted area residents
to hunt and ride horses on the property.
from the property in 1967 and 1999.
He also removed timber
Finally, every three or
four years, Carlos removed excess brush and limbs from the
boundaries of this disputed parcel.
Jimmy and Martha Brown first became aware of this
tract of land in 1969 after Jimmy’s parents purchased farmland
that adjoins the disputed parcel on the south and east.
Even
though the deed conveying the adjoining land to Jimmy’s parents
specifically excluded the disputed parcel, Jimmy believed that
his parents had purchased the property.
Despite Jimmy’s
mistaken belief that his parents owned the property, Jimmy was
fully aware that Carlos had cultivated, maintained, and
possessed the disputed acreage since 1966.
In 1982 or 1983, following the death of Jimmy’s
father, Jimmy began managing the adjoining farmland for his
mother.
At this time, Jimmy constructed a fence upon the
disputed property for the purpose of creating a 200-acre field
for pasturing his cattle.
Carlos discovered that Jimmy had
constructed the fence and immediately advised him that the fence
was not a proper boundary and threatened to remove the fence
from the property.
Jimmy acknowledged that he did not intend
for the fence to be a boundary line.
Carlos, however, did not
remove the fence because he did not possess the equipment to do
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so and because he considered the Brown family to be his friends.
Instead, he conducted his operations around the fence.
Ultimately, Carlos removed Jimmy’s fence in 2000.
In 1994, Carlos discovered that Jimmy had removed
timber from the disputed property near the east property line.
He caught Jimmy cutting firewood from the tops of trees that had
been left by Jimmy’s timber cutter.
At this point, Carlos
expressed anger that timber from his property had been cut.
After this confrontation, Jimmy examined the 1967 deed and
discovered that his parents did not purchase or otherwise own
the disputed parcel.
Accordingly, Jimmy and Martha claimed
ownership to the disputed property by adverse possession,
executed a deed to themselves, and began paying property taxes
on the property.
Later, Jimmy admitted that his 1995 deed was
incorrect and that he never adversely possessed the property.
In late 1999, Carlos learned from a third person that
Jimmy had gotten a deed to the subject property.
He confronted
Jimmy with this information and discovered that Jimmy had, in
fact, claimed the disputed property in a 1995 deed.
Carlos
advised Jimmy that he would obtain counsel and recover the
property.
On January 10, 2000, the Smiths executed a deed which
conveyed the disputed property to themselves.
They claimed
ownership of the property by adverse possession.
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On February 7, 2002, the Browns acquired their record
title to the surface of the subject property by a quitclaim deed
from Donald and Betty Bowles and Bentley and Linda Badgett II.
As a condition of this conveyance, the grantors and the Browns
entered into an indemnification agreement wherein they
acknowledged that the grantors may hold record title to the
property, but that others also claimed ownership.
The Browns
agreed to fully indemnify and hold the grantors harmless from
any loss, claim, damage, liability, or expense by reason of the
quitclaim deed.
When this quitclaim deed was executed, the
Smiths were in possession of the disputed parcel.
Following a bench trial, the trial court entered its
Findings of Fact, Conclusions of Law and Order on February 18,
2003.
In this judgment, the trial court found that the Smiths
acquired title to the disputed property by adverse possession.
Moreover, the court found that the Browns did not prove their
legal title to the subject property and could not extend their
ownership of the property back to the Commonwealth.
As a
result, the court held that the Smiths owned the disputed
property and invalidated the February 7, 2002 quitclaim deed
that conveyed this acreage to the Browns.
This appeal followed.
Since the case was tried without a jury and the trial
court made specific findings of fact and conclusions of law, we
must briefly address the standard by which we review this
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matter.
“Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
CR3
the trial court to judge the credibility of the witnesses.”
52.01.
A factual finding is not clearly erroneous if it is
supported by substantial evidence.
Owens Corning Fiberglass
Corp. v. Golightly, Ky., 976 S.W.2d 409, 414 (1998).
Substantial evidence is evidence of substance and relevant
consequence sufficient to induce conviction in the minds of
reasonable people.
Janakakis-Kostun v. Janakakis, Ky. App., 6
S.W.3d 843, 852 (1999), citing Kentucky State Racing Commission
v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).
“It is within the
province of the fact-finder to determine the credibility of
witnesses and the weight to be given the evidence.”
Uninsured
Employers Fund v. Garland, Ky., 805 S.W.2d 116, 118 (1991).
Guided by these principles, we now address the arguments
presented by the Browns in this appeal.
First, the Browns assert that the trial court erred in
holding that they failed to establish legal title to the
disputed property.
In support of this assertion, the Browns
contend that they were not required to prove their title back to
the Commonwealth.
We find this argument to be without merit.
In an action to quiet title, the claimant can prevail
only on the strength of his own title, not on the weaknesses in
3
Kentucky Rules of Civil Procedure.
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his adversary’s title.
(1960).
Rose v. Griffith, Ky., 337 S.W.2d 15, 17
To conclusively prove the strength of his own title,
the claimant must either assert his claim by adverse possession
or show paper title back to the Commonwealth.
Id., citing
Ratliff v. Coleman, 241 Ky. 791, 45 S.W.2d 493, 494 (1931).
Here, the Browns do not assert title to the disputed
property by adverse possession; rather, they rely on paper
title.
In attempting to demonstrate their paper title, the
Browns can only trace title to the mineral rights of this
disputed parcel from 1907.
The deeds of record indicate that
the record title to the surface rights of this disputed parcel
ends in 1950.4
Under Kentucky law, the conveyance of a
fractional interest in the mineral rights of real estate creates
a severance of the surface rights from the mineral rights.
East
Kentucky Energy Corporation v. Niece, Ky. App., 774 S.W.2d 458
(1989).
Our review of the record reveals that, not only have
the Browns failed to trace their title to this disputed parcel
back to the Commonwealth as required by Rose, but they have not
produced any deeds or otherwise demonstrated any valid chain of
4
The record reveals that, on October 16, 1950, D.B. Dozier obtained title
to the entire disputed parcel from Swatiska Coal Company by a deed recorded
in Deed Book 173, Page 325. On October 21, 1950, Dozier conveyed only the
mineral rights to this property to Kentucky Bank and Trust Company, as
recorded in Deed Book 173, Page 413. Kentucky Bank, in a deed recorded in
Deed Book 204, Page 433, conveyed the mineral rights to the disputed property
to West Kentucky Coal on December 9, 1950. West Kentucky Coal’s predecessor,
Island Creek Coal Company, deeded the surface rights to this disputed parcel
to the Bowles on August 11, 1995, as recorded in Deed Book 133, Page 313.
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title to the surface rights of this disputed property since
1950.
Thus, we believe that the trial court correctly found
that the Browns failed to establish any legal title to this
disputed realty.5
Next, the Browns assert that the trial court’s finding
that the Smiths acquired title to the disputed acreage by
adverse possession is not supported by substantial evidence.
We
disagree.
The basic elements of adverse possession are wellestablished.
In order to establish title through adverse
possession, a claimant must show possession of disputed property
under a claim of right that is hostile to the title owner’s
interest.
Further, the possession must be shown to be actual,
open and notorious, exclusive and continuous for a period of
fifteen years.
Tartar v. Tucker, Ky., 280 S.W.2d 150, 152
(1955); Creech v. Miniard, Ky., 408 S.W.2d 432, 436 (1965); KRS6
413.010.
5
The Browns also argue that they were not required to prove legal title to
the property back to the Commonwealth because the Smiths agreed to the
admission into evidence the Ashby survey which referenced the property as
being the same property conveyed in a 1950 deed from Kentucky Bank & Trust
Company to West Kentucky Coal Company. We disagree. The survey was admitted
into evidence as a joint exhibit for the purpose of identifying the property
and assisting the witnesses in their testimony. The fact that the survey
referenced a deed did not amount to an admission by the Smiths that the chain
of title in favor of the Browns was proven back to the Commonwealth and did
not relieve the Browns of their burden to prove such.
6
Kentucky Revised Statutes.
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“The ‘open and notorious’ element requires that the
possessor openly evince a purpose to hold dominion over the
property with such hostility that will give the non-possessory
owner notice of the adverse claim.”
Appalachian Regional
Healthcare, Inc. v. Royal Crown Bottling Co., Ky., 824 S.W.2d
878, 880 (1992), citing Sweeten v. Sartin, Ky., 256 S.W.2d 524,
526 (1953).
Mere intentions or verbal expressions of a claim to
property are not sufficient absent physical acts appearing on
the land evidencing a purpose to hold the property hostile to
the rights of and giving notice to the title holder.
See
Gatliff Coal Co. v. Lawson, Ky., 247 S.W.2d 375, 377 (1952);
Warfield Natural Gas Co. v. Ward, 286 Ky. 73, 149 S.W.2d 705
(1940); D.B. Frampton & Co. v. Saulsberry, Ky., 268 S.W.2d 25
(1954).
Absent proof that the possessor made physical
improvements to the property, such as fences or buildings, there
must be proof of substantial, and not sporadic, activity by the
possessor.
See Kentucky Women’s Christian Temperance Union v.
Thomas, Ky., 412 S.W.2d 869, 870 (1967); Price v. Ferra, Ky.,
258 S.W.2d 460, 461 (1953); Marsee v. Colson, 307 Ky. 328, 210
S.W.2d 952, 953 (1948).
The Browns argue that Carlos’s activity did not
sufficiently satisfy the elements of adverse possession because
his activities on the property were primarily seasonal.
Contrary to the Browns’ arguments, however, seasonal and
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substantial cultivation of the land every year could be found to
be sufficiently notorious to create something in the nature of
constructive continuity.
Thomas, 412 S.W.2d at 870.
In Thomas,
the former Court of Appeals found that Thomas’s actions in
harvesting hay every other year, placing the property in a soil
bank for four years, and raising only one occasional crop did
not support his adverse possession claim because his actions
were not sufficiently notorious, exclusive, or continuous.
Id.
In the matter before us, however, the record is clear
that, from 1966 until 1980, Carlos cultivated the property each
year and raised beans, peas, and corn on this land.
Since 1980,
Carlos cut, raked, baled, and removed hay from this realty in
the spring and autumn of each calendar year.
Further, he
testified that he occasionally left his equipment on the
property and improved the property by installing drainage
ditches in an effort to better cultivate the land, thereby
increasing his hay and crop production.
Carlos has also
permitted his friends and neighbors, some of whom believe that
Carlos owns the property, to hunt upon it.
The Smiths’ activities on this disputed land were
well-known to the Browns, who permitted the Smiths to remain on
the property even though Jimmy believed his family owned it.
Thus, for a continuous period of approximately 36 years, the
Smiths have openly and freely undertaken some form of
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agricultural activity on this disputed property.
Hence, we
believe the evidence of record supports the trial court’s
conclusion that the Smiths acquired title to the property by
adverse possession.
The Browns next assert that the trial court erred in
finding that the February 7, 2002 quitclaim deed was void
pursuant to Kentucky’s champerty statute.
The champerty
statute, KRS 372.070(1), provides as follows:
Any sale or conveyance, including those made
under execution, of any land, or the
pretended right or title thereto, of which
any other person has adverse possession at
the time of the sale or conveyance, is void;
but this section does not render void any
devise of land in adverse possession.
The main purpose of this statute is to prevent one
with notice that land is being adversely possessed from
attempting to convey that property.
to avoid the selling of a lawsuit.
In other words, it attempts
J. Walter Wright Lumber Co.
v. Baker, Ky., 395 S.W.2d 365 (1965); Johnson v. Kirk, Ky. App.,
648 S.W.2d 878 (1983).
Since we have already determined that the trial court
correctly determined that the Smiths acquired title to this
disputed property by adverse possession, it is clear that the
plain language of KRS 372.070(1) invalidates the February 7,
2002 conveyance of it from the Bowles and the Badgetts to the
Browns.
Therefore, the trial court correctly held that the
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Browns’ February 7, 2002 deed was champertous within the meaning
of KRS 372.070.
Finally, the Browns argue that the trial court erred
in finding that the Smiths acquired title to the entire 14.05acre tract by adverse possession.
However, given our holdings
that the trial court correctly found that the Browns have failed
to prove their title to any portion of this disputed property
and that the Smiths acquired title to the surface rights to
disputed property by adverse possession, we need not address
this final issue because it is rendered moot.
The judgment of the Muhlenburg Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
B.R. Paxton
Jonathan S. King
PAXTON & KING, PLC
Central City, Kentucky
Ralph D. Vick
DONAN & VICK
Greenville, Kentucky
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