PATRICK (CHARLES C.), ET AL. VS. CASSADY (EARL), ET AL.
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RENDERED: SEPTEMBER 25, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000656-MR
CHARLES C. PATRICK AND
EILLENE PATRICK
v.
APPELLANTS
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NOS. 01-CI-00029 & 03-CI-00176
EARL CASSADY AND
EVELYN CASSADY
APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1
SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: The sole issue before this Court is whether the
trial court was clearly erroneous in its determination that Appellants failed to prove
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
ownership of the subject real property by adverse possession. Upon examination
of the record, including the trial court’s thorough findings of fact, conclusions of
law and judgment, we are unable to conclude that the trial court’s findings were
clearly erroneous or that controlling law was misapplied. Kentucky Rules of Civil
Procedure (CR) 52.01. Accordingly, we affirm.
An extensive recitation of the facts and procedural history of the case
is unnecessary. While prior phases involved an additional party and damage
claims, the only remaining issue is adverse possession. As such, it is sufficient to
say that Appellees owned two tracts of real property on Cold Water Fork of
Rockcastle Creek near the mouth of Mullitt Branch. Appellees sold one of these
tracts and it ultimately came into possession of Appellants. Appellees retained the
other tract. The tract retained by Appellees is the real property which is the subject
of this dispute.
Appellants claim to have engaged in possessory acts with respect to
the disputed real property sufficient to cause ownership to ripen in them. Among
those acts are gardening, removal of brush, the filling of a slope, sowing grass,
plowing, and generally exercising dominion and control over the property.
Appellees acknowledge some possession by Appellants but contend that it was
intermittent and far short of that required for ownership to ripen. Appellants did
not build any structures on the property nor did they fence the property.
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The trial court rendered extensive findings of fact. Finding no. 12 is a
fair summary of its view of the controversy:
In analyzing the evidence, there is a conflict in the
testimony of the parties. Viewed in a light most
favorable to the Patricks [Appellants herein], the
evidence indicated that they gardened the property,
mowed the property, and had it filled with fill dirt over
time. There is no evidence that they fenced the property
or that they built any structures on the property.
Considering the evidence for the Cassadys [Appellees
herein], Mrs. Cassady indicated that she knew that the
grass had been mowed some time, and that some filling
had gone on, but denied anything else concerning the
property. Both her son and son-in-law denied ever
seeing any gardens on the property. Charles Patrick
testified initially that they gardened every year but once,
but on cross-examination, was a little more vague, and
indicated that there might have been a few years that he
did not garden on the property. In considering all the
evidence, and particularly the fact that gardening or grass
mowing would occur only about half of any particular
year, the Court is unable to find that any possession by
the Patricks was hostile enough, exclusive enough or
continuous enough to ripen into adverse possession.
The required elements for adverse possession to ripen into ownership
are well-stated in Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling
Co., Inc., 824 S.W.2d 878 (Ky. 1992). In summary, possession must be hostile and
under claim of right; it must be actual, exclusive and continuous, and open and
notorious. “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 nonpossessory owner notice of the adverse claim.” Id. at 879. “An intent
to exercise dominion over land may be evidenced by the erection of physical
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improvements on the property. Kentucky Women’s Christian Temperance Union
v. Thomas, Ky., 412 S.W.2d 869 (1967).” Id.
Applying the foregoing principles to the facts in evidence, the trial
court concluded that as a matter of law, “any possession by the Patricks was not
sufficient to meet the burden of proof required for adverse possession.” The trial
court did not err in this conclusion.
The judgment of the trial court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Suleiman Oko-ogua
Michael T. Hogan
Louisa, Kentucky
John R. Triplett
Inez, Kentucky
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