Opinion
NO. 2014-CA-000527-MR
01-08-2016
VIRGINIA LUTTRELL APPELLANT v. COLIN COX AND BRENDA COX APPELLEES
BRIEFS FOR APPELLANT: Leonard H. Brashear Hyden, Kentucky BRIEF FOR APPELLEE: Frank C. Mendaris, Jr. Hazard, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 04-CI-00246 OPINION
AFFIRMING BEFORE: D. LAMBERT, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Virginia Luttrell appeals from a judgment in a boundary line dispute.
Luttrell and Colin Cox and Brenda Cox are neighbors with a common boundary line. Their properties are located near Hazard, Kentucky, and accessed from a driveway that runs east from Kentucky Highway 476 (formerly Highway 15). The east boundary of their properties is the north fork of the Kentucky River. Luttrell's property is south of the Coxes.
In 1987, Luttrell acquired her property from her mother, Lula Begley Brown, who owned it since 1926, by deed of record in Deed Book 212, page 785, Perry County Clerk's Office. The Coxes have owned their property since 1978, when they acquired it by deed of record in Deed Book 172, page 352, Perry County Clerk's Office, from Brenda's parents who owned it since 1972.
Previously, in 1961, Luttrell's parents conveyed to her a remainder in the property and retained a life estate for themselves. The 1987 conveyance was of that life estate. --------
In 2001, Luttrell sent the Coxes a letter informing them she planned to have her land surveyed. After the survey was complete, Luttrell sent the Coxes two letters requesting they move some items off the boundary line so she could install a fence. The Coxes failed to comply. On April 20, 2004, Luttrell filed a complaint alleging the Coxes were trespassing on her property by entering it, storing trailers and refuse upon it, and depriving her of rents upon her property. She alleged she owned the disputed portion of land based upon title and prior use. She sought a judgment quieting her title and damages.
The Coxes filed a counterclaim alleging Luttrell was attempting to claim ownership of their property without a legal basis. They sought a judgment establishing their ownership of the disputed property and for damages.
At a bench trial held on February 3, 2012, Luttrell presented testimony from herself, surveyor Terry Bowling and David Luttrell. The Coxes presented testimony from Colin Cox and surveyor Clyde Baker. The parties stipulated as to their respective chains of title and agreed they originated from a common source.
Luttrell testified a driveway, which ended at a trailer rented to Leonard Spencer, was the exclusive entrance to her property and the Coxes' property for more than fifty years. The driveway was also used to reach a duplex her father built, but is now demolished. After Bowling surveyed her property in 2001, she had fence posts placed to the left (north) of the driveway from the highway, but was unable to install the fence because the Coxes had previously placed an old truck, trailer and motor along the property line. She testified she sent letters to the Coxes in 2001 about her survey and asked them to remove their property so she could install her fence. Her three letters were admitted into evidence. She claimed her property extended to the surveyor's posts.
Bowling testified he faced several obstacles in locating Luttrell's boundary lines. He could not locate a rock monument used to identify the top of the ridge and, therefore, his decision as to where to locate the top of the ridge upon which the rest of his survey depended, was subjective. While he researched the subdivision deeds, the tracts as given in the deeds did not close and the original subdivision was not completely accurate. He thought he had done fairly well in locating the property on the ground; it was as good as he could do without finding monuments.
David Luttrell, a relative of Luttrell, testified he was also a surveyor and while he did not perform a survey of the property, he reviewed Bowling's survey, agreed with it and it matched his recollection of the property lines he was aware of as a child. He placed the metal posts for the fence Luttrell wanted installed, but they could not install the fence because there was junk on the line. He also testified as to where the duplex had been located and stated that the driveway had always been their access to the duplex.
Colin Cox testified he lived on his property since 1967, when it was owned by his father-in-law and he assisted with mobile home sales on an adjoining piece of property. He used the driveway from the highway, which ended with the Spencer trailer, as his entrance to the property. He briefly used a portion of the disputed property for mobile home sales. After that business closed, he still had a mobile home and other items sitting near the first post Luttrell installed near the beginning and left (north) of the driveway from the highway. He had a box van there since 1979 and stored items on a concrete slab on the left side of the driveway, to the left of the Spencer trailer. He testified he continuously used the area to the left of the driveway since 1967, although at that time he did not know where the boundary line was located. No one ever disputed his right to use the property left of the driveway until Luttrell wrote her letters in 2001.
His deed is written such that instead of calling for monuments, it states that it runs with the Lula Begley Brown line and another line. After he had a survey done, he discovered that the Spencer trailer, along with two metal sheds Spencer had near it, were on his property. However, he never objected to the placement of the trailer or sheds. The Spencer trailer previously had two other long-term tenants and the storage buildings had been there a long time.
Clyde Baker testified it was difficult to locate the boundary line between the Coxes and Luttrell. He could find some of the points in the original larger tract before it was subdivided into ten parcels, which included the ridge and chimney rock, and was able to find a beginning point on one deed and found some posts set by previous surveyors in another portion of the subdivision. He was not able to find monuments called for in the deeds except the center of the ridge. However, it was unclear where the center of the ridge was located and though true north was also called for and its placement in 1932 could be determined by a declination chart, even a minor deviation from it at that time would greatly impact the location of the boundary line. Additionally, the Coxes' deed was not helpful because it described the boundary with Luttrell as being the Lula Begley Brown line. He located the boundary line to the right of the driveway from the highway and to the right of the Spencer trailer, making the boundary line south of them. Baker testified that the disputed area based on the two surveys was approximately sixty to seventy feet wide and consisted of about 3/10 of an acre.
After the trial, the circuit court viewed the property and the placement of the fence posts, box van, concrete pad, driveway, Spencer trailer and storage sheds.
On March 5, 2012, the circuit court entered its judgment. It found since the Coxes acquired title to their property in 1978, they "have exercised dominion and ownership over the disputed property up to the edge of the driveway openly, notoriously, under claim of rights and for a period in excess of fifteen years." The circuit court did not establish the boundary line on the competing surveyor's plats, but on the parties conduct and acquiescence:
The boundary line between the property of [Luttrell] and the [Coxes] shall run with the left edge of the driveway leading to the Spencer mobile home, angles to the left at the end of the drive and runs in a straight line to a point at the edge of a concrete pad which is visible on the left of the two storage buildings behind the Spencer mobile home, thence running with the edge of the concrete pad and in a straight line from there to the river.
Luttrell appealed, arguing the circuit court erroneously fixed the boundary line between the two properties. The Court of Appeals vacated and remanded, holding as follows:
[T]he circuit court failed to locate the true boundary line with reasonable certainty and with sufficient particularity. Upon remand, the circuit court shall reconsider its March 5, 2012, judgment and shall locate the common boundary line with reasonable certainty and sufficient particularity to enable the boundary line to be physically located upon the disputed property.Luttrell v. Cox, No. 2012-CA-000637-MR, 2013 WL 3193364 (Ky.App. 2013) (unpublished).
On remand, the circuit court directed the Coxes to have the boundary line located by the circuit court surveyed by Baker and a plat filed. After the survey was performed and the plat filed, Luttrell agreed that the survey accurately located the boundary line designated by the circuit court in its original judgment but disputed that this should be the boundary line between the two properties.
On March 6, 2014, the circuit court entered a new judgment containing identical findings of fact and conclusions of law as the original judgment, with the exception that the new boundary was established by the calls given in the new survey. Luttrell appeals, arguing the circuit court's findings of fact are clearly erroneous.
We review the circuit court's factual findings as explained in Elsea v. Day, 448 S.W.3d 259, 263 (Ky.App. 2014):
Our standard of review is governed by CR 52.01. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980) (CR 52.01 is applicable in boundary disputes.). When reviewing an action taken by a trial court without a jury, we may not reverse its findings of fact unless they were clearly erroneous. Clear error only occurs when there is not substantial evidence in the record to support the trial court's findings. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky.App. 1998). Substantial evidence is that which is "proof sufficient to induce conviction in the mind of a reasonable person." Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky.App. 2009).Substantial evidence as to the location of a boundary line can consist of a properly supported surveyor's opinion and/or independent lay witness testimony. See Croley, 602 S.W.2d at 419; West v. Keckley, 474 S.W.2d 87, 94-95 (Ky. 1971); Rutledge v. Young, 646 S.W.2d 349 (Ky.App. 1982). "A fact finder may choose between the conflicting opinions of surveyors so long as the opinion relied upon is not based upon erroneous assumptions or fails to take into account established factors." Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-85 (Ky.App. 1987).
Luttrell argues Bowling's survey plat was superior to Baker's because Bowling's survey plat was recordable and admissible, David Luttrell agreed with it, Bowling testified that in his opinion he was correct within a reasonable standard of survey possibility and his documented location of the boundary in his plat was most probable. Therefore, she argues the circuit court erred by finding the line could not be located with certainty and not adopting Bowling's boundary line. We disagree.
Although Baker's plat was unfinished and not recordable because he had marked only the boundary and it was not a complete final survey of the Coxes' land, it was still properly admissible and reliable because it conformed to the professional standards of surveyors. See 201 KAR 18:150 §§ 10-11.
Because each surveyor testified to problems locating the line with any certainty, the circuit court acted properly within its discretion by finding that both surveyors's determinations about where the boundary line was located could be the result of erroneous assumptions and deciding instead to determine the boundary not based on the surveys, but based upon adverse possession and acquiescence. This was appropriate where there was more credible evidence as to past usage of the disputed area than about the boundary's location. The circuit court heard extensive evidence about past usage from lay witnesses and also was able to view the disputed area and see the physical evidence of longstanding use by the Coxes directly and Luttrell through her tenant. There was no error.
Luttrell argues the circuit court had no adequate factual basis for its finding that the Coxes had occupied the entire area to the left of the driveway where there was no physical evidence, no improvements, no exclusiveness and no exclusion of Luttrell from that area. Luttrell argues the Coxes could not acquire a portion of her property through adverse possession because the only evidence of the Coxes' use of it was that Colin Cox had used a portion of the disputed area for mobile home sales, with a few trailers overlapping onto Luttrell's property and Luttrell did not acquiesce because she wrote letters in 2001 protesting such use. Luttrell argues she established the property was possessed by her and her predecessors in title, pointing out there was a duplex on the property and the Spencer trailer and storage buildings have been on the property for a long period of time. She also argues Colin Cox only testified that he had trailers parked on it for a period of less than fifteen years. We disagree.
Colin Cox testified he exclusively occupied the area north of the driveway since 1967. While his use of the area for trailer sales was brief, his testimony established longstanding use by his long-term placement of items in the area near the first fence post and on the concrete slab. Luttrell's testimony did not establish any use by her or her predecessors of the disputed area. Her testimony about the location of the Spencer trailer and duplex only established that she possessed the property south of the driveway. The circuit court had clear and convincing evidence of adverse possession and acquiescence of the parties and their predecessors in interest because the Coxes occupied the disputed area for more than fifteen years under color of title prior to their receipt of Luttrell's letters in 2001. See Elsea, 448 S.W.3d at 263-65.
Accordingly, we affirm the Perry Circuit Court's judgment establishing the Luttrell and the Coxes' boundary line.
ALL CONCUR. BRIEFS FOR APPELLANT: Leonard H. Brashear
Hyden, Kentucky BRIEF FOR APPELLEE: Frank C. Mendaris, Jr.
Hazard, Kentucky