RENDERED: JUNE 20, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR

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1 RENDERED: JUNE 20, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR DUANE DECOTA; EVELYN DECOTA; QUENTIN DECOTA; MICHELLE WILSON; KIMMETTE DAVIDSON; BURDETTE DECOTA; AND MONIQUE RICE APPELLANTS APPEAL FROM CALLOWAY CIRCUIT COURT v. HONORABLE DENNIS R. FOUST, JUDGE ACTION NO. 08-CI MONTE PENNEY; AND VICKI PENNEY APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE: The Decotas appeal from a judgment of the Calloway Circuit Court finding that Monte and Vicki Penney (the Penneys) are the owners by adverse possession of a disputed area between their tracts. The Decotas argue that the Penneys failed to establish any of the required elements of adverse possession.

2 We conclude that the trial court s finding to the contrary was supported by substantial evidence and was not clearly erroneous. Hence, we affirm. The Decotas and the Penneys own adjacent tracts of real property in Murray, Kentucky. Their respective properties are located on Lakefront Drive and extend back to land owned by the Tennessee Valley Authority (TVA) along the shores of Kentucky Lake. The Decotas brought this action to quiet title and to determine the boundary between the two tracts. There are several surveys which establish that the Penneys and their predecessors built improvements which encroach across the boundary line onto the Decotas property. The parties stipulated that the disputed area is a 1, square foot triangular area extending from a power pole on Lakefront Drive feet north to a metal rod in the ground located near the base of a maple tree (marked on the Art Travis survey as the northwest corner survey point of the Decotas property), and extending feet west to a metal stake in the ground located in a butterfly bush (found by VL & Associates to the northwest corner survey point of the Decotas property), and extending south back to the power pole. The Penneys claim ownership of this area by adverse possession. The tracts owned by the Decotas and the Penneys are part of the Lakeway Shores Subdivision, which was developed in the early 1960 s. The Penneys trace their title to J.E. and Roberta Tarry (the Tarrys), who purchased Lots 89 and 90 from the developer on November 11, 1963, and August 5, 1964, respectively. At the time, the Decotas lot, Lot 88, was still undeveloped. -2-

3 During the summer of 1964, the Tarrys built a house which straddled the boundary of Lots 89 and 90. Soon after completion of the house, the Tarrys installed a gravel driveway on the southeast end of the house next to the carport. They also constructed various backyard improvements on the northeast side of the rear of the house, including (a) a concrete upper patio; (b) a lower, circular-shaped brick patio which started at a maple tree and extended toward Lot 88; (c) a brick outdoor fireplace built at the easternmost edge of the lower patio; (d) a row of shrubs planted behind and on either side of the fireplace along a line running from a power line pole at the edge of the road northward to a stake in the butterfly bush; (e) a lamp post installed just outside the easternmost edge of the lower patio near the fireplace; and (f) a butterfly bush planted at the rear edge of the lot at the beginning of the property owned by the TVA. The Tarrys lived in the residence until 1988, when they sold the property to Marjorie and Arthur Osterdahl (the Osterdahls). The Decotas purchased their tract, Lot 88, from Charles and Mary Scates on June 28, They did not have a survey performed at the time they purchased the property. They testified that they were told that the property line ran just behind the fireplace. They were also told that the lamp post and the butterfly bush were part of their lot. The Decotas were on good terms with the Osterdahls while they were neighbors and they never discussed the issue of the boundary. However, at one time, when Mr. Osterdahl trimmed the butterfly bush, the Decotas advised the Osterdahls that the bush was on their lot. -3-

4 The Penneys purchased the property from the Osterdahls in In 2005, the Penneys removed most of the backyard improvements, including the lower patio, the lamp post, the fireplace and the row of shrubs. They also sodded the area and enclosed it with a white picket fence. In addition, the Penneys improved the gravel driveway at the southeast end of the property. Thereafter, beginning in the spring of 2008, the Penneys removed the carport and a structure located behind the carport. During the summer of 2008, the Penneys built an addition onto their house in this area. They also installed a fence along a line from the power pole at the road extending back to a point near the butterfly bush at the rear of both lots. The Decotas had a survey performed on their property by Art Travis in late Based upon this survey, the Decotas sent a letter on August 1, 2008, advising the Penneys that the recent improvements were encroaching upon their property and requesting that they remove all structures, fences, and building materials from the disputed area. The Penneys did not dispute the survey plat, but claimed ownership of the disputed area by adverse possession. The matter proceeded to a bench trial in September Prior to the beginning of the trial, the trial judge visited the site and personally viewed the property in question. The parties submitted all pertinent deeds of record, the subdivision plat, the survey by Art Travis, and another survey by Hunter Martin. The parties submitted several photos and depositions, with specific reference to the depositions of Duane Decota, Marjorie Osterdahl, and Charles and Roberta Tarry. -4-

5 In addition, the court heard the testimony of Evelyn and Duane Decota, Burdette Decota (who acquired an interest from her parents), Vicki and Monte Penney, Majorie Osterdahl and Rod Martin for Hunter Martin Surveyors. The parties also presented the testimony of Harriett Campbell and Don Armstrong, who at various times owned another lot near the Decotas and the Penneys. The trial court entered its initial findings of fact and conclusions of law on June 6, Both parties filed motions to alter, amend or vacate. After considering the motions, the trial court entered amended findings of fact and conclusions of law on September 9, In that judgment, the trial court found that the Penneys, and their predecessors, the Tarrys and the Osterdahls, had adversely possessed the disputed area for the requisite fifteen-year period. The trial court specifically found that the improvements constructed by the Tarrys established clear dominion over the disputed area and were sufficiently open, notorious and continuous to maintain a constant adverse claim for the forty years of their existence. Finally, the trial court found no evidence that their use of the disputed area was with the permission of the Decotas or their predecessors. The Decotas filed a motion to alter, amend or vacate these findings and the judgment, which the trial court denied on October 26, This appeal followed. As this matter was tried before the circuit court without a jury, our review of factual determinations is under the clearly erroneous rule. Kentucky Rules of Civil Procedure ( CR ) A finding of fact is not clearly erroneous -5-

6 if it is supported by substantial evidence, which is evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men. Owens Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). It is within the province of the trial court as the fact-finder to determine the credibility of the witnesses and the weight given to the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). This rule applies with equal force on an appeal from a judgment in an action involving a boundary dispute. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). The Decotas argue that the trial court erred by finding that the Penneys had met their burden of proving adverse possession of the disputed area. To prove the elements of adverse possession, the Penneys possession must have been hostile, under a claim of right, actual, exclusive, continuous, open, and notorious for a period of at least fifteen years. See Appalachian Regional Healthcare v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878, (Ky. 1992). See also Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010). These elements must be demonstrated by clear and convincing evidence. Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 2002). The Decotas correctly note that a party claiming title by adverse possession must show that the possession was so actual and so continuous as to furnish a cause of action every day during the entire period prescribed by the statute. Noland v. Wise, 259 S.W.2d 46, 48 (Ky. 1953). Adverse possession of land may be said to be founded in trespass; it must be a trespass constantly -6-

7 continued by acts on the premises. It must challenge the right of the entire world; the claimant must keep her flag flying, and present a hostile front to all adverse claims. Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301, 305 (1930). Sporadic activity is not sufficient to give notice to the record title owner of a continuing hostile claim, and absent the erection of physical improvements to the land, the activity must be substantial. Kentucky Women's Christian Temperance Union v. Thomas, 412 S.W.2d 869, 870 (Ky. 1967). The Decotas first contend that the Penneys failed to establish the existence of a well-defined boundary enclosing the disputed area. The Decotas argue that, since the disputed area was never fenced or enclosed, the Penneys use of the area was never sufficiently definite to provide continuous notice of their adverse claim. We disagree. A long-existing fence may serve as a well-defined boundary even if the property owner is mistaken as to the location of the true line and does not intend to claim property beyond the true boundary. See Johnson v. Kirk, 648 S.W.2d 878, (Ky. 1983); Commonwealth v. Kinder, 379 S.W.2d 732, 734 (Ky. 1964); Walden v. Baker, 343 S.W.2d 797, 799 (Ky. 1961); Mudwilder v. Claxon, 301 S.W.2d 3, 4 (Ky. 1957); Turner v. Morgan, 158 Ky. 511, 165 S.W. 684 (1914). However, the existence of fences in these cases was not a prerequisite to establishing the elements of adverse possession. Rather, the fences enclosed clearly defined areas in such a way as to give the owner of the land notice of the adverse claim. Moore v. Stills, 307 S.W.3d at 82. A well-defined -7-

8 boundary may serve as notice of an adverse claim where the claimant was the only person who consistently attempted to exercise dominion over the property, even where the claimant's use of the property was irregular. Cornelius v. Stephens, 312 Ky. 499, 228 S.W.2d 28, 29 (1950). In the absence of such a well-defined boundary, the claimant s proof must show continuous activity, as sporadic activities are not sufficiently open, continuous or notorious to ripen into adverse possession. Phillips v. Akers, 103 S.W.3d at 710. The trial court specifically found that the lower patio and brick fireplace constructed by the Tarrys in 1964 were located within the disputed area. The Decotas take issue with these findings, but do not show that they were clearly erroneous. Moreover, physical improvements, such as the patio and fireplace, demonstrate the possessor's intent to adversely hold the property. Henninger v. Brewster, 357 S.W.3d 920, 931 (Ky. App. 2012). The nature of these improvements was clearly open, notorious and continuous from 1964 until they were removed in Furthermore, the court concluded that the line of shrubs running behind the fireplace served as a clearly defined boundary for the area claimed by the Penneys predecessors in title. There was some dispute whether this clearly defined line extended beyond the shrubs to the lamp post and the butterfly bush. But based upon the evidence presented at trial, there was evidence to support the trial court s finding that it did. Moreover, the parties stipulated that the disputed area extended to the butterfly bush. -8-

9 The Decotas also argue that any use of the disputed area by the Penneys or their predecessors was permissive. It is well-established that a permissive use can never ripen into adverse possession. Id. at 927. However, the trial court found no evidence that the use of the disputed area by the Tarrys, the Osterdahls or the Penneys was ever permissive. At most, Evelyn Decota once complained about the Osterdahls trimming the butterfly bush, and the Osterdahls refrained from doing so after that time. This single act was insufficient to establish that all of the open, notorious and continuing improvements within the disputed area existed by the permission of the owners of Lot 88. Even if it was sufficient to give notice of the Decotas claim, the other improvements in the disputed area had been in existence for over thirty years at that point. For the most part, the Decotas simply contest the sufficiency of the evidence supporting the trial court s findings of fact and conclusions of law upholding the Penneys claim of adverse possession. Although there was conflicting evidence, we conclude that the trial court s findings of fact were supported by substantial evidence and its conclusions of law were not clearly erroneous. Based upon the facts and circumstances presented in this case, the trial court properly found that the Penneys established a valid claim of adverse possession over the disputed area. Accordingly, the judgment of the Calloway Circuit Court is affirmed. ALL CONCUR. -9-

10 BRIEF FOR APPELLANTS: Warren K. Hopkins Murray, Kentucky BRIEF FOR APPELLEES: Helen Lucier Louisville, Kentucky -10-