Brown v. Gobble 1996 WL 264808 (W. Va. 1996) Cleckley, Justice:
This case involves the doctrines of adverse possession and tacking. David L. Gobble and Sue Ann Gobble, appellants/defendants below, appeal from a final order of the Circuit Court of Mercer County. At the conclusion of a bench trial the circuit court granted judgment for a strip of land to Gary S. Brown and Mitzi Brown, appellees/plaintiffs below. . .142
I. Factual and Procedural Background
The plaintiffs instituted this action by filing a complaint on August 25, 1994. The complaint sought to have the defendants enjoined from interfering with the plaintiffs' intended use of a two-feet-wide tract of land that formed a boundary running between the adjoining properties of the parties. The defendants answered the complaint and filed a counterclaim alleging ownership to the tract of land by adverse possession.
The record reveals that the defendants purchased their property by deed dated April 24, 1985. At the time of this land purchase a fence was in place which ran along the rear boundary of defendants' property. The two-feet-wide tract of land in question here, was enclosed by the fence and visually appeared to be part of the defendants' property. When the defendants bought their land, they were informed by their real estate agent that their property ran up to and included the fence. The call references in their deed ``read'' as though the two-feet-wide tract of land was part of the conveyance.4 The defendants believed the two-feet-wide tract of land was part of their property, and utilized it consistent with ownership rights up until the filing of this law suit.
The plaintiffs purchased their property by deed dated April 28, 1989. Shortly before making this purchase, the plaintiffs had a survey of the property done. The survey revealed that the fenced-in two-feet-wide tract of land was part of plaintiffs' property. Although the plaintiffs were aware at the time of the purchase of their property that the two-feet-wide tract of land was, in fact, theirs, they did nothing to show ownership to the tract until around August, 1994. It was in August of 1994, that the plaintiffs decided to build a road along the two-feet-wide tract of land. To do this meant cutting down several trees that were along the tract. The defendants apparently attempted to prevent the plaintiffs from building the road by asserting that they owned the tract of land. The plaintiffs thereafter instituted the present suit. The trial of this matter was held by the circuit court, sitting as factfinder, on December 13, 1994. The trial court made findings of fact and conclusions of law, wherein it held that
``the defendants have failed to show by clear and convincing evidence their ownership by way of adverse possession.'' 143
II. Discussion . . .
A. Standard of Proof for Adverse Possession Claims
The first argument raised by the defendants is that the circuit court committed error by requiring them to prove adverse possession by clear and convincing evidence. . . .
There is a minority view that a preponderance of the evidence is sufficient to establish adverse possession. There is little reason given for adopting this standard other than it is the usual rule in civil cases.
On the other hand, the view adopted by a majority of jurisdictions is that adverse possession must be shown by clear and convincing evidence.
It is appropriate, in our opinion, that adverse possession be proved by a more stringent standard than a mere preponderance of the evidence. . . .
On policy grounds there is sound and reasonable justification for the majority view. The function of a standard of proof is to ``instruct the factfinder concerning the degree of confidence our society thinks he or she should have in the correctness of a factual conclusion for a particular kind of adjudication.'' In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J. Concurring). ``The standard of proof serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.'' Addington v. Texas, 441 U.S. 418, 423 (1979).
While the preponderance standard applies across the board in civil cases, a higher standard is needed where fairness and equity require more persuasive proof. Although the standard clear and convincing is less commonly used, it nonetheless is no stranger to West Virginia civil cases. In Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d 369, 374 (W. Va. 1978), this Court stated that ``clear and convincing'' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established. It should be the highest possible standard of civil proof. The interest at stake in an adverse possession claim is not the mere loss of money as is the case in the normal civil proceedings. Rather, it often involves the loss of a homestead, a family farm or other property associated with traditional family and societal values. To this extent, most courts have used the clear and convincing standard to protect these important property interests. Adopting the clear and convincing standard of proof is more than a mere academic exercise. At a minimum, it reflects the value society places on the rights and interests being asserted.
The bottom line is that the function of the legal process is to minimize the risk of erroneous decisions. The law should not allow the land of one to be taken by another, without a conveyance or consideration, merely upon slight presumption or probabilities. The relevant evidence in an adverse action must necessarily expand over a ten year period. A preponderance standard, in our judgment, would create the risk of increasing the number of cases whereby land is erroneously taken from the title owner under spurious adverse possession claims. This heightened standard of clear and convincing is one way to impress the factfinder with the importance of the decision, and thereby reduce the chances that spurious claims of adverse possession will be successful. Having concluded that the preponderance standard falls short of meeting the demands of fairness and accuracy in the factfinding process in the adjudication of adverse possession claims, we hold that the burden is upon the party who claims title by adverse
possession to prove by clear and convincing evidence all elements essential to such title. . .144
B. The Sufficiency of the Evidence
The next argument raised by the defendants is that their evidence was sufficient to establish adverse possession under either a preponderance of the evidence standard or, on the other hand, under the clear and convincing evidence standard. . . .
Regarding the doctrine of adverse possession, we stated in Naab v. Nolan, 327 S.E.2d 151, 153-154 (W. Va. 1985), the following: ``The doctrine of adverse possession is firmly established in our property law and accompanies W. Va. Code 55-2-1 in settling land disputes equitably and efficiently. This doctrine enables one who has been in possession of a piece of real property for more then ten years to bring an action asserting that he is now the owner of that piece of property even when title rests in another. In Syllabus Point 3 of Somon v. Murphy Fabrication and Erection Co., 232 S.E.2d 524 (W. Va. 1977) this Court stated:
One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title.
We also held in Syllabus Point 4 of Somon, that: ``Where one by mistake occupies land up to a line beyond his actual boundary, believing it to be the true line, such belief will not defeat his right to claim that he holds such land adversely or hostilely under the doctrine of adverse possession.''9 In addition to recognizing the common law doctrine of adverse possession, we have long recognized the principle of ``tacking.'' In Syllabus Point 3 of Jarrett v. Stevens, 15 S.E. 177 (W. Va. 1892), we stated that, ``to tack different adverse possessions to make up the period of bar the persons holding such possessions must be connected by privity of title or claim.'' . . .145
With the above principles of law in view, we now turn to the evidence presented below. . . .
The defendants do not contend that they are the lawful owners of the two-feet-wide tract of boundary land as a result of call references in their deed. That is, they do not claim possession under color of title. They have alleged ownership through claim of title or right. The defendants also do not contend that they have personally possessed the two-feet-wide tract for the requisite ten-year period. Instead, they contend that they have established adverse possession by tacking on the time periods that their predecessors in title claimed the two-feet-wide tract. We have held that ``tacking'' permits adding together the time period that successive adverse possessors claim property, and that should this period of time added together be more than ten years, adverse possession may be allowed.
To establish the element of ``tacking'' the defendants presented evidence that Edward and Virgie Blevins (the ``Blevins'') were the original owners of the property they purchased in 1985. The Blevins owned the property as far back as 1937, and during the entire time of their ownership they believed the two-feet-wide tract was part of their land, and they exercised dominion and control over the tract consistent with ownership rights. The Blevins sold their property on October 30, 1978, to Norman and Martha Fletcher (the ``Fletchers''), believing that they were also conveying the two-feet-wide tract. Mr. Fletcher testified that when they bought the property they believed that they had purchased the two-feet-wide tract, and possessed it consistent with ownership rights. The defendants testified that they bought their property from the Fletchers in 1985, and believed their land purchase included the two-feet-wide tract of boundary land, and that they possessed it consistent with ownership rights, up until the
filing of this law suit. Based upon this tacking evidence, the defendants contend that they are entitled as a matter of law to add the period 1937-1985, to their nine-and-a-half year claim to the two-feet-wide tract, which would give them far in excess of ten years adverse possession of the tract. 11
To establish the element of ``hostile'' or ``adverse'' possession by tacking, the defendants called several witnesses who testified that the two-feet-wide tract was fenced off as far back as 1937, that the Blevins placed the fence along the tract, and that the Blevins claimed the tract as theirs. 12 Evidence was presented to show that the Fletchers maintained the fence along the two-feet-wide tract, and that the fence remained in place throughout their ownership of the property. The defendants testified that they purchased their property from the Fletchers in 1985, and that they claimed ownership of the two-feet-wide tract, and that it remained fenced off up until the start of the instant law suit. 146
To establish the element of ``actual'' possession by tacking, the defendants called several witnesses who testified that the Blevins periodically repaired the fence surrounding the two-feet-wide tract, that they routinely planted a garden along the tract, and that the Blevins constructed and maintained a shed along a portion of the tract. Mr. Fletcher testified that he regularly planted a garden along the tract, that he routinely removed weeds from along the tract and fence, and that he picked blackberries from the area and walnuts from trees that had grown along the tract. 13 The defendants testified that they planted gardens along the tract, that they built a treehouse in one of the trees that had grown along the tract, and that they regularly mowed the grass and weeds in the area.
To establish the element of ``open and notorious'' possession by tacking, the defendants called several witnesses who testified that during the period that the Blevins owned the defendants' property, the reputation of the two-feet-wide tract in the community was that it belonged to the Blevins. 14 Mr. Fletcher testified that the reputation in the community was that the two- feet-wide tract was part of his property. The defendants testified that the reputation in the community was that the two-feet-wide tract was part of their property. 147
To establish the element of ``exclusive'' possession by tacking, the defendants presented testimony by two of the original owners of plaintiffs' property. 15 These two witnesses testified that neither the Blevins' nor the Fletchers' claim to the two-feet-wide tract was ever objected to by them or those who owned the property with them. The defendants also presented evidence to show that only the Blevins and Fletchers respectively had control and dominion over the two-feet-wide tract. The defendants also testified that they had exclusive control and dominion over the two-feet-wide tract up until the time of this law suit.
To establish the element of ``continuous'' possession the defendants presented testimony that the Blevins enclosed, maintained, cultivated and claimed ownership of the two-feet-wide tract up until they sold their property to the Fletchers. Mr. Fletcher testified that he maintained, cultivated and claimed ownership of the two-feet-wide tract up until he sold the property to the defendants. The defendants testified that they maintained, cultivated and claimed ownership of the two-feet-wide tract up until the instant law suit.
To establish the element of ``claim of title'' the defendants presented evidence to show that neither the Blevins, Fletchers nor the defendants had actual title to the two-feet-wide tract, yet each claimed ownership of it pursuant to all of the above conduct, during their entire respective occupancy.
Based upon the above evidence of tacking and adverse possession, the defendants contend that they established adverse possession under the clear and convincing evidence standard. The trial court found that this evidence did not establish tacking or adverse possession by clear and convincing evidence. The trial court made this finding notwithstanding the fact that none of the defendants' tacking or adverse possession evidence was challenged or rebutted by the plaintiffs. . . .
. . . The findings made by the trial court are inadequate to allow this Court to find that all relevant factors were considered. Though helpful, the findings are not all-encompassing. Indeed, the findings of the circuit court ignored the central thrust of the defendants' evidence.
The circuit court either misunderstood or misapplied the theory of the defendants. The defendants do not claim that their actual possession of the property in question is sufficient to establish adverse possession. Rather, they contend that their predecessors in interest met all the necessary prerequisites of adverse possession and under the doctrine of tacking, the predecessors' interest was passed onto the defendants. The circuit court's findings never addressed this aspect of the defendants' case. . .148
The upshot is that the circuit court failed to make any findings that would dispose of the defendants' tacking claim. . . .
III. Conclusion
. . . We leave the procedure to be followed on remand to the circuit court's informed discretion, without endeavoring to set an outer limit on its range of options. At a minimum, the circuit court must discuss the evidence we have identified as troubling (or as possibly overlooked), and explain the relationship of this evidence to the issue of tacking and adverse possession. The circuit court need not stop there, however, it is free to reopen the record, to take additional evidence, and to reconsider any parts of its earlier ruling. To this end, while we neither require or anticipate a new trial, the court may in its discretion permit the parties to supplement the record with additional facts. Accordingly, the judgment of the Circuit Court of Mercer County is reversed and remanded.
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Property Law - Rules, Policies and Practices (Second Edition) Aspen Law & Business (1997)
Joseph William Singer