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Elsea v. Day

Court of Appeals of Kentucky

February 28, 2014

SHARON ELSEA AND HAROLD ELSEA, HER HUSBAND; KENNETH EVERSOLE AND MARSHA EVERSOLE, HIS WIFE; AND ANGELA SPICER, APPELLANTS
v.
FRED DAY AND ELSIE DAY, HIS WIFE; AND OTHER INTERESTED PARTIES AS LISTED ON THE NOTICE OF APPEAL, APPELLEES

Page 260

APPEAL FROM PERRY CIRCUIT COURT. HONORABLE WILLIAM ENGLE, III, JUDGE. ACTION NO. 09-CI-00084.

BRIEF FOR APPELLANTS: Matthew L. Bowling, Hazard, Kentucky.

BRIEFS FOR APPELLEES: Leonard H. Brashear, Hyden, Kentucky; Denise M. Davidson, Hazard, Kentucky.

BEFORE: CAPERTON, DIXON AND VANMETER, JUDGES. ALL CONCUR.

OPINION

Page 261

DIXON, JUDGE:

Appellants appeal from a judgment of the Perry Circuit Court finding that Appellees hold title to a disputed parcel of land. Although the sole issue in this matter concerns the proper boundary between the parties' properties, the specific dispute centers around whether the boundary is established by the calls in the parties' deeds, or whether there was sufficient evidence to establish adverse possession of the disputed parcel by Appellees. For the reasons set forth herein, we affirm the trial court.

The parties herein are adjacent land owners of property located in Krypton, Perry County, Kentucky. The parties stipulated to their respective chains of title as to both properties, as well as that the property in dispute can be traced to a common grantor. Appellants, Harold and Sharon Elsea, Kenneth and Marsha Eversole, and Angela Spicer, claim ownership of their property by inheritance from Sharon's father, James Eversole. Appellees, Fred and Elsea Day, the Napier heirs and the Duff heirs, claim ownership of their tract by conveyance from Floyd Napier.

In 2008, while Appellants were preparing to cut timber, a dispute arose concerning the boundary between the properties. Subsequently, on February 13, 2009, Appellants filed a quiet title action in the Perry Circuit Court. The trial court conducted a bench trial in January 2012, wherein both parties presented expert and lay witness testimony. Sharon Elsea testified that her father, James Eversole, acquired the property from his parents, App and Cassie Eversole. Elsea stated that neither she nor her predecessors in interest had ever lived on their property nor had any structures been erected on such. Elsea did recall the property having been augured and timbered.

Fred Day testified that he moved onto his property in the early 1970's. He thereafter contacted App Eversole regarding the boundary line between the respective properties. Day explained that App declared that a drain which ran between the properties to the top of the ridge was the boundary line. App had erected a fence on the left side of the drain and suggested that Day erect a fence on the right side of the drain and run said fence adjacent to App's fence up to the top of the ridge. Day further stated that after he erected a fence, he used his property up to the fence line for cattle and logging purposes. After App died and the property passed to James Eversole, Day and James continued to recognize the fence as the boundary line. Day commented that in all of the years he had lived on the property there had never been any disagreement with either App or James as to the boundary line between the respective properties. In fact, Day testified that it was not until 2008 when Appellants placed logging markers on trees located on his side of the fence that a dispute concerning the boundary line first arose. Fred's children and grandchildren similarly testified that the entire time they lived on the property, the fence was considered to be the boundary between the two properties.

Appellant's expert, Ralph Peters, a licensed land surveyor, testified that he conducted a survey based upon the calls in Appellants' deed. Peters stated that he found no overlap or dispute in the boundary line between the parties' tracts. In

Page 262

fact, Peters testified that each deed called for the line of the other property so there could be no overlap. Peters did acknowledge that he located a fence on Appellants' property but that such was not continuous. Based upon his survey, Peters concluded that the disputed parcel, which he estimated to be ...


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