Century-old deeds that reference “two sycamore trees” are inadequate to establish a boundary line between property owned by a lumber company and by a food store, but the Buchanan County Circuit Court says the food store has established its right to a strip of land by adverse possession.
Vansant Lumber filed suit on April 19, 2010, to establish its boundary line with K-VA-T. The boundary line at issue was created by the Commissioner’s Report of July 8, 1929, and is described as “corner garden fence, corner Lot No. 2, or J.G. Storie, with same S 8800 W 300 ft. to 2 sycamores on river bank.” K-VA-T counterclaimed to establish this same boundary line and, in the alternative, obtain title to the disputed land by adverse possession.
To prevail, a party seeking to establish a boundary line must establish their right to the land by paper title, title by adverse possession or by proving a state of facts that will warrant the court in presuming a grant. Courts should refrain from establishing a boundary line where the moving party has failed to carry its burden.
The court notes the location of the two sycamores and thus, the boundary line according to paper title is inextricably mired in the errors contained in deeds nearly a century old. Indeed, the parties have noted the various deeds describing the disputed boundary line may reference multiple sets of two sycamores: the 1909 deed references two sycamores down while the 1939 deed references two sycamores on the riverbank, without describing whether they are standing or down. Many of these old deeds do not close by acceptable margins or call for monuments, such as a locust bush, which have long been removed. The court even heard evidence that over the past century, the Levisa River has moved as much as 100 feet in certain places. These errors and inaccuracies have caused three certified land surveyors to vehemently disagree as to the correct location of various calls, tertiary boundary lines, and monuments. In light of this evidentiary enigma, the court finds that both parties have failed to prove by a preponderance of the evidence the location of the boundary line as described by paper title.
But the parties are not without a remedy. K-VA-T argues it has acquired title to the disputed property via adverse possession. The court notes K-VA-T has readily established all but one element of adverse possession. The record indicates the disputed property was surrounded by a wooden fence prior to its acquisition by the school board when it was a baseball field. This fence was maintained by the school board well into the 1980s, which constituted evidence of actual possession. The school board publicly and visibly incorporated the fenced-in portion of land into the neighboring school grounds, first as a sports field and then as a site for mobile classrooms. This possession was continuous for a period in excess of the statutory requirement of 15 years. During this period, the possession was exclusive, as no credible evidence was adduced that tended to show Vansant Lumber contemporaneously used the fenced-in land.
The dispositive issue in the present case is that of hostile possession. Vansant Lumber contends K-VA-T failed to meet the hostility requirement.
Hostility does not require antagonism, malevolence or virulence; one need not annex land by brute force or violence to accomplish hostile possession. Hostility only requires possession that is adverse to another’s legal right in the land. Testimony of a claimant, or a claimant’s agent, that they had not intended to possess land they did not own is not dispositive. The inquiry is whether the claimant and their predecessors had a definite and positive intention to occupy, use and claim the land.
Here, the requisite hostile intent is manifested by the actions of the school board. The school board affirmatively took possession of the land, maintained a fence surrounding the property, held public sporting events on the land, placed school buildings there and generally treated it as its own. This use was adverse to Vansant Lumber’s and its predecessor’s, claim of right and claim of ownership. The testimony from various school board employees that they did not seek to take the disputed property is therefore irrelevant.
Even if K-VA-T was operating under the mistaken belief that it held title to the disputed land, it openly claimed the land as its own and excluded all others from occupying it. As K-VA-T was in hostile possession of the land up to the ditch, any mistake as to the title to the land is inapposite.
Finally, the court notes no evidence was elicited which indicated that Vansant Lumber instructed the school board to refrain from placing buildings on the disputed property, and the court heard no evidence that the school board complied with such a demand. Vansant Lumber has failed to carry its burden of proving K-VA-T possessed the property by permission.
The court finds that K-VA-T, through its predecessors the school board and board of supervisors, has adversely possessed the land up to the edge of the ditch. The court establishes the boundary line at the retaining wall between Vansant Lumber and K-VA-T properties. The court will appoint a surveyor, agreed on by both parties, to make an official survey of this boundary line.
Vansant Lumber Co. v. K-VA-T Food Stores Inc. (Vanover) No. 267-10, Nov. 17, 2014; Buchanan County Cir.Ct.; Timothy W. McAfee, Daniel H. Caldwell for the parties. VLW 014-8-110, 9 pp.