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April 21, 2000

Record No. 991092





Jane Marum Roush, Judge

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, Kinser, JJ., and Stephenson, Senior Justice


This appeal arises out of a motion for judgment
seeking ejectment and a counterclaim alleging adverse possession.
Plaintiff Young Kee Kim sought to eject the defendant Douval
Corporation, d/b/a Wash Fair (Douval), from a 414 square-foot
tract of real estate owned by Kim and located in the Springfield
area of Fairfax County. In its counterclaim, Douval asserted that
it had acquired title to the disputed parcel by virtue of its
actual, hostile, exclusive, visible, and continuous use and
possession of the property for more than 15 years. A jury
returned a verdict in favor of Kim and awarded damages. However,
the trial court granted Douval’s post-trial motion to set
aside the verdict and entered judgment for Douval on its claim of
adverse possession. This appeal followed. Because we conclude
that conflicting inferences can be drawn from the evidence with
regard to the question whether Douval’s possession of the
disputed property was under a claim of right, and because the
jury resolved those inferences in favor of Kim, we will reverse
the judgment of the circuit court.


The property at issue in this appeal is part of
Parcel 4-A of a subdivision known as the East Garfield Tract. Kim
purchased Parcel 4-A in 1994. His predecessors-in-interest, Jung
Sik Kim (Jung) and Jung’s wife, had owned the property since
1983. Kim’s parcel is adjacent to Parcel 4-E of the East
Garfield Tract. David N. and Loretta R. Bond purchased Parcel 4-E
in 1984. Since then, the Bonds have leased this parcel to Douval.

Douval operates a car wash on Parcel 4-E under
the trade name of Wash Fair.
[1] Wash Fair has run the car wash
since 1961 pursuant to leases with the various owners of Parcel
4-E. Mr. Bond was the manager of Wash Fair from 1962 until 1977,
when he and Mrs. Bond acquired all the shares of stock in Douval.

The parties agree that the disputed property is
a triangular-shaped tract bounded on one side by the property
line between Parcels 4-A and 4-E, and on the other side by a
concrete curb situated on Parcel 4-A. The curb has been in place
since at least 1962, but the record does not disclose precisely
when, or by whom, it was erected.

According to Mr. Bond, Wash Fair has used the
disputed property since 1962. Initially, it utilized the
triangular strip of Parcel 4-A as a "driveway" for cars
entering and departing the car wash. Wash Fair also erected a
sign pole that abutted the concrete curb and placed asphalt on
the disputed area over to the curb. In 1969, Wash Fair installed
outside lighting at the car wash by placing poles and concrete
bases on the disputed property along the curb. In order to lay
the electrical conduit for those lights, the asphalt had to be
dug up. After the installation of the lights was completed, Wash
Fair paved the disputed area with asphalt again. During the
ensuing years, Wash Fair asphalted the area on several more
occasions. It also erected a fence at the rear of the disputed
property in 1969 and replaced the fence in 1982 or 1983. Finally,
Wash Fair painted the concrete curb at least twice each year and
placed planters in the disputed area in 1990.

Jung testified that Wash Fair installed vacuums
on the disputed property approximately six or seven months after
he purchased Parcel 4-A in 1983. Jung did not give Wash Fair
permission to install the vacuums, nor did Wash Fair request
permission from him to do so. Jung also testified that he
"didn’t mind" Wash Fair’s using part of his
property because Wash Fair needed it. Jung likewise did not
object when Wash Fair paved the disputed property with new
asphalt because the asphalt benefited his property.

Mr. Bond admitted that Wash Fair used the
disputed property even though he knew it was not part of Parcel
4-E. However, he asserted that no one instructed Wash Fair not to
use or make improvements on the triangular strip of Parcel 4-A
over to the curb. Mr. Bond further testified that Wash Fair never
received permission from any of the owners of Parcel 4-A to
occupy and use the disputed portion of that parcel.

However, Kim, through his attorney William C.
Thomas, offered Douval a license agreement to use the disputed
strip of Parcel 4-A in 1995. According to Thomas, Mr. Bond
claimed at that time that he did not know about the encroachment
on Parcel 4-A and asserted that he "had built entirely on
the Wash Fair property."

Kim established his claim for ejectment by
introducing evidence to prove his chain of title for Parcel 4-A
and his damages resulting from Douval’s actions. Kim also
testified that he asked Douval to remove the vacuums from the
disputed strip of Parcel 4-A and that it refused to do so.


Pursuant to Code ? 8.01-430, a trial
court can set aside the verdict of a jury in a civil action when
the verdict is contrary to the evidence or is without evidence to
support it. However, the trial court’s authority to do so is
limited by the following principles:

If there is a conflict in the testimony on a
material point, or if reasonable [persons] may differ in their
conclusions of fact to be drawn from the evidence, or if the
conclusion is dependent on the weight to be given the testimony,
the trial judge cannot substitute his conclusion for that of the
jury merely because he would have voted for a different verdict
if he had been on the jury. The weight of a jury’s verdict,
when there is credible evidence upon which it can be based, is
not overborne by the trial judge’s disapproval.

Lane v. Scott, 220 Va. 578, 581-82, 260
S.E.2d 238, 240 (1979), cert. denied, 446 U.S. 986
(1980) (quoting Commonwealth v. McNeely, 204 Va. 218, 222,
129 S.E.2d 687, 689-90 (1963)). Accord Henderson v. Gay,
245 Va. 478, 480-81, 429 S.E.2d 14, 16 (1993). In addition,
"when conflicting inferences have been resolved by a jury
and those necessarily underlying the conclusion reflected in the
verdict are reasonably deducible from the evidence, a trial judge
should not set the verdict aside." Lane, 220 Va. at
582, 260 S.E.2d at 240.

In reviewing the circuit court’s judgment,
we are mindful of the fact that the trial judge disapproved the
jury verdict in this case. Thus, that verdict is not entitled to
the same weight as one that a trial judge has approved. Deskins
v. T.H. Nichols Line Contractor, Inc.
, 234 Va. 185, 186, 361
S.E.2d 125, 125 (1987) (citing Cloutier, Adm’r v.
Virginia Gas Distrib. Corp.
, 202 Va. 646, 651, 119 S.E.2d
234, 237 (1961)). Nevertheless, this Court must consider the
evidence in the light most favorable to Kim, who was the
recipient of the jury verdict. Deskins, 234 Va. at 186,
361 S.E.2d at 125 (citing Neighbors v. Moore, 216 Va. 514,
515, 219 S.E.2d 692, 694 (1975)).

"To establish title to real property by
adverse possession, a claimant must prove actual, hostile,
exclusive, visible, and continuous possession, under a claim of
right, for the statutory period of 15 years." Grappo v.
, 241 Va. 58, 61-62, 400 S.E.2d 168, 170-71 (1991)
(citing McIntosh v. Chincoteague Volunteer Fire Co., 220
Va. 553, 556-57, 260 S.E.2d 457, 459-60 (1979); Peck v. Daniel,
212 Va. 265, 268, 184 S.E.2d 7, 9 (1971); Leake v. Richardson,
199 Va. 967, 976, 103 S.E.2d 227, 234 (1958); Code
? 8.01-236). The claimant bears the burden of proving the
elements of adverse possession by clear and convincing evidence. Calhoun
v. Woods
, 246 Va. 41, 43, 431 S.E.2d 285, 287 (1993); Matthews
v. W.T. Freeman Co., Inc.
, 191 Va. 385, 395, 60 S.E.2d 909,
914 (1950).

Kim acknowledges that Douval’s possession
of the disputed strip of Parcel 4-A has been open and notorious.
However, he argues that there is a conflict in the evidence and
the reasonable inferences that can be drawn from the evidence
with regard to the question whether Douval’s possession was
"hostile" under a claim of right. In fact, the circuit
court noted in its letter opinion that this issue was the only
genuinely disputed one at trial.

It is well-established that a claimant’s
possession is "hostile" if it is under "a claim of
right and adverse to the right of the true owner." Grappo,
241 Va. at 62, 400 S.E.2d at 171 (citing Virginia Midland R.R.
Co. v. Barbour
, 97 Va. 118, 123, 33 S.E. 554, 556 (1899)).
The phrase "claim of right," when used in the context
of adverse possession, refers to the intent of a claimant to use
land as the claimant’s own to the exclusion of all others. Marion
Inv. Co. v. Virginia Lincoln Furniture Corp.
, 171 Va. 170,
182, 198 S.E. 508, 513 (1938). The existence of a claim of right
does not depend on the claimant having any actual title or right
to the property. Id. However, "[w]here the original
entry on another’s land was by agreement or permission,
possession regardless of its duration presumptively continues as
it began, in the absence of an explicit disclaimer." Matthews,
191 Va. at 395, 60 S.E.2d at 914. Accord Alford v.
, 236 Va. 194, 197, 372 S.E.2d 389, 390 (1988); Thompson
v. Camper
, 106 Va. 315, 318, 55 S.E. 674, 675 (1906).

As Kim notes, the record does not indicate the
circumstances under which Wash Fair’s possession of the
disputed strip of Parcel 4-A began. Wash Fair commenced operating
the car wash in 1961. Mr. Bond testified that Wash Fair was using
the disputed property in 1962.

However, we do not know whether, at that time,
Wash Fair’s landlord, who owned Parcel 4-E, obtained
permission from the owner of Parcel 4-A for Wash Fair to utilize
the disputed property. Although Mr. Bond began managing Wash Fair
in 1962 and testified that he had no knowledge of any agreement
between Wash Fair’s landlord and the owner of Parcel 4-A
with regard to Wash Fair’s use of the disputed property, he
and Mrs. Bond did not become Wash Fair’s landlord until 1984
when they purchased Parcel 4-E. Thus, he would not have been a
party to any such agreement prior to 1984. Mr. Bond admitted that
some of the previous owners are deceased and that he therefore
could not confer with them about whether any such agreement
existed before he and Mrs. Bond became Wash Fair’s landlord.

In contrast, we know that Jung, a prior owner
of Parcel 4-A, did not give Wash Fair permission to install the
vacuums on the disputed strip of property in 1983, shortly after
he purchased Parcel 4-A. Also, Kim asked Douval to remove those
vacuums in 1995, but Douval refused to do so.

Relying on this Court’s decision in Marion
Inv. Co.
, Douval argues that its actual occupation, use, and
improvement of the disputed property as if it were in fact an
owner establishes that its possession was under a claim of right.
We agree that a claim of right can be inferred from unequivocal
conduct that is inconsistent with any other reasonable inference.
See Sims v. Capper, 133 Va. 278, 287, 112 S.E. 676,
679 (1922). However, whether the conduct relied upon is
sufficient to establish a claim of right is generally a question
for the jury. Marion Inv. Co., 171 Va. at 182, 198 S.E. at

Upon reviewing the evidence in the light most
favorable to Kim, we conclude that conflicting inferences can be
drawn from the evidence with regard to the questions whether Wash
Fair began its possession and use of the disputed property under
a claim of right, or with the permission of the owner of Parcel
4-A; whether, if Wash Fair’s possession started with
permission from the owner of Parcel 4-A, the possession later
changed to one under a claim of right; and whether any possession
by Wash Fair under a claim of right has continued for the
requisite 15-year statutory period. The jury resolved the
conflicting inferences in favor of Kim, and the inferences
"necessarily underlying the conclusion reflected in the
verdict are reasonably deducible from the evidence." Lane,
220 Va. at 582, 260 S.E.2d at 240. Thus, we conclude that the
circuit court erred in setting aside the jury verdict.

For these reasons, we will reverse the judgment
of the circuit court, reinstate the jury verdict, and enter final
judgment in favor of Kim.

Reversed and final judgment.



[1] Kim operates an auto body repair
shop on Parcel 4-A.

[2] Kim also argued that there is a conflict in the
evidence with regard to the issues whether Douval’s
possession was "exclusive" and whether the possession
was continuous for the requisite 15-year statutory period.

[3] We do not need to address the
remaining assignments of error.