below Charles Cobb and James Cobb, by counsel Paul A. Knisley
and Kevin W. Hughart, appeal the Circuit Court of Jackson
County's "Judgment Order, " entered on November
30, 2016, following a bench trial in which the circuit court
rejected petitioners' adverse possession claim in a
property line dispute with respondents.
Respondents/defendants below Jack L. Collins, Donna Kay
Collins, Ira Richard Kemplin, and Jane E. Stacy, by counsel
John E. Dorsey, filed a response. Petitioners filed a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
and Procedural Background
Charles Cobb and James Cobb are brothers, each of whom own
adjoining parcels of real property in Jackson County, West
Virginia. Charles Cobb's property consists of
approximately 53.4 acres and sits to the northeast of James
Cobb's property, which consists of approximately 82.1
acres. Respondents Jack Collins and Donna Collins
("Collins"), own two parcels of property that are
adjacent to petitioners' properties, which sit to the
north and west of petitioners' properties. Respondents
Ira Richard Kemplin and Jane E. Stacy ("Kemplin"),
own a parcel of property that is adjacent to petitioners'
properties, which sits to east and south of petitioners'
properties. Petitioners state that they and/or their parents
have owned the 53.4 and 82.1-acre parcels since the
mid-1900s. Petitioners and Collins have been adjoiners for
more than fifteen years. Petitioners and Kemplin have been
adjoiners for more than twenty years. This appeal concerns
the circuit court's rejection of petitioners' claim
that they own part of respondents' properties by boundary
line and adverse possession.
claims against Collins and Kemplin proceeded to a bench trial
in the Circuit Court of Jackson County on August 30, 2016.
The evidence at trial revealed the following: Petitioners
commissioned two surveys in anticipation of this litigation.
The first survey was completed by Fox Engineering in November
of 2012. Petitioners disagreed with the results of this
survey and commissioned a second survey by Kevin Shafer. Mr.
Shafer completed his survey in April of 2014. Petitioners
disagreed with the results of Mr. Shafer's survey as
well. Mr. Shafer testified, however, that he revised his
survey map in December of 2014 to include a green line to
reflect the area that petitioners claimed to own by adverse
possession. Mr. Shafer determined the location of the green
line after he and Petitioner James Cobb, age 73 at the time
of the trial, walked the property and Petitioner James Cobb
identified the areas that he believed petitioners owned. Mr.
Shafer then marked the location of the line with his GPS. Mr.
Shafer's original map and his revised map, introduced as
"Plaintiff's Exhibit 8, " showed four to five
areas marked by shading and hatch lines that depicted the
areas in contention between the parties where Mr.
Shafer's research was inconclusive as to ownership.
According to the placement of the green line, petitioners
contended that these areas were part of their property,
regardless of what their deeds indicated. Importantly, there
are no instruments of title that supported petitioners'
contention that the green line was the actual property
to petitioners initiating this action, Collins commissioned a
survey by Randall Cline of BGH Surveying. Mr. Cline's
survey was, in large part, consistent with the Fox
Engineering Survey, but disagreed with Mr. Shafer's
survey in some areas. Both Mr. Cline and Mr. Shafer testified
at the bench trial and the circuit court admitted their
respective surveys as evidence. Additionally, the court heard
testimony from Petitioner James Cobb, Petitioner Charles
Cobb, petitioners' brother Delmar Cobb, petitioners'
sister Elsie Cobb, Respondent Richard Kemplin, and Respondent
respect to the boundary line dispute with Kemplin, the
circuit court found that the line was clearly established by
the Fox Engineering survey, the Shafer survey,
petitioners' deed, and the Kemplin deed. The circuit
court found that there were no legal instruments that
disputed the survey findings. Thus, the court found that
petitioners had no color of title to the area of the Kemplin
property that they claimed as theirs. With respect to a small
area of overlap between the properties shown on the Shafer
survey, of which ownership was unclear, the court found that
petitioners failed to prove that they own it.
respect to the boundary line dispute with Collins, Mr. Shafer
could not definitively determine ownership of two of the four
areas that he had marked with shading and hatch lines, marked
as "X" and "Y" on his survey. Mr. Cline,
however, testified that he determined that Collins owned all
four areas in contention, including the areas marked as
"X, " "Y, " "Z, " and
"C" on the Shafer survey. Based on the
demonstrative exhibits and Mr. Cline's testimony as to
his rationale for his conclusions, the circuit court found
Mr. Cline's conclusions persuasive. The court, therefore,
determined that these four areas were part of the Collins
the circuit court's findings and conclusions regarding
the location of the boundary lines, petitioners still
maintained that they owned these areas of contention by
adverse possession. In support of their adverse possession
claim, petitioners testified generally that they had
exercised dominion over the disputed property "all their
life;" they had a portion of the Kemplin property fenced
to pasture cattle; and with respect to Collins, they fenced
portions of the four disputed areas showed on the Shafer
survey for farming and pasturing cattle, as well.
Additionally, Delmar Cobb testified that they grew cucumbers
on a portion of the Kemplin property; that they used an old
dirt road on the Collins property; and that his and
petitioners' father mowed a portion of the Collins
property. Delmar Cobb, however, admitted that he was not
aware of the location of the actual property lines and that
much of his knowledge was based on hearsay. Lastly, Elsie
Morris testified that as a child she used an old dirt path on
the Collins property to walk to school, and that her family
had claimed a portion of the Collins property as evidenced by
a fence line "over the hill."
response to petitioners' adverse possession claim,
Kemplin disputed that petitioners pastured cattle on his
property because the area they claimed to have used was
unsuitable for that purpose. Kemplin also disputed that a
fence line existed to confine any cattle. For his part,
Collins also disputed petitioners' adverse possession
claim. With respect to the Collins property, the circuit
court found that, when petitioners timbered their property,
they did not mark any of the timber in the disputed areas;
that there was no fence line between the disputed areas or
any continuous fence line that could contain cattle; that, in
Collins' conversations with petitioners, petitioners did
not clearly indicate that they knew where the boundaries
were; that petitioners believed they always owned one of the
disputed areas as marked on the Shafer survey, meaning they
had no intent to claim it through adverse possession; and,
that, until this litigation, petitioners never claimed as
their own the area of the Collins property where Collins had
installed a gate.
"Judgment Order" entered on November 30, 2016, the
circuit court, in relevant part, concluded that (1)
petitioners had not proven by a preponderance of the evidence
that they own, by any legal instrument, any portion of the
Kemplin property; (2) petitioners had not proven by a
preponderance of the evidence that they own, by any legal
instrument, the tracts of property on the Shafer survey
designated at tracts X, Y, Z, and C; (3) petitioners had not
proven by clear and convincing evidence that they own any
portion of the Kemplin property by adverse possession; and
(4) petitioners had not proven by clear and convincing
evidence that they own any portion of the Collins property by
adverse possession. The circuit court further ordered that
the true and correct boundary between petitioners and Kemplin
was as established by the Fox Engineering and Shafer surveys;
that, based on the Cline survey, the areas marked on the
Shafer survey as X, Y, Z, and C, are owned by Collins; and
that the Cline survey otherwise established the true and
correct boundary between petitioner and Collins. It is from
this order that petitioners appeal to this Court.
appeal, petitioners first challenge the circuit court's
rejection of their adverse possession claims, arguing that
they provided uncontradicted testimony establishing each of
the elements of adverse possession. This Court has held that
"[t]he finding of a trial court upon the facts submitted
to it in lieu of a jury will be given the same weight as the
verdict of a jury and will not be disturbed by an appellate
court unless the evidence plainly and decidedly preponderates
against such finding." Syl., Boarman v.
Boarman, 194 W.Va. 118, 459 S.E.2d 395 (1995) (citation
omitted). Additionally, "[f]indings of fact by a trial
court without a jury will not be set aside unless they ...