Michael Harlan v. Doris Dean Williams

RENDERED: AUGUST 13, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1726-MR
MICHAEL HARLAN AND
JOSIE HARLAN APPELLANTS
APPEAL FROM CLINTON CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 16-CI-00162
DORIS DEAN WILLIAMS
AND JOYCE LOVELACE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Michael Harlan and Josie Harlan (the Harlans) bring this
appeal from a September 26, 2019, Trial Order and Judgment of the Clinton
Circuit Court upon a jury verdict finding that Stephenson Street in Albany,
Kentucky, was an abandoned public road and that Doris Dean Williams and Joyce
Lovelace adversely possessed real property identified as Stephenson Street on the
plat of the Burcie Stephenson Subdivision. We affirm.
In 1955, a plat setting forth the Burcie Stephenson Subdivision
(Stephenson Subdivision) was filed in the Clinton County Clerk’s Office. The
Stephenson Subdivision was a residential development and was wholly located
within Albany, Kentucky. On the Stephenson Subdivision Plat, Stephenson Street
was depicted in the middle of the subdivision running from Water Street in a
northwardly direction and then turning sharply to the east. It is undisputed that lots
therein were sold referencing the Stephenson Subdivision Plat.
Doris Dean Williams owns lots 1 through 8 in Block B and lots 17
through 21 in Block A in the Stephenson Subdivision by deeds dated July 5, 2006,
and May 9, 2013. Joyce Lovelace owns lots 6 through 9 in Block A by deeds
dated March 9, 1963, and June 7, 1984.1 And, the Harlans own lots 10 through 16
in Block A by virtue of devise in 2005 and later by deed dated September 14,
2016.2 As shown on the Stephenson Subdivision Plat, the Harlans’ lots, Williams’
lots, and Lovelace’s lots directly abut the real property over which Stephenson
Street was to be located per the Stephenson Subdivision Plat.
1
Joyce Lovelace’s deceased husband, Eddie Lovelace, originally obtained title to the property by
deed dated March 9, 1963.
2
Michael Harlan and Josie Harlan were devised a life estate in the subject property by the Last
Will and Testament of Alline Damron. They later acquired fee simple title by deed dated
September 14, 2016.
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A controversy erupted between the parties concerning Stephenson
Street. Williams and Lovelace filed a complaint in Clinton Circuit Court against
the Harlans. Therein, Williams and Lovelace contended:
11. That the Defendants have set up a claim to the
real estate owned by Plaintiffs by asserting that the
private driveway of the Plaintiffs, which has been solely
used and maintained by Plaintiffs and their predecessors
in title for over 60 years, is a city street of the City of
Albany, Kentucky, with unrestricted right of ingress and
egress afforded the Defendants.
12. That the sole stated basis for the contention of
Defendants is the existence of a Plat of the “Stephenson
Sub-Division” . . . said plat being of record in Plat
Cabinet 1, Slide 66, Clinton County Clerk[’]s Office.
Said Plat identifies “Stephenson Street” thereon. . . .
13. That the plat aforementioned did not dedicate any
street or right-of-way thereon to the general public or to
the City of Albany, Kentucky, or to any other person or
entity. That it simply exists on paper. That various other
“paper streets” exist in Albany, including one that
extends from Spring Street to the property now owned by
Doris Dean Williams, as identified on the original plat of
the Town of Albany. That said street, being an extension
of Jefferson Street, is as is Stephenson Street, never been
utilized for travel by the public, and actually crosses the
property now owned by Defendants Harlan.
14. That following their purchase of property, Robert
B. Dyer et ux., and Ed P. Warinner et ux., did both
construct homes on the property purchased about 1958
and did establish, create, grade, improve and blacktop a
driveway for the sole purpose and benefit of furnishing a
common driveway to their respective residences.
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15. From the time Eddie and Joyce Lovelace
purchased their property in 1963 they jointly maintained
the driveway. Said driveway is identified hereafter as the
“Williams-Lovelace Driveway.” That since its
establishment and creation, it has been exclusively
maintained, improved, and repaved by the Plaintiffs and
their predecessors in title.
16. Further, that the additional lands which would
constitute “Stephenson Street” have been openly,
continuously, adversely, notoriously, and exclusively
possessed by being landscaped, mowed, improved, and
maintained by Plaintiffs and their predecessors in title for
a a [sic] period well in excess of fifteen years openly,
exclusively, continuously, notoriously, and adversely
against any interest of the Defendants and their
predecessors in title.
17. That throughout those years, the Defendants’
predecessors in title, John Damron and wife Alline
Damron, did live and reside in the home now owned and
occupied by the Defendants. Mr. & Mrs. Damron
remodeled the home on the subject property after they
purchased it in the 1950s. Mr. & Mrs. Damron had a
driveway off Spring Street which provided acces [sic] to
the entirety of the Damron property, including Mrs.
Damron’s florist located on the north end of the Damron
residence.
18. That John Damron nor Alline Damron never
utilized the driveway of Plaintiffs as a driveway for an
automobile or other vehicle. In fact, the boundary line
between the properties of Damron and the Plaintiffs (and
their predecessors in title) was subject to a barrier which
was removed by Michael Harlan after he acquired the
Damron property. Said barrier was impenetrable by a
motor vehicle and was erected and constructed for a
period in excess of fifteen (15) consecutive years prior to
the Defendants Harlan acquiring any interest in the
subject property.
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19. That the property purchased by Damrons was a
part of the Stephenson Sub-Division [sic], but by reason
of having access to their property via Spring Street the
Damrons never utilized, abandoned, and forfeited any
right to utilize said access, for a period in excess of
fifteen (15) years.
20. That Glenn Ray Smith and his predecessors in
title never utilized the Williams-Lovelace driveway for
access by a motor vehicle. That Plaintiff Williams now
owns the Glenn Ray Smith tract.
....
22. That there was previously for a period in excess
of fifteen years a barrier between the property owned by
Defendants Harlan and the properties of Plaintiffs. That
Defendants have recently removed the barrier.
....
24. That the Plaintiffs and their predecessors in title
have been in open, continuous, exclusive, actual, adverse
and notorious possession of the property to the
immediate north of the Defendants property for a period
in excess of fifteen(15) years, and said possession
constitute[s] adverse possession under Kentucky law.
25. That any right of ingress and egress that John and
Alline Damron might have had was terminated by their
abandonment of usage of said “Stephenson Street” right-
of-way for a period in excess of fifteen years prior to
Defendantsa [sic] taking title to the Damron property.
December 21, 2016, Complaint at 3-5. The crux of the complaint was that
Stephenson Street was never constructed or opened; rather, the Williams’ and
Lovelace’s predecessors in title constructed and maintained a private driveway to
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access their respective real property over a portion of the real property where
Stephenson Street had been platted. In the complaint, it was alleged that the
private driveway was used solely by Williams, Lovelace, their predecessors in title,
invitees thereof, or others with permission, and to the exclusion of the general
public since 1958. As a result, Williams and Lovelace claimed title to said real
property by adverse possession.
The Harlans filed an Answer and Counterclaim. In the Counterclaim,
the Harlans maintained that Stephenson Street was dedicated as a public right-of-
way by the Stephenson Subdivision Plat and that neither Williams nor Lovelace
could object to the Harlans’ or the public’s right to access same.
Subsequently, the Harlans filed a motion for judgment on the
pleadings or summary judgment. The Harlans argued that “the recording of a plat
and sale of lots in a subdivision with reference to a street [on the plat] amount to an
immediate dedication of use for purchasers of the lots and the public, even if the
street is not actually opened and there has been no acceptance by the city.” August
8, 2019, Motion for Summary Judgment at 3. The Harlans alleged that the
Stephenson Subdivision Plat was recorded and lots were sold referencing the plat;
consequently, Stephenson Street was dedicated to public use even if it were never
opened or accepted by Albany into its road system. The Harlans further
maintained that Williams and Lovelace could not acquire a “city street/public
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right-of-way” by adverse possession. August 8, 2019, Motion for Summary
Judgment at 3.
In response, Williams and Lovelace initially pointed out that
Stephenson Street as depicted on the Stephenson Subdivision Plat was never
opened as a road. Rather, Williams and Lovelace contended that their
predecessors in title constructed in 1958 and maintained thereafter a private-
common driveway on a portion of the property depicted as Stephenson Street on
the plat. Williams and Lovelace asserted that neither the public nor the Harlans’
predecessors in title used the private driveway. In fact, Williams and Lovelace
contended that any dedicated public road had been abandoned by fifteen years of
nonuse by the public and/or by the Harlans, including their predecessors in title.
And, Williams and Lovelace pointed to facts demonstrating that they and their
predecessors in title had adversely possessed the real property identified on the
Stephenson Subdivision Plat as Stephenson Street.
The trial court ultimately denied the Harlans’ motion for judgment on
the pleadings or summary judgment. The trial court concluded that Stephenson
Street as platted was a public road, but the court believed that material issues of
fact existed to preclude summary judgment upon whether Stephenson Street had
been abandoned and whether the real property identified on the Stephenson
Subdivision Plat had been adversely possessed.
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The matter was heard by a jury on September 18-19, 2019. The jury
returned a verdict in favor of Williams and Lovelace. The jury found, by clear and
convincing evidence, that Stephenson Street had not been used by the public or by
the Harlans and/or their predecessors in title as a right-of-way for fifteen years and
was abandoned. The jury also found that Williams and Lovelace had proved, by
clear and convincing evidence, that they adversely possessed the real property
identified as Stephenson Street on the Stephenson Subdivision Plat. The Harlans
filed a motion for judgment notwithstanding the verdict. The trial court denied the
motion by order entered October 23, 2019. This appeal follows.
Dedication by Estoppel Involving Plat
The Harlans contend that the recording of the Stephenson Subdivision
Plat and the sale of lots with reference thereto resulted in “an immediate
dedication of use [of any street illustrated on the plat] for the purchasers of the lots
and the public.” Harlans’ Brief at 4. The Harlans argue that Stephenson Street
was dedicated by plat and constituted a “dedicated city street/public right[-]of[-]
way.” Harlans’ Brief at 5. We agree with the Harlans that Stephenson Street was
dedicated by estoppel involving plat to public use; but we disagree with the
Harlans’ characterization of Stephenson Street as a “city street/public right[-]of[-]
way.” To determine the parties’ and the public’s respective rights as to Stephenson
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Street, it is crucial to accurately determine Stephenson Street’s proper legal
classification.
In Kentucky, our Courts have long recognized the principle of
common-law dedication of private property to a public purpose. Volpenheim v.
Westerfield, 287 S.W. 545 (Ky. 1926); Newland v. Schriver, 19 S.W.2d 963 (Ky.
1929); City of Middlesboro v. Kentucky Utilities Co., 35 S.W.2d 877 (Ky. 1931);
Howard v. Barton, 51 S.W.2d 977 (Ky. 1932); Cassell v. Reeves, 265 S.W.2d 801(Ky. 1954); Herron v. Boggs, 582 S.W.2d 643 (Ky. 1979); Henry Fischer Builder,
Inc. v. Magee, 957 S.W.2d 303 (Ky. App. 1997); Nash v. Campbell Cty. Fiscal
Court, 345 S.W.3d 811 (Ky. 2011). A dedication of property to the public is
broadly defined as “the setting aside of land, or of an interest therein, to the public
use.” 23 Am. Jur. 2d Dedication § 1 (2021). A common-law dedication is
premised upon the express or implied intent of the dedicator to devote his property
to a public use and the corresponding public acceptance of such property. 11A
McQuillin, Municipal Corporations § 33.2 Dedication (3d ed. 2010).
One prevalent type of common-law dedication is dedication by
estoppel. A common-law dedication by estoppel may be effectuated by
subdividing land into lots and laying out streets, roads, and other open areas on a
plat. Kircheimer v. Carrier, 446 S.W.3d 224, 228 (Ky. 2014). Such common-law
dedication is generally referred to as dedication by estoppel involving plat. Id.-9-
The conduct of subdividing lots and setting forth roads on a plat without expressly
stating whether said roads are private or public operates as an estoppel against the
dedicator and constitutes an offer to dedicate said roads to public use. Williams v.
Poole, 103 S.W. 336 (Ky. 1907); Cassell, 265 S.W.2d 801; Hofgesang v.
Woodbine Ave. Realty Co., 414 S.W.2d 580 (Ky. 1967), modified on denial of
reh’g (Jun. 2, 1967); Herron, 582 S.W.2d 643. Such an offer to dedicate requires
neither formal public acceptance nor general use by the public; rather, a dedication
by estoppel involving plat may be consummated by the selling of a lot with
reference to the subdivision plat. Volpenheim, 287 S.W. 545; Cassell, 265 S.W.2d
801; Houghland v. Perdue, 361 S.W.2d 291 (Ky. 1962); Banks v. Wilhoite, 508
S.W.2d 580 (Ky. 1974). It must be emphasized that a dedication effected by
platting plus the sale of lots by reference thereto constitutes an irrevocable
dedication. Kircheimer, 446 S.W.3d at 228-29. It does not require any formal
governmental action by the state, county, or city but rather rests upon the common-
law doctrine of dedication by estoppel. With common-law dedication by estoppel
involving plat, the streets or roads appearing on the plat are considered to be
offered for public use absent an expressed contrary intent. Kircheimer, 446
S.W.3d at 229. And, such a street or road is regarded as a common-law public
road over which the public enjoys a right-of-way easement. Ellington v. Becraft,
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534 S.W.3d 785, 793 (Ky. 2017); Bluegrass Manor v. Mall St. Matthews Ltd.
P’ship, 964 S.W.2d 431, 433 (Ky. 1998).
In this case, it is undisputed that the Stephenson Subdivision Plat was
recorded in 1955 and that lots were sold by reference to such plat. It is also
undisputed that Stephenson Street was depicted upon the plat and was to provide
access to a number of lots in the subdivision. However, there was no evidence
introduced at trial that the Stephenson Subdivision Plat was approved by the City
of Albany’s Planning and Zoning Commission. And, there was no evidence that
Stephenson Street was ever accepted by the City of Albany into its road system.
Rather, based upon uncontradicted evidence, the recording of the Stephenson
Subdivision Plat and the concomitant selling of lots therein legally effectuated a
dedication by estoppel involving plat of Stephenson Street to public use. Thus,
Stephenson Street was a public road over which the public, including the lot
owners of the Stephenson Subdivision, enjoyed a right-of-way easement. Having
so determined, we shall now turn to the issue of abandonment.
Abandonment
The Harlans assert that the trial court erred by denying their motion
for a directed verdict and motion for judgment notwithstanding the verdict upon
whether Stephenson Street was abandoned. The Harlans initially claim that a
dedicated public right-of-way in a city cannot be abandoned. The Harlans further
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maintain that Stephenson Street was not abandoned because evidence was
introduced that Williams, Lovelace, and their predecessors in title utilized
Stephenson Street on a daily basis; moreover, the Harlans point out that third
parties and the Harlans themselves had utilized Stephenson Street. Alternatively,
the Harlans argue that Stephenson Street could only be abandoned by following the
dictates of Kentucky Revised Statutes (KRS) 82.405, KRS 178.020, and KRS
413.050, which Williams and Lovelace failed to do. Lastly, the Harlans assert that
if Stephenson Street were abandoned, they, as abutting property owners, would be
entitled to reasonable ingress and egress over the street.
Our standard of review from a trial court’s denial of a motion for a
directed verdict and motion for judgment notwithstanding the verdict is identical.
Indiana Ins. Co. v. Demetre, 527 S.W.3d 12, 25 (Ky. 2017). To grant the motions,
there must be “a complete absence of proof on a material issue in the action, or if
no disputed issue of fact exists upon which reasonable men could differ.”
Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256, 261 (Ky. App. 2007)
(quoting Taylor v. Kennedy, 700 S.W. 2d 415, 416 (Ky. App. 1985)). Stated
differently, “if under the evidence as a whole, it would be clearly unreasonable for
a jury to find guilt [or liability], only then the defendant is entitled to a directed
verdict.” Mountain Water Dist. v. Smith, 314 S.W.3d 312, 314 (Ky. App. 2010)
(quoting Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). The
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evidence and reasonable inferences therefrom must be construed in a light most
favorable to the nonmoving party. Radioshack Corp., 222 S.W.3d at 261.
In 1979, our Supreme Court recognized that a public road, created
through dedication by prescription, could be abandoned without formal action of a
governmental entity and nonuse by the public for fifteen years. Sarver v. Allen
Cty., By and Through Its Fiscal Court, 582 S.W.2d 40, 42-43 (Ky. 1979); see also
Blankenship v. Acton, 159 S.W.3d 330, 333-34 (Ky. App. 2004).3
The trial court relied upon Sarver, 582 S.W.2d 40, and instructed the
jury in accordance therewith. The jury found that clear and convincing evidence
existed that Stephenson Street had been abandoned and not utilized by the public
for more than fifteen continuous years. Additionally, the jury found that clear and
convincing evidence existed that the Harlans, including their predecessors in title,
had abandoned and not utilized Stephenson Street for more than fifteen continuous
years. We believe that the trial court properly relied upon Sarver, 582 S.W.2d 40,
in instructing the jury that Stephenson Street could be abandoned by fifteen years
of nonuse by the public and by the Harlans and/or their predecessors in title.
Moreover, sufficient evidence was introduced by Williams and Lovelace
3
There are generally two types of informal or common-law dedication of a public road –
dedication by estoppel and dedication by prescription. Ellington v. Becraft, 534 S.W.3d 785, 792
(Ky. 2017).
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demonstrating that the public, the Harlans, and/or their predecessors in title had
abandoned Stephenson Street.
At trial, Williams and Lovelace introduced evidence that the Harlans
and their predecessors in title had long utilized an alternative driveway to access
their property and that Stephenson Street was never opened. Williams and
Lovelace also introduced evidence that a fence and/or hedge row had existed
between the Harlans’ real property and the real property where Stephenson Street
was to be located, thus making any automobile traffic from the Harlans’ property
to Stephenson Street impossible for more than fifteen years. There also was
evidence that Williams’ and Lovelace’s predecessors in title had constructed a
private-common driveway to reach their respective properties in 1958 over some of
the real property where Stephenson Street was originally platted. Further,
Williams and Lovelace introduced testimony that their predecessors in title solely
financed the construction of the driveway and that its maintenance was carried out
by Williams, Lovelace, or their predecessors in title, not the City of Albany. And,
there was evidence that the driveway was used by Williams, Lovelace, their
predecessors in title, and others with their permission, to the exclusion of the
public.
Viewing the evidence and inferences therefrom most favorable to
Williams and Lovelace, a reasonable juror could find that Stephenson Street had
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been abandoned; therefore, the trial court properly denied the Harlans’ motion for
directed verdict and motion for judgment notwithstanding the verdict.
Additionally, and contrary to the Harlans’ contentions otherwise, KRS
82.405, KRS 178.020, and KRS 413.050 are wholly inapplicable to abandonment
of a public road. KRS 82.405 deals with a city’s legislative body formally closing
a public way. It has no bearing upon abandonment by the public of a public road.
And, KRS 178.020 provides, in relevant part, that a county road or city street
lawfully established and opened shall continue “until properly discontinued.” As
herein concluded, Stephenson Street is not a county road or city street; rather, it is
a public road. Thus, KRS 178.020 has no application to this case. Finally, as to
KRS 413.050, its provisions deal with adverse possession of a city street, public
easement, or public road. Abandonment of a public road and adverse possession of
a public road are two separate matters.
We also reject the Harlans’ contention that they are entitled to
reasonable ingress and egress over Stephenson Street if it has been abandoned.
The law is well settled that “[i]f the road has been legally abandoned, the abutting
property owner still retains a private easement over the roadbed to the extent that it
is required to allow him a reasonable means of ingress and egress.” Hylton v.
Belcher, 290 S.W.2d 475, 477 (Ky. 1956); see also Potter v. Citation Coal Co.,
445 S.W.2d 128, 130 (Ky. 1969). Herein, the Harlans and their predecessors in
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title have utilized an alternative driveway for ingress and egress to their property.
Consequently, a private easement over Stephenson Street is not necessary to
provide the Harlans a reasonable means of ingress and egress to their property. In
view thereof, we conclude that the Harlans are not entitled to a private easement
over Stephenson Street.4
Adverse Possession
The Harlans argue that Williams and Lovelace did not adversely
possess Stephenson Street because they failed to comply with the notice
requirements of KRS 413.050(1). Citing to KRS 413.050(1), the Harlans maintain
that it was incumbent upon Williams and Lovelace to give the City of Albany
written notice of their adverse possession of Stephenson Street. The Harlans point
out that no evidence was introduced demonstrating that written notice was given
pursuant to KRS 413.050; therefore, there was no adverse possession of
Stephenson Street by Williams and Lovelace.
KRS 413.050(1) reads, in pertinent part:
The limitations mentioned in KRS 413.010 to 413.040
shall not begin to run in respect to actions by a city for
the recovery of any part of any street, alley or other
4
The Harlans also maintained that upon abandonment of Stephenson Street, each abutting
property owner would hold fee simple title to the center of the street. This is incorrect. As
Stephenson Street was dedicated by estoppel involving plat, fee simple title remained with the
dedicator and only a right-of-way easement was passed to the public. Thus, upon abandonment
of a common-law dedicated road, the easement is extinguished, and the dedicator holds the fee
free of the easement. See Bluegrass Manor v. Mall St. Matthews Ltd. P’ship, 964 S.W.2d 431,
433-34 (Ky. 1998); Illinois Cent. R.R. Co. v. Roberts, 928 S.W.2d 822, 826-27 (Ky. App. 1996).
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public easement or the use thereof in the city, until the
legislative body of the city has been notified in writing
by the party in possession or about to take possession that
his possession will be adverse to the right or title of the
city. Until such notice is given, all possession of any part
of any street, alley or public easement in any city shall be
deemed amicable, and the person in possession the tenant
at will of the city.
Under the plain terms of KRS 413.050(1), it bars the limitations “in
respect to actions by a city for the recovery of any part of any street, alley or other
public easement[.]” The case at hand does not involve an action by the city to
recover a city street, alley, or public easement. In fact, the City of Albany is not a
party to this action. We, thus, conclude that KRS 413.050(1) is inapplicable
herein.
The Harlans also assert that Williams and Lovelace failed to prove the
elements of adverse possession by clear and convincing evidence. In particular,
the Harlans maintain that Williams and Lovelace did not demonstrate adversity or
hostility. The Harlans further argue that they introduced evidence of their use of
Stephenson Street and that they were not placed on notice of Williams and
Lovelace’s adverse possession until the filing of this action, which was on
December 21, 2016. Also, the Harlans assert that Williams and Lovelace cannot
both adversely possess the same real property.
Recently, the Kentucky Supreme Court set forth the elements of
adverse possession:
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1) [P]ossession must be hostile and under a claim of
right, 2) it must be actual, 3) it must be exclusive, 4) it
must be continuous, and 5) it must be open and
notorious.
Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010). The elements of adverse
possession must be proved by clear and convincing evidence and must all be
maintained for fifteen years. Id. at 77-78. To prevail upon their motions for a
directed verdict and for judgment notwithstanding the verdict, the Harlans must
demonstrate that it was clearly unreasonable for a jury to have found that Williams
and Lovelace adversely possessed the real property over which Stephenson Street
was platted. Mountain Water District, 314 S.W.3d at 314; Radioshack, 222
S.W.3d at 261.
At trial, Williams and Lovelace introduced evidence that their
predecessors in title built the common driveway for the purposes of accessing their
respective properties in 1958. Williams and Lovelace also introduced evidence
that they and their predecessors in title solely improved and maintained the
driveway since 1958. There was also evidence that Williams, Lovelace, their
predecessors in title, their invitees, or those with permission had utilized the
driveway, to the exclusion of the public, since 1958. Various individuals from
Albany testified that the driveway was viewed by them as a private driveway.
Williams and Lovelace also demonstrated that they planted shrubs, landscaped,
and regularly mowed an area around the driveway. And, there was evidence that
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Williams, Lovelace, and/or their predecessors in title regularly utilized the
driveway to access their respective properties.
And, as to whether Williams and Lovelace may both establish title by
adverse possession, the Kentucky Supreme Court has noted that “[t]wo or more
persons may be coadverse possessors[.]” Ellington v. Becraft, 534 S.W.3d 785,
798 n.3 (Ky. 2017). In so noting, the Supreme Court cited to “3A Keats, Kentucky
Practice, Real Estate Transactions § 19:5” as authority.5 Therein, it is stated
“[t]hat adverse possession must be ‘exclusive’ means it must not be shared with the
disseised owner. Two or more persons may be coadverse possessors; if they
acquire title, it will be as tenants in common.” Elements – Exclusive, 3A Keats,
Kentucky Practice, Real Estate Transactions § 19:5. This Court is bound to follow
Supreme Court precedent. Rules of the Supreme Court (SCR) 1.030(8)(a). Thus,
Williams and Lovelace may adversely possess the subject property without
negating the exclusivity element of adverse possession.
Considering the evidence as a whole, the Harlans have failed to
demonstrate that it was unreasonable for the jury to have found that Williams and
Lovelace satisfied the elements of adverse possession by clear and convincing
evidence.
5
The Supreme Court citation of this authority did not cite the edition of the Kentucky Practice
series quoted. However, this authority was originally set out in 3 Keats, Kentucky Practice,
Methods of Practice § 5.5 Elements-Exclusive (3d ed. 1989).
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For the foregoing reasons, the Trial Order and Judgment of the
Clinton Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Winter R. Huff Donald L. Wilkerson, III
Monticello, Kentucky David M. Cross
Albany, Kentucky
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