Brown v. Gobble
474 S.E.2d 489 (W. Va. 1996)
Author: Jim

Facts: Defendants bought property in 1985 and property had a fence that enclosed 2 feet of land, the disputed land in this case.  The plaintiffs purchased a neighboring property in 1989 and they had a survey of their property.  The survey revealed that the 2 feet of land enclosed by defendants’ fence was in fact plaintiffs’ land.  The plaintiffs did not raise any issue until 1994 when the plaintiffs decided to build a road in that 2 feet of land. The defendants claim title to the land.

Procedure: The trial court ruled that the defendants failed to prove with clear and convincing evidence that their use of the property was adverse and continuous that would have given them the title to the land.  Ruling for the plaintiff.

Issue: Can the defendants claim title to the 2 feet of land under the doctrine of adverse possession?

Holding: Yes

Rule: In order to establish title under the doctrine of adverse possession, one must meet the following elements: 1. That he had held the tract adversely or hostilely 2. That the possession has been actual 3. That it has been open and notorious 4. That possession has been exclusive 5. That possession has been continuous 6 that possession has been under claim of title or color of title.  Furthermore, defendants belief during all this time that the 2 feet of land was theirs does not defeat their right to claim under this doctrine.

Rationale: First of all, the defendants must prove with clear and convincing evidence that a claim of title exists.  For the “tacking” element, defendants present evidence that their predecessor owners of the land had fenced the 2 feet of land since 1937, so it meets the statutory required period.  To meet the hostile and adverse element, defendants present evidence that they and the previous owners had kept a fence around the 2 feet of land and claimed ownership of this land. To meet the actual possession element, the defendants presented evidence that they and the previous owners had regularly planted flowers and mowed the grass on this 2 feet of land.  To meet the element of open and notorious element, defendant presented evidence the 2 feet of land had the reputation in the community of belonging to the plaintiffs and the previous owners. To meet the requirement of exclusive, the defendants testified that since 1937, the previous owners and then the defendants had the exclusive right to the 2 feet of land.  This access was only challenged when this lawsuit was brought. Defendants also presented evidence that met the continuous and claim of title requirements.  Since all these requisites are met by the defendant, the trial court err in considering defendant’s tacking claim.  Reversed and remanded.