Brown v. Gobble

196 W. Va. 559, 474 S.E.2d 489 (1996)



One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible 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. 


The adverse possessors were told that their property boundary extended to and included the fence enclosing their property. By a survey, the putative owners were on notice that a two feet tract of land within the possessors' fence was a part of the owners' property, but they did not nothing to exercise ownership or control of the land until five years later. The putative owners filed an action to prevent the adverse possessors from interfering with their plans to build a road. The adverse possessors claimed title by tacking. The trial court determined that the adverse possessors failed to prove their claim by clear and convincing evidence, which was held to be the applicable standard for establishing the claim.


Was the evidence presented clear and convincing to show that landowners had met each element of adverse possession?




The court held that while there appeared to be a significant amount of evidence supporting the adverse possessors' claim, the decision of the trial court in weighing the credibility of the evidence was not to be overturned absent clear error. The court further indicated that it appeared that the trial court either misunderstood or misapplied the theory of the adverse possessors, and further clarification of the trial court's rationale for its decision was required. Thus, the trial court's judgment in favor of the putative owners was reversed and remanded for further proceedings to show clarification of the trial court's decision.

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