NOT TO BE PUBLISHED
OPINION
CLAYTON, Judge.
This is an appeal of a decision of the Christian Circuit Court concerning a property boundary dispute. Based upon the following, we affirm the decision of the trial court.
BACKGROUND INFORMATION
The property at issue herein was originally part of an 1848 land grant which described a fifty-acre tract and was owned by Walter Alexander. Upon Alexander's death, his heirs (the Alexander heirs) became the owners of the property, including James H. Alexander, who, upon his father's death, inherited a 1/8th share of the property. James sold his interest in the property to his siblings and sister-in-law. During James's ownership of the property, he hired a surveyor named Mooningham to prepare a survey of the property. Mooningham surveyed the property in 1959 and the plat he prepared is known as the Mooningham Plat. The Mooningham Plat was never recorded in the Christian County Clerk's office.
The Appellant, George T. Barnett, purchased his property in 1969. His property is a one-hundred-acre tract. The Alexander Heirs sold the Appellee, Marion T. Cates their fifty-acre tract. In 2007, Cates filed a pro se complaint in the Christian Circuit Court alleging trespass against Barnett. She contended that he had trespassed on her property and had removed survey stakes which had been placed by a licensed surveyor who was attempting to locate her boundary lines. Barnett was never served this complaint and in February of 2009, Cates, with the assistance of counsel, filed an Amended Complaint to quiet her title. Barnett filed an answer and counterclaim asserting that the boundary line between their two properties had been established through an oral boundary line agreement by prior owners of the property.
The Christian Circuit Court held a trial on the issue and entered the following conclusions of law:
A. Boundary Line [T]here is no basis in this case for either party to claim title or ownership to any other property other than that which has been deeded to him or her. To the extent that the legal descriptions overlap, the legal description in Ms. Cates' deed is superior and controls because, based on the evidence presented at trial, that legal description is the older of the two being traceable all the way back to the 1848 land warrant from the Governor of Kentucky. . . .
B. Gravel Road
Based on the court's Findings of Fact . . . that the gravel road is neither a public road nor a county road, the court concludes . . . that the gravel road is Mr. Barnett's private road . . . [and] that Ms. Cates does not have an easement to the gravel road nor does she have any other legal right to use the road.
Opinion and Order entered September 8, 2011, at 11. The trial court also concluded that there was no entitlement to injunctive relief, that there was no trespass actionable, that the claim for wrongful institution of civil proceedings failed, that there was no slander of title and that there was no civil conspiracy.
Barnett then filed this appeal.
STANDARD OF REVIEW
Kentucky Rules of Civil Procedure (CR) 52.01 provides that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A judgment is not "clearly erroneous" if it is "supported by substantial evidence." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id.; Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). Conclusions of law, however, are subject to de novo review. God's Ctr. Found. Inc. v. Lexington-Fayette Urban County Gov't, 125 S.W.3d 295, 300 (Ky. App. 2002). With these standards in mind, we will review the decision of the trial court.
DISCUSSION
Barnett argues that the trial court erred in failing to apply the doctrine of boundary by acquiescence. He cites the unpublished case of Hargrove v. Hall, 2005 WL 3441358 (Ky. App. 2005)(2002-CA-002027-MR), which sets forth that, in establishing boundary by acquiescence or boundary by inaction, the plaintiff must show:
First, the boundary must exist between two adjoining land owners. Second, the neighbor who claims the boundary must occupy the property up to the visibly marked boundary. Third, the parties must acquiesce or otherwise fail to act as to the existence of the new boundary claimed by inaction. Finally, this inaction must last for fifteen years.
Id. (internal citations omitted).
Barnett argues that the Hargrove court correctly applied the law by focusing on the existence of the boundary line over a period of time, rather than the present condition. He asserts that the trial court in this case incorrectly focused on the present condition of the fence while ignoring the 1959 survey depicting the fence in the agreed area.
The trial court made the following findings of fact regarding this issue:
It is uncontroverted that the Mooningham plat has never been recorded in the office of the Christian County Clerk. No deed of the subject property, involving the Alexander heirs, Ms. Cates, or anyone else, subsequent to 1959 ever acknowledges the Mooningham plat or any other agreed boundary line, nor any line different than the description contained in the 1848 land grant. In other words, the 1848 land grant description provides for a 50 acre tract as does every subsequent deed of the property up to and including the conveyance made to Ms. Cates.
Further, there is no explanation on the Mooningham plat, or anywhere else that the "Agreed Line" reference was in recognition of the resolution of a disputed boundary line. If, as Mr. Barnett contends, the "Agreed Line" as depicted on the Mooningham plat represents an agreed boundary line it would have necessarily deprived the Alexander heirs of a portion of the 50 acre tract which had previously been conveyed to their father and which they ultimately conveyed to Ms. Cates. There is nothing of record to support Mr. Barnett's contention and, in fact, the Alexander heirs' conveyance of the entire 50 acre tract to Ms. Cates, which is of record seems to refute it.
Both Ms. Cates and Mr. Barnett have legal descriptions contained in their deeds of conveyance. The parties agree and acknowledge that the several recent efforts to survey Ms. Cates [sic] property have yielded inconsistent and incomplete results. Nevertheless, based on the testimony of both of the licensed surveyors who testified in this case, Bruce K. Bailey for Ms. Cates and Euril Deane Cansler for Mr. Barnett, the legal descriptions contained in both the Cates deed and the Barnett deed are susceptible to location of lines on the ground. In addition, even though Mr. Barnett has not had his property surveyed in connection with this case, there is no dispute that the respective legal descriptions overlap.
Opinion and Order entered September 8, 2011, at 4-5.
The trial court agreed with Barnett that a written boundary line agreement is not required in Kentucky. See Wolf v. Harper, 313 Ky. 688, 233 S.W.2d 409 (Ky. 1950). The trial court correctly held that, pursuant to the holdings in Faulkner v. Lloyd, 253 S.W.2d 972 (Ky. 1953), and Bringardner Lumber Co. v. Bingham, 251 S.W.2d 273, 274 (Ky. 1952), the following elements must be present in order to enforce an oral boundary line agreement:
1. A showing that "there was a bona fide controversy between the owners at the time respecting the true location;"
2. The parties must have marked the boundary which they agreed upon;
3. The parties must have taken actual possession according to the terms of their agreement; and,
4. There must be a "continuing acquiescence or [a] mutual recognition by the . . . landowners for a considerable length of time."
The trial court found that there was no evidence as to when and by whom the alleged oral boundary line agreement was established. It also concluded that it would be virtually impossible for Barnett to prove that there was a bona fide controversy between the owners of the property at the time of the agreement and as to where that location might be. The court found that Barnett would only be able to show that subsequent owners had honored its existence. We agree.
In this case, there is no evidence that prior owners were in dispute at any time concerning the existence of the boundary lines. Also, while Barnett contends that an old fence marks the boundary line that is in dispute in his favor, the trial court walked the property line and saw little evidence of the fence line. While he noted that there were parts of the fence remaining, he stated that it was difficult to see and that he would not have been able to, had it not been pointed out to him. Under Faulkner, an open and obvious marking must be present. In not being open and obvious, there was no notice to Cates of its existence when she bought her property.
The trial court also noted that while Barnett claimed the fence as the boundary line of his property, there was no use of the land up to that boundary line which is also a requirement for an oral boundary line agreement. While the testimony of Lillian Alexander was that there was a continuing acquiescence and mutual recognition of the property line, this is insufficient, standing alone, to prove an oral boundary line. Cates cannot be held to have notice of the possibility of an oral boundary agreement with only this element present.
In Combs v Combs, 240 S.W.2d 558 (Ky. 1951), a boundary by acquiescence also requires the party use the property all the way up to the asserted boundary line. This again, would put a buyer on notice as to where the purported boundary line would be. Barnett, however, did not do so and, consequently, Cates could not be held to be on notice of the purported oral boundary line.
Barnett also takes issue with many of the findings of fact made by the trial court. As set forth above, we review the findings of fact of a trial court under the clearly erroneous standard. While Barnett takes issue with the fence line findings of the trial court, we hold that the trial court's findings were not clearly erroneous. Not only did he hear testimony regarding the fence line, the trial judge actually walked the fence line and set forth in his findings what he observed.
Next, Barnett takes issue with the prior use of the property up to the alleged acquiesced boundary. Specifically, he sets forth evidence from prior owners regarding mining and timber operations on the property. While the trial court weighed this evidence, there was also sufficient evidence that the property was wooded and overgrown and that there was no indication of a distinct property line. Whatever use of the property there had been in the past, it was not currently evident.
Finally, Barnett takes issue with the trial court's findings of a lack of recorded notice of the alleged boundary. The facts the trial court relied upon, however, were that the Mooningham Plat was not recorded; the deed descriptions in the record; and, the lack of an open and obvious boundary line. The court's conclusion that these were insufficient to establish an oral boundary was not clearly erroneous. Thus, we affirm the decision of the trial court.
ALL CONCUR.
