NOT TO BE PUBLISHED
OPINION
STUMBO, Judge.
Jewelene Templeton appeals from Findings of Fact, Conclusions of Law and Judgment of the Harlan Circuit Court holding that she is a trespasser on a parcel of real property situated in Harlan County, Kentucky, and concluding that she failed to establish her claim of adverse possession by clear and convincing evidence. She contends that the evidenced presented at trial was sufficient to prove her claim of adverse possession and that the court erred in failing to so find. We find no error, and affirm the Judgment on appeal.
This action to quiet title was instituted on October 29, 2010, when the heirs of Park Taylor, and record title holders to an undivided 5/6 interest of a tract of real property situated in Harlan County, Kentucky, alleged that adjoining land owner Jewelene Templeton trespassed on a three-acre "buffer" portion of the Taylor parcel and refused to relinquish her unlawful possession of it. Hamilton Holdings, LTD, is the record title holder of the remaining 1/6 interest. Templeton defended the action in part by arguing that she acquired title to the disputed three-acre parcel via adverse possession. Templeton claimed that she purchased her parcel in 1977, and began residing there in 1981. At trial, she alleged that she began growing a garden on the disputed tract in the 1980s, built a tree house, erected fencing to form animal enclosures, and otherwise used the parcel in an open and notorious fashion sufficient to support a claim of adverse possession.
On April 19, 2012, the trial court rendered a partial summary judgment, wherein it determined that the Park heirs (hereinafter Appellees) and defendant Hamilton Holdings, LTD, were the fee simple title owners of the disputed three-acre parcel subject to Templeton's claim of adverse possession. Hamilton Holdings, LTD, was subsequently made a party plaintiff. A bench trial began in December, 2012, and concluded the following month.
On March 4, 2013, the Harlan Circuit Court rendered its Findings of Fact, Conclusions of Law and Judgment. It held in relevant part that the evidence tendered at trial "more clearly establishes that Templeton began to fence and clear the [disputed] property sometime after 2008," and not several years or decades earlier as she had claimed. The court examined the conflicting testimonial evidence, in addition to Templeton's claims that she drilled a water well on the disputed parcel in the mid-1980s, and constructed a tree house for her grandchildren in 1989. The court noted that Clifford Smith, one of the principals involved in a prior mining operation on the parcel, stated that it was he who drilled the water well. Additionally, the court opined that the "`tree house' looks suspiciously like a `tree stand' used for deer hunting." In sum, the court determined that Templeton did not establish by clear and convincing evidence that she adversely possessed the disputed parcel in accordance with the statutory scheme for a period of 15 years prior to asserting a claim. The court subsequently overruled her Motion and Notice to Vacate Judgment and Resubmit Matter to Court for New Conclusions of Law and Judgment, and this appeal followed.
Templeton now argues that the Harlan Circuit Court erred in failing to conclude that she possessed the disputed parcel in an open and notorious manner for at least 15 years, thus establishing title via adverse possession. She maintains that the evidence clearly established that for a period of at least 16 years prior to the commencement of this action, she maintained dog shelters, chicken coops, small horse barns and other enclosures for housing animals on the disputed parcel. She contends that as early as 1981, she began clearing brush, weeds, water weeds, trees and concrete slabs from the property, and that in 1989 or 1990 her son constructed a tree house on the it. Additionally, she claims that she tied into a water well that had previously existed on the property, and built a well house over the well in 1989.
Templeton also directs our attention to a General Warranty Deed executed in April, 2010, purporting to convey the disputed property to herself through a strawman. This deed was recorded by the Harlan County Court Clerk, and provided that the property was claimed by adverse possession for a period of more than 30 years. She notes that the Appellees instituted the instant action only after this deed was filed. The focus of her claim of error, however, is that the trial court erred in concluding that she failed to meet her burden of proving her claim of adverse possession.
As the parties are well aware, to prevail on a claim of adverse possession one must demonstrate that the possession was hostile, actual, open, notorious, exclusive and continuous for the statutory period of 15 years. Kentucky Women's Christian Temperance Union v. Thomas, 412 S.W.2d 869 (Ky. 1967); Kentucky Revised Statutes 413.010. These elements must be proved by clear and convincing evidence. Commonwealth, Department of Parks v. Stephens, 407 S.W.2d 711 (Ky.1966).
In adjudicating the action below, the Harlan Circuit Court entered into a comprehensive discussion of testimonial, photographic and documentary evidence both supporting Templeton's claim of adverse possession and refuting it. In examining this evidence, the court pointed to several factors leading to the conclusion that Templeton failed to meet her burden of proof. For example, the court noted that Templeton was not the only person to use the disputed three-acre tract during the last 15 years. A neighbor, David Lee, testified that he used a portion of the disputed property for a garden. Lee claimed that he obtained permission to use the parcel from Tim Dash, who is a representative of the Taylor heirs. Clifford Lee also claimed to have cultivated a garden on the parcel, also after obtaining permission from Time Dash or another Taylor heir. Another resident of the area, Nathaniel Howard, recalled a fence on the parcel, but disputed Templeton's contention that she erected it. Rather, Howard believed that the fence was installed by Park Taylor some 50 years ago.
The court also relied in part on aerial photographs in concluding that Templeton did not meet her burden of proof. It compared photographs taken in 2006 and 2008 with others taken in 2010 and 2012 to conclude that all of the fencing, ground clearing, grade work and pond building occurred within the past 5 years.
Finally, one of the principals previously involved in mining the property, Clifford Smith, disputed Templeton's claim that she had a water well installed in the 1980s. He stated that he drilled the well as part of his mining permit requirements. The court also opined that a "tree house" Templeton claimed to have constructed "looks suspiciously like a `tree stand' used for deer hunting," and concluded that Templeton's lawyer "ginned up" the description of the disputed parcel when he executed the strawman deed recorded on April 21, 2010.
Ultimately, the Harlan Circuit Court was "not convinced that Templeton was in actual possession of the three-acre buffer zone for 15 years because the fencing evidence is too much in dispute." It determined that "Templeton's other evidence of possession is confined to the edges of the property and was not the type of possession likely to come to the attention of an ordinary, prudent land-owner," and stated that "[t]he Court thinks that Templeton's use of the garden space and the placement of small structures for house dogs and ducks is a sneaky encroachment rather than open and hostile possession." The Court went on to conclude that Templeton's usage of the property was not exclusive, because other individuals used the same parcel to cultivate gardens and because the general public used an ATV trail on the parcel despite Templeton's attempts to stop them.
We review adverse possession and other property title judgments under the clearly erroneous or abuse of discretion standard. Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 2002). That is to say, we may not substitute our opinion for that of the trial court absent a finding of clear error. Id. Additionally, we will not set aside the trial court's factual findings "unless they are clearly erroneous, that is not supported by substantial evidence." Id. In the matter at bar, the Harlan Circuit Court made specific findings of fact upon which its Judgment is grounded, and those findings are supported by the record. Though conflicting evidence was presented to the trial court, the record amply supports its determination that Templeton did not sustain her burden of proof by clear and convincing evidence. Stephens, supra. Credible evidence was presented in opposition to Templeton's claim of adverse possession, including the direct testimony of the Appellees, that of disinterested 3rd parties, photographic evidence undermining Templeton's claim, and documentary evidence including the April 21, 2010 deed — the basis of which the court determined was "ginned up." In sum, the Harlan Circuit Court's Findings of Fact are supported by substantial evidence, it applied the correct legal standard to those facts, and the Judgment derived therefrom is not clearly erroneous. We find no error.
For the foregoing reasons, we Affirm the Findings of Fact, Conclusions of Law and Judgment of the Harlan Circuit Court.
ALL CONCUR.
