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No. 102,627 IN THE COURT OF APPEALS OF THE STATE OF KANSAS BRIAN WRIGHT and JODY WRIGHT, Appellees, v. CAROLYN KAY SOURK, Appellant.

SYLLABUS BY THE COURT 1. A party may obtain title to real estate through adverse possession upon proof that he or she openly, exclusively, and continuously possessed the property for 15 years, either under a claim knowingly adverse or under a good-faith belief of ownership.

2. K.S.A. 60-503 changed the common-law concept of adverse possession by eliminating hostility as an element. As a result, adverse possession can now be acquired either: (1) under a claim knowingly adverse or (2) through occupancy under a good-faith belief of ownership. The possession must still be open, exclusive, and continuous for the 15-year period of time. Further, the party's belief of ownership must be made in good faith and be reasonable.

3. Generally, whether title is acquired through adverse possession is a question of fact to be determined by the trier of fact. On appeal, an appellate court determines whether the jury's findings of fact are supported by substantial competent evidence. In

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doing so, an appellate court does not weigh conflicting evidence, evaluate witness credibility, or redetermine questions of fact.

4. When a party seeks title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. Kansas law does not allow the property of a person to be taken by another upon slight presumptions or probabilities. Thus, a party seeking title by adverse possession must present clear and convincing evidence of the requisite elements found in K.S.A. 60-503.

5. In considering a claim that the trial court erred in not granting a motion for judgment as a matter of law, an appellate court resolves all facts and draw reasonable inferences from the evidence in favor of the nonmoving party. If reasonable minds could reach different conclusions under the evidence, an appellate court will uphold the trial court's denial of a motion for judgment as a matter of law.

6. An appellate court reviews the trial court's denial of a motion for a new trial for any abuse of discretion.

7. In considering claims of erroneous jury instructions, an appellate court considers all the instructions together as a whole to determine if they fairly instructed the jury on the law governing the case. The court may disregard isolated instructional errors as harmless and will not reverse unless there is a showing of prejudice. If the instructions

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are substantially correct and could not reasonably have misled the jury, the appellate court will not find reversible error.

8. Whether a particular type of land use commences the running of the 15-year period required to establish adverse possession under K.S.A. 60-503 is a question of law over which an appellate court has unlimited review.

9. To constitute adverse possession of land, it is not absolutely necessary that there be enclosures, buildings, or cultivation on the disputed property, but the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claims of all others, and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken.

10. The trial court must give an instruction on a party's case theory when that party requests an instruction and there is evidence supporting the theory that would be sufficient to support a jury verdict in favor of that party on the issue.

11. K.S.A. 58-2222 charges the owner of land with constructive notice of facts disclosed by public records. However, constructive notice does not prevent a possessor of land from claiming a good-faith belief of ownership. If the rule were otherwise the concept of belief of ownership in K.S.A. 60-503 would be obliterated. 3

12. Supreme Court Rule 6.09 (2010 Kan. Ct. R. Annot. 48) allows for the submission of supplementing authority in support of issues raised in a brief, but it is not a mechanism for raising new issues.

Appeal from Montgomery District Court; GARY HOUSE, judge. Opinion filed May 6, 2011. Affirmed.

W.J. Fitzpatrick, of Independence, for appellant.

Jeffrey W. Gettler, of Emert, Chubb & Gettler, of Independence, for appellees.

Before STANDRIDGE, P.J., MCANANY, J., and KNUDSON, S.J.

MCANANY, J.: Brian and Jody Wright and Carolyn Sourk own adjoining residential properties in Cherryvale. This dispute involves title to a 22.5-foot-wide strip of property at the boundary. Although Sourk was the titled owner of the property, a jury found the Wrights adversely possessed the property for more than 15 years under a goodfaith belief in ownership.

In 1956, Sourk's parents bought Lots 9 through 16 in a residential neighborhood and built their home on Lot 13. Sourk was 8 years old at the time the land was purchased. In 1979, Sourk's parents sold Lots 9, 10, and 11 to Wayne Van Dyne. Van Dyne constructed homes on Lots 9 and 11. Van Dyne split Lot 10, assigning half to Lot 9 and half to Lot 11. The house constructed on Lot 11 was well within the confines of Lot 11. In 1985, Sourk acquired title to Lots 12 through 16 from her parents.

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In 1992, the Wrights moved into the home on Lot 11, immediately west of and adjacent to Sourk's property. After renting for a year, the Wrights purchased their home under a contract for deed.

According to Brian, shortly after they moved into the home in 1992, Sourk took him into the back yard and pointed out two bricks in the ground that marked the boundary line between their properties (the brick line). Brian testified that Sourk told him, "'That is the property line, and everything to the east of that is what you have to maintain.'" From that point on, Brian testified that he mowed and maintained the property east of the brick line, and Sourk mowed and maintained the property west of the brick line. Brian did not further investigate because the brick line was consistent with the mow line, there was a visible dip or divot along the line, and he assumed Sourk would know where the property line was since she had lived there since 1956. Based on his conversation with Sourk, Brian believed that he owned everything east of the brick line. Sourk denied having a conversation with Brian in 1992 regarding the property line.

In 1993, Brian erected a shed on the disputed strip of property. Brian testified he did not seek Sourk's permission to construct the storage shed because he believed he owned the property upon which the shed was erected. Sourk claims the storage shed was constructed in 1994. Sourk testified that she had a conversation with Brian during the time that the shed was being constructed. According to Sourk, she advised Brian to check his records to determine his property line. Sourk claimed that Brian showed her the brick line and communicated his understanding that it formed the property line. Sourk testified that she did not know about the bricks and she would check with her mother regarding the significance of the brick line. Brian denies that Sourk ever approached him about the location of the shed and the location of the property line.

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Both Brian and Sourk claim they mowed the property east of the brick line on Lot 12. William Blair, a neighbor living across the street from the Wrights and Sourk, corroborated Brian's testimony that Brian always mowed east of the brick line. Blair testified that he never saw Sourk mow the disputed strip of property in Lot 12.

Throughout the years, Brian testified that he and Jody exercised use and control of the property east of the brick line on Lot 12 by using things such as a children's slide, a swing set, and a trampoline. Sourk confirmed that the Wrights exercised use of the property east of the brick line for storing bikes, cars, campers, and a boat. Sourk testified she allowed the use of Lot 12 because she was "such a good neighbor." Brian testified that Sourk never objected to their occupancy, use, and maintenance of the property east of the brick line.

In July 2004, the Wrights built a new addition to their home. The Wrights obtained a building permit before construction began. The addition was located on the west side and extended 22.5 feet onto Lot 12. At the time, the Wrights believed the addition was being constructed within their property line so they did not seek Sourk's permission. Prior to constructing the addition, Brian cut some limbs off the pecan tree located on what they believed was the property line. The tree was cut with Sourk present, and Brian testified that Sourk never objected or voiced her concern that the tree or the addition were on her property. Sourk claims that she alerted Brian and the contractors that the addition was being constructed on her property. Sourk testified that she notified the city building inspector of the property-line infraction, but no action was taken.

When the Wrights decided to build a fence around their property in August 2007, Jody discussed the idea with Sourk, who made suggestions about the type and placement

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of the fence to assure the Wrights mowed on both sides of the proposed fence. Thus, the Wrights decided to research the city's setback requirements for a privacy fence.

Brian obtained a measuring wheel to determine the appropriate distance to place the fence from the property line. After taking some measurements, Brian discovered that the brick line was not consistent with the property line listed on the deed. According to Brian, Sourk was shocked to learn about the property-line discrepancy and agreed to obtain a professional survey to determine the true property line. The survey revealed that some of the improvements the Wrights had made to their property over the years, including a storage shed or garage and addition to their home, encroached upon Sourk's lot by 22.5 feet.

On April 9, 2008, the Wrights sued Sourk to quiet title to the disputed 22.5-footwide section of property under three theories:

(1) adverse possession by open, exclusive, notorious, and continuous possession for more than 15 years under K.S.A. 60-503(a); (2) adverse possession under a good-faith belief of ownership for more than 15 years under K.S.A. 60-503(b); and (3) a boundary line established by express or implied agreement or by acquiescence.

Sourk counterclaimed for a mandatory injunction compelling the Wrights to remove the encroaching structures from her property, for damages for trespass, and for attorney fees. The trial court denied her motion for summary judgment, finding the existence of controverted material facts, and the case went to trial.

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At trial, the Wrights abandoned their theory of adverse possession based on hostile or knowingly adverse possession and submitted their case to the jury under the remaining theories of boundary by specific agreement and/or adverse possession under a good-faith belief in ownership. The jury verdict was by special questions as follows:

"1.

Was there an agreement between the parties in 1992 after a conversation during which the legal boundary line between their properties was discussed as being what is referred to as the 'brick line' which differs from the legal survey line between the properties by 22.5 feet?

"

YES

X

NO

"2.

If there was a boundary line agreement in 1992, did the defendant acquiesce or consent to the boundary line agreement by permitting it to be carried out by the plaintiffs.

"

YES

NO

"3.

Did plaintiffs [judge made correction and initialed] have open, exclusive and continuous possession of the disputed land (22.5 feet) under a good faith belief of ownership for a period of 15 years or more?

"

X

YES

NO"

The court entered judgment accordingly and denied Sourk's posttrial motions for judgment notwithstanding the verdict or for a new trial. Sourk appeals.

Adverse possession

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A party may obtain title to real estate through adverse possession upon proof that he or she openly, exclusively, and continuously possessed the property for 15 years either under a claim knowingly adverse or under a good-faith belief of ownership. See K.S.A. 60-503; Wallace v. Magie, 214 Kan. 481, 486, 522 P.2d 989 (1974). K.S.A. 60-503 changed the common-law concept of adverse possession by eliminating hostility as an element. See Stark v. Stanhope, 206 Kan. 428, 432-33, 480 P.2d 72 (1971). As a result, adverse possession can now be acquired either: (1) under a claim knowingly adverse or (2) through occupancy under a good-faith belief of ownership. The possession must still be "open, exclusive, and continuous" for the 15-year period of time. 206 Kan. at 432. Further, the party's belief of ownership must not only be made in good faith, but it must also be reasonable. Akers v. Allaire, 17 Kan. App. 2d 556, 558, 840 P.2d 547, rev. denied 252 Kan. 1091 (1992).

"Generally, whether title is acquired through adverse possession is a question of fact to be determined by the trier of fact. [Citation omitted.]" Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d 954, 960, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008). On appeal, we determine whether the jury's findings of fact are supported by substantial competent evidence. In doing so, we do not weigh conflicting evidence, evaluate witness credibility, or redetermine questions of fact. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008); Rucker Properties v. Friday, 41 Kan. App. 2d 664, 670-71, 204 P.3d 671 (2009).

When a party seeks title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980). Kansas law does not allow the property of a person to be taken by another upon slight presumptions or probabilities. 227 Kan. at 36. Thus, a party seeking title by adverse possession must present clear and convincing evidence of the requisite 9

elements found in K.S.A. 60-503. Boese v. Crane, 182 Kan. 777, 782, 324 P.2d 188 (1958).

The doctrine of adverse possession provides that "'the true owner of property, who fails to protect rights of ownership against one holding in adverse possession and manifesting the same as required by statute and for the length of time fixed thereby, is considered as having acquiesced in the transfer of ownership.' [Citation omitted]." Buchanan v. Rediger, 26 Kan. App. 2d 59, 62, 975 P.2d 1235, rev. denied 267 Kan. 888 (1999).

The jury's verdict

Sourk's primary issue on appeal involves the interrelation between Special Questions 1 and 3. She argues that the jury's "NO" answer on Special Question 1 was fatal as to all of the Wrights' theories, so their "YES" answer to Special Question 3 resulted in an inconsistent verdict. Stated another way, she argues both of the Wrights' theories of recovery (boundary-by-agreement and adverse possession based on a goodfaith belief in ownership) depended on whether there was an agreement to treat the brick line as their boundary line in 1992. Since the jury found there was no such agreement, she insists the Wrights' theory of adverse possession based on a good-faith belief in ownership for 15 years necessarily fails. Thus, she contends the Wrights were limited to pursuing adverse possession by hostile taking--a theory they abandoned at trial.

Sourk frames this issue in various ways. Sourk first asserts the trial court erred in denying her motion for judgment as a matter of law or, alternatively, in denying her motion for new trial. To the extent Sourk argues the trial court erred in not granting her motion for judgment as a matter of law, we review this issue under the standard formerly 10

applied to review the denial of a motion for directed verdict. See Munoz v. Clark, 41 Kan. App. 2d 56, 61, 199 P.3d 1283, rev. denied 289 Kan. 1279 (2009). That standard requires us to resolve all facts and draw reasonable inferences from the evidence in favor of the Wrights to determine whether there is evidence supporting the jury's verdict in their favor. If reasonable minds could reach different conclusions under the evidence, we will uphold the court's denial of Sourk's motion for judgment as a matter of law. However, if no evidence is presented in support of an issue "or where the evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions, it is a question of law for the court's determination. [Citations omitted.]" 41 Kan. App. 2d at 62.

Sourk also claims the trial court erred in denying her motion for a new trial on the same theory that the verdict was inconsistent. We review the trial court's denial of Sourk's motion for a new trial on this issue for an abuse of discretion. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007).

Finally, Sourk claims the trial court erred in instructing the jury regarding the special questions. To the extent Sourk is arguing instructional error, several principles guide our review. First, we consider all instructions together as a whole to determine if they fairly instructed the jury on the law governing the case. Second, we may disregard isolated instructional errors as harmless and will not reverse unless there is a showing of prejudice. If the instructions are substantially correct and could not reasonably have misled the jury, we will not find error. Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000). However, we have unlimited review in determining whether an instruction accurately and fairly states the law as applied to the facts of the case. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 417-19, 228 P.3d 1048 (2010).

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With these standards of review in mind, we turn to Sourk's argument that the Wrights' theory of adverse possession based on a good-faith belief in ownership was based solely on the existence of a boundary-line agreement with Sourk. In support of this argument, Sourk quotes an exchange between her counsel and Brian following Brian's admission that his 15-year period of good-faith belief in ownership began in 1992:
Okay. So then--now we have this discussion in 1992 when it supposedly all started? "A "Q "A "Q We had the discussion when we moved in in '92, yes. But your whole case is built on that, isn't it? Because it's the truth. I didn't--I'm not trying to argue with you. It may not be fair to you, but I get to ask the questions and you have to answer. I'm sorry, but that's kind of the way it is. You want her to read the question back to you? "[DEFENSE COUNSEL]: Would you read the question back please? "(The court reporter read previous question.) "Q "A (By [defense counsel]) That 1992 conversation? Yes."

"Q

The Wrights respond that Sourk's argument is flawed because it disregards the evidence and the trial court's ruling on this issue. In denying Sourk's motion for new trial, the trial judge found:
"I don't think--first of all, the verdict was contrary to the law or evidence. I think that Plaintiff, Brian Wright, testified that Defendant showed him a brick line in 1992. "Now, question--special question number one . . . [t]hat ask[ed] for a yes or no answer and the jury answered, no. As I read it they said, no, there was not an agreement between the parties in 1992. It didn't say they didn't have a meeting. I think that is up to a jury [to] decide whether there was a conversation between Defendant and Mr. Wright,

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and I think that the jury thought that Plaintiff after he testified there was a conversation and that Plaintiff after that thought and believed that was the property line and commenced to take possession by mowing and we have further testimony of the neighbor, who testified that from and after the time Plaintiff moved in in 1992 and he occupied the land including the 22.5 feet that is disputed. "I had thought that Mr. Wright appeared to be a very truthful witness and it's up to a jury to give weight and credibility to each witness and testimony of each witness and I think that's what they did."

The trial court correctly found that the two theories asserted by Brian were not mutually exclusive. The jury could have believed Brian's testimony that he had a conversation with Sourk regarding the property line and thus relied on that conversation in forming a good-faith belief of ownership. In making such finding, the jury did not have to find that Sourk and the Wrights reached an agreement that the brick line formed the correct property line. Contrary to his testimony on cross-examination relied on by Sourk, the Wrights' adverse possession claim did not hinge solely on an agreement with Sourk about the boundary line. Rather, Brian repeatedly clarified that his adverse possession claim was based both on a discussion--not necessarily agreement--with Sourk about the brick line and his maintenance, use, and construction on the property. The trial court properly concluded the jury could reasonably answer the boundary-by-agreement and adverse-possession questions independently of one another.

Because the jury's answers to Special Questions 1 and 3 were not inconsistent, the trial court did not err in denying Sourk's motion for judgment notwithstanding the verdict or for a new trial on that basis. Further, it was not error to instruct the jury that it could find a claim under adverse possession based on good-faith belief in ownership without first finding an agreement between the parties.

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Sufficiency of the Evidence

Next, Sourk asserts that the Wrights failed to prove that they adversely possessed the property for 15 years under a good-faith belief in ownership. First, Sourk asserts the type of uses the Wrights made of the disputed property beginning in 1992 did not, as a matter of law, trigger the running of the 15-year period required to establish adverse possession. See K.S.A. 60-503. Second, Sourk suggests the Wrights ceased having a good-faith belief in ownership of the property when they built the addition on their home in 2004.

What types of land use qualify to trigger the start of the 15-year period required to establish adverse possession under K.S.A. 60-503 is a question of law over which we have unlimited review. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).

K.S.A. 60-503 states: "No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years." The Kansas Supreme Court has interpreted "belief of ownership" under K.S.A. 60-503 as "a state of mind which must be based on good faith under circumstances which justify such belief." Wallace, 214 Kan. 481, Syl.

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