258 P.3d 981
Kan. Ct. App.2011Background
- Sourk owns Lot 12 adjacent to Wrights’ Lot 11; a 22.5-foot strip is in dispute at the boundary.
- Historically Sourk’s parents bought Lots 9–16 in 1956; Sourk later acquired Lots 12–16 in 1985.
- Wrights moved in 1992, began using and mowing east of a brick line they claimed as boundary based on Sourk’s alleged statements.
- In 1993 Wrights erected a shed; in 2004 they added a new structure and later learned from a survey that 22.5 feet encroached on Sourk’s lot.
- Wrights sued Sourk April 9, 2008 to quiet title under three theories: adverse possession (hostile or good-faith), and boundary by agreement/acquiescence.
- Trial evidence showed long-standing use and maintenance of the disputed area, with conflicting testimony about boundary discussions in 1992.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Special Questions 1 and 3 consistent? | Wrights’ good-faith theory can stand with/without an agreement. | No agreement means no good-faith possession claim. | Not inconsistent; theories can coexist and be separately supported. |
| Sufficiency of evidence for good-faith ownership | Acts like play equipment, mowing, and maintenance show good-faith belief. | Activities were insufficient to start 15-year period. | Evidence suffices to establish the 15-year period under 60-503. |
| Tolling and instructions regarding 15-year period | No instruction needed on tolling; record supports running period. | Jury should have been instructed on tolling events. | No error; markup did not shift verdict; jury could determine time frame from evidence. |
| Preservation and usefulness of Martin v. Hinnen instructions | Martin-based acquisitive boundaries should have been given. | Martin-based instructions irrelevant to good-faith possession theory. | Error not prejudicial; instructions not required given trial theory and verdict. |
Key Cases Cited
- Wallace v. Magie, 214 Kan. 481 (1974) (belief of ownership must be reasonable; constructive notice does not defeat it)
- Tucker v. Hankey, 173 Kan. 593 (1952) (acts must give unequivocal notice of adverse claim)
- Boese v. Crane, 182 Kan. 777 (1958) (clear and convincing evidence required for adverse possession elements)
- Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d 954 (2008) (adverse possession questions are matters of fact to be reviewed for substantial evidence)
- Rucker Properties v. Friday, 41 Kan. App. 2d 664 (2009) (standard of review for sufficiency of evidence in adverse possession cases)
- Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406 (2010) (instructional error review; need not be prejudicial)
- Unruh v. Purina Mills, 289 Kan. 1185 (2009) (firm conviction standard for clearly erroneous instructional error)