Before Thomas, P.j., Lee, And Southwick, JJ.
The opinion of the court was delivered by: Southwick, J.
DATE OF JUDGMENT: 12/03/1997
TRIAL JUDGE: HON. H. DAVID CLARK II
COURT FROM WHICH APPEALED: SCOTT COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: CHANCELLOR HELD THAT APPELLEE ESTABLISHED TITLE TO LAND BY ADVERSE POSSESSION.
DISPOSITION: AFFIRMED - 03/23/99
MOTION FOR REHEARING FILED:
¶1. Donald Wayne Peagler and his wife, Bonnie Peagler, appeal the decision of the Scott County Chancery Court. The court found that Donald's aunt, Katie Ethel Measells, had adversely possessed a tract of land to which the Peaglers held record title. They argue that the verdict was against the overwhelming weight of the evidence, as Measells's possession of the land was permissive and not adverse. We disagree and affirm.
¶2. P.M. Peagler owned several tracts of land in Scott County. On January 22, 1949, he transferred the tract known as Lot 8 to his daughter, Katie Ethel Measells. That same day, he transferred Lots 6 and 7 to Katie's brother, Marion Wayne Peagler. In 1971, Measells acquired Lots 6 and 7 from her brother via warranty deed. When Marion Wayne Peagler died in 1976, his son, Donald Wayne Peagler, and his daughter-in-law, Bonnie Perritt Peagler, inherited the remainder of his property, which bordered Measells's on the south. Those owners are the appellants here.
¶3. A fence separated Measells's land from that of the Peaglers. The parties treated it as the property line, although the Peaglers claim they were always aware that they owned a strip of property north of the fence. In 1995, the Peaglers became aware that they held record title to a larger area of land than they previously realized, approximately twenty acres which Measells was cultivating. The Peaglers announced their intention to build a small barn and to fill in two ponds on the northern side of the fence. ...