Brown v. Gobble

Supreme Court of Appeals of West Virginia · 1996 · Property

474 S.E.2d 489 (1996)

Updated July 23, 2026

PropertyAdverse possessionTackingclear and convincing evidenceclaim of titlehostile possessionactual possessionopen and notorious

Facts

The parties owned adjoining properties separated in appearance by a fence that enclosed a two-foot-wide strip on the Gobbles' side, although a 1989 survey showed the strip was within the Browns' deeded property. The Gobbles bought their property in 1985 believing the fence marked their boundary and used the strip as their own until suit was filed in 1994. The Browns knew from their survey that the strip was theirs but did nothing to assert ownership until 1994, when they sought to build a road and cut trees along the strip. The Gobbles did not claim personal possession for ten years, but instead relied on tacking their possession to that of predecessors, the Blevins and Fletchers, who allegedly fenced, cultivated, maintained, and claimed the strip for decades.

Issue

What burden of proof applies to a claim of title by adverse possession in West Virginia, and whether the circuit court properly rejected the Gobbles' adverse-possession claim where they relied on tacking the possession of predecessors in interest. Also at issue was whether the trial court's findings were adequate to address the tacking theory actually advanced.

Rule

The party who claims title by adverse possession must prove by clear and convincing evidence all elements essential to such title. The required elements for the statutory period are hostile or adverse possession, actual possession, open and notorious possession, exclusive possession, continuous possession, and possession under claim of title or color of title. Successive periods of adverse possession may be tacked only when the possessors are connected by privity of title or claim, with privity focusing on the intended and actual transfer of possession.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In rural Ohio, Lena Ortiz sues her neighbor, Colin Mercer, to quiet title to a narrow strip between their lots. Colin claims he and his predecessors have openly fenced, cultivated, and excluded others from the strip for more than ten years, while Lena argues the court should require heightened proof because title would otherwise be taken without a deed.

What burden should the trial court apply to Colin's adverse-possession claim?

Explanation. The governing rule is that a party claiming title by adverse possession must prove by clear and convincing evidence all elements essential to that title. The majority adopted this heightened burden because adverse possession can divest important property interests without conveyance or consideration, and the higher standard reduces the risk of erroneous transfers based on weak proof.