2000-CA-001438 (PDF) - Kentucky Supreme Court Searchable ...

RENDERED: November 22, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth Of K entucky
Court Of A ppeals
NO. 2000-CA-001438-MR
EDNA ARRINGTON; CHICK ARRINGTON,
her husband; HAROLD DOLAN; ANN DOLAN,
his wife; ROBIN NICHOLE BLANTON, single;
STEVEN R. BLANTON; LEILA M. BLANTON,
his wife; ALLISON BLANTON SHEPPARD;
ALAN SHEPPARD, her husband; ROBERT F.
BLANTON, JR.; SHARON F. BLANTON, his
wife; and ANNE B. DOLAN APPELLANTS
APPEAL FROM HARLAN CIRCUIT COURT
v. HONORABLE RON JOHNSON, JUDGE
ACTION NO. 92-CI-00498
GLEN EARL BLANTON; CAROL BLANTON,
his wife; BETTY JEAN REYNOLDS, single;
CHARLES N. BLANTON; TEMPA BLANTON, his
wife; GROVER BLANTON; JOY BLANTON, his
wife; HAYWARD BAILEY BLANTON; BETTY CAROL
BLANTON, his wife; ROGER BLANTON, single;
RICKY BLANTON, single; EUGENE C. BLANTON;
BIRGITTA BLANTON, his wife; MONA LOU
OSBORNE; BASSHAM OSBORNE, her husband;
SERENA SUE MARCUM; ART MARCUM, her husband;
MT. ZION LOGGING COMPANY, INC.; and
ROBIN BROWNING BROCK APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE; MILLER AND SCHRODER, JUDGES.
EMBERTON, CHIEF JUDGE: This case arises over a property boundary
dispute. The trial court held that the appellees hold superior

title to the property and awarded damages against the appellants.
We affirm.
Most of the principal parties to this action share a
familial relationship. The controversy arises from two separate
deeds. The appellants are heirs of Norma Blanton Dolan and her
brother, Robert F. Blanton, children of Grover and Oxie Blanton.
In 1939, Grover and Oxie Blanton, through a deed referred to as
the Boyd Dickinson patent, acquired approximately 6,000 acres on
the south side of Pine Mountain in Harlan County. Both died
testate, Grover in 1960 and Oxie in 1966, leaving their estate to
four sets of their living children. The heirs of Jesse M.
Blanton, the deceased son of Grover and Oxie, were left none of
the Pine Mountain property. The appellees are the heirs of Jesse
Blanton, and their spouses, who claim title to 200 acres of land
referred to as the John L. Blanton patent on Pine Mountain,
acquired through a deed of conveyance in 1943 from Sylvania
Blanton Dawn to Jesse. 1
In 1992, the appellees filed this action against Mt.
Zion Logging which removed timber from the property to which
appellees claim title and against appellants who contracted with
Mt. Zion. Following some procedural wrangling insignificant to
the present appeal, a bench trial was held and a judgment was
entered finding appellees to have superior title and awarding
damages in the amount of $6,700. An attorney’s fee was later
awarded.
1
The remaining heirs declined to participate as plaintiffs
and were named as defendants.
-2

2
The appellants claim superior title based on Grover and
Oxie’s title which goes back to the Boyd Dickinson patent of 1845
which encompasses the John L. Blanton patent. Generally, a
senior patent prevails over a junior patent. As stated in Givens
v. U.S. Trust Co.: 2
[I]t is sufficient to say that it has been
repeatedly held by this court that vacant and
unappropriated land under the statute in
force from 1868 to 1871, the time the land in
controversy herein was surveyed, when once
appropriated by an entry, survey, or patent,
is not thereafter subject to another
appropriation and a junior entry, survey, or
patent is absolutely void to the extent it
covers or embraces the land previously
entered, surveyed, or patented.
Thus, assuming the appellants are correct in their
contention that the Boyd Dickinson patent encompasses the John L.
Blanton patent, they have superior title. However, we believe
the trial court correctly ruled that the appellants are estopped
from raising their claim to superior title.
In November 1939, Sylvania Blanton’s husband, Matt
Blanton, died intestate without children. Sylvania filed a
partition action alleging that Matt died the owner of, and in
possession of, certain real property including a one-fifth
interest in the 200 acre patent in the name of John L. Blanton,
which is the subject of the present action. Grover and Oxie were
named as parties to the partition action. It would be pure
speculation to consider why Grover and Oxie did not assert
superior title to the John L. Blanton patent. Likewise it would
be conjecture to find significance in the fact that on the same
251 Ky. 587, 65 S.W.2d 682, 683 (1933).
-3-

date Sylvania conveyed the John L. Blanton patent to Jesse M.
Blanton, she conveyed to Jesse’s father, Grover Blanton, the
Joseph Blanton patent. It remains that Grover and Oxie were
named as parties to the action partitioning the property now in
dispute, and which was ultimately deeded by the commissioner to
Sylvania. The doctrine of res judicata is explained as follows:
The general rule for determining the
question of res adjudicata as between parties
in actions embraces several conditions.
First, there must be identity of parties.
Second, there must be identity of the two
causes of action. Third, the action must be
decided upon its merits. In short, the rule
of res adjudicata does not act as a bar if
there are different issues or the questions
of law presented are different. Likewise, it
has long been recognized that a party may not
split his cause of action, therefore, if a
cause of action should have been presented
and the party failed to do so and the matter
should again arise in another action, it will
be held that the first action was res
adjudicata as to all causes that should have
properly been presented. We stated the rule
in Hays v. Sturgill, 302 Ky. 31, 193 S.W.2d
648, 164 A.L.R. 868, as follows:
The rule that issues which have
been once litigated cannot be subject
matter of later action is not only
salutary but necessary in the
administration of justice. The
subsidiary rule that one may not split
up his cause of action and have it tried
piecemeal rests upon the same
foundation. To permit it would not be
just to the adverse party or fair to the
courts. So, as said in Combs v.
Prestonsburg Water Co., 260 Ky. 169, 84
S.W.2d 15, 18: “The rule is elementary
that, when a matter is in litigation,
parties are required to bring froward
their whole case; and “the plea of res
judicata applies not only to the points
upon which the court was required by the
parties to form an opinion and pronounce
judgment, but to every point which
properly belonged to the subject of
-4

3
Newman v. Newman, Ky., 451 S.W.2d 417, 419 (1970).
4
Morgan v. Big Woods Lumber Company, 198 Ky. 88, 249 S.W.
329, 335 (1923).
5
litigation, and which the parties,
exercising reasonable diligence, might
have brought forward at the time.”“ 3
(Emphasis original).
A partition action and resulting judgment has the same
force and effect as any other judgment of a court. The judgment
cannot be collaterally attacked, at least by those parties to the
action, by alleging some error or that the question should have
been otherwise decided.
Those of the joint owners who procure that
partition and to who consent and agree to
have their respective interest in the land
allotted to them, respectively, in
severality, cannot complain, and certainly no
stranger would have any cause of complaint,
and while there may found abundant authority
which holds the proceedings is invalid as to
a party in interest who was not made a party
to the proceeding no authority has been
pointed out which maintains a doctrine to the
effect that the proceeding is not valid as to
all those participating in it. 4
Finally, we do not find the trial court’s holding that
neither party established ownership by adverse possession to be
clearly erroneous. To establish title by adverse possession, the
assertion of ownership must have been open, hostile, actual and
exclusive, and continuous for a period of at least fifteen years.
As explained in Kentucky Women’s Christian Temperance Union v.
Thomas: 5
Notoriety, exclusiveness and continuity
of possession are often evidenced by the
erection of physical improvements on the
Ky., 412 S.W.2d 869, 870 (1967).
-5

property, such as fences, houses or other
structures. We have none of those here. In
their absence, substantial activity on the
land is required. As said in Combs v. Ezell,
232 Ky. 602, 24 S.W.2d 301, 305:
Adverse possession of land may be said
to be founded in trespass; it must be a
trespass constantly continued by acts on
the premises. It must challenge the
right of all the world; the claimant
must keep his flag flying, and present a
hostile front to all adverse
pretentions.
The use of the property in question by anyone,
including the appellants, was, at best, sporadic. The property
consists of woodland suitable primarily for hunting and
recreational purposes. Other than an old road, the use of which
by both parties has been infrequent, there are no improvements to
the property. There was no error.
The award of attorney’s fees is affirmed.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
Glenn L. Green, Jr.
Harlan, Kentucky
Donald Duff
Frankfort, Kentucky
-6-
BRIEF FOR APPELLEES:
W. Henry Lawson
LAWSON AND LAWSON, P.S.C.
Pineville, Kentucky