## Facts

- Gary S. and Mitzi M. Brown and David L. and Sue Ann Gobble owned adjoining parcels in Mercer County, West Virginia.
- The dispute involved a two-foot-wide strip along the boundary that lay within the Browns’ record title but was on the Gobbles’ side of a longstanding fence.
- By about 1937, predecessors to the Gobbles’ property erected and maintained a fence that enclosed the strip and used it as part of their yard and garden.
- In 1978, the Fletchers bought the Gobbles’ parcel, believed the enclosed strip was theirs, maintained the fence, and used the strip (including placing a shed and gardening).
- In 1985, the Gobbles purchased from the Fletchers; they were told the property extended to the fence and they used the enclosed strip as owners would.
- In 1989, the Browns bought the adjacent parcel; a survey indicated the strip was within their deed, but they did not immediately attempt to take possession.
- Around 1994, the Browns sought to build a road along the strip; the Gobbles objected and claimed title by adverse possession.

## Issues

1. Whether a claim of title by adverse possession in West Virginia must be proven by clear and convincing evidence.
2. Whether the Gobbles proved adverse possession by tacking their possession to their predecessors’ possession through privity of possession, such that the trial court erred in rejecting the claim.

## Decision

- The Supreme Court of Appeals of West Virginia held that adverse possession must be proven by clear and convincing evidence; the trial court stated the correct standard.
- The court reversed and remanded because the trial court failed to properly evaluate tacking evidence and misapplied the governing law on privity and succession.
- The court concluded that evidence of continuous, fence-defined occupation and use by successive owners supported tacking and could satisfy the ten-year period when legally credited.

## Legal Principles

- A party claiming title by adverse possession bears the burden to prove, by clear and convincing evidence, all required elements for the statutory period (including actual, open and notorious, exclusive, continuous, and hostile possession under a claim of right for ten years).
- Successive periods of adverse possession may be tacked when there is privity of possession: the intended and actual transfer or delivery of possession to the successor of the contiguous disputed area, even if not described in the deed.
- In tacking, the essential link is transfer of possession rather than transfer of record title; “privity” refers to privity of possession.
- Appellate deference to a trial court sitting as factfinder may be reduced when the trial court fails to consider a relevant factor, commits an error of judgment in weighing proper factors, or does not exercise discretion.

## Conclusion

The court confirmed that adverse possession in West Virginia requires clear and convincing proof, but reversed because the trial court did not give proper legal effect to decades of predecessor possession and the privity-of-possession rule allowing tacking for a fenced, contiguous strip.


Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d 489 (W. Va. 1996)