The court will probably find that Bill and Sandie’s possession of the Green was “open and notorious.” This is one of the five elements of adverse possession. Possession is “open and notorious” when the adverse claimant’s use of the property can be observed, by another, through the erection of a structure or participation in activities that can be seen. Appalachian Regional Healthcare. Inc. v. Royal Crown Bottling Co., 824 S.W.2d 878 (Ky. 1992); Kentucky WCTU v. Thomas, 412 S.W.2d 869 (Ky. 1967); Elsea v. Day, 448 S.W.3d 259 (Ky. App. 2014). The purpose of “open and notorious” possession is to ensure that the landowner is capable of seeing the adverse claimant’s use of the land. Appalachian Regional Healthcare, Inc. 824 S.W.2d at 885. When
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In Elsea v. Day, 448 S.W.3d 259 (Ky App. 2014), the adverse claimant built a fence in the wrong location. Since the erection of the fence, he has used the property up to the boundary for grazing cattle and cutting timber. These activities were performed with the landowner’s knowledge. Id at 261-62. The court held that the possession was “open and notorious.” Id. at 263. While the court did not explicitly state that the possession was “open and notorious,” the finding of adverse possession means that the element was satisfied. The “open and notorious” element of adverse possession was satisfied through the claimant’s erection of a fence and use of the property for the grazing cattle and cutting timber. Id at 261. The fence is a structure, visible to the human eye. The landowner could have been, and in this case was, aware of the fences presence. In Elsea, the adverse claimant did more than erect a fence, he also grazed cattle on and cut timer off of the property in dispute. Id at 261. These are activities that could be visibly observed by the landowner. The erection and use of the fence combined with the grazing and cutting activities make the possession “open and notorious” because they are structures and activities that can be seen by the landowner. These activities meet the purpose of ensuring the landowner can be made aware of the adverse claimant’s
In Elsea v. Day, 448 S.W.3d 259 (Ky App. 2014), the adverse claimant built a fence in the wrong location. Since the erection of the fence, he has used the property up to the boundary for grazing cattle and cutting timber. These activities were performed with the landowner’s knowledge. Id at 261-62. The court held that the possession was “open and notorious.” Id. at 263. While the court did not explicitly state that the possession was “open and notorious,” the finding of adverse possession means that the element was satisfied. The “open and notorious” element of adverse possession was satisfied through the claimant’s erection of a fence and use of the property for the grazing cattle and cutting timber. Id at 261. The fence is a structure, visible to the human eye. The landowner could have been, and in this case was, aware of the fences presence. In Elsea, the adverse claimant did more than erect a fence, he also grazed cattle on and cut timer off of the property in dispute. Id at 261. These are activities that could be visibly observed by the landowner. The erection and use of the fence combined with the grazing and cutting activities make the possession “open and notorious” because they are structures and activities that can be seen by the landowner. These activities meet the purpose of ensuring the landowner can be made aware of the adverse claimant’s