McAlpin Vs Bailey
McAlpin Vs Bailey--Decision rendered 2012 Kentucky Court of Appeals in Favor of McAlpin
McAlpin vs Bailey is a case that went before the Kentucky Court of Appeals on a case that was about a property line dispute. John Bailey, a next-door neighbor to McAlpin's 85-year-old mother in law moved a property line and thus a fence over about 6 feet onto the property of Katherine Tatum. This fence stayed there over 14 years until Ms. Tatum told Tim McAlpin, her son in law, that she thought Bailey had moved the fence but did not want a confrontation with her neighbor John Bailey, but instructed Tim to look into the matter of which Tim gladly did. Tim had a survey done and it was clear that the fence was moved onto the property of Ms. Tatum about 6 feet without Ms. Tatum's permission. It is also noteworthy to mention that the fence on the other side of Bailey's yard had been moved onto that neighbor's yard too by 6 feet.
The case is important because it was a published opinion case for the Court of Appeals which means that it changed the law or firmed up the law about such matters of property lines disputes. To summarize, Bailey thought that because his fence had been there for so long that he could keep the land because of Adverse Possession. Adverse Possession can be successful when one party takes possession of land by another person and such possession must be hostile, meaning that they have no right to move their fence but they do, and it must run for an unbroken chain of time for 15 years. Bailey had his hostile adverse possession for 14 years and maybe 4 months and he felt that it was good enough to take Ms. Tatum's land. Bailey also argued "Champerty" but that is too difficult to explain here, and that argument failed because it was off target, so we will stick to his claim of Adverse Possession.
Tim McAlpin took his then 6-year-old grandson Cameron by McDonald's for a large chocolate milkshake and then they drove over to removed the fence with a sledgehammer. Tim's lawyer assured him this was the proper thing to do. If Tim's lawyer was right, then Tim also wanted to teach his young grandson how to handle people who tried to take the land. John Bailey sued McAlpin and Tatum by claiming that the land was his and that the fence should not have been removed citing Adverse Possession. The Fayette Court erroneously found in favor of Bailey. The matter was appealed.
The matter went before the Court of Appeals because a Fayette Circuit Court Judge, Kim Bunnell, found in favor of Bailey at the Circuit level, but she prefaced her decision by saying that she" knew nothing of real state law" and made a decision for Bailey for reasons no one knows. The matter then went to the Kentucky Court of Appeals where the higher court overturned and struck down Kim Bunnell's ruling in the case. The Fayette Circuit Court's ruling was overturned and the Kentucky Court of Appeals decision found in favor of McAlpin. Bailey's argument on Adverse Possession failed because the court affirmed that the fence was not in place the full 15-year requirement. Bailey had to move his fence back on his own property and the McAlpin's and the Tatum's obtained their land back because of the tenacity of Tim McAlpin. The Court of Appeals also had bad information from McAlpin's lawyer in that they thought that McAlpin had damaged bailey's property, but no property of Bailey had, in fact, been damaged. McAlpin only removed the fence on the McAlpin/Tatum property. McAlpin's lawyer should have addressed that issue but did not.
The court emphasized that a person can stop Adverse Possession in two ways: 1. File a lawsuit or 2. remove the fence. McAlpin would have filed a lawsuit had he known he could have done that but under the advice of counsel he took down the fence. However, either way, is a legal remedy for stopping Adverse Possession and really anyone who is adversely possessing another person's property should have his fence removed as was the opinion of McAlpin and the Kentucky Court of Appeals.
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