Failure to act during partition: STROHSCHEIN V. CRAGER (and Nadine Howard) (COA 11/30/2007)

STROHSCHEIN V. CRAGER (and Nadine Howard)
PROPERTY:  Real estate, partition, failure to object
2005-CA-000687
TO BE PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; VANMETER, GUIDUGLI CONCUR
COUNTY: FLOYD
Date: 11/29/2007

This appeal arose from a property line dispute, but the property had been previously partitioned and one of the parties took no action in the earlier proceeding. 

This matter proceeded to a trial before the court on the issues of whether Nadine owned the property that is the subject of the complaint and the property boundary
between the subject property and the appellants’ property. As to the issue of the boundary line between the properties, the appellants introduced a survey (childers) of the property which showed the appellants property was actually 20.98 acres larger than the 30 acres described in the 1997 deed such that the appellants’ property encompassed Crager’s driveway and part of his yard and totally encompasses the property which Nadine claims.

Nadine and Crager both employed the same surveyor (Tackett) who concluded that the appellants’ tract was actually 34.24 acres who relied upon interviews and testified that the ‘rocky part¬°’ described in Nadine’s deed and a prior 1994 deed was very distinctive and established the boundary between the properties.

The court held that the boundary line between Nadine’s property and Crager’s property was as set forth in the Tackett survey and as testified to by Crager and Nadine.

COA agreed with the trial court that the failure of the appellants and their predecessor in title to assert their alleged ownership to the property now in dispute during the partition action or to file exceptions to the master commissioner’s sale, precludes them from asserting title against Nadine. It is a maxim of the law that ‘he who is silent when he should have spoken, shall not be afterward heard to assert the claim on which, on the proper occasion, he failed to disclose.’ Disney v. Creech, 298 Ky. 758, 762, 184 S.W.2d 80, 82 (1944).

The appellants’ silence during the partition proceeding precludes them from asserting title superior to that claimed by Nadine.

The court has total discretion to choose between the conflicting opinions of the surveyors if the opinion relied upon is not based on erroneous assumptions or fails to take into account established factors. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980).

Michael Stevens

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