FLOYD HOWARD, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF BERTHA HOWARD, DECEASED
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY. Patrick R. Johnson, Judge.
Charles H. Slemp, III (Slemp Law Office, on brief), for appellant.
C. Eugene Compton (Compton & Compton, on brief), for appellee.
PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and Kelsey, JJ., and Lacy, S.J.
CLEO E. POWELL, JUSTICE
Floyd Howard (" Floyd" ), individually and as the executor of the estate of Bertha Howard (" Mrs. Howard" ), appeals the judgment of the trial court awarding ownership of certain real property to Leslie Ball (" Ball" ). Specifically, Floyd takes issue with the trial court's decision to allow Ball to raise the affirmative defense of adverse possession at trial without having previously pled this defense. Floyd also claims that Ball failed to introduce sufficient evidence to support an adverse possession claim.
Floyd and Ball own adjacent parcels of land in Buchanan County, Virginia. The property at issue in the present case was held by a common owner until it was partitioned in 1905. Ball's predecessors in interest acquired a fee simple interest in a portion of the property by deed dated December 23, 1905. Mrs. Howard acquired a fee simple interest in an adjacent portion of the property by two deeds dated June 1, 1956 and April 16, 1971. The location of the boundary line between the respective parcels is the subject of the present case.
In 1957, a survey was completed for Ball's predecessor in interest. A fence was built along the property line established in the 1957 survey. In 1996, a second survey was completed for Mrs. Howard. The 1996 survey showed the property line consistent with the location of the fence. Another survey was completed in 2009, also for Mrs. Howard. The 2009 survey showed the property line south of the old fence, inside the parcel of land claimed by Ball.
On October 15, 2009, Mrs. Howard filed an action pursuant to Code § 8.01-179 seeking to establish the boundary lines of the property. Specifically, Mrs. Howard sought " judgment against [Ball] establishing the boundary line between the land of [Mrs. Howard] and [Ball] as shown in accordance with the [1996 survey]." On December 9, 2009, Ball filed his pro se response to Mrs. Howard's complaint. In his answer, Ball disputed Mrs. Howard's claim, relying on the description contained in the 1905 deed to his predecessor in interest and the 1957 survey.
At trial, testimony was heard from the land surveyors who conducted the 1996 and 2009 surveys. Additionally, over Mrs. Howard's objection, Ball put on evidence demonstrating that he and his predecessors in interest had adversely possessed the disputed property since the fence was built in 1957 along the boundary established by the 1957 survey. Ball presented evidence indicating that the disputed property had been used by both him and his predecessors in interest for
timber, tobacco and cattle. Additionally, Mrs. Howard testified that, although she never accepted the fence as the true boundary line between the properties, she also never had ...