RENDERED: APRIL 8, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1086-MR

BENNY RAY BAILEY AND 

LAVONNA BAILEY APPELLANTS 

v. 

APPEAL FROM KNOTT CIRCUIT COURT

HONORABLE ALISON C. WELLS, SPECIAL JUDGE

ACTION NO. 18-CI-00051 

DENNIS JONES; ANNA JONES; 

ARTHUR JONES, JR.; BILLY GLENN 

JONES; ELSIE JONES; HAGEN 

JONES; JAMES S. LONG; JEWELL 

JONES; RAY PRATT; SARAH 

PRATT; AND VIRGINIA LONG APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: JONES, LAMBERT, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Benny Ray Bailey and Lavonna Bailey (“Baileys”) appeal 

from the Knott Circuit Court’s June 20, 2019 findings of fact, conclusions of law,
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and judgment finding they have no ownership interest in certain real property 

located in Hindman, Kentucky. Finding no error, we affirm. 

This is an action to quiet title to a triangular piece of property 

(“disputed property”) located along the shared boundary line of the Baileys and 

appellee, Dennis Jones (“Dennis”). Currently located on the property is a metal 

pole barn, which is the subject of the dispute. The Baileys purchased their 

property (“Lot 4”) in 2015 from Dennis’ mother, Polly Jones. Dennis purchased 

his property (“Lot 5”) in 1995 from his uncle, Arthur Jones, Jr. Both properties 

derive from a common source.

In 1938, the property of John A. Jones was divided among his heirs 

with Carrie Pigman receiving Lot 4 and Ethel Millard receiving Lot 5. Pigman 

deeded Lot 4 to Harold Jones, Dennis’ father, in 1970. Lot 5 was deeded to Arthur 

Jones, Sr. in 1969 and then to Arthur Jones, Jr. in 1976. When Arthur Jones, Sr. 

transferred Lot 5 to Arthur Jones, Jr., the disputed property, located on Lot 5, was 

excepted from the transfer. When Arthur Jones, Sr. passed away, the disputed 

property passed to his six children. 

Sometime after the Baileys purchased Lot 4, a conflict arose over who 

owned the metal pole barn located on the disputed property. On March 6, 2018, 

the Baileys filed a petition in Knott Circuit Court, seeking to be declared the legal 
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owners of the disputed property. Dennis filed an answer and counterclaim,

1

asserting his interest in the disputed property. On the advice of his attorney, 

Dennis obtained a quitclaim deed to the property from five of the six heirs of 

Arthur Jones, Sr. Dennis did not obtain the interest of his deceased father, Harold 

Jones. As a result, Dennis claimed a five-sixths’ undivided interest in the disputed 

property.

A bench trial was held on March 15, 2019. Benny Ray Bailey 

testified that prior to purchasing Lot 4, he performed research to determine the 

property’s boundary lines, including visiting the property valuation administrator’s 

(“PVA”) office and county clerk’s office. He also spoke with Polly Jones and 

some of her neighbors. Based upon his research, Bailey believed the disputed 

property was located on Lot 4. Bailey conceded the disputed property is not 

contained within Lot 4’s deed description. Bailey further testified that he has had 

insurance on the building and paid the power bill since he purchased Lot 4. 

Anna Jones, a family member and neighbor for over 35 years, testified 

that the metal pole barn belonged to Harold Jones and that he used and occupied 

the building the entire time she has lived there. She further testified that Harold 

1 The Baileys filed an “Amended Complaint” on April 27, 2018 adding additional parties to the 

litigation. Jones’ answer and counterclaim were filed in response to this amended complaint. 

Jones filed a motion to dismiss for failure to join indispensable parties in response to the original 

complaint. 
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built the metal pole barn shortly after his pool house burned down sometime 

around 1984. However, on cross examination, Anna admitted her belief that 

Harold owned the metal pole barn was based upon the fact that she did not think 

Harold would build a barn on someone else’s land. She further conceded that she 

does not know for sure where the property line is between Lot 4 and Lot 5 or 

whether Harold’s use of the disputed area could have been permissive. Anna also 

said that she observed Dennis coming and going from the building as he pleased. 

Bobby Jacobs, whose sister married Arthur Jones, Jr. and lived on Lot 

5 until around 1994 testified that he believed the metal pole barn was built on the 

disputed property before 1994 but was unsure. Polly Jones did not testify.

Dennis testified that he built the metal pole barn in 1995, shortly after 

purchasing Lot 5, to build a boat. His father suggested the location and offered to 

help. Dennis stated that he purchased the supplies and did most of the work. He 

allowed his father to put his pool water pump in the building when Harold’s pool 

house burned down. Dennis further testified that his grandfather, Arthur Jones, Sr., 

agreed to help him build the metal pole barn on the disputed property. Dennis was 

aware the disputed property was excepted from the original deed from Arthur 

Jones, Sr. to Arthur Jones, Jr. He testified that his deed did not contain similar 

language because it was intended that the entire property pass to him, including the 

disputed portion. 
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Dennis stated that he worked on the boat for two years before moving 

to Florida and Georgia to work for Delta in 1997. He returned on the weekends 

and stayed in the metal pole barn, working on the boat. Dennis testified that at 

some point his father asked if he could store his vehicles in the metal pole barn and 

he agreed, moving his boat outside. Dennis admitted he had never purchased 

insurance for the metal pole barn. 

Finally, Kenneth Johnson, a licensed surveyor, who was hired by the 

Baileys to perform survey of the various properties, testified that the metal pole 

barn is located on Lot 5, on the disputed area that was excepted out of Arthur 

Jones, Sr.’s deed to Arthur Jones, Jr. Johnson relied upon the deeds of record and 

testified that his survey was performed in accordance with professional standards. 

Following the evidence, the trial court entered findings of fact, 

conclusions of law, and a judgment finding that the Baileys had no ownership 

interest in the disputed property. The court further found that Dennis had a fivesixths’ undivided interest in the disputed property, and that the heirs of Harold 

Jones held the remaining one-sixth interest. This appeal followed. 

“With respect to property title issues, the appropriate standard of

review is whether or not the trial court was clearly erroneous or abused its 

discretion, and the appellate court should not substitute its opinion for that of the 

trial court absent clear error.” Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 
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2002) (citation omitted). “Furthermore, in an action tried without a jury, the 

factual findings of the trial court shall not be set aside unless they are clearly 

erroneous, that is not supported by substantial evidence.” Id. (citations omitted). 

“The trial court’s conclusions of law are reviewed de novo.” Hoskins v. Beatty, 

343 S.W.3d 639, 641 (Ky. App. 2011) (citation omitted).

The Baileys present three arguments on appeal: (1) the trial court 

erred in failing to recognize their status as bona fide purchasers; (2) the court’s 

findings of fact are not supported by substantial evidence; and (3) they are entitled 

to judgment on their claim of adverse possession. 

Turning to the Baileys’ first argument, the Baileys cannot be bona fide 

purchasers because they never purchased the disputed property. See Davidson v. 

Jenkins, 113 S.W. 901, 901 (Ky. 1908). “Only a purchaser of legal title to a 

property may claim bona fide purchaser status.” 92A C.J.S. Vendor and Purchaser

§ 530 (2021). Here, it is admitted that the disputed property was not contained in 

the Baileys’ deed description. 

Further, based upon the survey, the disputed property lies on Lot 5 

and thus Harold and Polly Jones, as owners of Lot 4, never owned the disputed 

property and thus had no title in the property to convey, despite what the Baileys 

believed or may have been told. See 92A C.J.S. Vendor and Purchaser § 530 

(footnote omitted) (“The doctrine of bona fide purchaser without notice generally 
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does not apply where there is a total absence of title in the vendor, and the good 

faith of the purchaser cannot create a title where none exists.”).

Next, the Baileys argue the trial court’s findings of fact are not 

supported by substantial evidence. Specifically, they argue the trial court 

discounted PVA records in favor of Dennis’ testimony as to ownership of the metal 

pole barn. “[H]ad the trial court accredited the records of the Knott County PVA 

as evidencing exclusivity of ownership of the metal pole barn on the disputed 

area,” they assert, “the Baileys and their predecessors in interest would have 

sufficiently satisfied the period required for either adverse possession, infra, or for 

equitable title under the doctrine of laches.” We disagree, both as to the alleged 

error and its import. 

At trial, the Baileys introduced evidence of several PVA records 

which, they argue, show the metal pole barn was built prior to 1995, when Dennis 

testified he built the barn to construct a boat inside. Therefore, the barn could not 

have been built by Dennis and must have been constructed by Harold. Based upon 

Harold’s construction and ownership of the metal pole barn, the Baileys allege title 

via adverse possession. 

First, “insofar as [the Baileys] rel[y] on the property valuation 

administrator’s records, those records do not establish title.” Stevens v. Peyton, 
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No. 2015-CA-000761-MR, 2017 WL 128600, at *4 (Ky. App. Jan. 13, 2017).2 

Second, “[i]t is within the province of the fact-finder to determine the credibility of 

witnesses and the weight to be given the evidence.” Uninsured Employers’ Fund 

v. Garland, 805 S.W.2d 116, 118 (Ky. 1991) (citation omitted). The question on 

appeal is not whether we as an appellate court would have decided the matter 

differently, but whether the trial court’s rulings were clearly erroneous or 

constituted an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 

1982). 

Dennis testified that he built the barn in 1995 shortly after purchasing 

Lot 5. Anna Jones testified the barn was built in 1984. Bobby Jacobs, another 

witness for the Baileys, believed the barn was built before 1994, but he was unsure. 

The trial court credited Dennis’ testimony over the conflicting evidence, as was its 

right to do. Having reviewed the evidence, we find there was substantial evidence 

to support the trial court’s finding. 

Finally, the Baileys argue the trial court erred in rejecting their claim 

of adverse possession. We disagree. “[T]o establish title through adverse 

possession, a claimant must show possession of disputed property under a claim of 

right that is hostile to the title owners interest. Further, the possession must be 

2 Although unpublished, we cite Stevens v. Peyton as persuasive authority pursuant to Kentucky 

Rules of Civil Procedure 76.28(4)(c).
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shown to be actual, open and notorious, exclusive, and continuous for a period of 

fifteen years.” Phillips, 103 S.W.3d at 708 (citations omitted). “The party 

claiming title through adverse possession bears the burden of proving each element 

by clear and convincing evidence.” Id. at 709 (citations omitted). 

Based upon the evidence, the trial court found the disputed property 

had belonged to Arthur Jones, Sr., and at his death, passed to his heirs. The court 

further found that Arthur Jones, Sr. had permitted Harold Jones to use the disputed 

property as a garden, and that Dennis had permitted Harold Jones to use the metal 

pole barn. Therefore, the court concluded the Baileys could not prove the hostile 

requirement of adverse possession. The court further held the Baileys could not 

prove the continuous requirement of adverse possession because there was 

evidence that Dennis frequently used the metal pole barn, including to work on and 

store his boat and other equipment. 

We agree with the trial court that the Baileys failed to prove their 

claim of adverse possession by clear and convincing evidence. Based upon the 

evidence, the Baileys could not prove their possession of the disputed property was 

hostile or exclusive. The Baileys concede that Harold Jones’ use of the disputed 

property as a garden was done with the permission of Arthur Jones, Sr. 

Permissive use is not hostile and can never ripen into adverse possession. See 

Henninger v. Brewster, 357 S.W.3d 920, 927 (Ky. App. 2012) (citations omitted). 
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Further, Anna Jones, the Baileys’ own witness, testified that Dennis 

came and went from the metal pole barn on the disputed property at will. Dennis 

also testified that he built the metal pole barn to build a boat, and that he worked 

on and stored his boat inside the metal pole barn. There was also evidence that 

Dennis stored other items inside the barn. “For purposes of a claim of adverse 

possession, there is no exclusive possession if the claimant merely shares dominion 

over the property with other users.” 3 AM. JUR. 2D Adverse Possession § 65 

(2021). 

Based on the foregoing, the judgment of the Knott Circuit Court is 

affirmed. 

 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Jason V. Reed

Covington, Kentucky

BRIEF FOR APPELLEE:

Jeremy R. Morgan

Hazard, Kentucky