Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, 

Kinser, JJ., and Stephenson, Senior Justice 

YOUNG KEE KIM 

v. Record No. 991092 OPINION BY JUSTICE CYNTHIA D. KINSER 

 April 21, 2000 

DOUVAL CORPORATION, d/b/a WASH FAIR 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

 This appeal arises out of a motion for judgment 

seeking ejectment and a counterclaim alleging adverse 

possession. Plaintiff Young Kee Kim sought to eject the 

defendant Douval Corporation, d/b/a Wash Fair (Douval), 

from a 414 square-foot tract of real estate owned by Kim 

and located in the Springfield area of Fairfax County. In 

its counterclaim, Douval asserted that it had acquired 

title to the disputed parcel by virtue of its actual, 

hostile, exclusive, visible, and continuous use and 

possession of the property for more than 15 years. A jury 

returned a verdict in favor of Kim and awarded damages. 

However, the trial court granted Douval’s post-trial motion 

to set aside the verdict and entered judgment for Douval on 

its claim of adverse possession. This appeal followed. 

Because we conclude that conflicting inferences can be 

drawn from the evidence with regard to the question whether 

Douval’s possession of the disputed property was under a 
claim of right, and because the jury resolved those 

inferences in favor of Kim, we will reverse the judgment of 

the circuit court. 

FACTS 

 The property at issue in this appeal is part of Parcel 

4-A of a subdivision known as the East Garfield Tract. Kim 

purchased Parcel 4-A in 1994. His predecessors-ininterest, Jung Sik Kim (Jung) and Jung’s wife, had owned 

the property since 1983. Kim’s parcel is adjacent to 

Parcel 4-E of the East Garfield Tract. David N. and 

Loretta R. Bond purchased Parcel 4-E in 1984. Since then, 

the Bonds have leased this parcel to Douval. 

 Douval operates a car wash on Parcel 4-E under the 

trade name of Wash Fair.1 Wash Fair has run the car wash 

since 1961 pursuant to leases with the various owners of 

Parcel 4-E. Mr. Bond was the manager of Wash Fair from 

1962 until 1977, when he and Mrs. Bond acquired all the 

shares of stock in Douval. 

The parties agree that the disputed property is a 

triangular-shaped tract bounded on one side by the property 

line between Parcels 4-A and 4-E, and on the other side by 

a concrete curb situated on Parcel 4-A. The curb has been 

 1

 Kim operates an auto body repair shop on Parcel 4-A. 

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in place since at least 1962, but the record does not 

disclose precisely when, or by whom, it was erected. 

According to Mr. Bond, Wash Fair has used the disputed 

property since 1962. Initially, it utilized the triangular 

strip of Parcel 4-A as a “driveway” for cars entering and 

departing the car wash. Wash Fair also erected a sign pole 

that abutted the concrete curb and placed asphalt on the 

disputed area over to the curb. In 1969, Wash Fair 

installed outside lighting at the car wash by placing poles 

and concrete bases on the disputed property along the curb. 

In order to lay the electrical conduit for those lights, 

the asphalt had to be dug up. After the installation of 

the lights was completed, Wash Fair paved the disputed area 

with asphalt again. During the ensuing years, Wash Fair 

asphalted the area on several more occasions. It also 

erected a fence at the rear of the disputed property in 

1969 and replaced the fence in 1982 or 1983. Finally, Wash 

Fair painted the concrete curb at least twice each year and 

placed planters in the disputed area in 1990. 

Jung testified that Wash Fair installed vacuums on the 

disputed property approximately six or seven months after 

he purchased Parcel 4-A in 1983. Jung did not give Wash 

Fair permission to install the vacuums, nor did Wash Fair 

request permission from him to do so. Jung also testified 

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that he “didn’t mind” Wash Fair’s using part of his 

property because Wash Fair needed it. Jung likewise did 

not object when Wash Fair paved the disputed property with 

new asphalt because the asphalt benefited his property. 

Mr. Bond admitted that Wash Fair used the disputed 

property even though he knew it was not part of Parcel 4-E. 

However, he asserted that no one instructed Wash Fair not 

to use or make improvements on the triangular strip of 

Parcel 4-A over to the curb. Mr. Bond further testified 

that Wash Fair never received permission from any of the 

owners of Parcel 4-A to occupy and use the disputed portion 

of that parcel. 

 However, Kim, through his attorney William C. Thomas, 

offered Douval a license agreement to use the disputed 

strip of Parcel 4-A in 1995. According to Thomas, Mr. Bond 

claimed at that time that he did not know about the 

encroachment on Parcel 4-A and asserted that he “had built 

entirely on the Wash Fair property.” 

 Kim established his claim for ejectment by introducing 

evidence to prove his chain of title for Parcel 4-A and his 

damages resulting from Douval’s actions. Kim also 

testified that he asked Douval to remove the vacuums from 

the disputed strip of Parcel 4-A and that it refused to do 

so. 

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ANALYSIS 

 Pursuant to Code § 8.01-430, a trial court can set 

aside the verdict of a jury in a civil action when the 

verdict is contrary to the evidence or is without evidence 

to support it. However, the trial court’s authority to do 

so is limited by the following principles: 

If there is a conflict in the testimony on a material 

point, or if reasonable [persons] may differ in their 

conclusions of fact to be drawn from the evidence, or 

if the conclusion is dependent on the weight to be 

given the testimony, the trial judge cannot substitute 

his conclusion for that of the jury merely because he 

would have voted for a different verdict if he had 

been on the jury. The weight of a jury’s verdict, 

when there is credible evidence upon which it can be 

based, is not overborne by the trial judge’s 

disapproval. 

Lane v. Scott, 220 Va. 578, 581-82, 260 S.E.2d 238, 240 

(1979), cert. denied, 446 U.S. 986 (1980) (quoting 

Commonwealth v. McNeely, 204 Va. 218, 222, 129 S.E.2d 687, 

689-90 (1963)). Accord Henderson v. Gay, 245 Va. 478, 480-

81, 429 S.E.2d 14, 16 (1993). In addition, “when 

conflicting inferences have been resolved by a jury and 

those necessarily underlying the conclusion reflected in 

the verdict are reasonably deducible from the evidence, a 

trial judge should not set the verdict aside.” Lane, 220 

Va. at 582, 260 S.E.2d at 240. 

In reviewing the circuit court’s judgment, we are 

mindful of the fact that the trial judge disapproved the 

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jury verdict in this case. Thus, that verdict is not 

entitled to the same weight as one that a trial judge has 

approved. Deskins v. T.H. Nichols Line Contractor, Inc., 

234 Va. 185, 186, 361 S.E.2d 125, 125 (1987) (citing 

Cloutier, Adm’r v. Virginia Gas Distrib. Corp., 202 Va. 

646, 651, 119 S.E.2d 234, 237 (1961)). Nevertheless, this 

Court must consider the evidence in the light most 

favorable to Kim, who was the recipient of the jury 

verdict. Deskins, 234 Va. at 186, 361 S.E.2d at 125 

(citing Neighbors v. Moore, 216 Va. 514, 515, 219 S.E.2d 

692, 694 (1975)). 

 “To establish title to real property by adverse 

possession, a claimant must prove actual, hostile, 

exclusive, visible, and continuous possession, under a 

claim of right, for the statutory period of 15 years.” 

Grappo v. Blanks, 241 Va. 58, 61-62, 400 S.E.2d 168, 170-71 

(1991) (citing McIntosh v. Chincoteague Volunteer Fire Co., 

220 Va. 553, 556-57, 260 S.E.2d 457, 459-60 (1979); Peck v. 

Daniel, 212 Va. 265, 268, 184 S.E.2d 7, 9 (1971); Leake v. 

Richardson, 199 Va. 967, 976, 103 S.E.2d 227, 234 (1958); 

Code § 8.01-236). The claimant bears the burden of proving 

the elements of adverse possession by clear and convincing 

evidence. Calhoun v. Woods, 246 Va. 41, 43, 431 S.E.2d 

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285, 287 (1993); Matthews v. W.T. Freeman Co., Inc., 191 

Va. 385, 395, 60 S.E.2d 909, 914 (1950). 

 Kim acknowledges that Douval’s possession of the 

disputed strip of Parcel 4-A has been open and notorious. 

However, he argues that there is a conflict in the evidence 

and the reasonable inferences that can be drawn from the 

evidence with regard to the question whether Douval’s 

possession was “hostile” under a claim of right. In fact, 

the circuit court noted in its letter opinion that this 

issue was the only genuinely disputed one at trial.2

It is well-established that a claimant’s possession is 

“hostile” if it is under “a claim of right and adverse to 

the right of the true owner.” Grappo, 241 Va. at 62, 400 

S.E.2d at 171 (citing Virginia Midland R.R. Co. v. Barbour, 

97 Va. 118, 123, 33 S.E. 554, 556 (1899)). The phrase 

“claim of right,” when used in the context of adverse 

possession, refers to the intent of a claimant to use land 

as the claimant’s own to the exclusion of all others. 

Marion Inv. Co. v. Virginia Lincoln Furniture Corp., 171 

Va. 170, 182, 198 S.E. 508, 513 (1938). The existence of a 

claim of right does not depend on the claimant having any 

 2

 Kim also argued that there is a conflict in the 

evidence with regard to the issues whether Douval’s 

possession was “exclusive” and whether the possession was 

continuous for the requisite 15-year statutory period. 

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actual title or right to the property. Id. However, 

“[w]here the original entry on another’s land was by 

agreement or permission, possession regardless of its 

duration presumptively continues as it began, in the 

absence of an explicit disclaimer.” Matthews, 191 Va. at 

395, 60 S.E.2d at 914. Accord Alford v. Alford, 236 Va. 

194, 197, 372 S.E.2d 389, 390 (1988); Thompson v. Camper, 

106 Va. 315, 318, 55 S.E. 674, 675 (1906). 

As Kim notes, the record does not indicate the 

circumstances under which Wash Fair’s possession of the 

disputed strip of Parcel 4-A began. Wash Fair commenced 

operating the car wash in 1961. Mr. Bond testified that 

Wash Fair was using the disputed property in 1962. 

However, we do not know whether, at that time, Wash 

Fair’s landlord, who owned Parcel 4-E, obtained permission 

from the owner of Parcel 4-A for Wash Fair to utilize the 

disputed property. Although Mr. Bond began managing Wash 

Fair in 1962 and testified that he had no knowledge of any 

agreement between Wash Fair’s landlord and the owner of 

Parcel 4-A with regard to Wash Fair’s use of the disputed 

property, he and Mrs. Bond did not become Wash Fair’s 

landlord until 1984 when they purchased Parcel 4-E. Thus, 

he would not have been a party to any such agreement prior 

to 1984. Mr. Bond admitted that some of the previous 

8
owners are deceased and that he therefore could not confer 

with them about whether any such agreement existed before 

he and Mrs. Bond became Wash Fair’s landlord. 

In contrast, we know that Jung, a prior owner of 

Parcel 4-A, did not give Wash Fair permission to install 

the vacuums on the disputed strip of property in 1983, 

shortly after he purchased Parcel 4-A. Also, Kim asked 

Douval to remove those vacuums in 1995, but Douval refused 

to do so. 

Relying on this Court’s decision in Marion Inv. Co., 

Douval argues that its actual occupation, use, and 

improvement of the disputed property as if it were in fact 

an owner establishes that its possession was under a claim 

of right. We agree that a claim of right can be inferred 

from unequivocal conduct that is inconsistent with any 

other reasonable inference. See Sims v. Capper, 133 Va. 

278, 287, 112 S.E. 676, 679 (1922). However, whether the 

conduct relied upon is sufficient to establish a claim of 

right is generally a question for the jury. Marion Inv. 

Co., 171 Va. at 182, 198 S.E. at 513-14. 

Upon reviewing the evidence in the light most 

favorable to Kim, we conclude that conflicting inferences 

can be drawn from the evidence with regard to the questions 

whether Wash Fair began its possession and use of the 

9
disputed property under a claim of right, or with the 

permission of the owner of Parcel 4-A; whether, if Wash 

Fair’s possession started with permission from the owner of 

Parcel 4-A, the possession later changed to one under a 

claim of right; and whether any possession by Wash Fair 

under a claim of right has continued for the requisite 15-

year statutory period. The jury resolved the conflicting 

inferences in favor of Kim, and the inferences “necessarily 

underlying the conclusion reflected in the verdict are 

reasonably deducible from the evidence.” Lane, 220 Va. at 

582, 260 S.E.2d at 240. Thus, we conclude that the circuit 

court erred in setting aside the jury verdict. 

 For these reasons, we will reverse the judgment of the 

circuit court, reinstate the jury verdict, and enter final 

judgment in favor of Kim.3

Reversed and final judgment. 

 3

 We do not need to address the remaining assignments 

of error. 

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