Proof Standard

"669 show by clear and convincing evidence their ownership by way of adverse possession[.]” II. DISCUSSION The contentions raised on appeal require us to scrutinize the record and determine whether the evidence was sufficient to prove adverse possession by the clear and convincing standard that we explicitly have adopted today. We note at the outset that the standard of review for judging a sufficiency of evidence claim is not appellant friendly. Following a bench trial, the circuit court’s findings, based on oral or documentary evidence, shall not be overturned unless clearly erroneous, and due regard shall be given to the opportunity of the circuit judge to evaluate the credibility of the witnesses. Under this standard, if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it, even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. We will disturb only those factual findings that strike us wrong with the “force of a five-week-old, unrefrigerated dead fish.” United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993). Nor is the scope of our review broadened because the burden of proof is clear and convincing. Indeed, the burden of proof has an impact only if the evidence is in equipoise. Under these well established principles, we now review the errors raised by the defendants. A. Standard of Proof for Adverse Possession Claims The first argument raised by the defendants is that the circuit court committed error by requiring them to prove adverse possession by clear and convincing evidence. Although neither party presents any binding precedent of this Court, the defendants contend that the proper standard for proving adverse possession is by a preponderance of the evidence, and that this is implicitly established by some of our cases. The defendants cite language in our decision in Naab v. Nolan, 174 W.Va. 390, 392 (1985), wherein we stated: The circuit court found by a preponderance of the evidence the existence of facts sufficient to establish title by adverse possession[.] We agree with the court’s decision. (Emphasis added.) The plaintiffs contend that the above language in Naab is not controlling for two reasons. First, the quote is not intended to be a statement of law, but is merely part of the discussion from the court below, and there was no explicit acceptance of this standard by the Court. Second, the standard of proof was not disputed on appeal and, therefore, this Court was not asked to decide the issue. The plaintiffs take the position that we have yet, definitively, to establish a standard of proof for adverse possession, and would further urge that we adopt the clear and convincing standard. 4 There is a minority view that a preponderance of the evidence is sufficient to establish adverse possession. [citations to cases in Missouri, Nebraska, Ohio, and Arkansas] There is little reason given for adopting this standard other than it is the usual rule in civil cases. On the other hand, the view adopted by a majority of jurisdictions is that adverse possession must be shown by clear and convincing evidence. [citations to cases in a large number of states] 4 This Court approved in passing an adverse possession preponderance of the evidence jury instruction given by the trial court in Selman v. Roberts, 185 W.Va. 80, 86 n. 6(1991). 671 It is appropriate, in our opinion, that adverse possession be proved by a more stringent standard than a mere preponderance of the evidence. First, West Virginia appears to have been leaning toward the majority rule. Even before the turn of the century, this Court had indicated that “clear” evidence was needed to establish adverse possession. In Syllabus Point 2 of Boggs v. Bodkin, 32 W.Va. 566 (1889), this Court explicitly stated: “whether he has had ten years’ adversary possession of the land, he must, … specifically establish by clear evidence, that he has had such adversary possession for ten years … .” (emphasis added). Moreover, we agree with the plaintiffs that it would be inconsistent for this Court to adopt a preponderance of the evidence standard for adverse possession, in light of the fact that we have adopted a clear and convincing standard for proving an easement. See Syl. pt. 3, Norman v. Belcher, 180 W.Va. 581 (1989). Second, on policy grounds there is sound and reasonable justification for the majority view. The function of a standard of proof is to “instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of a factual conclusion for a particular kind of adjudication.” In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J. Concurring). “The standard [of proof] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Addington v. Texas, 441 U.S. 418, 423 (1979). While the preponderance standard applies across the board in civil cases, a higher standard is needed where fairness and equity require more persuasive proof. Although the standard clear and convincing is less commonly used, it nonetheless is no stranger to West Virginia civil cases. In Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W.Va. 502, 510 (1978), this Court stated that “clear and convincing” is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established. It should be the highest possible standard of civil proof. Cramer v. Dep’t of Hwys., 180 W.Va. 97, 99 n. 1 (1988). The interest at stake in an adverse possession claim is not the mere loss of money as is the case in the normal civil proceedings. Rather, it often involves the loss of a homestead, a family farm or other property associated with traditional family and societal values. To this extent, most courts have used the clear and convincing standard to protect these important property interests. See Stevenson v. Stein, 412 Pa. 478, 482 (1963) (to prove adverse possession “credible, clear and definitive proof” is needed). Adopting the clear and convincing standard of proof is more than a mere academic exercise. At a minimum, it reflects the value society places on the rights and interests being asserted. The bottom line is that the function of the legal process is to minimize the risk of erroneous decisions. See Mathews v. Elderidge, 424 U.S. 319, 335 (1976). The law should not allow the land of one to be taken by another, without a conveyance or consideration, merely upon slight presumption or probabilities. The relevant evidence in an adverse action must necessarily expand over a ten year period. A preponderance standard, in our judgment, would create the risk of increasing the number of cases whereby land is erroneously taken from the title owner under spurious adverse possession claims. This heightened standard of clear and convincing is one way to impress the factfinder with the importance of the decision, and thereby reduce the chances that spurious claims of adverse possession will be successful. Having concluded that the preponderance standard falls short of meeting the demands of fairness and accuracy in the factfinding process in the adjudication of adverse possession claims, we hold that the burden is upon the party who claims title by adverse possession to prove by clear and convincing evidence all elements essential to such title. To the extent that a different standard is intimated in our previous decisions, we herein expressly reject such intimations."