City of Gainesville v. Gilliland, s. 14382

Decision Date21 August 1986
Docket Number14392,Nos. 14382,s. 14382
PartiesCITY OF GAINESVILLE, Plaintiff (Appellant and Cross Respondent), v. Brenda M. GILLILAND, Defendant and Third-Party Plaintiff (Respondent and Cross Appellant), v. Roy OVERTURF and Joyce Overturf, Third-Party Defendants (Respondents).
CourtMissouri Court of Appeals

John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, and James E. Curry, Ava, for appellant and cross-respondent.

M. Douglas Harpool, Patrick J. Platter, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for respondent and cross-appellant.

Don M. Henry, Henry, Henry & Henry, P.C., and David H. Dunlap, West Plains, for respondents Overturf.

CROW, Judge.

These consolidated appeals arise from a dispute about ownership of certain land that adjoins an airport owned by the City of Gainesville ("the City"). The area in controversy lies in section 4, township 22, range 13, in Ozark County. The contentions of the litigants are easier understood after a synopsis of the evidence.

By warranty deed executed April 25, 1947, Walter Jayson Smith and his wife, Bealie, conveyed to the City a tract described as:

"All of that part of the Southeast quarter of the Northwest quarter of Section 4 ... lying east of State Highway, Route 'E', containing 13.7 acres, more or less."

The airport's north runway now lies in the above-described tract. A fence, running generally north to south, lies east of the runway.

By warranty deed executed May 16, 1979, Roy J. Overturf and his wife, Joyce, ("the Overturfs") conveyed a 160-acre tract which included, among other land, all of the south half of the northeast quarter of section 4 to these grantees: "W.J. Blisard and Helen Blisard, husband and wife, an undivided one-third interest; Levis M. & Lovice Wallace, husband and wife, an undivided one-third interest; and, Brenda M. Gilliland, an undivided one-third interest."

It is obvious, of course, that the east boundary of the tract conveyed to the City in 1947, and the west boundary of the land in section 4 conveyed to the five grantees in 1979 is, according to the respective descriptions of those tracts, the same line.

W.J. Blisard ("Blisard"), one of the grantees in the 1979 deed, recalled that the fence east of the airport's north runway was in approximately the same location as far back as 1947 or "somewhere along in there."

Explaining how the purchase from the Overturfs came about, Blisard recounted that in the spring of 1979, he learned from Lavis Wallace ("Wallace") 1 that the Overturfs' property was for sale. Blisard testified that he and Wallace went to the Overturfs' property and "looked around" with Roy Overturf.

According to Blisard, he asked Roy Overturf about the boundary between the Overturfs' property and the airport. Blisard said Overturf responded thusly: "He said that he had had this surveyed three times, and that they fenced it on the line. And I said, 'Where,' we was standing at the gate, and he pointed right down here, he said, 'Right there.' And I said, 'That's good enough for me. That's where I thought it was.' "

Blisard added that when Overturf said, "Right there," he (Overturf) was pointing down the fence line. Blisard's testimony then proceeded:

"Q. [Roy Overturf's] statement was that this fence line is right on the boundary line; is that correct?

A. Yes, sir.

Q. Any other conversations at that time about the property or the property lines?

A. Well, he said he had it fenced on the line, and he had refenced [sic] it, reposted [sic] it and looked pretty good shape to me."

Wallace confirmed that he and Blisard looked at the Overturfs' property with Roy Overturf. Wallace, like Blisard, recalled Roy Overturf stating that the fence east of the north runway "was on the line."

Blisard recounted that at the time he and Wallace inspected the property and conversed with Roy Overturf, he (Blisard) was a licensed real estate sales agent and was working with Goodland Realty, located on the "square" in Gainesville. Brenda M. Gilliland ("Gilliland"), a licensed real estate broker, was the owner of Goodland Realty.

A "Missouri Farm Listing Agreement," dated April 16, 1979, was prepared for the Overturfs' property, and was accepted for Goodland Realty by Gilliland. On the reverse side of the agreement appeared this handwritten notation: "There is a strip along the west side that doesn't belong to anyone but is under fence. New buyer might want to try to claim it by adverse possession."

A contract for the sale of the Overturfs' property was also prepared, carrying the same date, April 16, 1979. It identified the buyer as Blisard, alone. On the reverse side of the contract appeared this typewritten notation: "Seller agrees to transfer any adverse possession rights to buyer by tacking."

Gilliland testified that the notations on the listing agreement and the contract referred to "a small strip immediately behind [the Overturfs'] house," not to any land adjacent to the airport.

Roy Overturf recalled things differently. He testified that he went to Goodland Realty April 16, 1979, to list his property for sale. He recalled that Gilliland and Blisard were there, and that Gilliland prepared the listing agreement. Then, said Overturf, he and Blisard went to look at the property. Overturf denied that Wallace accompanied them.

According to Overturf, he told Blisard that he (Overturf) had had his land surveyed, and that there was a strip on the west boundary, the "airport side," that was disputed. Overturf explained that he informed Blisard that the property had been surveyed three times, and that the surveys had come out "[d]ifferent every time." Overturf quoted Blisard thusly: "He just said if I would swear that that fence has always been there, that he didn't care about the survey marker. He'd get the land anyway."

Overturf recalled that after Blisard looked at the property, they returned to Goodland Realty where, at Overturf's request, the handwritten notation about the strip on the west side was added to the listing agreement. Then, said Overturf, Gilliland began preparing the sale contract. While that was being done, Overturf went to an office in the courthouse where his wife, Joyce, "was selling license plate." Blisard, according to Overturf, brought the contract to Joyce Overturf's office, where Roy and Joyce signed it. Roy Overturf conceded that he probably saw the typewritten notation thereon regarding tacking adverse possession rights, but he denied knowing what it meant.

Joyce Overturf recalled Blisard bringing the contract to her office. Asked whether she made any statements to Blisard at that time regarding "the boundary line on the west side of the 160-acre farm," Joyce replied, "I did." Joyce explained: "I told him that he knew--I asked him if Roy had told him that the fence was not on our boundary line. And he said, yes, Roy had told him that but it didn't make any difference. And he asked me then, has the fence always been there. And I told him yes."

Gilliland's testimony on cross-examination included this:

"Q. So again, Brenda, at the time of the listing and at the time of the contract, April the 16th, 1979, there was some discussion between you and Mr. Overturf with respect to the discrepancy in the boundary or a problem on the west side of this land; isn't that correct?

A. That's correct."

Joyce Overturf testified that after the contract was signed, but before the sale was closed, she went to Gilliland's office and asked Gilliland "if Joe Bill Blisard had told her that there was--that the fence was not on the property line." According to Joyce Overturf, Gilliland responded by asking whether the fence had always been there. Joyce Overturf recalled answering: "I told her, yes, it had. And she asked me if I would swear in court that the fence had always been there."

The sale was closed May 16, 1979, as shown by the deed to the five grantees mentioned earlier. For convenience, the land described in that deed is henceforth referred to as "the Overturf farm." The purchase price was $76,000.

On December 26, 1979, Blisard and his wife, in exchange for interests in other properties, conveyed their one-third interest in the Overturf farm to Gilliland.

Blisard testified that around "hay cutting time" in 1980, which he said was "maybe June," he was on the former Overturf farm and saw a surveyor on the south side of the property. Blisard talked to the surveyor. Then, said Blisard: "We drove downtown to Brenda's and told them that they was surveying up at her property, she ought to see about it. That they said there was a dispute up there, and it's news to me."

Wallace testified that Blisard showed him the surveyor's stakes in June, 1980, and that this was his first knowledge of a possible dispute over the location of the west boundary of the Overturf farm. Wallace remembered Gilliland being there when he viewed the stakes.

Gilliland confirmed that she saw the stakes in the summer of 1980, and that this gave her cause "to believe there might be a question as to the boundary line." Consequently, said Gilliland, she went to see the Overturfs and inquired whether the fence was on the line. Asked what their response was, Gilliland testified: "They told me, yes, it had been surveyed three times and had always come up within a foot of the same line."

After talking to the Overturfs, Gilliland had an attorney prepare a document captioned "Special Warranty Deed." This instrument recited that the Overturfs, for ten dollars "and other valuable considerations," did "convey, transfer and sell" to Gilliland a part of the southeast quarter of the northwest quarter of section 4 described thusly:

"Beginning at the SE corner of the SE 1/4 NW 1/4 and run thence North 1320 feet, more or less, to the NE corner of the SE...

To continue reading

Request your trial
16 cases
  • Empire Dist. Elec. Co. v. Coverdell
    • United States
    • Missouri Court of Appeals
    • December 5, 2019
    ...be considered public, pious or charitable." In support of his argument, Coverdell relies exclusively on City of Gainesville v. Gilliland , 718 S.W.2d 553 (Mo. App. 1986). In Gilliland , however, this Court actually rejected a similar argument, and held that under § 516.090, a municipality’s......
  • Kan. City Area Transp. Auth. v. Donovan
    • United States
    • Missouri Court of Appeals
    • February 4, 2020
    ...dedicated street to make its actual use possible" did not bar application of section 516.090 ); see also City of Gainesville v. Gilliland , 718 S.W.2d 553, 564-65 (Mo. App. S.D. 1986) (rejecting argument that section 516.090 did not apply because the land had never been subjected to a publi......
  • Williamstown Borough Authority v. Cooper
    • United States
    • Pennsylvania Superior Court
    • June 14, 1991
    ...Control Act and The Fish Law).6 This rule appears to be consistent with that of other jurisdictions. See, e.g., City of Gainesville v. Gilliland, 718 S.W.2d 553 (Mo.App.1986) (title to land owned by municipality cannot be lost through adverse possession regardless of whether land held in a ......
  • Johnson v. Berry
    • United States
    • U.S. District Court — Eastern District of Missouri
    • June 11, 2001
    ...A representation that a special warranty deed was a quit-claim deed is a representation of fact, not law. City of Gainesville v. Gilliland, 718 S.W.2d 553, 579 (Mo.App.1986). A seller's representation that homes for sale were subject to a certain indenture agreement was actionable as a misr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT