Weaver v. Helm, 20599

• Decision Date: 26 March 1997
• Docket Number: No. 20599,20599
• Parties: Howard B. WEAVER and Mary Lou Weaver, as Trustees of The Howard B. Weaver and Mary Lou Weaver Revocable Trust, Plaintiffs-Respondents, v. Jay Terry HELM, and J.T. Helm and Wilma I. Helm, Defendants-Appellants. . Division One
• Court: Missouri Court of Appeals

Page 801

941 S.W.2d 801

Howard B. WEAVER and Mary Lou Weaver, as Trustees of The

Howard B. Weaver and Mary Lou Weaver Revocable

Trust, Plaintiffs-Respondents, v. Jay Terry HELM, and J.T. Helm and Wilma I. Helm,

Defendants-Appellants.

No. 20599.

Missouri Court of Appeals,

Southern District.

Division One.

March 26, 1997.

Michael C. Dawson, El Dorado Springs, for appellant.

J.D. Baker, Baker & Dull, Osceola, for respondent.

PREWITT, Judge.

This appeal arises from a boundary-line dispute between Howard B. and Mary Lou Weaver (collectively referred to as "the Weavers") and Jay Terry Helm, and J.T. and Wilma Helm (collectively referred to as "the Helms"). The estimated area of the property in question is three acres, and runs for approximately 1/2 mile between the properties. The Weavers, Plaintiffs-Respondents herein, claim ownership by adverse possession. The Helms, Defendants-Appellants herein, contend that they hold record title of the property, based on a survey conducted after the dispute arose. The trial court entered findings and conclusions, finding that the Weavers (Plaintiffs-Respondents) were entitled to the portion of the disputed property by adverse possession. The Helms (Defendants-Appellants) appeal.

At the time Plaintiffs took possession of their property in 1952, there was an existing fence along the northern boundary of their property. By mutual agreement, Plaintiffs and Defendants' predecessor in title erected a new fence along the eastern half of the one-half mile of fence line that separated the two properties. The new fence was placed along the same line as the old fence and was built with hedge posts at the ends, oak posts in the middle, and three strands of barbed wire. The remaining half of the fencing was repaired. It was agreed that this fence line was to be the boundary line between the two properties. ¹

Subsequent rebuildings and replacement of the fencing maintained the fence line in the same approximate location. Defendants-Appellants purchased the property north of the Plaintiffs' in 1966. In the mid-1970's, Defendants rebuilt a section of fencing on the western end of the fence line. It was installed in approximately the same location and remained there until it was destroyed by Defendant Jay Terry Helm in 1992 and 1993, and relocated to the south of the old location.

In June, 1992, Defendant-Appellant Jay Terry Helm removed a 600-650' section of the fence pursuant to a request by Jay Terry Helm that Howard Weaver permit Helm to install a brace pole for utilities on Weaver's side of the fence, to which Weaver agreed. Replacement of the fence was discussed between the parties and Jay Terry Helm suggested to Howard Weaver that a new fence line would be established, per a new survey, along a line further south of the old boundary line. In response to Helm's plan to move the location of the fence, the Weavers contacted their attorney to inform Helm of their objection to relocating the fence. A letter dated July 29, 1992, was sent to Jay Terry Helm by the Weavers' attorney. In August, 1992, Mr. Weaver, with the help of a friend, replaced that section of fence destroyed by Jay Terry Helm. When Jay Terry Helm observed the replacement of the new fence along the old fence line, he protested to Weaver, insisting it be placed along a line south of the old line, according to a survey which he had ordered. Nevertheless, Weaver finished replacing the fence, along the old line. The new section was built with steel posts approximately ten feet apart with four strands of barbed wire.

In the spring of 1993, Defendant-Appellant Jay Terry Helm had the entire fence line, approximately 1/2 mile of fencing, bulldozed down, including the section that Weaver had installed the previous summer. Another letter was sent by the Weavers' attorney, dated May 17, 1993, demanding that Helm install a new fence to replace the one he had destroyed, in order that the Weavers might pasture their cattle. The letter also demanded that the new fence be installed at the same location as the old fence.

Helm installed a new fence along a different boundary line to the south of the old fence line which he determined based upon the results of a survey he had hired. The new fence line was located some six feet south of the old fence line on the east end of the boundary line, and 86 feet south of the old fence line on the west end of the boundary line. At mid-point, the new fence was 46 feet south of the old fence line. In the process of the bulldozing and relocation of the fence line, the Weavers contend that an access lane, through which they could enter the back portion of their property, was rutted and littered with brush, making access to the back portion difficult.

Because this is a court tried case, we follow the dictates of Rule 73.01. Thus, we review both the law and the evidence giving due recognition to the superior position of the trial court to judge the credibility of the witnesses. Teson v. Vasquez, 561 S.W.2d 119, 128 (Mo.App.1977). The judgment must be sustained unless it is without substantial evidentiary support, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

To establish title by adverse possession, one must prove by a preponderance of the evidence that possession was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of ten years. Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo.App.1996); Witt v. Miller, 845 S.W.2d 665, 667 (Mo.App.1993).

Hostile means a possession antagonistic to claims of all others, with an intent to occupy as one's own. Kitterman, 924 S.W.2d at 876; Witt, 845 S.W.2d at 668. Under the "hostile" element, even if the possessor mistakenly believed he had title and occupied the land as his own, the element is satisfied, i.e., he must intend to occupy as his own and there is no requirement for adverse possession that he be holding title to take away from a true owner. Kitterman, 924 S.W.2d at 876.

"Open and Notorious is satisfied by visible acts of ownership exercised over the premises," such as maintaining and improving the property. Id. Actual depends on the nature and location of the property and may be a use expected from that nature and location. Id.

Exclusive possession means the claimant holds the land for the claimant only and not for another, for example using the land as his or her own backyard and not allowing others to so use the property. Id. The ten years of possession must be consecutive years and need not be the ten years just prior to the filing of the law suit, but once the period has run, the possessor is vested with title and the record owner is divested. Id.

Adverse possession presents mixed questions of law and facts, and the principles or elements to prove such a case are considered with the view that every property may be unique and each case must be decided in light of its own unique circumstances. Id. Much depends on the location, the character and the use to which the land in question may reasonably be put. Id. The acts which establish possession vary from case to case and the nature of the area in question and the surrounding property. Id. at 878; Denton v. Ipock, 652 S.W.2d 290, 292 (Mo.App.1983).

In Point One, Appellants contend that:

The trial court erred in finding that Plaintiff is the owner of a tract of land by adverse possession in that Plaintiff failed to prove all elements of the cause of action in adverse possession by sufficient competent evidence because Plaintiff did not show he held the subject real property hostile to the rights of Defendant or anyone else.

For more than forty years, Plaintiffs have been in the actual possession of the property lying south of the old fence line, pasturing cattle, cutting wood, and hunting on this property. To prevent trespassing, they had the land posted near the highway entrance. Ownership of the land south of the old fence was not disputed from 1951 until 1992.

The definition of hostile includes "antagonistic to the claims of all others ... with the intent to possess the land as his own." Witt, 845 S.W.2d at 668. However, hostility does not imply animosity. Id. The intent to take away from the true owner is not relevant to the issue of hostile possession. It is the intent to possess not the intent to take away from the true owner that governs. Id.

The essential requirement of adverse possession is that the possessor's occupancy be truly adverse and in opposition to the title of the record owner. Teson, 561 S.W.2d at 125. The claimant must occupy the particular piece of property intending...