Barton v. Pauly, 48711

• Decision Date: 13 November 1961
• Docket Number: No. 1,No. 48711,48711,1
• Citation: 350 S.W.2d 748
• Parties: W. O. BARTON and Olive F. Barton, Husband and Wife, Respondents. v. Gayle M. PAULY, Appellant
• Court: Missouri Supreme Court

Page 748

350 S.W.2d 748

W. O. BARTON and Olive F. Barton, Husband and Wife, Respondents. v. Gayle M. PAULY, Appellant.

No. 48711.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Robert E. Coleberd, Hale, Coleberd, Kincaid & Waters, Liberty, for appellant.

Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, for respondents.

HOLLINGSWORTH, Judge.

Plaintiffs, husband and wife, brought this action to quiet title to 3.65 acres of farm land in Clay County, Missouri. The pleadings of both parties are quite involved, but at trial the sole issue was that tried to a jury, to wit: whether plaintiffs had acquired title to said land by adverse possession. The jury found that issue in favor of plaintiffs. Defendant has appealed from the judgment rendered in conformity with the verdict on grounds (1) that no submissible case was made and that, therefore, defendant's motion for a directed verdict filed at the close of the case should have been sustained; and (2) error in the giving of plaintiffs' submission instruction No. 1.

Plaintiffs and defendant own adjoining farms, plaintiffs' farm lying north of defendant's farm. Plaintiffs acquired their farm by deed dated August 22, 1936, and recorded on August 25, 1936. Defendant acquired her farm by deed dated January 2, 1940, and recorded January 15, 1940. Her husband died in 1958. According to the descriptions of the real estate conveyed by each of these deeds, the south line of plaintiffs' farm and the north line of defendant's farm coincide and, therefore, comprise the record dividing line between their respective properties. The tract of 3.65 acres to which plaintiffs claim title by adverse possession lies immediately south of the dividing line as described in said deeds. It is a strip 12.1 feet wide at the eastern boundary common to both farms and 73.46 feet wide at the western boundary common to both farms. The southern boundary of this strip runs along an old established east -west fence that has been in existence for many years and was so considered and treated by the parties hereto as the east-west division fence between their farms until this dispute arose shortly prior to the institution of this suit on January 26, 1960.

In addition to the facts above stated, plaintiffs adduced, insofar as here material, the following evidence:

Fred Woods, a licensed surveyor with 20 years' experience, and who had made a survey of the land in question, which was placed in evidence, testified: He is a nephew of Cornelius Woods, who formerly owned the land prior to its partition. He has known the land for 'around 50 years' and knows that the fence line constituting the south line of the 3.65 acre tract to which plaintiffs claimed title by adverse possession had been in its present location for about 40 years. He became acquainted with plaintiff W. O. Barton seven or eight years ago and knows that he farmed the land north of the fence so long as he thereafter continued to reside on the farm.

Mr. Barton, hereinafter, for convenience, sometimes referred to as though he were the sole plaintiff, testified: He has lived in Kansas City North for the past three years. Prior to that time he and his wife lived on the farm since they bought it in 1936. Prior to purchase, he went with Mr. Asher, one of the owners, to view the farm, at which time Mr. Asher showed him the boundaries and pointed out the fence to which he has claimed title since he purchased his farm as the dividing line between plaintiffs' farm and defendant's farm. Plaintiff thereupon purchased the farm believing and claiming that said fence line constituted the division line between said farms and never heard anything to the contrary until advised by Fred Woods several years ago. After purchase, plaintiff did general farming on all of the land north of the fence; raised and grazed cattle and hogs and planted and harvested corn and alfalfa. The division fence was old when plaintiff bought the farm and he thereafter repaired it many times. It had been built in 1923. In 1950 a new fence was built on the same location as the old one. Plaintiff built the west one half of that fence and Mr. and Mrs. Pauly, defendant herein, built the east half thereof. On cross-examination, plaintiff testified: He is not yet 'sure' that the 3.65 acre tract is included in defendant's deed. He never told either Mr. or Mrs. Pauly that he claimed the strip; they did not ask and he did not say he was claiming it 'no more than the rest of the farm.' He did not merely 'suppose' the south fence was the boundary line; Mr. Asher told him it was.

Mrs. Lila Fann testified: She has lived near this land 67 years and knows that the fence was the division line between the north farm, once owned by her sister, and the south (defendant's) farm. She does not know whether the location of the fence has been changed. Cornelius Woods testified: He has lived in the neighborhood 65 years and had owned the Pauly farm from the time he was nine years old until he was 22 years old. The fence line has never been changed since 1923, 'only just a new fence has been put in. * * * It might have varied just a few inches.' Mrs. Cornelius Woods testified: The fence line was changed in 1923 but, insofar as she knows, it has remained in the same place since that time. Estil Smith testified: He is the Collector of Clay County. The farm owned by plaintiffs has been assessed since 1952 as containing 89.02 acres, according to the records sent in by the assessor; the records prior to that time have been destroyed. The taxes have been paid.

Defendant's evidence, insofar as here material, was as follows:

Mrs. Pauly testified: She bought the farm in January, 1940. The deed calls for 61 acres. She (with her husband during his lifetime) has been in continuous possession and actual occupancy of the farm since she bought it. In June or July, 1950, they and Mr. Barton discussed the fence here in question. He told them their livestock was getting out and suggested the repair or rebuilding of it. He also told them that, facing north toward plaintiffs' farm, the right (east) side of the fence was theirs and the left (west) side was his to repair. In June and July of 1950, plaintiffs and the Paulys joined in building a new fence on the line of the old fence in the manner suggested by Mr. Barton. When the fence was discussed and built, there was no 'conversation' in regard to its being the dividing line; only its construction and the necessity of keeping the livestock out was discussed. Nothing was ever said to either Mr. Pauly or defendant that plaintiffs were claiming to the fence. She first learned of that claim in July, 1959, shortly prior to the filing of this suit. When defendant bought the land in 1940 and when the fence was rebuilt in 1950, they 'supposed that [the fence] was the line.' Defendant and her husband have paid the taxes on the property described in their deed ever since 1940. On cross-examination, defendant testified: Her deed calls for 61 acres. She has had a survey made since this dispute developed. From that survey she has learned that there are 61 acres of land between the fence on the south side of her farm and the fence in dispute between her and plaintiffs; and that if the 3.65 acre tract in dispute is included in her farm, she would be possessed of 64.65 acres. Before she bought the farm, she and her husband first went out to look at it. They 'supposed' the old fence (since rebuilt by the parties hereto) on the north side was the north property line of the farm. She admits that plaintiffs have farmed and grazed their livestock up to the fence line in dispute ever since defendant acquired the farm in 1940.

In support of her contention that plaintiffs made no submissible case of title to the 3.65 acre tract by adverse possession, defendant cites some eleven cases, typical of which are: Bell v. Barrett, Mo., 76 S.W.2d 394, 396; Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72, 75; Grimes v. Armstrong, Mo., 304 S.W.2d 793, 799; Krumm v. Streiler, Mo., 313 S.W.2d 680, 686; Conran v. Girvin, Mo., 341 S.W.2d 75, 90; Carlisle v. Keeling, Mo., 347 S.W.2d 191, 194. We have no complaint with the law announced in any of them. All of them declare that title by adverse possession is to be adjudged only when each and every element of adverse possession, to wit: the possession must be (1) hostile, that is, under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, is clearly shown by substantial evidence to have existed for the statutory period of ten years. Section 516.010 RSMo 1959, V.A.M.S.

As we view the evidence, the admissions made by defendant established beyond question that plaintiffs' possession of the strip of 3.65 acres lying south of the the true line between the farms and north of the fence enclosing the south side of that strip has been actual, open and notorious, exclusive, and continuous from January 2, 1940, the date on which defendant acquired title to her farm. Prior to that date both Mr. and Mrs. Pauly saw that fence and 'supposed' that it was the division line between their farm and the farm on the north. Necessarily, they thereby understood that the land to the north of that...