Black v. Simpson

• Decision Date: 10 November 1999
• Citation: 4 S.W.3d 175
• Parties: (Mo.App. S.D. 1999) Janet D. Black, Appellant, v. Alan W. Simpson and Anita D. Simpson, Respondents. 22781
• Court: Missouri Court of Appeals

4 S.W.3d 175 (Mo.App. S.D. 1999)

Janet D. Black, Appellant, v. Alan W. Simpson and Anita D. Simpson, Respondents.

22781

Missouri Court of Appeals Southern District

11/10/99

Appeal From: Circuit Court of Ripley County, Hon. W. Robert Cope

Counsel for Appellant: Christina L. Kime

Counsel for Respondent: Monte C. Phillips and Paul E. Oesterreicher

Opinion Summary: None

Parrish and Shrum, JJ., concur.

John C. Crow, Presiding Judge

This lawsuit between adjoining landowners began when Appellant, claiming record ownership of a strip of land occupied by Respondents, sued them in ejectment and for other relief.

Respondents counterclaimed to quiet title in themselves by adverse possession to a rectangular strip with an east/west dimension of 73.3 feet and a north/south dimension of 20 feet. That parcel is henceforth referred to as "The Disputed Strip."

The trial court, hearing the case without a jury, entered judgment which, inter alia, awarded Respondents ownership of part of The Disputed Strip. The part awarded Respondents is a rectangular strip with an east/west dimension of 42.3 feet and a north/south dimension of 13 feet. It is henceforth referred to as "The Awarded Strip."

The southwest corner of The Awarded Strip is the southwest corner of The Disputed Strip. That corner is also the southwest corner of the tract to which Appellant claims record ownership.

The judgment declared Appellant owner of the part of The Disputed Strip lying outside The Awarded Strip.¹

Appellant brings this appeal, maintaining the trial court erred in: (1) awarding Respondents The Awarded Strip, and (2) refusing to grant Appellant damages for waste, rents and profits from Respondents' occupancy of Appellant's land.

At trial, Appellant identified Plaintiff's Exhibit 1 as the deed by which she acquired ownership of The Disputed Strip and other land. Exhibit 1 is a general warranty deed executed August 22, 1975, by Joan Doherty. It conveys to Appellant an "undivided one-half interest" in land encompassing The Disputed Strip (and, a fortiori, The Awarded Strip). Exhibit 1 recites it was filed for record with the Recorder on August 26, 1975.

The record does not reveal how Appellant acquired the other half-interest in The Disputed Strip (if she indeed acquired it). However, Respondents did not claim ownership of The Disputed Strip on any theory other than adverse possession.

Consequently, because (1) a party claiming ownership of land in a quiet title action must prevail on the strength of his own title and not on any weakness in his adversary's title, Ollison v. Village of Climax Springs, 916 S.W.2d 198, 203[7] (Mo. banc 1996), (2) Appellant is record owner of at least an undivided one-half interest in The Disputed Strip, and (3) Respondents claimed no record ownership of The Disputed Strip, the trial court could properly declare Respondents owners of The Awarded Strip only if Respondents established ownership by adverse possession.²

Appellant's first point avers Respondents failed to prove ownership of The Awarded Strip by adverse possession in that neither Respondents nor their predecessors in title had actual, open and notorious possession of The Awarded Strip for a continuous period of ten years. Appellant argues that Respondents acquired their property less than ten years before Appellant filed suit, and Respondents "failed to prove adverse possession by their predecessors in title for the requisite time period."

This court's review is governed by Rule 73.01(c), Missouri Rules of Civil Procedure (1999). In Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the Supreme Court of Missouri construed the predecessor of Rule 73.01(c) to mean that the judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32[1].

In applying the above standard, an appellate court defers to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the judgment and disregarding all contrary evidence and inferences. Mehra v. Mehra, 819 S.W.2d 351, 353[2] (Mo. banc 1991). That is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of any witness's testimony. Herbert v. Harl, 757 S.W.2d 585, 587[1] (Mo. banc 1988).

Evidence favorable to the judgment showed Respondents own a rectangular parcel of land, henceforth referred to as "Respondents' Tract." The distance from the northwest corner to the northeast corner of Respondents' Tract is 73.3 feet. That side of Respondents' Tract (its north boundary) abuts the south boundary of Appellant's land described in Exhibit 1.

A house sits on Respondents' Tract. Respondents occupy it.

At trial, Plaintiff's Exhibit 2, a plat of an April 1996 survey, was received in evidence by stipulation as "a fair and accurate portrayal of the real estate." According to Exhibit 2, the north side of Respondents' house sits on the north boundary of Respondents' Tract.³

The Awarded Strip lies immediately north of, and adjacent to, Respondents' house (and thus immediately north of, and adjacent to, Respondents' Tract). As reported in the third paragraph of this opinion, The Awarded Strip is 42.3 feet east/west by 13 feet north/south.

The Awarded Strip is shown on Exhibit 2 as a 13-foot-wide driveway, the east portion of which is covered by a "Car Port." The west end of the driveway appears to enter Hope Street.⁴ The east end of the driveway appears to abut a small shed. As this court comprehends Exhibit 2, the southwest corner of the shed is within a few feet of the northeast corner of Respondents' house. The Awarded Strip apparently includes the area occupied by the shed, as the east end of The Awarded Strip appears to coincide with the east side of the shed.

To establish ownership of a parcel of land by adverse possession, a claimant must prove by a preponderance of the evidence that his possession of the land 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. Flowers v. Roberts, 979 S.W.2d 465, 469[1] (Mo.App. E.D. 1998); Conduff v. Stone, 968 S.W.2d 200, 203[3] (Mo.App. S.D. 1998).

Appellant commenced this suit August 8, 1997.

The theory of Appellant's first point is set forth in the following segment of argument in her brief:

"In this case, assuming that Respondents satisfied the first four elements of adverse possession during the time they possessed the property, that, by itself, is insufficient to entitle them to the relief they request. The record indicates that the earliest date Respondents possessed [The Awarded Strip] was November or December of 1987. Since the ejectment action was filed by Appellant on August 8, 1997, Respondents cannot be entitled to ownership by adverse possession based only upon their own actions. They fall short of the requirement of ten years of continuous possession and, as noted by the Court in Flowers, `ten years means ten years.'"

Each Respondent testified as to when Respondents took possession of The Awarded Strip.

Alan⁵ avowed he and Anita arranged to buy Respondents' Tract in November 1987. However, explained Alan: "[There was] a delay on doing the improvements that FmHA was doing on the house. We moved in in November, but we didn't close until May . . . '88[.]"

Asked whether the house had a driveway when he looked at it in 1987, Alan replied: "[T]here was an old antiquated culvert that was half smashed and a little rough[.]" Alan's testimony continued:

"Q. When you bought the house from FmHA was it, did they give you the money to do, to concrete the driveway?

A. It was alldone [sic] before we moved in, before we bought the house. FmHA did it. . . . FmHA put the new culvert in.

. . . .

Q. So, when you moved in in November or December 1987 the concrete driveway was in place?

A. Yes, ma'am, it was.

Q. Okay. And you subsequently put the shed on the concrete?

A. Yes, ma'am, I did."

Alan added that he began building the "Car Port" sometime after Respondents moved in, but never completed it because of the expense.

Anita testified Respondents first looked at the house "[s]ometime in October '87." Then, this:

"Q. And was there a concrete driveway there when you looked first at the house?

A. No.

Q. Then when did you move in the house?

A. December 11th, '87.

Q. Was the concrete driveway there when you moved in?

A. Yes.

Q. And it's your understanding that FmHA had the driveway poured?

A. Yes.

Q. And when Alan constructed the shed did he construct it on top of the concrete that FmHA had poured prior to you moving in?

A. Yes."

Respondents' testimony was the evidence most favorable to them on the issue of when they took possession of The Awarded Strip. At best, that testimony established they took possession no earlier than sometime in November 1987. Consequently, they had not been in possession ten years when Appellant filed this suit August 8, 1997.

It is thus evident Respondents could establish ownership of The Awarded Strip by adverse possession only if (1) their predecessors in ownership of Respondents' Tract occupied The Awarded Strip, (2) Respondents were allowed to "tack" their predecessors' possession onto Respondents' possession,⁶ and (3) the combined possession continued uninterrupted for ten years prior to commencement of this suit.

Assuming -- without deciding -- that "FmHA" satisfied the first four elements of adverse possession (listed earlier) when it concreted the driveway, such possession, coupled with Respondents' possession, still would not total ten years because, at best, the paving occurred no earlier than sometime in October 1987.

There was no evidence that "FmHA" occupied The Awarded Strip before concreting...